NSW Negotiating for new orders in order to relocate.

[MummyOf2]

Hi again, I know I posted something similar recently, I'm just trying to understand the legal side of my situation a little more here.
I have been working towards relocating.
Basically, my ex and I have court orders that for the most part work well.
I have informed my ex that I want to move during the next school holidays.
I proposed a few changes to make sure he doesn't loose his visitation every second weekend or his half holidays.
Our orders do say that my ex has an overnight Tuesday every fortnight but he recently said he didn't want to do that anymore. Instead he is doing 2 hours on Tuesday afternoons.
My ex has returned all responsibility of school pick up back to me.
My ex decided not to negotiate with me.
I have been granted Legal Aid and am currently waiting for a date for dispute resolution.
So, the update is that I have sent my ex another email telling him I want to keep trying to negotiate.
I have offered to do all the traveling and meeting him back here for changeover on all dates except Friday afternoon when I can meet him halfway as it is on his way home from work and will reduce my travel time without making him go out of his way.
I have also offered him more holiday time.
The current orders state that the parent the child is not residing with can phone the child Monday, Wednesday and Friday nights. I have told him he can call any night during the week and he can Skype if he wants to.
I realize that the Tuesday afternoons could be tricky to work around, I am just hoping that my ex will see reason and understand my reasons for wanting to move.
My reasons are:
There is no work here. My youngest son starts school next year and i want to rejoin the workforce.
I have family in the new location who can provide a good support network and help me to be a better parent. I have no family at all in my current location.
I have been working towards rebuilding my marriage with my husband. We share a child together and want to live as a family again.
My husband has been living in the new location. He can't move to my current location because there is no work here. My sons step mother has also slandered him across town making it impossible for him to create work contacts.
I have been struggling with depression. The psychologist I was seeing has retired and I am struggling to make myself look for a new one. I have panic attacks over so many things that make me feel anxious. Back home at the new location I have a doctor who is familiar with my history of depression and is also the doctor who was caring for my thyroid diagnosis.
My son will benefit more from the move. He has the opportunity to rebuild relationships with my family. There is the opportunity for more extra curricular activities. If my ex accepts my offer then my son will have even more holiday time with his dad. I will be in a better place financially and with a support network that will help me with the kids.
I have done my part, seeking legal advise, getting legal aid and applying for mediation, trying to negotiate with my ex despite him not wanting to cooperate, offering to do all the travel, giving my ex more holiday time, taking on the extra time my ex has given up already without having a problem with it.
I don't want to contravene the current orders. But I do want to move. I realize that if mediation doesn't go well and I move anyway that my ex may contest it. He may win and I may have to move back.
If I was to just move, set my son up in school and go on with life, by the time my ex finally got a trial date if he did contest the move is a judge likely to uproot my son again to make me move back, even if he has already settled in? This is the one question I have been wondering about the most.
I am also trying to understand the whole shared parental responsibility aspect. Some parents have told me that in the section that states shared parental responsibility, they also had subsections that was clear about what percentage of care each parent was responsible for and what they had to communicate with the father on, like schooling etc. My orders have no subsections that help me to figure out what I am entitled to as primary carer. It just says shared parental responsibility. Does it automatically default to equal shared responsibility?

 

[AllForHer]

If you didn't already have orders, I would say just move and let dad apply for Court.

But you do have orders, so moving without consent is most definitely not a good idea.

Relocation cases are pretty tricky to call, but your reasons for wanting to relocate are actually quite sound, and you're obviously doing everything you can to ensure the tyranny of distance doesn't negatively affect the kids' relationship with their father. The Court doesn't like to restrict people's right to freedom of movement, so based on the facts and attitude of your post, you probably have a pretty good chance of succeeding with a relocation application.

If you go without consent and without changing the orders, though, all your good work of making it as workable as possible will be undone by the sheer fact that you flouted the orders anyway and left with the kids without dad's consent.

Parental responsibility 'means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children', according to the legislation, so unless explicitly stated otherwise, the subsections your peers are talking about are on an 'including but not limited to' basis.

Shared parental responsibility requires decisions about major long-term issues in relation to the child to be made jointly by the persons sharing parental responsibility for that child.

The following is copy-pasted from s 4 of the FLA, which covers definitions:

'Major long-term issues' in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:

• the child's education (both current and future); and
• the child's religious and cultural upbringing; and
• the child's health; and
• the child's name; and
• changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent.

So, in short, if you have an order upholding the presumption of equal shared parental responsibility, being the primary carer doesn't entitle you to any special privileges to make decisions without dad's consent about major long-term issues affecting the child. You are required to make such decisions jointly with the other parent.

If you can't reach agreement about a major long-term issue affecting the child, then you apply for Court for parenting orders.

My suggestion is that if dad doesn't agree to the move, you don't move until you've got the Court's permission to do so.

 

[Matthew Lynch]

I just want to comment on one thing: Whether or not court orders have been made you should not relocate with a child without first obtaining consent. You will likely get moved back and it will likely damage your credibility. Parents have inherent equal shared parental responsibility until the Court determines otherwise.

 

[Lennon]

If I was to just move, set my son up in school and go on with life, by the time my ex finally got a trial date if he did contest the move is a judge likely to uproot my son again to make me move back, even if he has already settled in? This is the one question I have been wondering about the most.

Your ex wouldn't have to wait for a trial date, orders requiring you to move back would likely be made at an interim application, probably within a month or two of your ex filing an application. Obviously the court is well aware that moving a child after they have "settled in" is unfair on the child, so tend to deal with the issue on an urgent basis, well before the final hearing.

Using your child's well-being as leverage to get the orders you want (ie by moving him contrary to existing orders then claiming it would be "unfair" to move him again now that he is settled) is not likely to be viewed favourably.