What Happens in Family Law When One Parent Relocates?

For families with child custody arrangements, relocation of a parent or child can hold a significant impact on the family unit. If one parent decides to relocate or even to travel overseas with a child, the non-relocating parent may not be able to uphold their responsibilities under the parenting agreement. This is why under Australian Family Law, plans for relocating with children must be approved by both parties through mediation or if necessary, via the Family Court. At Oxford Partners Lawyers, our Family Lawyers have had extensive experience navigating relocation under Australian Family Law, supporting Melbourne families in developing and updating parenting orders and relocation plans to support the best interests of the child or children. Below, our Family Lawyers have provided their insights into the process of relocating with children under a parenting agreement, outlining what happens if one parent disapproves of the relocation plan, and how a swift resolution can be met.

What Constitutes Child Relocation?

Child relocation occurs if one parent decides to relocate following a divorce or marriage separation. Child relocation can happen on a range of different scales, from moving out of the family home to moving interstate or even overseas. Child relocation can also include plans for holiday travel.

Moving House

There are many different arrangements finalised under a parenting agreement, including plans for education and schooling of children, as well as childcare, financial planning, and living arrangements. For parents with joint custody, agreeing upon living arrangements that are convenient for both parties helps ensure that both parents can easily pick up and drop off children with minimal disruption to both their schedules and the schedules of their child/children. This ease of communication and collaboration are essential for healthy co-parenting. Court decisions can take time,which is why family mediation is oftentimes a more preferable pathway. Allowing for swifter resolution, family mediation sessions can also allow parents to speak openly and reach an understanding. If a negotiation cannot be made in mediation, the relocation matter can be escalated to the Family Court. Need to take your relocation matter to family mediation? Here’s more information on how you can prepare for your mediation session to ensure smooth communication and a prompt resolution.

Holiday Travel

Although child relocation due to holiday travel is temporary, there may still be court orders preventing children from leaving the state with one or either of their parents – even for a holiday.  For parents who are in dispute regarding holiday travel plans made by either or both parties, family mediation sessions can be arranged to meet a swift resolution that stipulates travel dates, duration of the trip, and destinations that will be visited. Parents may also be required to sign passport applications for international travel plans. In some cases, however, the Court may approve a passport be issued without the other parent’s consent if they believe the approval to be in the child’s best interests.

Overseas Relocation

If one parent opts to relocate overseas with their child or children, they can file for a relocation order that stipulates the permanent international move. These are the most difficult relocation orders to secure consent from both parties, as the overseas move might require a total revisiting of parenting orders and custody arrangements. If the non-relocating parent does not consent to the overseas relocation plan, the relocation order may be taken to the Family Court of Australia to determine whether the plan is in the best interests of the child. Court proceedings may delay international travel for the children and the relocating parent for upwards of weeks to months. If the relocating parent moves away before Court rulings are finalised, they may be in violation of the Hague Convention.

Understanding the Hague Convention

The Hague Convention on the Civil Aspects of International Child Abduction is an international agreement that defines the criteria for international parental child abduction. Under the Hague Convention, parents have a right to seek to have their child returned to their home country if that parent claims the child was taken without their permission and without the authorisation of the Court. In Australia, Family Lawyers can offer support in filing applications for overseas relocation or travel, or in assisting parents that seek to file a court order to have a child returned under the Hague Convention.  Note: if a child has been relocated to a foreign country that does not recognise the Hague Convention, a Family Lawyer can still offer guidance in having the child returned to their home country. In these child relocation cases where the child’s home country is Australia, the Department of Foreign Affairs and Trade may need to intervene to assist parents in securing services with a lawyer based in that non-Hague country.

How to Apply for a Child Relocation Order

To apply for a child relocation order, the relocating parent will need to first file an Initiating Application with the Federal Circuit and Family Court of Australia. This Initiating Application should include:

• Proposed destination for relocation (including a new residential address)
• A revised parenting plan
• Consent orders to demonstrate consent from both parties
• Any supporting documentation to corroborate that the relocation is in the best interests of the child/children

If the non-relocating parent does not provide their consent, family mediation sessions may need to be scheduled prior to filing the child relocation order with the Federal Circuit and Family Court of Australia. If an amicable agreement still cannot be reached during family mediation or dispute resolution, then the relocating parent can file directly to the Court for Court officials to assess whether the proposed relocation does in fact, maintain the best interests of the child/children involved.

Key Factors that are Considered in Parent Relocation Matters

Under Sections 60CC and 65DAA of the Family Law Act of 1975, both parents have the right to quality time with their children and as such, plans to move away from the original family home or from the child or children’s home environment, must be approved by both parties. If the parties cannot reach an amicable agreement, the matter can be taken to the Family Court of Australia for assessment. Some of the factors that the Court will consider when assessing relocation plans include:

• The grounds for the relocation planning
• The availability of family support at the new location
• The anticipated quality of life for the child/children at the new location (i.e. access to schooling, healthcare, etc.)
• The preferences of the child/children 
• Whether full or partial consent has been provided by the non-relocating parent
• Whether there are inclusions for visitation/time-sharing arrangements with the non-relocating parent
• The estimated travel distance and duration of travel (in holiday planning cases)

Work with Oxford Partners for your Family Law Relocation Case

Amending parenting orders to include relocation plans can be an emotional and time-intensive process. As such, if you are considering filing a relocation order to the Family Court of Australia, it’s imperative that you secure legal counsel that’s empathetic towards you and your family and understand the value of a swift and fair resolution. At Oxford Partners Lawyers, our Family Lawyers take pride in providing empathy-driven Family Law services, providing support for all the more detailed aspects of parenting and child custody arrangements, including amendments like relocation planning. If you’d like to ensure a swift resolution to your relocation case, get in touch with our team of Family Lawyers at Oxford Partners Lawyers to book your free consultation.

Frequently Asked Questions

How far away can a parent move under their child custody agreement?

For joint custody arrangements, there is no specific distance as to how far a parent can relocate with their child. As such, it’s up to the Court to decide whether the relocation plans are in the best interests of the child.

How long does a child relocation case take?

It can take upwards of weeks or even months for the Court to provide their ruling on parent and child relocation cases. This is why family mediation is the preferred method for reaching an amicable agreement between both parties involved in a relocation order.

Can I add a relocation order to an existing parenting agreement?

Yes, a relocation order can be added to an existing parenting agreement. If both parents agree to the relocation plan, they can formalise the relocation arrangement through a consent order. If the relocation plan requires revisions of the existing parenting agreement, these revisions can be made with assistance from Family Lawyers.

Are there any risks for relocation without consent from the other parent?

If one parent relocates without the other parent’s consent, there is a risk of being issued a recovery order by the Court. This court order may negatively impact Court assessments of that parent in the future, which may then result in updates to the parenting agreement or custody arrangements in favour of the contesting parent.