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Relocation After Separation

With an ever-increasing global community and increased ease of movement between states and countries, it is common for one parent to seek to relocate either interstate or overseas following the separation from their partner. This is especially the case in circumstances where a parent’s family are located interstate or overseas or if a new job opportunity arises elsewhere.

When a parent is considering a relocation application, the Court must weigh and balance the children’s best interests with the proposed relocating parent’s freedom of movement.

This issue recently arose in Kerson & Blake [2018] FamCAFC 215, whereby a mother successfully appealed an Order which provided that her children were to live with their father if she relocated to the United States.

Facts

In this case, the mother and father and their two children were US citizens who moved to Canberra in July 2012.

The parties separated in 2015, but continued to successfully cooperate in a shared care arrangement for the children.

In July 2017, the mother applied for Orders which would permit her to relocate with the children to the US. She intended to move to the US with or without the children. The father opposed the Application and contended that the children should remain living in Canberra.

The relationship between the parties deteriorated after separation to the point where their communication was conducted in writing only.

The Family Report stated that both parties were ‘loving and committed care givers and, individually, they appear to be motivated and well-intended in regard to the responsibilities of parenthood.’

On 4 May 2018, the Trial Judge ordered that the parties have equal shared parental responsibility and, in the event that the mother relocated from Canberra, that the children live with the father.  

The decision was based on the Trial Judge’s opinion that the father was likely to better support the children’s relationship with the mother.

Basis for Appeal

The mother appealed on the basis that the Trial judge erred in finding that the father would better support and facilitate the children’s relationship with the mother compared to her capacity to support and facilitate the children’s relationship with the father.

Outcome

It was held that the Trial Judge placed determinative weight on one occasion when the mother failed to facilitate communication between the children and the father, rather than considering the mother’s evidence as a whole.

The appeal was allowed, and the case remitted for re-hearing.

Relocation

When separated parents want to move interstate or overseas (whether for family support, work, a new relationship or even just a desire for a change of scenery) and the other parent opposes the children’s relocation, the relocating parent must make an Application to the Federal Circuit Court of Australia or Family Court of Australia (if international relocation is proposed) to obtain Final Orders permitting the relocation.

Nicholes Family Lawyers has specialist expertise in helping parents to relocate with their children, or resisting the other parent’s relocation within Australia and overseas.

 

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