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Can my ex take my child from me?

Can my ex take my child from me?

By Jarred Johnston, Lawyer, Family Law

Relocation cases in Australia, where one parent seeks to move a child away from the other parent, are difficult to resolve. These cases become even more problematic when it is perceived by the non-relocating parent that the relocation is motivated by vengeance, bitterness, anger or simply to ‘get back’ at the non-relocating parent.

Some important questions to ask are:

  • Will the relocation be intrastate, interstate or international/overseas?
  • What is the reason for the parent seeking to relocate?
  • How old is the child?
  • What are the needs of the child?
  • Is there a possibility for both parents to relocate?

The relocating parent may have the best intention to relocate with the child because of some important factor such as: financial improvement, greater professional opportunities, career advancement, improved lifestyle, stronger family support base and re-partnering or future marriage.  However, these intentions albeit justifiable and reasonable would need to be weighed up against competing interests of the other parent who seeks to stop the move.  It is for the court to decide the outcome even if the interests of the parents are evenly balanced by ensuring that the overarching principle of the best interest of the child is met.

Accordingly, the stakes may be very high for each parent, as either:

  • the parent seeking to relocate with the child may have their freedom of movement restricted by the court; or
  • the parent seeking to prevent the other parent from relocating with the child may have their relationship with the child substantially changed by the child moving away.

Which parent’s interests are more important?

In short and very general, neither.

The child’s best interests are the paramount consideration, which includes the child’s “right” to maintain a relationship with both parents.

While the interests and desires of the parent seeking to relocate with the child will not be ignored, the child’s best interests must be weighed up and balanced against the “right” to freedom of movement of the parent seeking to relocate with the child.

An Australian court cannot prevent a parent from relocating, but a court can prevent parents with whom the child predominantly lives with from automatically taking the child with them.

The court will consider the proposals presented by the parties and may formulate alternative proposals in the child’s best interests. It may be that the court considers whether the party who opposes the proposed relocation could not, himself or herself, move to a place which is close (or closer) to where the child will be living if the relocation goes ahead.

If you are thinking of moving or you are caught up in this situation, please contact our Family Law Team at CS Legal on (08) 9476 4499 or via our CONTACT US form.

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