Can you really move away with the kids? What every separated parent needs to know about relocation

Relocation cases are among the most emotionally charged and legally complex disputes in Australian family law. Whether you’re the parent wanting to move or the one left behind, it’s critical to understand your rights and your risks.

What Is a “Relocation” Case?

In family law, “relocation” typically refers to one parent’s proposal to move a child’s primary residence to a location that significantly impacts the child’s time or relationship with the other parent. This could be a move to another city, interstate, or overseas.

If the move would substantially reduce the time the child spends with the other parent, even if it’s just a few hours away, it’s likely to be treated as a relocation case.

Do You Need the Other Parent’s Consent?

Yes. If there are court orders or a parenting plan in place, you cannot relocate the child without the other parent’s agreement or a court’s permission. Unilaterally moving the child could be considered a breach of parenting orders and the court has the power to order the child’s return.

Even if there are no formal orders, relocating without agreement can lead to urgent legal proceedings and severely damage your credibility in court. If a parent travels with the child to a jurisdiction where the family court cannot intervene, this can have irreversible consequences.

What Will the Court Consider?

The Family Law Act 1975 (Cth) doesn’t contain a separate test for relocation, but the central question remains the same: What is in the best interests of the child?

In determining that, the court will weigh up:

• The reasons for the proposed move (e.g., employment, support network, safety)
• The impact on the child’s relationship with the other parent
• The practical difficulties of maintaining contact after the move
• The emotional and psychological effect on the child of moving (or not moving)
• Each parent’s ability to facilitate the child’s relationship with the other

The authorities make it plain that the Court must consider the circumstances of the parties, including the right of a parent to choose where they would like to live¹ and that a failure to consider the circumstances of the parties, including the right of the parents to choose where they would like to live may constitute a serious injustice.

Real Cases, Real Stakes

In a recent decision a Mother was granted permission to relocate with the parties’ 9-year-old son from New South Wales to Queensland.²

At the time, the child was spending equal time with both his parents. The Mother wishes to move to Queensland with the child, and his two-year-old maternal half-sister ‘F’, so that she can live with her husband Mr G, who is F’s father.  The Mother was clear that she intended to move to Queensland, even if she was not permitted to relocate the child with her.

Each parent’s proposal involved significant changes in the care arrangements for the child. The Court found that both parents had the capacity to provide for the child’s emotional needs, and that both parents had the capacity to support the child to adapt to circumstances. ³

The evidence suggested that during the child’s life, the Mother had demonstrated a greater capacity than the Father to shield the child from the parental dispute and prioritise the child’s needs. On balance the Judge concluded that this indicated a greater level of awareness to the child’s needs on the part of the Mother and that there is a benefit to the child of remaining with the parent who is most available to meet his day to day needs, and who has greater capacity to assist the child to adapt to his changed circumstances.⁴

Final Word

Relocation cases are not about what’s best for the parents, they’re about what’s best for the child. Trying to “just move” without proper steps can end terribly. But with the right preparation and legal guidance, it is possible to present a strong and compassionate case.

If you’re facing a potential relocation issue, get in touch with Lavan’s Family and Private Clients Team. Early advice can make all the difference.

Thanks to Lauren James (Law Graduate at Lavan) for her contribution to this article.

Disclaimer

The information contained in this publication does not constitute legal advice and should not be relied upon as such. You should seek legal advice in relation to any particular matter you may have before relying or acting on this information. The Lavan team are here to assist.

Footnotes

[1] U v U [2002] HCA 36

[2] Cunningham & Foster [2024] FedCFamC2F 1725

[3] Ibid 168

[4] Ibid 207