Relocation of Children

First published November 22nd, 2020 and updated July 19th, 2021

What is The Relocation of Children?

The relocation of children and the issues surrounding separated or divorced parents who share parental responsibility but want to move to a different city, state, or another country can be complex.

After separation or divorce, many parents see relocating to another location as a new beginning. Still, it’s much more complicated than just packing up and moving away from the other parent to a new location.

The Family Law Act 1975 (Cth) (the Act) does not define what a “relocation case” is. The Court continues to emphasise that relocation of children cases are not to be treated separately from other parenting disputes. So then, what is a relocation of children?

In essence, if the parent of a child seeks to move their home (and consequently the child’s home), then the proposed move will be deemed to be a relocation if it changes the child’s living arrangements in such a way that it becomes significantly more difficult for the child to spend time with the parent who is not seeking to move.

Put simply, if one parent wants to move to the next suburb and there are no substantive changes to their child’s parenting arrangements, then the matter is not a relocation case. On the other hand, if a party living in Melbourne wishes to move to a new city like Sydney and the proposed move means there will be significant changes to their child’s arrangements, then the matter is a relocation. Relocations can be intrastate, interstate and international.

Relocating With Children – How Does The Family Court Decide Whether The Child is Allowed to Move?

The central issue for the Family Court of Australia or the Federal Circuit Court (the Court) to determine a relocation of children case is not whether the parent can relocate, but whether the child can move with their parent. Under the Australian Constitution, there is an implied freedom of movement. This means that a Court cannot prevent one parent from moving. The Court can, however, prevent a child from moving with their parent to the new location.

As set out above, the Court is clear that child relocation cases are to be treated no differently to other parenting disputes. This means that when deciding whether a child is permitted to relocate with their parent, the Court must consider what is in the child’s/children’s best interests.

How a Court determines what is in a child’s best interests is set out in section 60CC and section 65DAA of the Act. In simple terms, the Court must be satisfied that if a child moves, they will still have a meaningful relationship and spend significant time with the parent who is not moving.

Although the Court is clear that a parent who wishes to relocate does not need to have a compelling reason to do so, in practice, it is sensible for the parent who wishes to move to be able to articulate the reasons why they want to be able to relocate and why it’s in the child’s best interests.  For example, one parent may feel they have no family support where they currently live and wish to move to be closer to their family so that both themself and the child have family support. Or potentially one parent has been offered better work opportunities in another location.  Whatever the reason, the parent seeking to relocate will also need to turn their mind to how they propose for the child to spend substantial and significant time and communicate with the parent who is not moving.

How Long Does it Take to Get The Court’s Permission to Move?

Relocation of children cases is notorious for being difficult to settle and often result in protracted litigation. In the instance that both parents cannot reach an agreement, i.e if one party wishes to move and the other is adamant that the child cannot move with them, the only way to have the issue determined is to run the matter to a final hearing before the Court. Depending on the circumstances surrounding the proposed move, the Court may list the matter for an urgent final hearing and act quickly to put the necessary court orders in place. However, this is only done in urgent and exceptional circumstances.

If there is no legitimate urgency surrounding the proposed move, then it can take between 18 to 24 months for the matter to be listed for a final hearing.

How Do I Apply For Relocation of Children Court Order?

To apply for relocation orders, you will need to provide detailed information about your plans for the relocation and your attempts at Family Dispute Resolution in order to have a successful application.

Below are examples of details you will need to provide in your application:

• The location you are moving to.
• What housing you are providing for the children.
• Reasons you choose to relocate.
• The schools and after school support you are planning to provide.
• Other family or support for yourself and the children.
• The current relationship between the other parent.
• What do you propose for the child’s time spent with the other parent after relocation?

Can a Party Move on an Interim Basis, Before the Final Hearing?

Although rare, a Court can allow a party and the child to relocate on an interim basis before the matter has proceeded to a final hearing. In determining whether an interim relocation is appropriate, the Court will again give consideration to what is in the child’s best interests and weigh up the “right” of the proposed relocating parent’s freedom of movement. The Court will also determine whether there are any urgent factors that necessitate the relocation on an interim basis.

How Does The Relocation Process Start?

If you want to relocate with your child, you will need to inform the other parent of your intention. If the other parent does not agree to your proposal, then the only option you have is to issue a Court application.

Can I Move Without Telling The Other Parent?

This will depend on the circumstances of your matter and the children’s arrangements in place. In most cases, it is necessary to seek the consent of the other parent before moving. If one party unilaterally relocates with the child, then it is possible that a Court will make a court Recovery Order seeking that the relocation be reversed and the child returned. If the relocation does not change the current children’s arrangements, then it may not be necessary to seek the other parent’s consent but you may have to inform them of your change of address. It is always best to seek legal advice if you are unsure about your situation.

There Are No Parenting Orders, Is it Okay to Move?

Never assume it’s okay to relocate children, always seek legal advice first.

What if My Child Has Been Relocated Without My Consent?

If the other parent takes your child without discussing it with you, you can apply to the court for a Recovery Order to return the child to where they usually live.

The other parent is not permitted to relocate your child without discussing the relocation with you first. If the other parent has relocated your child, you can apply to the Court for a Recovery Order to return the child to the previous location.

If you are worried that your child may be relocated out of Australia without your permission, you can apply to have your child’s name placed on an Airport Watchlist. It is a serious offence in Australia to take a child overseas if there parenting orders in place.

Are You Considering Relocating?

You may be able to reach an agreement about moving to a new location with the other parent of your children, but in most cases, this is rare and the parent who is not moving will likely oppose it.

Relocation of children is a highly emotional time for children and parents. It’s important to understand that at some point in time you may be required to go to Court and provide evidence to the Court that you have consulted with the other parent about your plans. Australian family law is complex, especially in cases of relocating children, it’s always best to seek legal advice to achieve the best outcome.

If you are separated and are already in the process of relocating it’s best you seek professional legal advice before you begin making decisions that may need to be put before the Court.

We are here to assist you during this difficult time. If you are considering relocating with children or opposing proposed relocation orders, please contact one of our team members on 03 9070 9839 or at info@sagefamilylawyers.com.au