Relocation of a Child After Separation

Relocation cases are among the most heartbreaking and emotionally challenging in family law, not only for the parents and children involved but also for the Judges tasked with making these difficult decisions.

As Kay J observed in the case of Hardy v Herlihy (2001) FMCAfam 1472 (unreported):

“Relocation cases are agonising for all persons involved in them. They must almost inevitably involve two claims of right. There is the right of the resident parent to get on with life as he or she sees fit, and at the same time there is the right of the child to maintain a meaningful relationship with the non-resident parent if at all practicable… Decisions are often made by parents in these proceedings without thinking through the entirety of the consequences.”

While lawyers often refer to these matters as “relocation cases”, legally they are simply parenting disputes governed by Part VII of the Family Law Act 1975 (Cth). Any decision about relocation must be made with the child’s best interests as the paramount consideration, assessed under section 60CC of the Act.

The Court must weigh six key factors:

Child and caregiver safety — including protection from family violence, abuse, neglect, or other harm.
The child’s views — with consideration of their age, maturity, and level of understanding.
Caregivers’ capacity — to meet the child’s emotional, developmental, and physical needs.
The child’s needs — including psychological, emotional, educational, and cultural requirements.
Benefits of relationships — maintaining meaningful relationships with parents and other significant people, where safe to do so.
Other relevant factors — depending on the circumstances of each case.

What Happens if a Parent Wants to Relocate?

If a parent wishes to relocate with a child—whether intrastate, interstate, or internationally—and the move would significantly affect the child’s ability to maintain a relationship with the other parent, the relocating parent must first seek the other parent’s consent.

If consent is not obtained, the relocating parent must apply to the Federal Circuit and Family Court of Australia for permission.

Unilateral relocation without consent or a court order is heavily criticised by the Court and may result in orders requiring the child’s return, sometimes with the assistance of the Australian Federal Police.

How the Court Approaches Relocation Cases

Relocation cases are finely balanced and highly fact-specific. In considering a relocation application, the Court may examine:

1. Impact on the Child’s Safety and Stability

The Court will assess any risks associated with the proposed move or with remaining where the child currently resides, including exposure to physical, emotional, or psychological harm.

2. Practical Arrangements for Time and Communication

The relocating parent must present a clear, realistic plan for:

Where the child will live, attend school or daycare, and access healthcare.
How the child will maintain meaningful communication with the non-relocating parent (e.g., via FaceTime, WhatsApp, Zoom, etc.).
Practicalities of travel (e.g., flight details, unaccompanied minor arrangements).
How travel and communication costs will be managed between parents (for example who will book and pay for flights, bus or travel tickets , meet fuel costs, will the child travel as an unaccompanied minor, a hotel or motel bookings to be made etc.)

3. Effect on the Child’s Relationships

The Court recognises the importance of a child maintaining strong relationships with both parents and other significant individuals, provided it is safe to do so. A relocation that would disrupt these relationships may weigh against permitting the move.

4. The Child’s Views

The child’s wishes are considered. The weight given depends on the child’s age and level of maturity and whether external factors (such as parental influence) may be affecting their views.

5. Cultural Considerations

The Court will take into account the child’s cultural identity, including connections to Aboriginal or Torres Strait Islander heritage where relevant.

Key Takeaways

No automatic right to relocate: A parent does not have an automatic right to move a child’s residence. Each case is determined based on the child’s best interests.
No presumption in favour of relocation: The law balances a parent’s freedom to move with the child’s right to maintain significant relationships and stability.
Individualised assessment: Every relocation case is judged on its own facts, with the child’s welfare as the paramount concern.
Importance of negotiation: Wherever safe and possible, parents are encouraged to explore alternative dispute resolution options before commencing costly, stressful and lengthy litigation.
Seek legal advice early: Early, strategic legal advice can significantly impact the outcome of a relocation dispute.

How Tosh Colls Family Law Can Help

Relocation cases are complex, emotionally charged and often urgent. Whether you are seeking to relocate with your child or opposing a proposed move, Tosh Colls Family Law has the expertise to guide you through every step of the process.