Written by Madeleine Bonadeo, Associate

Often, separated parents want to know what they must do before moving the children to a new town, city or country. If you or your co-parent are considering relocation, there are a number of factors that you need to be aware of.

After a separation or a divorce involving children, when one parent wishes to move away from where they currently live (with their child or children) and thisimpacts the child (or children’s) time with their other parent, we call this a ‘relocation case’.

The best approach

Generally, unless there are family violence concerns, it is best if the parents themselves can reach an agreement about the children’s living arrangements, including a proposed relocation and the time that the child/ren will spend with the non-moving parent going forward. This may be accomplished through negotiations or with the separated parents attending a mediation.

What if there isn’t agreement on the relocation?

Where the parents cannot reach an agreement about the relocation, or dispute resolution is not an appropriate option, the moving parent will need to make an application to the Federal Circuit and Family Court of Australia.

The Court will decide whether the relocation should occur, by considering whether it is in the best interests of the children to relocate or remain where they currently live.

Recent legislation changes: focus on safety

Changes to the Family Law Act 1975 (which began on 6 May 2024) may impact how the Court makes decisions in relation to any application made to relocate, whether it is within Australia or overseas.

This is because the factors which the Court must consider in determining what is in the best interests of the children have been streamlined. There is a greater focus upon ‘safety’ for children and their caregivers and promoting the care arrangements for the children that will best safeguard them.

As family law is highly discretionary, separated parents that are exploring the option of relocating may face some uncertainty.

Know the risks

It is important to obtain advice which is customised to your situation and circumstances. Relocation cases can be very finely balanced and come down to the weighing of particular issues or facts that are individual to each situation. Nothing in family law is really ‘one size fits all’ and this is especially true of a relocation case!

When a parent unilaterally relocates with the child/ren without the non-moving parent’s consent or the permission of the Court, they are at high risk of being ordered to return the children back to where they previously lived, until the Court can undertake a proper examination of whether the relocation is best for the children in the short and long term.

The Court process

When a parent wants to relocate with their child/ren, the separated parents must each present evidence to the Court which demonstrates why it would be in the child/ren’s best interests to relocate or not relocate and remain behind with the other parent. Other scenarios may be contemplated too, where the moving parent abandons the relocation if the Court does not agree it is best for the children, or if it is possible for both parents to relocate themselves to the place the moving parent wishes to move to.

If you're considering relocating with your child/ren or are concerned that your co-parent might be, it’s essential to seek legal advice as early as possible. The success of failure of a relocation – or opposing one – can often be found in the way the case is handled right at the very beginning.

Our team can help you understand your rights, obligations, and to strategise the best course of action for your family. Reach out to us today for a confidential consultation and ensure you're fully prepared to navigate this challenging process.