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When you can — and can't — relocate
There is no specific "relocation provision" in the Family Law Act. Relocation is treated as a parenting matter governed by the best interests principle. Your ability to move depends on your current situation.
Scenario A: no existing court orders
Without parenting orders, there is no court order prohibiting your movement. However, relocating unilaterally — without the other parent's agreement — is strongly discouraged. The other parent can file an urgent application for recovery orders to have the child returned.
Scenario B: existing parenting orders
If parenting orders specify living arrangements and time with each parent, relocating in breach of those orders is a contravention that can result in enforcement proceedings. You must apply to vary the orders before moving.
Under section 65DAAA (commenced May 2024), the court will only reconsider final orders if there has been a "significant change of circumstances" and it is in the child's best interests to reconsider.
Scenario C: orders with specific relocation restrictions
Some parenting orders include specific restrictions — for example, "The child shall live within 50km of [suburb]." These are binding and enforceable. To relocate, you must either obtain the other parent's written consent to vary the orders or apply to the court for a variation.
Key case law on relocation
Two High Court decisions establish the foundational principles, supplemented by recent decisions under the 2024 amendments.
AMS v AIF [1999] HCA 26
The mother sought to relocate from Perth to Darwin with the child. The High Court held the trial judge erroneously required a "good reason" for the move.
Key principle: There is no prerequisite that a parent establish a compelling reason for relocation. The paramount consideration is the child's best interests. A parent's reasons for moving may be relevant but are not a threshold requirement.
U v U [2002] HCA 36
The mother sought to relocate from Australia to Mumbai with a 9-year-old child. This remains the leading authority on international relocation.
Key principle: The court is not bound by the parties' polarised proposals. There is no onus on the relocating parent. The court may fashion its own solution rather than simply choosing between the two competing proposals.
Cunningham & Foster [2024] FedCFamC2F 1725
The mother applied to relocate from NSW to Queensland with a 9-year-old. The court permitted relocation, recognising the mother's critical caregiving role and enhanced support network in Queensland.
Significance: Demonstrates how courts approach relocation under the new framework — focus on best interests without the structural presumption of equal shared parental responsibility, which was repealed on 6 May 2024.
Interstate vs international relocation
The legal consequences differ significantly depending on whether you are moving within Australia or taking a child overseas.
| Aspect | Interstate | International |
|---|---|---|
| Governing law | Family Law Act (federal) | Family Law Act + criminal provisions |
| Criminal offence | No | Yes — ss 65Y & 65Z (up to 3 years' imprisonment) |
| Best interests test | Standard s60CC factors | Standard s60CC factors, with heightened scrutiny |
| Recovery mechanism | Recovery orders under s67Q | Hague Convention (signatory countries) or diplomatic channels |
The Hague Convention
Practical steps if you are considering relocation
Start the process well before your intended move date — contested relocation matters typically take 12–18 months to reach a final hearing, and courts are generally reluctant to grant interim relocation orders.
1. Do not relocate unilaterally
Even without court orders, moving without agreement carries significant legal risk. The other parent can file urgent applications for recovery orders.
2. Give written notice
Provide the other parent with a written proposal: destination, timing, reasons for the move, and proposed new parenting arrangements. Allow several months before your intended move date.
3. Prepare a detailed relocation proposal
Include housing, employment or income arrangements, schooling options, childcare and medical providers, extended family support, and a proposed parenting schedule showing how the child will maintain their relationship with the other parent.
4. Propose a revised parenting plan
Demonstrate you have given serious thought to maintaining the child's relationship with the other parent. Include school holiday time, video call schedules, travel logistics, and who bears travel costs.
Strengthening your application
5. Attend Family Dispute Resolution
If the other parent does not agree, attend FDR (mediation) with an accredited practitioner. If unsuccessful, obtain a Section 60I certificate for your court application.
6. Seek legal advice
Relocation law is complex. Obtain advice from a family lawyer, particularly if there are existing court orders, family violence allegations, or international relocation is proposed.
7. If court proceedings are necessary
File promptly — delays can be held against you. Do not relocate before obtaining court permission. Gather evidence: school enrolment confirmations, employment contracts, housing arrangements, and proposed contact schedules.
Typical timeframes
Given that contested relocation matters typically take 12–18 months to reach a final hearing, start the process well before your intended move date.
| Stage | Typical timeframe |
|---|---|
| Family Dispute Resolution | 4–8 weeks |
| Filing to first directions hearing | 2–4 weeks |
| Filing to interim hearing | 2–4 months |
| Filing to final hearing | 12–18 months |
| Judgment delivery | Weeks to months after hearing |
Common questions
Can I relocate with my child without the other parent's consent?
It depends on whether court orders exist. Without court orders, there is no legal prohibition on moving — but relocating unilaterally is strongly discouraged and can severely damage your credibility with the court. The other parent can file an urgent application to have the child returned. With existing parenting orders, relocating in breach of those orders is a contravention and can result in enforcement proceedings. Always seek agreement first, or apply to the court for permission.
How far can I move before it counts as 'relocation'?
There is no legal definition of how far constitutes a 'relocation.' The practical test is whether the proposed move would significantly affect the existing parenting arrangements — particularly the child's time with the other parent. Moving 10km away in the same city is unlikely to be contentious. Moving to a different city or state almost certainly requires the other parent's agreement or court approval.
What happens if the court refuses my relocation application?
If the court refuses relocation, the child remains in the current location under the existing (or newly made) parenting orders. You can still move yourself — but the child stays. In some cases, refusal of relocation may result in the court changing the child's primary residence to the other parent if the relocating parent intends to move regardless.
Can I get interim orders to relocate while waiting for a final hearing?
Courts are generally reluctant to grant interim relocation orders because moving a child temporarily — only to potentially reverse the decision at the final hearing — would be extremely disruptive. The general position is that the child should remain where they are (in situ) pending a final hearing, unless there are exceptional circumstances such as family violence.
Can I take my child overseas after separation?
If parenting orders are in force or proceedings are pending, removing a child from Australia without the other party's authenticated written consent or a court order is a criminal offence under sections 65Y and 65Z of the Family Law Act (penalty: 3 years' imprisonment). An exception exists where the conduct is necessary to prevent family violence. For holiday travel, you may need to apply for specific orders or obtain written consent.
How do I vary existing parenting orders to allow relocation?
Under the new section 65DAAA (commenced May 2024), you must demonstrate a 'significant change of circumstances' since the existing orders were made. If you can establish this threshold, the court then considers whether it is in the child's best interests to reconsider the orders. You will need to file either new consent orders (if both parties agree) or an Application in a Proceeding (if contested).
Do I need to attend mediation before applying to court?
Yes, unless an exemption applies. Section 60I of the Family Law Act requires you to attempt Family Dispute Resolution (FDR) before filing a court application for parenting orders. Exemptions include family violence, urgency, or where the other party refuses to attend. If FDR is unsuccessful, the practitioner issues a Section 60I certificate, which must be filed with your court application.
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