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To move or not to move

Now any family lawyer will know well that this can be one of the most hard fought areas of family law and one of the trickiest to advise on.  The desire for one parent to move after separation can raise so many questions and sometimes even more hurdles so that it may seem out of reach but remember, there is always more than one way to skin a cat. 

It is often said that changing jobs, moving house and the loss of a loved one are the three most stressful life events we can experience. And so when you think of your Divorce there is a strong chance you are experiencing at least two of these events at once! Divorce will mean loss- both of a loved one and often of life as we have come to know it. Divorce also brings with it change- it may mean a new home, sometimes a new job and sometimes even a move far away. And that potential ‘move far away’ can cause significant legal challenges for any separating couple.

So can I move?

A move to a new place is often a great idea after a divorce- a fresh start might be just what is needed to enable you to move forward and put the past behind you. As an Australian adult you are free to live where you choose (our Constitution tells us so!) but the challenge arises when you plan on taking your kids (which of course most parents would want to do).

What if I want to take the kids?

You are free to take the children- as long as the other parent agrees.   I have met many parents in my role as a family lawyer who have together worked through moves interstate and sometimes even overseas. They have been able to sit and talk about how they will juggle their time with their children to ensure that they are both still involved. This requires maturity, flexibility and a large amount of good faith and I appreciate that not everyone is able to do this at the end of a relationship.

Where the problem often arises is when parents cannot agree- one wants to move such a distance that it would make arrangements for the other parent’s time really difficult and it is this disagreement that I have seen end up in long and expensive legal battles.

But how far is too far?

Sometimes, even when the other parent does not agree, a move may still be entirely manageable. The trick here is that there is no rule as such I can point you to that will be the legal standard as such- there is no book that says it must be less than 20km or no more than a 1 hours’ drive (if only there was it would make all our lives a lot easier!) It comes back to considering what effect your move will have on your children- often if it means a change of school that will be enough to mean it is ‘too far’ without having an agreement between parents.

What if he doesn’t agree?

If you as parents cannot agree about where the children live, you may find that you need to bring an Application in the Family Law Courts to have a Judge make this decision for you. These sorts of cases are commonly called ‘Relocation’ cases. When it comes to the determination the Court has to make, a Judge will be looking at what is ultimately in the ‘best interests’ of your children. The phrase ‘best interests’ gets tossed around a lot after separation. In a legal sense though you need to pull out s60CC of the Family Law Act 1975 (Cth) (Google it and you will find it!) which lists all of the things a Judge must consider when making a decision about whether your children can or can’t move with you.

The difficulty with any Court process is that it can be financially and emotionally costly for your whole family and there is a high level of uncertainty about the outcome. I would also strongly suggest you consider all alternatives before bringing an application in the Courts.

What other options are there?

Don’t ever forget that there are many ways to skin a cat! I love this saying (even though it is a tad macabre) and I use it almost every day in my work. If you and your partner have reached a stale mate, one of you wants to move and the other doesn’t agree, it is a great time to consider different ways that you can ‘skin that cat’.

So how do you do this?

Well you have to open your mind to the other solutions that may exist to this problem and you will need to be ready to compromise. So I do it by writing a good old list! Grab a piece of paper write down the numbers 1-10 and start creating 10 different ways you could solve this problem.

So let me give you an example!

Let’s say you are living in Brisbane, you want to move to Sydney, your family is in Sydney, you grew up there- you are only living in Brisbane because of your former husband’s career and now that the marriage is over you want to move back to Sydney where you feel your life is. Your kids are 13 and 15- both in High School, pretty settled but they have said that they are happy to move back to Sydney with you too. The catch is your husband does not agree. He loves Brisbane. He works long hours here and enjoys his time with the kids- he has them for dinner during the week and most weekends and is heavily involved with your son’s sport. He sees that the move to Sydney will mean that he cannot enjoy his time with the kids- they, and he, will miss out.

So here comes our list- what are the 10 ways we could solve this problem-

  1. So you move to Sydney (the obvious one!)
  2. You stay in Brisbane (your least preferred one!)
  3. You all move to Sydney (he comes too!)
  4. You move to Sydney and the kids stay in Brisbane (clearly not your favourite either!)
  5. You stay in Brisbane but travel to Sydney every month for a week to see your family (could be ok?)
  6. You stay in Brisbane until the kids are finished High School and then move to Sydney (could work)
  7. You move somewhere else! (Perhaps the Gold coast or Sunshine Coast- it is not Sydney or Brisbane but is still a fresh start.)
  8. You talk to your husband about a move to Sydney in a year’s time- when he has had a chance to find a new job in that area
  9. You live in Sydney and Brisbane (I appreciate this may not be affordable!)
  10. You stay in Brisbane but go on an overseas holiday each year with your best friend (noting that you are saving the $50,000 you were going to spend on legal fees to have the argument)

Now I appreciate my list may seem a little farcical at times but I really encourage you to do this. Only the other week I was acting for a young child in the Family Court. His parents were living 5 hours apart and he had been living week about between them- each Monday he was travelling 5 hours to change homes. He was about to start school so something had to change but the parents could not agree who he should live with. So what did we do? Well I asked them both if they would be willing to move- if they as parents could each move to be much closer to each other then their son could continue living for a week at a time with each of them. And you know what- that is what they agreed- they as parents are both moving so that their son can have the benefit of both of them in their lives.

Remember that your divorce will not go on forever. Your kids will grow up and lead their own lives and you will be free again to move with the wind. Perhaps the greatest challenge for any parent is the constant requirement to put our own needs second to our children’s needs. Where you have two loving and caring parents research consistently shows that children benefit greatly from having them both significantly involved in their lives. This is possible even with distance, it just takes courage, creativity and sometimes a well skinned cat!

Written by Clarissa Rayward as published in Lift Magazine, Issue 3 2015.

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Brisbane Family Law Centre is a multidisciplinary legal practice offering a holistic service to clients experiencing divorce and separation.  Although the word “Brisbane” appears in our firm’s name, we are increasingly finding that our client base is not limited to that geographic area. In fact, we are servicing clients from all over Queensland, Australia and even overseas!
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