WA Moving interstate after separation

[Belcat81]

My husband moved out nearly 6 months ago leaving me with our two children aged 3.5 months and 2.5yrs (at the time). During the last 6 months all of the parenting responsibility was mine and the children stayed with me. Their dad still saw them but was not involved in their day-to-day care. Given I have been on maternity leave he was still financially supporting us. I attempted to discuss a parenting arrangement to share the load but there has been an unwillingness to discuss. At best he would like it to be ad hoc and when convenient for him. He is also a shift worker.

With separation I would like to move interstate with the kids to be close to my family and have a support network. I have no family support nearby although their dad's family is around.

Given his shift work, at best it is possible for him to see the kids 3 days in 10 and my son is still breastfed so visits need to work around feeds.

Their dad is also living in a very small 1 bedroom loft unit that isn't appropriate for children to stay (there is a cast iron spiral staircase to get upstairs to the bedroom area and he would need to sleep all of them in the space). He refuses to move to a more appropriate location.

We will never reach an agreement for me to move away.

How likely would it be for the kids to be allowed to live with me and for me to move interstate? Is my need for support considered? Would the court consider he just left me and the kids for 6 months and hasn't participated in the parenting responsibility? Is the young age of my children considered in their ability to truly bond with me (especially my now 9 month old son who is still breastfed). I know without a mutual agreement it would need to go to court. How long would something like this take to be heard and then decided on? Any advice would be appreciated.

 

[Belcat81]

Sorry I should also add that his move out of the family home was not mutually agreed and he has been unwilling to try resolve issues.

 

[sammy01]

look you have a few things going for you... Have you done mediation?

Relocation cases are hard to pick. It would not be advisable for anyone on a site like this to advise you about how likely you are to succeed.

And yep, you're right, if he wont agree then court is likely... The other option is to move without his consent and hope he doesn't take you to court to make your return. But this is a pretty dangerous way of approaching this.

 

[AllForHer]

Why would the Court consider your need for support from you family more important than your kids' need for support from theirs?

Why would their young age be considered in their need to bond with you, but not dad?

Contrary to wildly popular social opinion, the Court doesn't favour mothers, even less so when they can't see the irony in trying to say dad is uninvolved, despite raising one of their two kids directly for 3.5 years before a comparatively brief separation of six months, and continues to see and support his kids on a regular basis. Does that really sound like an uninvolved parent to you?

You need to understand that the Court doesn't care about you, your feelings or your needs. It cares about what's best for your kids. Under s 60CC of the Family Law Act, the primary consideration on what's best for your kids, in the absence of any risk, is the benefit to the children of having a meaningful relationship with both parents.

In short, the Court isn't going to accept that dad isn't involved when he obviously is, so it's going to ask how the kids are going to have a meaningful relationship with their father if you are allowed to move them interstate.

You are completely right about their ages being important to their capacity to bond, but you are the primary carer and get plenty of one-on-one time with them already, so it'll be their capacity to bond with dad that will be under the spotlight, not their capacity to bond with you. What are you going to propose to the Court as suitable care arrangements for the kids so they can still enjoy a meaningful relationship with both parents, despite living in another state to one of them?

They're 4 years, and 9 months old, so they can't travel alone to see dad, and since it's your decision to move, the Court is probably going to expect you to pay for travel costs if they were to fly with an adult. They're really too young to engage properly in phone calls. Holiday time four times a year is not going to be good enough for such young kids. On top of that, it would seem you don't place much value on dad or your kids' relationship with him, so their capacity to have a relationship with dad is going to depend on regular time and communication with him directly.

So what's your suggestion for making sure your relocation doesn't affect your kids' right to have a meaningful relationship with their father?

Just as a side note, if you relocate without consent, dad can file for a recovery order and would probably succeed. Is that a risk you want to take?

 

[Belcat81]

Thank you for your reply. I did not include all the ins and outs of my relationship in my post including the extent to which their dad has been involved in their life prior to the separation. You have no idea of the effort I have gone to in trying to save my marriage and give my kids a loving home with both parents or give my kids time to bond with their dad during our separation. The kids have been and will continue to be spending every night with me. This is something their dad wants.

I appreciate your perspective in terms of the stance of the court in their desire for children to build a meaningful relationship with both parents and it trumping anything else.

 

[Carmel Torney]

My recommendation would be to obtain legal advice specific to your situation. Each matter is determined on its own facts having regards to what is in the best interests of the children. The statistics on relocation cases outcomes vary year to year. But a lawyer should be able to assess your facts and give you some guidance.

Relocation cases are often the most difficult and challenging not only for a Judge or Magistrate to decide but for the parents (and children) involved.

Any response provided is information only and should not be considered legal advice. You should obtain legal advice specific to your circumstances before making important decisions.