Relocating with children after separation: what the court considers

After separation, life often pulls parents in different directions. A new job interstate, a return to family overseas, a new partner in another city, or simply a cheaper home further from Sydney. When children are involved, a move that makes sense for one parent may mean the children see the other far less.

Relocation cases are among the hardest in family law. This article explains how the law approaches them.

This is general information, not legal advice.

There is no special relocation test

The Family Law Act 1975 (Cth) contains no separate test for relocation. A proposed move is decided in the same way as any other parenting question: by asking what arrangements are in the best interests of the child, which is the paramount consideration.

The High Court confirmed in U v U (2002) and AMS v AIF (1999) that a court must weigh the competing proposals of both parents, and that a parent wishing to relocate does not have to show "compelling reasons". Equally, a parent's freedom to move is not the controlling consideration. The child's best interests are.

The best-interests factors

Since 6 May 2024, the court considers:

• safety of the child and each carer;
• the child's views;
• the child's developmental, psychological, emotional and cultural needs;
• each carer's capacity to meet those needs;
• the benefit of relationships with each parent and other significant people, where safe; and
• anything else relevant.

In relocation cases, the last two often carry the most weight. How will the move affect the child's relationship with the parent who stays? Can that relationship be maintained through holidays, travel and technology? What are the benefits of the move for the child: better support, a better school, a happier and more secure primary carer? What is the child's age, and how settled are they?

What courts commonly look at

• The reasons for the move
  Genuine reasons (family support, employment, financial necessity, a new relationship) are considered. A move that appears designed to reduce the other parent's involvement is viewed very differently.
• The practical plan
  Where will the child live and go to school? What time will the other parent have, and who pays for travel? How will communication work?
• The child's relationships
  The strength of the child's relationship with each parent, siblings, grandparents and friends.
• The effect on the relocating parent of refusal
  Where refusing the move would seriously affect the primary carer's wellbeing or financial security, that can affect the child.
• Alternatives
  Whether both parents could move, or whether the child could live primarily with the other parent.
• The child's views, depending on age and maturity.

Consent first

If you want to relocate with the children, the first step is to seek the other parent's agreement. A well-considered proposal (with a detailed plan for time, travel and communication) is more likely to be accepted, and more persuasive to a court if it is not.

If agreement is reached, it should be recorded in consent orders so that it is enforceable. A parenting plan can be useful, but it is not enforceable.

If there is no agreement

You will generally need to attend family dispute resolution before applying to the court, unless an exception applies (for example, urgency or family violence). If mediation does not resolve the issue, you can apply for parenting orders permitting the relocation.

Relocation cases can take time to be heard, so interim arrangements matter. Courts are often reluctant to permit a relocation on an interim basis, because it can create a new status quo before the evidence has been tested.

Do not move first

Moving children without agreement or a court order is risky. The other parent can apply for orders that the children be returned, and in urgent cases for a recovery order. A court may view a unilateral move poorly, and it can affect the outcome of the final hearing.

International relocation and travel

Moving overseas raises the stakes considerably:

• Criminal offences
  Where parenting orders are in place, or proceedings are pending, taking a child out of Australia without the written consent of the other parties or a court order can be a criminal offence.
• Passports
  An Australian passport for a child usually requires the consent of everyone with parental responsibility, or a court order.
• The Family Law Watchlist
  The court can order that a child be placed on the Watchlist, which alerts authorities at airports and seaports.
• The Hague Convention
  If a child is taken to or kept in a country that is party to the Hague Convention on the Civil Aspects of International Child Abduction, the left-behind parent can seek the child's return through the Central Authority. Not every country is a party.

International relocation cases often require evidence about the destination: schooling, housing, support, and whether orders will be recognised there.

Holidays abroad

Even an overseas holiday can require the other parent's consent or a court order, especially where orders are in place. Well-drafted orders deal with overseas travel expressly: notice periods, itineraries, passport custody and consent requirements.

Practical steps if you want to move

1. Get legal advice before making commitments.
2. Develop a detailed plan: housing, school, time with the other parent, travel costs, communication.
3. Seek agreement, and propose mediation if necessary.
4. Record any agreement in consent orders.
5. If there is no agreement, apply to the court: do not move first.

Practical steps if you oppose a move

1. Get advice quickly, particularly if a move is imminent.
2. Consider what arrangements you can offer, and whether you could also move.
3. If there is a risk the children will be taken without consent, ask about urgent orders and the Family Law Watchlist.

How we can help

We advise parents on both sides of relocation disputes, including international relocations and urgent applications. See parenting and custody, Family Court and our guide to parenting arrangements after the 2024 changes.

This article is general information about the law as at the date it was last reviewed. It is not legal advice and does not take your circumstances into account.