Relocating with Children

When a relationship breaks down and each partner decides to go their own separate way, you may find yourself contemplating relocating with children. Whether it's you who is looking to relocate with your children or your former partner, you need to be aware of some important considerations.

There can be a number of reasons for wanting to relocate. During a relationship you might have followed a partner's career opportunity to a new location away from family and friends. Perhaps the area you lived in as a couple is unaffordable on a single income, you might wish to pursue a new job elsewhere or you just don't want to run into your ex at the local supermarket.

Moving away after a separation can quite often be a great way to start fresh in your new, post-separation/divorce life. However, when there are children involved, it is not as easy as just packing up and leaving. It's important to remember that the relocation of children is fundamentally about the rights of the children.

Generally, both parents share equal parental responsibility for their children, which means they need to jointly make long term or major decisions for the children, including where they will reside.

Further to this, children have the right to an ongoing meaningful relationship with both parents, which will include regularly spending time and communicating with each parent, where it is of course safe to do so.

When is consent from both parents required?

When considering relocating with children, whether it be:

overseas, or
interstate, or
to the other side of the city

if it:

prevents or reduces the opportunity to maintain the parent/child relationship, and/or
incurs significant difficulty and expense for current time to continue, and/or
requires a change of schools

consent from both parents will be required.

If consent cannot be obtained, the parent wishing to relocate with the children will need to seek an Order of the Court allowing the move, and setting out the ongoing care arrangements.

When will I not be able to relocate with my child?

Whilst there are many cases where a parent has been allowed to move away with the children, there have been many where they have not. Each case will be decided on its own circumstances and it is important to know that where one party leaves without consent, the Court has the ability to order them to come back whilst the matter is decided, which can be an inconvenient and expensive process, and potentially prejudice their ultimate position.

What is the best way to relocate with children?

The best place to start with any proposed relocation is to discuss the changes with the other parent. If this can't be done directly, then a mediation centre such as the Family Relationship Centre should be looked into. A Lawyer can also assist you in forming a strategy and talking to the other party (or their Lawyer).

How can Sharrock Pitman Legal help?

If you or someone you know is experiencing concerns relating to the relocation of their children, we can make you aware of your options and assist you in the process.

Sharrock Pitman Legal is an award winning practice, serving customers for over 50 years. To discuss your situation confidentially, contact our specialist family law team on 1300 205 506 or via email at family@sharrockpitman.com.au.

The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.

Liability limited by a scheme approved under Professional Standards Legislation.

Written by one of our lawyers

For further information contact

Ath Balaskas

Ath is a Senior Associate of Sharrock Pitman Legal.

She is an Accredited Specialist in Family Law (accredited by the Law Institute of Victoria). For further information, contact Ath on her direct line (03) 8561 3319.

What is ‘Property’ according to the Family Law Act?

Divorce 101: A quick guide to divorce

How to tell your kids that you are getting a divorce

However, in this article we will set out the factors that influence how long it will take to obtain a Grant of Probate and to administer an estate in Victoria.

The basics

First things first: what is a Grant of Probate? A Grant of Probate is effectively a document issued by the Supreme Court of Victoria which formally authorises an executor to manage the estate of a deceased person in accordance with their Will. Without Probate, the asset holders (say a bank or share registry) cannot be satisfied as who has the correct authority to receive the deceased's assets and may refuse to pay out.

Sometimes, for smaller estates or if assets are mostly jointly owned with a surviving spouse, asset holders might agree to release payment without requiring a Grant of Probate. This is usually on the basis that the person who receives payment promises to repay (or Indemnify) the asset holder if it turns out they paid to the wrong person.

If there is no Will, then you cannot obtain a Grant of Probate. Instead you obtain Letters of Administration. This is effectively the same, in terms of authorising someone to administer the estate, and would usually be obtained by the person who is the closest next-of-kin to the deceased.

“A Grant of Probate is effectively a document issued by the Supreme Court of Victoria which formally authorises an executor to manage the estate of a deceased person in accordance with their Will.”

Timeframes for Probate in Victoria

In order to obtain a Grant of Probate, the Court needs to be given information about the assets and liabilities of the estate, the deceased person, the witnesses to the Will, the executors and the Will itself. An advertisement of your intention to apply for Probate must also be placed on the Supreme Court website for at least 14 days prior to any application.

Often, making enquires to obtain all the necessary information can take a number of weeks. Also, you will need the Death Certificate for the application for Grant of Probate and possibly for making proper enquires regarding the assets and liabilities. Waiting for the Death Certificate to issue can therefore add a few more weeks to the process. Overall, if you have your application for Grant of Probate lodged within 1 to 2 months from the date of death, you are making timely progress.

The Court itself does not take long to process the application (maybe another 1 to 2 weeks) and this is done 'on the papers' using the electronic Court filing system. This means you do not have to go to a court hearing. There is also a general discretion for the Court to issue a 'Requisition' asking that you provide more information before they process the application and this can delay matters.

“Overall, if you have your application for Grant of Probate lodged within 1 to 2 months from the date of death, you are making timely progress.”

So, here we are a few months after death and you finally have a Grant of Probate. It is important to remember that this is the start of the estate administration and not the end. For a very simple estate, you might only need a further month or so to cash the assets and pay them to the correct beneficiaries. However, it can often be more complex than that. Factors that determine the timeframe to administer the estate include:-

Some assets will take time to cash or transfer. For example, if selling a property, final settlement might be 60/90/120 days from the day of sale.
There is a 6 month period for challenges to be brought against the estate and executors must wait until this period expires before distributing the estate, if there is any risk that a disgruntled family member might come forward.
There might need to be final tax returns for the deceased or for the estate. Failing to wait for the ATO to process these could leave the executor personally liable for a tax bill.

You might need to advertise for creditors to come forward and wait for a period of months while this advertising timeframe expires. This protects the executor if they are unsure of all of the deceased's financial dealings and creditors.
It might not always be a good time to immediately cash estate assets. For example, the shares just took a nose-dive, do you still sell regardless of available price?

There is a general rule that executors have an 'executor's year' to complete the estate administration. This means that you should be aiming to have the estate finalised and distributed within 12 months from the date of death.

Liability limited by a scheme approved under Professional Standards Legislation.

Need help with Probate?

Our expert legal team is ready to take your call!

Mitchell is the Managing Principal of Sharrock Pitman Legal. He is an Accredited Specialist in Commercial Law (accredited by the Law Institute of Victoria). He also deals with areas of Employment Law, Wills & Estate Planning and Probate and can answer all your questions related to probate.

For further information, contact Mitchell on his direct line:

DIRECT LINE:

(03) 8561 3318

Relocating with children

Relocating with Children

When is consent from both parents required?

When will I not be able to relocate with my child?

What is the best way to relocate with children?