Can I take my child/children and move when I want to separate? Can I be forced to return the child/children?

16/07/2014

Generally the children to the relationship whether it be marriage or a de facto relationship have a right to spend time with each of their parents.

If one party moves or attempts to take the child/children with them then this will necessarily cause inconvenience and disruption to the child/children’s time that they spend with the other parent. Usually the Court will not make an order that the child/children be allowed to relocate which would have the affect that the child/children will not see one of their parents. Each case is dealt with on its own merits and there are many matters to be taken into consideration and what is in the best interest of the child/children is paramount. What one parent thinks is in the best interests of the child/children may not necessarily be determined by a Court to be in the best interests of the child/children when objectively reviewed by appropriate evidence before the Court.

Relocation of a child/children is a difficult issue for the Courts. Before the Court makes a decision the Court may order a Family Consultant (who may be a psychologist or social worker) to report to the Court on the child/children’s attachment to one party and the other party and the views of the child/children.

If the child/children is assessed to be sufficiently mature and understands the ramifications of the move then the Court will give weight to the child/children’s views.

If the child/children has been alienated from one party and the child/children’s views influenced by the father or mother then this will be taken into account when the Court is deciding how much weight to give the child/children’s views.

The older the child is the more likely that the child will have a say in where he or she wishes to live and with whom.

For example, if the child is 16 years of age and the child says that the father wishes to move interstate and the child wishes to go with the father can the mother obtain an order preventing the 16 year old moving interstate?

The views of the 16 year old child would be usually given more weight than a younger child. Courts are aware that that children aged 16 years of age will often “vote with their feet” so that no matter what Order a Court makes a 16 year old will make his/her own decision on where they live.

Watson & Watson’s lawyers are experienced in parenting issues, including drafting parenting plans and consent orders, which avoid any costly litigation. However, if there is no agreement and mediation attempts have failed, then our lawyers can assist parents in commencing or responding to proceedings relating to their children.

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