Relocating with Children – Implications of Moving Away in Family Law Matters

Matters involving relocation are often considered some of the toughest family law disputes for the parties and for judges to decide. The outcome of these cases usually means there is a clear “winner” and “loser.” The process can be lengthy, expensive and carry a significant emotional toll for everyone.

With separation often comes the burden of financial self-reliance. These challenging conditions leave many with no option but to relocate. Here at Voice Lawyers, we have seen a spike in relocation cases as the housing affordability crisis worsens and some single parents find it difficult to afford to live in Sydney. As a result, more and more separated parents are being forced to face the realities of relocation; then, the question, where will the children live?

Sometimes, a mutual agreement can be reached. Unfortunately, this is not always the case. This was the issue for our client Ms “Buttler” and her de facto partner, “Tarrant” (substituted names have been provided to ensure confidentiality). In May 2019, Buttler and Tarrant separated whilst living with their two children in Sydney. Under a mutual agreement, the mother moved to Melbourne with both children. Months later, after spending some time with the children in Sydney, the father refused to give the children back on the arranged date. The mother then successfully filed a recovery order to have the children returned to live in Melbourne.

In 2019, the father began court proceedings to have the children relocate back to Sydney with him and then on to Queensland. In 2022, the Court decided the children were to live with the mother in Melbourne and that it was reasonably practicable for the father to also move to Melbourne.

What does a court consider when looking at relocation?

Whilst the circumstances of relocation cases vary, there are principles set out in the case of Goode & Goode and directly referred to by the judge in Tarrant & Buttler.

Equal Shared Responsibility

The court assumes that both parents should continue to share equal responsibility for the wellbeing of their children. This does not determine how much time the children will spend with each parent; it just specifies who is responsible for them. If there are reasonable grounds to believe that either the parent of the child or someone who lives with the parent has abused the child or has engaged in family violence, the presumption doesn’t apply.

This may seem like a given. However, it stems from Family Law – the fundamental principle that “the best interests of the child [must be] the paramount consideration.” The Court considers whether the child will benefit from having a meaningful relationship with both of their parents, as well as the need to protect the child from suffering physical or psychological harm from abuse, neglect or family violence.

Equal Time

The court considers whether both parents should spend equal time with their child. Whilst this outcome is ideal, it is only possible when it is ‘reasonably practicable’. This means that all parties should be able to reasonably carry out their part of the arrangement.

When equal time is not viable, the judge then considers the prospect of ‘’substantial and significant time” with each parent. This means that the parent is not only included in routine aspects of the child’s life (such as school pick-ups), but also in special occasions and holidays. Time spent with the child must include both “days that fall on weekends and holidays, and days that do not fall on weekends or holidays.”

When neither outcome is appropriate, an alternative one will be reached. The outcome should allow the child to have a meaningful relationship with both parents.

Ultimately, the court’s greatest priority is to ensure that the final arrangement is in the best interests of the child.

Reasonably Practicable

In the case of Tarrant & Buttler, the father insisted that he couldn’t possibly move to Melbourne to enjoy equal time with the children because only Queensland could provide him with a stable job. This was not actually the case. The Court ultimately decided that he had prioritised his own job security over the best interests of his children.

The mother was not financially capable of relocating to Queensland, meaning that equal time in Queensland would not be ‘reasonably practicable.’ If the father were to move there with the children, then she wouldn't be able to visit them regularly. Her relationship with the children would “materially diminish”. Also, the mother’s “flexible working arrangements and strong support network” in Melbourne would provide stability for the children. This was especially important given their son’s special needs. The Court also found that it “would be reasonably practicable for the applicant father to relocate” to Melbourne. The matter was decided after considering the clear benefit of the children spending equal time with each parent and the practical ability for both parents to relocate to Melbourne.

If you would like to read more about the case, click here.

Written by Kayte Lewis

This article is general in nature and is not legal advice. If you need help with a family law matter, Voice Lawyers hear you. Give us a call at 02 9261 1954 or email us at voice@voicelawyers.com or use the link on our website to book a consultation.