Relocating a Child After Separation

You have a job offer in another city. Or the children’s grandparents have offered you a room and a fresh start two states away. Or maybe it’s the reverse, your ex just told you they are moving, and the kids are going too.

Either way, one question is keeping you up. Can you actually do this, or stop it?

Here is the plain answer. In most cases you cannot move away with your child without the other parent’s consent or a court order. If the two of you cannot agree, a court decides, and it decides on one thing: the best interests of the child under the Family Law Act 1975 (Cth).

I am the principal at Justice Family Lawyers, and relocation is one of the hardest matters our child custody lawyers handle. There is rarely a clean middle ground: the distance itself is the heart of the dispute. Let me walk you through where you actually stand.

When can you move away with your child?

Two things make a move lawful if you share parental responsibility: the other parent’s consent, or an order from the court. That is it.

If you both agree, you write it down (more on how below). If you do not agree, you ask the court, and you do that before you go.

Here is where a lot of people get caught out. Relocation is not just packing a van and updating an address. If there is a parenting order in place, or the other parent objects, moving without consent or the court’s say-so puts you on the back foot fast. Distance is the whole point of the dispute, so the court treats it seriously.

What the court weighs

The court runs every relocation decision through one test: the best interests of the child. Not the best interests of the parent who wants to move, and not the parent who wants to stay.

From 6 May 2024 the factors the court weighs were rewritten. There is no longer a checklist ranked in order of importance. The court looks at what keeps the child safe, what the child wants (weighted for their age and maturity), the child’s relationship with each parent, and the practical effect the move would have on the time the child spends with each of them.

That last point is the one relocation turns on. A move from Sydney to Brisbane does not just change a postcode. It changes whether a weeknight dinner with the other parent is still possible.

The best-interests factors sit in s 60CC of the Family Law Act 1975 (Cth), rewritten by the 6 May 2024 family law changes.

The reasons a court takes seriously

Not every reason to move carries the same weight, and it helps to be honest with yourself about yours before the court is honest with you.

Genuine reasons like employment opportunities, better support from extended family, or escaping family violence are taken seriously. Just wanting a fresh start isn’t usually enough.

A real job, a support network that lets you actually parent, safety from harm: those are reasons a court engages with. Wanting distance for its own sake, or to make contact harder for the other parent, is the fastest way to lose.

Parental responsibility, not “custody”

A quick correction, because the wrong words lead to the wrong expectations. Australia does not use “custody” or “visitation”. We talk about parental responsibility (who makes the big decisions for a child) and who the child lives with or spends time with.

The 6 May 2024 reforms also removed the old presumption of equal shared parental responsibility. In its place, the law now asks separated parents to make joint decisions on major long-term issues, things like where a child goes to school, their health, and their name.

Relocation is one of those major long-term issues. That is exactly why you cannot decide on your own, unless you have sole decision making through a court order.

Joint decision-making on major long-term issues sits in s 61DAA of the Family Law Act 1975 (Cth), as amended on 6 May 2024.

A higher-court example (and why it is only a guide now)

Courts have long looked hard at the practical reality of where a parent can actually live and work.

In MRR v GR [2010] HCA 4, a mother was in casual work and living in a caravan park in Mount Isa. The High Court found the magistrate had erred by ordering equal time without first testing whether an arrangement that required the mother to stay in Mount Isa was reasonably practicable for her at all.

It is a useful illustration of how seriously a court weighs the real-world consequences of a move. One caution: that case was decided under a section of the Act (s 65DAA) that was repealed on 6 May 2024, so treat it as background, not as the current statutory test. The principle, that the court looks at the practical reality and not just the ideal, is what still holds.

Two moves, two outcomes

Rather than talk in theory, here are two of our own matters. They went opposite ways, and the difference is instructive.

The first was a move we argued for.

We acted for a mother who wanted to relocate from Sydney to Brisbane after separation. She had strong family support there, better job prospects, and a childcare plan that gave her financial stability. The father in that case opposed the move and we had to establish that this was going to be the best thing for the child.

Notice the work there. It was not enough that the move suited her. We had to show it served the child. That is the bar.

The second went the other way. We were on the side that opposed it.

We represented a father whose ex wanted to move overseas with their child. She argued it was for job opportunities and family support, but the court looked at the child’s stability here, school, friendships, and the strong bond with the dad. The relocation was refused as a result of it.

The judge’s reasoning in that overseas matter is worth hearing in full, because it shows how a court thinks about the distance itself.

And the judge was concerned, saying that the medical system and the social security system in the US might not be as good as what we have here in Australia, and on top of that, the denial of having face-to-face time between the father and the child would result in a poor outcome for the child, and that face time actually is not a substitute for being in person with your child.

Moving without the other parent’s consent

Some parents decide the process is too slow and just go. I understand the impulse. It is also one of the worst moves you can make.

If you pack up and leave without consent or a court order, you run the risk of being ordered to return immediately. And judges don’t look kindly on parents who take matters into their own hands.

If the other parent applies, the court can make a recovery order requiring the child’s immediate return, and it can direct police to help enforce it. You do not want your relocation story to start with your child being brought back by an officer.

Recovery orders are made under s 67Q of the Family Law Act 1975 (Cth), through the Federal Circuit and Family Court of Australia.

Taking a child overseas

An overseas move carries an extra layer of rules, and the penalties are real.

Taking or sending a child out of Australia while a parenting order is in force, or while proceedings are on foot, without written consent or a court order, is a criminal offence carrying up to three years imprisonment. Passports can be stopped, and a child can be placed on the Australian Federal Police Family Law Watchlist so they cannot leave the country. If a child is wrongfully taken to or from a country that has signed the Hague Convention, that convention governs their return.

The overseas-removal offence sits in s 65Y of the Family Law Act 1975 (Cth). See the court’s guidance on relocation, travel and the Hague Convention.

How to relocate the right way

If you want the move to hold up, do it in this order.

1. Raise it early, and try to agree in writing. Surprises harden positions; an early, honest conversation does the opposite.
2. Attend family dispute resolution. In most cases you need a section 60I certificate before you can file parenting proceedings, so this step is not optional.
3. If you reach an agreement, record it. A parenting plan captures it in writing, or you can apply for consent orders to make it enforceable.
4. If you cannot agree, apply to the Federal Circuit and Family Court of Australia for a relocation decision. Do this before you move, not after.

Get the order first. Move second. In that sequence, distance is a plan. In the other, it is a risk.

Where to from here

Relocation matters move fast and the stakes are your time with your child, so the earlier you get clear advice the more options you keep. If you are weighing a move, or your ex has announced one, book a free discovery call with me and my team. We will tell you honestly where you stand and what your next step is, no pressure. Call 1300 614 732, or speak with our child custody lawyers about your situation.