Moving out of Sydney after Separation

For several years, Sydneysiders have been abandoning the city to move to regional areas, as well as other cities.

While the harbour and beaches are beautiful, many have opted to leave Sydney in favour of cheaper housing and attempts to reduce long commutes and improve poor work-life balance.

More recently COVID-19 and the associated Sydney lockdowns have shaken up workplaces and more Australians are working from home than ever before.  For many, COVID-19 lockdowns have proved that they can successfully manage their careers remotely, without the requirement of heading into an office each day. If you or your former partner are considering leaving Sydney and having children, you may be asking yourself what is the best way to relocate with your child? Or you may be facing a relocation application by your former spouse and need to understand the process involved.

In making a decision in respect of parenting arrangements, including the determination of relocation applications, the Court takes into account the primary considerations as set out in section 60CC of the Family Law Act 1975 (Cth) as to what is in the best interests of the child.

In determining what is in the child’s best interest the Court must take into account the following primary considerations in accordance with section 60CC of the Family Law Act:

  1. The benefit to the child of having a meaningful relationship with both parents; and
  1. The need to protect the child from physical or psychological harm and from being subjected to, or exposed to, abuse, neglect or family violence.

When making a parenting order in relation to a child, the Court must apply the presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility i.e., to be jointly responsible for making decisions in respect of major long-term issues in relation to the children. We note, however, that the presumption of equal shared parental responsibility does not apply in circumstances where family violence has occurred and maybe rebutted if it can be demonstrated that it is not in the child’s best interests.

Further, pursuant to section 65DAA of the Family Law Act, if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the Court must:

  1. Consider whether the child spending equal time with each of the parents would be in the best interests of the child;
  2. Consider whether the child spending equal time with each of the parents is reasonably practicable; and
  3. If it is, consider making an order to provide (or include a provision in the order) for the child to spend equal time with each of the parents.

If an equal time arrangement is not in the child’s best interests or reasonably practicable, the Court must consider a substantial and significant time arrangement (i.e., an arrangement that include time on weekdays, weekends, holidays and special occasions), and failing this, another arrangement.

In considering whether a parenting arrangement is reasonably practicable, the Court must have regard to: (i) how far the parents live from each other; (ii) their current and future capacities to implement and communicate with one another regarding an arrangement; (iii) the impact the arrangement would have on the child; and (iv) any other relevant matter.

The requirement that a parenting arrangement is reasonably practicable is often a significant issue in relocation applications – consider, for example, how a parenting arrangement requiring the children to spend time with a parent on both weekdays and weekends might be implemented in circumstances where one parent lives in Sydney and the other in Newcastle. These difficulties might be overcome in circumstances where there is a significant degree of trust and co-parenting or where “make-up” time can be agreed upon between the parents, for example, the additional time during school holidays.

So, how does the above relate to a relocation application?

Firstly, no section of the Family Law Act specifically sets out the law in respect of the issue of relocation. Rather, each relocation case is considered in the context of the best interests of the children and whether the proposed arrangement would be reasonably practicable.

In the case of A v A: Relocation Approach (2000) FLC 93-035, the Full Court of the Family Court set out an approach to be used as a guide in determining parenting cases involving relocation. When considering parenting orders in the context of a relocation application by one parent, the case of A v A stands as authority for the following:

  1. That the issues of relocation and the best interests of the child must be considered as interdependent matters;
  1. A persuasive argument in support of or against, the proposed relocation does not need to be set out;
  1. The interests of both the relocating parent and the non-relocating parent must be evaluated in the context of the best interests of the child;
  1. The Court is not obliged to disregard the legitimate interests of the parents. However, where there is a conflict between the legitimate interest of the child’s parents, the paramount consideration of the child’s best interest interests must be given priority; and
  1. The parent seeking to vary the present arrangements and ultimately change the child’s place of residence bears the onus of satisfying the Court that the relocation is in the child’s best interests.

Also read: 8 things you should know when separating

Other considerations that the Court will take into account when determining a relocation application account include:

  1. Whether a meaningful relationship between the child and the non-relocating parent could be maintained despite the reduced time with the non-relocating parent. Also relevant to this consideration are the child’s age and the relocating parent’s willingness to facilitate a relationship;
  1. The benefit to the child having a meaningful relationship with both parents;
  1. The need to protect the child from physical or psychological harm and from being subject or exposed to abuse, neglect or family violence;
  1. Any views expressed by the child;
  1. The nature of the relationship the child has with each parent and others;
  1. The extent to which each parent has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues, spending time, communicating with and maintaining the child;
  1. The likely effect of the proposed move on the child;
  1. Whether the practical difficulty and expense of the child spending time with the other parent will substantially affect the child’s right to maintain personal relations and contact with both parents on a regular basis. For example, if the child is an infant, telephone contact is difficult meaning that communication with the other parent is limited; and
  1. Whether an order which is sought would be least likely to lead to further court proceedings being initiated by the other party.

 FAQS – here are some of the questions that we are asked frequently:

  1. Can I move overseas or interstate with my child without the permission of their father/mother?
  1. What if I can’t afford to stay in Sydney but my partner is refusing to agree to me relocating?
  1. Will my partner be successful in relocating with my child?

If you are considering relocating or your partner is attempting to relocate with your child or you have pondered any of the above questions, we can help you determine how best to approach your particular situation with confidence.

At Doolan Wagner Family Lawyers we are specialised in the resolution of complex family law matters. We are conveniently located in St Leonards on Sydney’s Northshore within easy walking distance of the train station. If you have recently separated or had a Family Law enquiry, you can contact us on (02) 9437 0010 or send us an email to enquiries@familylawyersdw.com.au to discuss your matter in complete confidence.

 About the Authors:

Lisa Wagner is Managing Director and Principal of Doolan Wagner Family Lawyers. Lisa is an Accredited Family Law specialist, a Collaboratively trained Family Lawyer and a nationally registered Family Dispute Resolution Practitioner. Lisa has close to 30 years experience as a specialist family lawyer, experienced litigator and skilful negotiator in all family law matters.

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Oliver Lacey is a Senior Family Lawyer at Doolan Wagner Family Lawyers. Currently undertaking a Masters in Applied Law (Family Law), Oliver has a special interest in complex parenting and property matters, with significant experience in protracted disputes.

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 Disclaimer:

These posts are only intended as an overview or comment on current issues that may interest you and are not legal advice. If there are any matters that you would like us to advise you on, then please contact us.

 

 

 

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