Life can move quickly. A new job, a new relationship, an ailing family member – any of these changes and many others might leave you with a need to pack up and move.
If you’re also a parent, of course you’ll take your children with you. But if there’s a co-parent in the picture, things can get tricky legally.
When a parent moves with their child to another city, town, state, or country, this is legally referred to as ‘relocation’. And whether or not you can relocate a child to another city, state, or even country depends on the unique circumstances of your family situation.
What are the circumstances where a parent is able to relocate a child?
Under Australian family law, parents have joint parental responsibility absent a court order to the contrary. This means that both will have a say in any significant decisions that impact their child, including where the child lives or whether they should relocate.
So, when it comes to whether a parent can relocate their child, both typically need to agree. If only one parent wants to relocate their child, then there are certain circumstances where this can happen.
You have consent to relocate your child
The Family Law Act of 1975 requires a co-parent to obtain the consent of the other parent before relocation. This is the case even if you are the primary carer, or ‘custodial’ parent.
If the other parent gives their consent, then you’re able to relocate with your child with no further formal requirements. However, it’s always a good idea to formalise that agreement with a consent order through the Family Court to make it legally binding and enforceable. It’s also a good idea to formalise any visitation arrangements at this time as well.
However, if the other parent does not agree to allow you to relocate your child, then you can only move with a court order. But before you can approach the Court for an order, you must make a serious and genuine attempt to come to an agreement with the other parent using family dispute resolution.
You’ve been given a court order permitting you to relocate your child
If you do not have consent to relocate your child, you will need to go to Court to obtain a parenting order to allow the move. The Court will not grant the order to allow the relocation unless it finds that the move is in the best interests of the child.
Under section 60CCof the Family Law Act, the Court will determine whether the move is in the best interests of the child by looking at the following considerations:
- The benefit to the child of having a meaningful relationship with both parents.
- The need to protect the child from physiological and psychological harm or exposure to harm (including family violence).
- The child’s relationship with other family members.
- The child’s own views, depending on their age and maturity.
- The permanency of the relocation.
- The impact the relocation might have on the child’s life, including friends, schooling, extracurricular activities, and social life.
- The reasons for the move, for example, if it provides employment, family support, or better living conditions.
- Whether the parent has tried to make reasonable arrangements for the other parent to stay involved in the child’s life.
- The financial costs and logistics of maintaining contact with the child in another place.
- Any existing parenting orders or arrangements.
- The capacity of each parent to provide for the child’s needs in the new location versus the current location.
It’s important to note that a decision can take months or even years, and there’s no guarantee that you’ll be permitted to move with your child even when the Court has made its decision.
Unilateral relocation in family law
When one parent wants to make a move and relocate their child without the consent of the other, this is called a unilateral relocation. And the only way this can be done is via a court order.
If you do make the move without the consent of the other parent, you could be ordered to return with the child until a decision has been made by the Court at a hearing. You could also face penalties if you fail to do so. And if you abruptly relocate without notifying the other parent, this could be considered abduction, and you could face criminal charges.
International relocation: Can a custodial parent move to another country?
Trying to relocate overseas with a child is even more complex than relocating within Australia. International relocation cases follow a similar process, and the Court will use similar considerations – but there are extra layers.
For example, the Court will carefully consider how practical it is for a child to maintain a relationship with the other parent if they move so far away.
If you try to leave the country with your child without consent or a court order, the other parent can apply for a recovery order to have the child returned to the country. They can also have the child placed on the airport watch list to prevent them from leaving Australia in the first place.
Relocation as the custodial parent
We often get asked by clients if a custodial parent can move to another city. Being the custodial parent does not change any of the legal requirements of relocating your child.
In Australia, you simply can’t just pack up and move, even if you are the primary parent. That’s because you have joint parental responsibility with the other parent (in typical situations), and the decision about relocating must be made together.
In lieu of coming to an agreement, you’ll have to seek a court order. Being a custodial parent won’t change those requirements.
Examples of successful relocation cases in Australia
Relocating interstate (Rosa’s case)
In this situation, the mother was granted permission to relocate her child to Sydney from Mt. Isa. The Court determined it was in the child’s best interests because the mother would have better employment opportunities and better mental health prospects as well.
The Court also determined that the mother’s improved situation would also positively impact the child’s overall well-being and outweigh other negatives.
Relocating overseas for job opportunity
A mother working in the medical field was given a career-changing job opportunity in New Zealand. She applied to the court for an order to take her son with her when she relocated internationally.
The father opposed the order, but ultimately the Court allowed it because the job significantly improved her financial stability, she committed to paying for the child’s flights to Australia each school holiday, and the move was beneficial to both her and the child’s overall wellbeing.
How we help
When it comes to co-parenting matters generally, things can get emotional, even without the added stress of a potential move. But if you’re keen to relocate with your child, or you are worried about losing time with your child, it’s important to get early advice.
At Watts McCray, we’ve helped thousands of families who are navigating custody and parenting arrangements. We’ve helped them apply for court orders to allow relocation, fought relocation when it’s not in the child’s best interests, and helped sort through all other types of family law issues.
If you need help with any family law issue, get in touch with us via the form below. We’re here to help!
If you’re facing issues of family violence or need urgent help, please contact:
- 1800RESPECT (1800 737 732)
- Or call Triple Zero (000) in an emergency
