We understand that arguments can arise between separated parents when one parent decides to move away from the family home and into a new suburb that might be more inconvenient for the other parent to get to or further from the children’s schools.
If you and your former partner do not have any Court Orders in place that deal with parenting matters, both parents have parental responsibility for the children of the relationship. This means that each parent should consult the other parent in relation to major long term issues regarding the children, and to make a genuine effort to come to a joint decision about those issues.
Major long term issues are defined to include issues about the care, welfare and development of the children of a long term nature, including but not limited to issues about changes to the children’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
The Full Court of the Family Court of Australia recently made a decision which allowed a mother of two young children (3 years old and 1 year old) to live five hours away from the family home she previously lived in with the father. After the parents separated, the mother moved out of the Hunter Valley and moved in with her new partner who was a farmer living in northern New South Wales. The primary judge did not make orders for the mother to return to the area she previously lived in. On appeal, the Full Court upheld the decision of the primary judge and made note of the following key factors:
- The mother was prepared to do all of the travelling associated with the father continuing to spend time with the children on two days per week;
- The mother had always been the children’s primary carer;
- The young age of the children;
- The living arrangements for the children in their new residence;
- The mother and the children had already moved in with the mother’s new partner when the matter was first heard by the Court.
It is most important to note that Justice Kent stated, “…statements of general principle from the authorities do not apply in the abstract or have application independent of the facts of the particular case”. This means that each case must be determined on its own facts.
If you are considering moving to a new suburb with your children, you should contact us to discuss the best way to broach this subject with your former partner. If your former partner says no, we can provide you with advice regarding the likely outcome of the matter should you end up in Court. We also aim to try and have you and your former partner resolve your matter without needing to go to Court.
Caroline Counsel Accredited Family Law Specialist and Alex Finemore Senior Associate.