So, you’ve separated. Life is moving on. And now you want to move too.
Maybe there’s a job opportunity interstate. Maybe your family support is three hours away. Maybe you’ve met someone new. Or maybe you just really, really don’t want to live in the same town as your ex for the next 14 years. Fair enough.
But if you have children and your proposed move would significantly affect the time they spend with their other parent, things get a little more complicated. In family law land, we call this relocation, and before anyone starts loading the removalist truck, there are a few things you really need to know.
FIRST THINGS FIRST: THERE IS NO SPECIAL “RELOCATION LAW”
Despite lawyers giving it an official-sounding name, “relocation” isn’t actually defined in the Family Law Act 1975. There isn’t a special relocation test, and there isn’t a magical distance where the law suddenly kicks in.
Moving from Brisbane to Cairns might be a relocation. Moving from the Gold Coast to northern New South Wales might be a relocation. In some circumstances, moving considerably less distance could create a problem if it significantly affects the existing parenting arrangements.
The real issue is what the move means for the child, because relocation disputes are ultimately dealt with in the same way as other parenting disputes: by determining what arrangements are in the child’s best interests.
That also means neither parent starts with an automatic trump card. One parent doesn’t have an automatic right to move away with the child. The other parent doesn’t automatically get to say: “Nope. Vetoed.” If only family law were that simple.
It’s about the kids. Not who has the better argument.
Under the Family Law Act, the child’s best interests are the paramount consideration when a Court makes parenting orders. Following changes that came into effect on 6 May 2024, the Court considers a list of factors including:
- what arrangements would promote the safety of the child and the people caring for them, including safety from family violence, abuse and neglect;
- any views expressed by the child;
- the child’s developmental, psychological, emotional and cultural needs;
- each proposed carer’s capacity to meet those needs;
- the benefit to the child of having relationships with both parents and other significant people in their life, where it is safe to do so; and
- anything else relevant to that particular child and their circumstances.
For Aboriginal and Torres Strait Islander children, there are additional considerations relating to the child’s right to enjoy their culture and the support they will receive to connect with it.
Notice something? There’s no: “Which parent has the most compelling PowerPoint presentation about why they deserve to move?” That’s because the focus is on the child.
A parent wanting to relocate doesn’t have to prove some extraordinary or “compelling” reason for wanting to move, but equally, having a perfectly understandable reason – a better job, family support, a new partner, cheaper housing, or simply wanting a fresh start – doesn’t automatically mean the child gets to come too.
The Court has to look at the consequences of the move for the child.
SO HOW DOES THE COURT ACTUALLY DECIDE?
Relocation cases can be particularly difficult because there often isn’t a nice middle-ground solution. You can’t relocate halfway to Perth.
Usually, there are competing possibilities. The child might relocate with one parent. The child might remain where they are, while that parent relocates without them. The parent proposing the move might remain where they are.
Or, there may be another arrangement that nobody had originally contemplated but the Court considers better for the child. The Court isn’t necessarily limited to choosing between Mum’s proposal and Dad’s proposal. It can consider other workable options, provided procedural fairness is afforded to the parties. And yes, a parent’s right to make decisions about their own life matters.
Courts understand that parents are actual human beings. They have careers, relationships, families, financial pressures and lives outside parenting. But when the Court is making parenting orders, the child’s best interests remain paramount. This is why relocation matters can become so difficult, as there’s rarely an option that makes everyone happy.
THINKING ABOUT MOVING? PLEASE DON”T SUBSCRIBE TO “ASK FOR FORGIVENESS, NOT PERMISSION” PHILOSOPHY.
If you’re considering relocating with your child and the move would affect their relationship or time with the other parent, get legal advice before you move. Not after you’ve signed the lease, or after the removalists have arrived, and preferably not while you’re driving north with a mattress strapped to the roof.
Moving a child without the other parent’s agreement or appropriate Court orders can create a very serious problem. The other parent may make an urgent application to the Court seeking orders that the child be returned while the parenting dispute is determined.
In other words, moving first does not necessarily mean you get to stay there. You may find yourself unpacking all those boxes again.
TRY TO SORT IT OUT BEFORE GOING TO COURT
We know. Groundbreaking advice from lawyers: Try not to litigate if you don’t have to.
Relocation proceedings can be expensive, stressful and unpredictable. If an agreement can be reached, you retain far more control over what happens next. Depending on the circumstances, an agreement might deal with things like:
- where the child will live;
- how often they will spend time with the other parent;
- school holidays and special occasions;
- telephone and video contact;
- who pays for flights or other travel;
- where changeovers happen; and
- how the arrangements will work practically as the child gets older.
If you reach agreement, consider formalising that in consent orders or, depending on the circumstances, a parenting plan. Why? Because “we’ll just work it out as we go” might sound wonderful at the time, but six months later, when someone is arguing about who was supposed to pay $863 for Christmas flights, it can feel slightly less wonderful.
MEDIATION CAN HELP
Before commencing parenting proceedings, parents are generally required to make a genuine effort to resolve their dispute through family dispute resolution and obtain the appropriate certificate, unless an exception applies – for example, because the matter is urgent or there are issues involving family violence or risk.
Further to this, relocation is exactly the kind of dispute where mediation can be valuable. Not because a mediator will sit there and tell everyone who is right. That’s not mediation. A good mediator helps both parents properly explore what each option would actually look like.
How often could the child see the other parent? Who pays for travel? What happens during school holidays? Can work arrangements change? What support does each parent have? Is there another option nobody has considered because everyone has spent the last three months furiously defending their own position?
Sometimes there’s a workable solution hiding underneath all the anger. Sometimes there isn’t. But it’s usually worth looking.
WHAT IF THE OTHER PARENT HAS ALREADY MOVED WITH THE CHILD?
Don’t sit on it.
If your child has been relocated without your agreement, particularly where the move significantly interferes with the existing parenting arrangements, you should obtain legal advice promptly.
There may be urgent Court applications available, including seeking orders requiring the child to return. Timing can be important. This is not really a “let’s give it six months and see how things pan out” situation.
WHAT ABOUT MOVING OVERSEAS?
This is where things can get considerably more complicated.
International relocation raises all the usual parenting considerations, plus the very practical realities of trying to maintain a parent-child relationship across countries, borders and potentially very different legal systems.
Further to this, if a child is taken overseas without the necessary consent or Court orders, international child abduction laws may become relevant, including the Hague Convention on the Civil Aspects of International Child Abduction in applicable countries.
That is absolutely not territory for taking legal advice from your neighbour, your cousin who “went through something similar”, or a Facebook group. Get proper advice. Early.
THE BOTTOM LINE
Relocation matters are hard because there is rarely a perfect answer. One parent may have completely legitimate reasons for wanting to move. The other may have completely legitimate reasons for desperately wanting their child to stay. And sitting in the middle of those two positions is a child whose life will change significantly either way.
There is no formula that tells you who will get their way (or whether either of you will). Every matter turns on its own facts, the particular child, the proposed arrangements, the impact of the move and the evidence before the Court.
So, if you’re thinking about relocating with your child, or you’ve just discovered that your former partner intends to relocate, get advice before anyone starts packing boxes. A conversation with a family lawyer early can help you understand your options, identify potential problems and work out the best way forward.
Trust us: When it comes to relocation, “we’ll move first and sort out the legal stuff later” is rarely an excellent strategy.
If you’re making legal decisions based on a blog post, stop. This is general info, not personalised advice. Every case is different, especially in family law. Want to know what actually applies to you? Book a consult. It’s free, and we’re not terrible.
