A common question we receive from our clients, especially in cases involving domestic and family violence, is “Am I allowed to move?” This is a very tricky question to answer. We need to consider that the Court is concerned with what is in the best interests of the child and when making a decision about this, the Court is required to balance two primary considerations:
- The benefit to the child of having a meaningful relationship with both parents; and
- The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
Generally speaking, in the absence of Court Orders, either parent is able to move with a child. However, a parent should ensure any move does not impact on the time the other parent is spending with their child. For example, if you were to move interstate and this impacted on the other parent’s time, they are able to file a Recovery Application with the Court. A Recovery Application is almost always heard urgently (within a week or so) and seeks orders for the child to be returned to the area where they were previously living. The Court is able to make an order for the child to be returned to the area and an order restraining either parent from moving the child in the future. The outcome of a Recovery Application depends on the facts of each individual case
In a recent case, a mother who was pregnant, moved away to Queensland from the father in the Northern Territory. This was prior to the child being born and the mother stated she had to move because the father was stalking and harassing her. The mother had 4-year-old child from a previous relationship who moved as well. The mother established herself in Queensland, signed a lease, moved all her possessions and enrolled her 4-year-old in pre-school. Once the baby was born, the father applied to the Court for the mother and the new baby to move back. Initially, the Judge ordered that the mother return with the young baby so that the father could establish a relationship with his son.
The mother appealed the decision and the Court of Appeal overturned the original Judge’s decision. The Court of Appeal said “such an injunction should rarely be made … and can be avoided if the court gives adequate consideration to alternate forms of access to children”. The Court of Appeal also considered the financial burden on the mother of requiring her to return and the impact on her 4-year-old child who was already enrolled in school. This decision highlights the importance of considering the individual facts of each case and not applying a blanket rule.
Be mindful that in circumstances where there are Court Orders in place, if you were to relocate with your child and this impacted on the other parent’s time, you would be in breach of Court Orders. The other parent is then able to file a Contravention Application and unless you have a reasonable excuse for breaching the Court Orders, you may be penalised.
Monique Allan is a solicitor at East Coast Family Lawyers, practicing exclusively in family law. If you would like advice on relocating with your child or family law matters in general, please contact Monique on (02) 4322 0251 to arrange a consultation.