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NSW De Facto Relationship Separation - Relocation Without Consent?

Discussion in 'Family Law Forum' started by Kristina1976, 26 July 2015.

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  1. Kristina1976

    Kristina1976 Member

    26 July 2015
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    My sister's 5 year de facto relationship has just broken down and her partner moved out back after the separation to his parents, leaving her in an expensive flat with no job and no money. She cannot move to a cheaper flat with no job.

    They ran a business together which she worked in, but he has since corerced her into handing over the business, leaving her jobless and stole all the money out of it, and left her with nothing. He has pretty much set her up to fail and is is claiming he can take his son 100% care and she can see her son at weekends. All of our family are in WA and she desperately wants to come back here but does not want to break the law. She is in a desperate situation left to pay the rent and feed her 2 year old son and medical expenses. Next week she will be in a Women's Refuge if she isn't allowed to return to WA. There are no family court orders, he has just flat out said no to her taking their son.

    We think he has breached his rights to his son by cutting off the finances and not providing for him. He also admitted to an alcohol problem for which he sought counselling and is unable to care for his son on his own without is parents help. Can she go to WA considering her circumstances and file for custody of children or can she at least go on a short 'holiday' to alleviate the stress she is under?

    She has a job offer in WA and is able to be supported by my father where he will also provide a home for his Grandson.
  2. AllForHer

    AllForHer Well-Known Member

    23 July 2014
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    It's never a good idea to relocate without consent of the other party.

    Both parents have equal shared parental responsibility, which gives them both equal say about major long-term decisions regarding the child, including where he lives, and parental responsibility cannot be changed unless by order of the court. The court does not make lightly an order for sole parental responsibility, nor an order for no contact, and none of the reasons you've given are going to persuade the court that the child shouldn't have a meaningful relationship with his father. Only children have any legal rights in family law, and that right is to know, spend time and communicate with both parents on a regular basis, so any right the mother feels the father has forfeited by moving out is non-existent, let alone predominant over the child's rights to spend time with him regularly, which is what the court will seek to uphold.

    If the mother were to relocate without the father's consent, he could file for a recovery order to have the mother and/or child returned to the original location, and would probably have a good chance of success since the court frowns on parents who make such decisions unilaterally. It's likely, in those circumstances, that the father would also file for parenting orders. Such orders would reflect what the court determines is in the child's best interests. At two years of age and given the distance and difficulty the child will have maintaining a relationship with the father, it may be the case that the court won't agree the relocation is in the child's best interests.

    There is a mandatory pre-procedure step that parents must go through before filing for parenting orders, which is attending a family dispute resolution conference to try and reach agreement about care arrangements for the child. I would advise doing this before relocating and risking court proceedings. Family law proceedings are extremely costly and time consuming at an average of $20-30k over two or three years, and while the mother may be eligible for Legal Aid, proceedings are still very emotionally draining and it's better for the child if mum and dad can get along.

    In summary, while she can relocate unilaterally with the child while there are no court orders in place, it is better not to do so without the father's consent.

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