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Understanding Relocation in Family Law
Relocation cases are among the most difficult in family law. A parent's desire to move for work, family support, or a fresh start can conflict with the other parent's right to maintain a meaningful relationship with their child.
What is "Relocation"?
In family law, relocation refers to a proposed move with a child that would significantly impact the child's relationship with the other parent. There is no fixed distance that triggers relocation issues — it depends on the circumstances:
| May Be Considered Relocation | Typically Not Relocation |
|---|---|
| Move to another city or state | Moving suburbs in the same city |
| Move overseas | Minor change of address |
| Move that makes regular time impractical | Moves that don't affect time arrangements |
| Move requiring child to change schools | Temporary relocations |
The key question is whether the move would make it significantly more difficult for the child to spend time with the other parent. A 50 km move might be a non-issue in rural areas but contentious in a city where it doubles travel time.
The legal framework
Australian law does not have specific "relocation provisions." Instead, relocation is assessed under the general parenting framework:
- Section 60CC — Best Interests. The child's best interests are the paramount consideration in every parenting decision.
- Meaningful relationship. The benefit to the child of having a meaningful relationship with both parents is a primary consideration.
- Protection from harm. The need to protect children from physical or psychological harm caused by abuse, neglect, or family violence.
- Additional considerations. The child's views, the child's relationship with each parent, and the practicality of proposed arrangements.
No presumption either way
When You Can Relocate
Your ability to relocate depends on several factors, including whether court orders exist and the nature of your parenting arrangements.
No court orders, primary carer
If there are no court orders or formal parenting plan, and you are the primary carer, you may technically be able to relocate. However, this is risky — the other parent could apply for urgent orders to prevent the move or for the child's return. Seek agreement or court orders first.
Parenting plan exists
Parenting plans are not legally enforceable, but relocating contrary to one shows disregard for agreed arrangements. The court may view this negatively. It is better to renegotiate the plan or seek consent orders before moving.
Court orders with a "live within" clause
If orders specify the child must live within a certain area, relocating breaches those orders — a contravention with serious consequences. You must apply to vary the orders before relocating.
Court orders without a location restriction
If orders exist but do not restrict location, assess whether relocating would make compliance impractical. If the move would prevent the ordered time from occurring, you need to vary the orders or reach new agreement.
The safest approach
Relocation With Consent
The best outcome is reaching agreement with the other parent. Here is how to approach negotiating a relocation.
Steps to seek consent
- Prepare your proposal. Before approaching the other parent, develop a detailed proposal including reasons for the move, benefits for the child, and specific arrangements for ongoing time.
- Give written notice. Put your proposal in writing — email or letter. This creates a record and gives the other parent time to consider properly.
- Offer generous time arrangements. Propose more holiday time, video calls, and offer to bear travel costs or share them fairly. Show you are committed to maintaining their relationship.
- Consider FDR if needed. If direct negotiation fails, suggest Family Dispute Resolution to discuss with a neutral mediator.
- Document agreement properly. If they agree, document it in writing and consider consent orders to make it legally enforceable.
Tips for successful negotiation
Relocation Without Consent
If the other parent will not consent to relocation, you have two options: apply to court for permission, or respond if they have applied to prevent you from moving.
Applying for relocation orders
To apply for court permission to relocate, you will need to:
- Complete FDR first. You need a Section 60I certificate (unless exempt) before filing parenting applications.
- File an Initiating Application. Lodge the application seeking orders permitting you to relocate with the child and specifying post-relocation arrangements.
- File a supporting affidavit. Provide evidence about the reason for the move, benefits for the child, and your proposed arrangements for the other parent's time.
- Address best interests factors. Your evidence should address all Section 60CC factors — do not focus only on why you want to move.
Don't move before orders are made
Court Assessment Factors
The court applies the best interests framework to relocation cases. Understanding what judges consider helps you build a stronger case.
Key factors in relocation cases
- Impact on the child's relationships. How will the move affect the child's relationship with each parent and significant others (grandparents, siblings)?
- Child's wellbeing. Will the move benefit the child's emotional, educational, or physical wellbeing? Or is it primarily for the parent's benefit?
- Reason for the move. Is the move genuine (employment, family support) or designed to interfere with the other parent's relationship?
- Proposed arrangements. Are the proposed arrangements for ongoing time practical and realistic? Will they maintain a meaningful relationship?
- Child's views. If the child is mature enough, what are their views about the proposed move? These are usually obtained via family report.
- Safety considerations. Are there family violence or safety issues that support or oppose the relocation?
The balancing exercise
Interstate Relocation
Moving to another state within Australia presents specific challenges around maintaining the child's relationship with the other parent.
Common interstate scenarios
- Job opportunity. Employment transfer or new job offer in another state. Courts consider whether comparable work is available locally.
- Family support. Moving to be near extended family for support. Courts assess what support is available currently versus at the destination.
- New relationship. Moving to live with a new partner. Courts may question why the new partner cannot relocate instead.
- Cost of living. Moving to a more affordable area. Courts consider whether this genuinely benefits the child or primarily the parent.
Typical arrangements after interstate relocation
- Extended school holidays — larger blocks of time during school breaks, for example half of all school holidays.
- Long weekends — public holiday weekends with the non-relocating parent.
- Regular video calls — scheduled video or phone calls multiple times per week.
- Travel cost sharing — arrangements for who pays flights or transport, often proportional to income.
- Flexibility provisions — ability for the non-relocating parent to visit and spend time in the new location.
International Relocation (Hague Convention)
International relocation adds significant complexity due to the Hague Convention on International Child Abduction. This treaty creates mechanisms for the return of children wrongfully removed from their country of habitual residence.
The Hague Convention
Australia is a signatory to the Hague Convention. This means:
- Wrongful removal or retention. Taking or keeping a child overseas without consent or court orders can be treated as "abduction."
- Return mechanism. The Convention provides for the child's prompt return to their country of habitual residence.
- Central Authority. Each signatory country has a Central Authority to assist with return applications.
- Countries covered. The Convention applies between Australia and most developed countries including the UK, USA, Canada, New Zealand, and EU countries. For non-Convention countries, recovery of children is much more difficult.
Requirements for international relocation
International relocation requires either written consent from all persons with parental responsibility (ideally signed and witnessed), or court orders explicitly permitting the relocation overseas, specifying the destination country and duration.
Family Law Watchlist
Urgent Relocation Applications
Sometimes relocation matters require urgent court intervention — either to prevent an imminent move or to seek the child's return after an unauthorised relocation.
When to apply urgently
Urgent applications may be appropriate to prevent an imminent move when:
- The other parent has booked travel.
- The child has been withdrawn from school.
- The home is being packed up.
- A move is planned within days or weeks.
Urgent applications may also be appropriate after an unauthorised move when:
- A child has been taken without notice.
- A child has not been returned after a holiday.
- Existing orders have been breached.
- The location of the child is known.
Types of urgent orders
- Injunction preventing relocation — a court order restraining the other parent from relocating pending a final hearing.
- Recovery order — an order requiring the child to be returned to your care or a specified location.
- Airport watchlist — an order placing the child on the Family Law Watchlist to prevent removal from Australia.
- Passport surrender — an order requiring passports to be held by the court or surrendered.
Act quickly
Common questions about relocation
Can I move to another city with my child without the other parent's consent?
It depends on your circumstances. If there are no court orders or parenting plans restricting relocation, and you're the primary carer, you may be able to relocate — but this is risky without proper legal advice. If court orders exist, check whether they include a 'live within' clause. If the other parent has regular time with the child, relocating without consent or court approval could be considered a contravention and damage your credibility. It's best to seek agreement or court orders before moving.
What can I do if the other parent wants to relocate with our child?
If you object to the relocation, communicate your concerns to the other parent in writing first. If they proceed without agreement, you can apply to the court for orders preventing the move or requiring the child's return. File urgently if the move is imminent. The court will assess whether relocation is in the child's best interests, considering factors like the child's relationship with both parents, the reason for the move, and proposed arrangements for ongoing time.
Can I take my child overseas to live permanently?
International relocation requires either consent from all people with parental responsibility or court orders permitting the move. Australia is a signatory to the Hague Convention on International Child Abduction. If you take a child overseas without proper consent or orders, the other parent can apply for the child's return under the Convention. The Central Authority will facilitate return proceedings in most signatory countries. Always obtain proper consent or court orders before any international move.
I have a job offer interstate. How do I approach relocation?
A genuine job opportunity can support a relocation application, but it's not automatic approval. First, try to negotiate with the other parent — propose detailed arrangements for how they'll maintain their relationship with the child (holidays, video calls, who pays travel costs). If they agree, document this in writing and consider consent orders. If they refuse, you'll need to apply to court and demonstrate why the move benefits the child, not just you, and propose realistic ongoing contact arrangements.
What factors does the court consider in relocation cases?
The court applies the 'best interests' principles under Section 60CC. Key factors include: the benefit to the child of a meaningful relationship with both parents, the child's views (if appropriate), the impact on the child's relationship with the non-relocating parent, the reason for the proposed move, the feasibility of proposed arrangements for ongoing time, and any family violence or safety issues. The court doesn't apply a presumption for or against relocation — each case is decided on its merits.
Can the court stop me from taking my child on holiday overseas?
If court orders include travel restrictions or require consent for international travel, yes. Even without explicit restrictions, if you have parenting orders and the other parent objects, they could apply for orders preventing the travel. For international holidays, it's wise to: give written notice of travel plans, seek written consent (even if not legally required), and ensure any court orders permit the travel. The Family Law Watchlist can flag children at airports if orders prevent their removal from Australia.
What happens if the other parent moves without permission?
If the other parent relocates with your child without consent or court orders, you can apply urgently to the court for: orders for the child's return to their previous location, orders restraining further relocation, and potentially contravention orders if existing orders were breached. Act quickly — courts are more likely to order return if you act promptly. Document when you discovered the move, attempts to contact the other parent, and the impact on your relationship with the child.
Who pays for travel costs if the child needs to travel for time with a parent?
There's no automatic rule — it depends on your circumstances and what the court considers fair. Factors include: who initiated the relocation, each parent's financial capacity, and the distance involved. Often costs are shared proportionally to income, or the relocating parent bears more cost. The court can make orders about travel arrangements including who pays for flights, whether the child travels alone (if old enough), and handover logistics.