In Australia, relocation & family law are closely tied, with relocation orders falling under the Family Law Act, and the court will consider a range of factors when deciding whether to grant the order. These factors include the best interests of the child, maintaining a meaningful relationship between the child and each parent, the reason for the move, and the practicalities of the move.
Relocation orders can be a contentious issue, and it is important that both parents seek legal advice before making any decisions or filing applications with the family court. If you are considering relocating with your child, it is essential that you obtain a court order allowing the relocation, known as a “relocation order.” If you relocate without the consent of the other parent or a court order, a court may require you to return with the child until the case has reached an outcome.
Relocation & Family Law: What is a Relocation Order?
A relocation order is a legal order pertaining to a child’s living arrangements that allows or prevents a child and a parent from moving away from the other parent, whether that is to another city, state, or country. It is a complex issue that arises when one parent wants to move with their child, but the other parent objects to the move. The purpose of relocation orders is to ensure that the best interests of the child are protected while balancing the rights of both parents.
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Legislation Governing Relocation Orders
Relocation orders are outlined in the Family Law Act of 1975. The act provides that a court may make an order that a child live with a parent or another person, spend time with a parent or another person, or communicate with a parent or another person. The court must consider the best interests of the child when making these orders.
The Family Law Act also provides that a court may make an order that a child not be removed from Australia without the consent of all parties or the court’s permission. The court may also make an order that a person who has removed a child from Australia return the child to Australia.
Interpretation of Relocation Laws
When interpreting relocation laws, the court considers various factors such as the child’s relationship with each parent, the child’s age, the child’s wishes, the reasons for the proposed relocation, issues relating to family violence, access to family support, and the impact of the relocation on the child’s relationship with each parent. The court also considers the practicalities of the proposed relocation, such as the child’s schooling and medical needs.
In making a relocation order, the court may impose conditions such as requiring the relocating parent to pay for travel costs for the child to spend time with the other parent. The court may also require the relocating parent to provide security for the child’s return to Australia.
Types of Relocation Orders
Relocation orders are issued by the court to determine whether a parent can relocate with their child to a new location. In New South Wales, there are two types of relocation orders: interim or final. Some interim orders permitting relocation may be determined on an urgent basis, if the need arises.
Interim Relocation Orders
Interim relocation orders are issued when a parent wants to relocate with their child before a final decision is made. These orders are usually issued when a parent needs to move for work or personal reasons.
If there is urgency behind the proposed relocation on an interim basis, the Court may deal with the matter by ordering an earlier, ‘urgent’ interim hearing date. Urgency may arise in circumstances where a child is in danger or at risk of harm.
Final Relocation Orders
Final relocation orders are issued when a parent wants to relocate with their child to a new location permanently. These orders are usually issued when a parent wants to move to a new city, state, or country.
How to Apply for a Relocation Order?
When a parent wishes to relocate with their child or children, they must first apply for a relocation order with the family law courts.
Filing a Relocation Order
To apply for a relocation order, the parent wishing to relocate must file an application with the family law courts. The application should include details such as the proposed relocation destination, the reason for the relocation, and the proposed living arrangements for the child or children.
Service of Process
Once the application has been filed, it must be served on the other parent or any other person who has parental responsibility for the child or children. Service of process can be done through a variety of methods, including personal service, registered post, or email.
Before a relocation order can be granted, the parties must attempt to resolve any disputes through alternative dispute resolution (ADR) methods such as mediation, unless the parties have been granted an exemption from attending ADR. If the parties are unable to reach an agreement, the matter will proceed to a court hearing.
Court Hearings and Evidence
At the court hearing, both parties will have the opportunity to present evidence and argue their case. The court will consider a range of factors when deciding whether to grant a relocation order, including the best interests of the child or children, the impact of the relocation on the child or children’s relationship with the other parent, and the practicalities of the proposed relocation.
Rights and Responsibilities in Relocation Cases
When it comes to relocation cases, both parties involved have certain rights and responsibilities. Understanding these obligations is crucial to ensure a fair and just outcome for all involved.
Obligations of the Relocating Party
The relocating party has a responsibility to provide adequate notice to the other party and the court. This notice should include the proposed relocation date, the new address, and the reasons for the relocation. The relocating party should also provide a proposed parenting plan that outlines how the child’s relationship with the non-relocating parent will be maintained.
The relocating party must also demonstrate that the proposed relocation is in the best interests of the child. This includes considering factors such as the child’s relationship with each parent, the child’s education, and the child’s social and emotional well-being.
Rights of the Affected Individuals
The non-relocating parent has the right to object to the proposed relocation. If the non-relocating parent objects, the court will consider whether the proposed relocation is in the best interests of the child. The non-relocating parent also has the right to propose a new parenting plan that outlines how the child’s relationship with both parents will be maintained.
The child also has certain rights in relocation cases. The child has the right to maintain a relationship with both parents, and the proposed relocation should not interfere with this.
Enforcement and Compliance
When a parent or caregiver relocates with a child without the consent of the other parent, a relocation order may be necessary. Once the order is made, it is important to comply with the terms of the order. Non-compliance with a relocation order can lead to serious consequences.
Penalties for Non-Compliance
Non-compliance with a relocation order can lead to serious penalties. The court has the power to enforce the order and can take steps to ensure that the order is followed. Some of the penalties for non-compliance include:
- Community service
- Suspension of driver’s licence
- Seizure of passport
It is important to note that the court takes non-compliance with a relocation order very seriously. If a parent or caregiver is found to be in non-compliance with the order, they may be subject to penalties.
Work with Experienced Family Lawyers
The team at Burke Mead Lawyers are experts in relocation & family law, including relocation orders, parenting arrangements and parenting orders. Our legal team can assist you throughout this process to protect your legal rights and help achieve the best outcomes for your family – contact Burke Mead Lawyers today.
About the Author
Emma Mead is an Accredited Specialist in Personal Injury Law, accredited by the Law Society of NSW. She is also a National Accreditor Mediator and has a Graduate Diploma in Family Dispute Resolution. She specialises in all personal injury and family law disputes, locally and across New South Wales.