After separation, it’s not unusual for one parent to consider relocating. This could be to the next suburb, intrastate, interstate or even overseas. If you find yourself in this position and you’re the primary caregiver for any children of the relationship, you may need to apply to the Federal Circuit and Family Court for a relocation order if you cannot come to an amicable agreement with your former partner.

Special note - changes to the Family Law Act

The information on this webpage may no longer be current. On 6 May 2024, significant changes to the Family Law Act 1975 (Cth) will come into effect. These changes may impact your family law matter.

Contact us to discuss how these changes could affect your family law matter: tel: 03 8625 8957

Amendments to the Family Law Act 1975 (Cth) (’the Act’) in 2006 and the introduction of the Family Law Amendment (Shared Parenting Responsibility) Act 2007, encourage a greater level of shared parenting and emphasise the importance of children maintaining a relationship with both parents, in the absence of violence or abuse.

If you have separated and wish to relocate with your child or children, your former partner may not be willing to reduce the time they spend with the children. Therefore, you may need to prove that relocating will better meet your children’s needs.

This blog discusses the court’s approach to relocating children interstate and intrastate and the matters you should be aware of if you are considering relocating with your children.

Relocating interstate or intrastate with your child

You and your former partner should make genuine efforts to come to an agreement about your relocation and make the appropriate arrangements for the care of the children. The best interests of the children should be paramount when making these arrangements.

If you both agree to your relocation, you are encouraged to create a written parenting plan outlining how often the other parent will visit the children at the new relocated residence. It’s worth noting that a parenting plan is non-binding so if you want your agreement to be binding, you can also apply to the court for consent orders before you relocate.

If you cannot agree, you should consult a family dispute resolution service who will help you both to create a plan of relocation that is feasible. If you do not reach agreement, you will need to apply to the court for a relocation order.

The court’s approach to child relocation applications

Since the decision of the Full Court in Taylor v Barker (2007) 37 Fam LR 461, the court’s approach to child relocation applications has involved:

• considerations of the benefits to the child of having a meaningful, (i.e. significant, or important) relationship with both of the child’s parents;
• considerations of the best interests of the child; ; and
• considerations of the time the child will spend with each parent.

The court will weigh up reasons for relocation provided by you and counter-arguments from your former partner.

In Babcock v Waddell [2019] Fam CAFC 129 (31 July 2019), a case involving an application for child relocation from Sydney to Perth, the court turned its mind to the following questions when deciding whether to grant the application:

• Is the application genuine in the sense that it is not motivated by some selfish desire to exclude the other parent or other person from the child’s life?
• Is the application realistically founded on practical proposals (both well researched and investigated)?
• In the future, if the other parent becomes a single parent or a spouse in a new relationship, would it detrimentally impact them if your children relocate?
• Is the other parent’s opposition to the relocation motivated by genuine concern for the future of the child’s welfare or is it driven by some ulterior motive?
• Where the relocation is interstate, what is the likelihood of the other State’s courts working with the previous State’s courts to make sure ongoing family support and child contact orders are adhered to after the relocation?

Relocating intrastate (within your State)

Obtaining court permission to move intrastate is usually easier than seeking approval for interstate (or international) relocation.

In Richter v Richter (2019) 63 Fam LR 102, a mother was seeking an order in the Federal Circuit and Family Court of Australia to relocate her three children who all had autism spectrum disorder, from one town to another in regional Victoria.

One child was severely intellectually disabled, and the mother was his primary caregiver from his birth. The court granted the mother a relocation order based on the following factors:

• The benefits to the children of moving to the new town, given the new town had more facilities than those present in the town that they currently lived in.
• The children would benefit from a college education in the new town and would still be able to continue their extracurricular studies and holiday activities.
• The mother had been the sole provider for the children’s emotional, medical, and intellectual needs since birth and the father had only become involved in the children’s co-curricular activities in the last year.
• The father insisted that the children stay with him on his farm which was not reasonably practicable for their future goals.
• The four-hour drive and distance that the father would need to travel from the town he lived into the town that the mother wanted to relocate the children to, was irrelevant and did not significantly impact the carrying out of parenting arrangements by the father.
• The mother agreed to allow the father to spend plenty of time with the children.
• There was also flexibility and freedom given to the father to telephone and/or video call the children.

Relocating interstate

Recent interstate child relocation cases have demonstrated that the Federal Circuit and Family Court critically evaluates the assessment of benefits and risks in a relocation application. 

In Brooker v Potts [2019] FCCA 818, the mother, post separation, wanted to relocate her child from South Australia to Victoria. She alleged that the father was an abuser of illicit drugs and because he had been violent over many years towards her, she was fearful for the child’s safety if the child was to live with the father.

However, the mother relied on a family violence order against the father which was made prior to the date on which the parties married and prior to the birth of the child. Consequently, the family violence order was not effective to prove that the father was violent to the child.

The court did not find a “need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence”, which is a consideration in section 60B of the Act to be taken into account when deciding the best interests of the child. The court found there was no significant assessment of risk and rather, the child’s relocation would result in the “severance (i.e. the breaking) of any effective level of relationship between the child and the father.”

The court did not grant the mother a relocation order and instead, she was ordered to return the child to South Australia, to a location within a 10 kilometre radius of the current residential address of the father.

This case highlights how courts will scrutinise the particular facts and circumstances of each case when determining whether to make a relocation order.

A significant change in routine or a potential deterioration of the quality of the existing relationship between the child and the other parent are examples of factors that will discourage the court from granting a relocation application.

Things to be aware of when considering relocating with your children

If you are considering relocating with your children and you are separated from the other parent, you should be aware of the following:

• Regardless of whether you have equal shared parental responsibility with the other parent, when applying for a relocation order, you will most likely be responsible for the cost of any intrastate travel expenses, as well as return domestic interstate flight fares, to allow the children to travel to visit the other parent as per the parenting plan.
• If you are required to pay child support and your payments are not up-to-date and you are not willing to make the necessary payments in the near future, the court can, in some cases, issue a Departure Prohibition Order prohibiting your children from leaving the State.
• If the court grants you a relocation order, it may order that some, or all, of your previous parenting orders and arrangements be discharged and new orders and arrangements be made. A family dispute resolution service will help you and your former partner create a parenting plan. If you both cannot reach an agreement on arrangements for your child after relocation, then you will need to apply to the court for a parenting order which is binding on both parents.
• If you relocate your children without consent from the other parent, in breach of any current Parenting Orders or without seeking the court’s approval, the other parent may apply to the court for either a Personal Protection Order seeking to protect your children from you and preventing your children from leaving, or a Recovery Order to have the children returned.

How a family lawyer can help

Smith Family Law can advise you on the best course of action when it comes to:

• obtaining consent to relocate your children; or
• preventing your former partner from obtaining a child relocation order or relocating your children without your consent.

Our approach is to try to negotiate a mutual outcome where possible and only instigate court proceedings as a last resort or where it becomes necessary for the child’s safety.

Contacting Smith Family Law

📞 03 8625 8957

📧 [email protected]