Relocation and Recovery Orders

It is common that after separation, one party may wish to move from their current location to either return to their hometown, or to move elsewhere to start afresh.

Unless you have the prior written consent of the other parent, it is not advisable to move without the consent of the other parent of your children, or what is commonly referred to in the family law jurisdiction as ‘unilateral relocation’.

My former partner has moved from Canberra with our kids, what should I do?

It is important to obtain advice from a family lawyer as soon as possible if you are concerned that your children have, or will be removed from their current residence without your consent.

In order to prevent your children from being removed from their town or city, or to seek their return, you need to make an urgent application to the Federal Circuit Court of Australia, seeking a recovery order.

Any delay associated with taking Court action could be considered by the Court as ‘acquiescence’, meaning that your failure to act quickly to have the children returned is taken as your implied consent to the children being unilaterally relocating with your children.

My former partner won't agree to let me move with the kids, what should I do?

If you are serious about moving to another town, city, state or country, you need one of the following to ensure that your movement is not restricted:

  1. An Order from the Federal Circuit Court of Australia or the Family Court of Australia allowing you to relocate with the children; or
  2. The prior written consent of the other parent allowing you to relocate with the children. It is preferable that this consent is reflected into Consent Orders from the Court, as this Order would be enforceable.

If the other parent will not agree, you need to commence Court proceedings to obtain permission from the Court to relocate with your children.

What does the Court consider when determining a relocation case?

The most important consideration in any parenting matter will always be the best interests of the child.

There are a number of considerations outlined in Section 60CC the Family Law Act 1975 are used by the Court to come to a conclusion about the best interests of the child or children in a parenting matter. The same considerations apply for relocation cases, including the primary considerations of:

  • The right of the child to have a meaningful relationship with both of their parents;
  • The need to protect the child from any physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

And the additional considerations, which include:

  • The views of the child;
  • The nature of the child’s relationship with their parents;
  • The impact upon any change in the child’s circumstances;
  • The capacity of each parent to provide for the child’s emotional and intellectual needs;
  • Any other matters the Court considers relevant.

To obtain advice from a family law about relocation or recovery orders, we invite you to contact our office on (02) 6225 7040 or [email protected].