Separation often brings big changes, and sometimes one parent wants to move. It might be for work, family support, cheaper housing or a fresh start. When children are involved, a move can affect their time with the other parent. That is why family law treats a long move as a serious decision.
This article explains the basics of moving with children after separation in Australia. It covers consent, parenting orders, how courts decide and the extra rules for overseas travel. It is general information only. Western Australia has its own Family Court, so where you live can change which court and services you deal with.
What counts as relocation
Legal Aid WA explains that moving a long way from where a child usually lives is called a relocation decision. Such a move can affect the child’s relationship with both parents. It can also affect time with other important people, such as grandparents. For this reason, the law expects parents to handle it with care.
Do you need the other parent’s agreement?
Generally, the other parent must agree to the move, or a court must give permission. If the move would make it hard for the other parent to spend time with the child, you should talk about your plans first. The aim is to reach an agreement before anything changes.
If there are parenting orders
Existing orders make a big difference. If you share parental responsibility or joint decision making, you must talk to the other parent and agree before moving. The court treats a move as a major long term issue. If you have sole parental responsibility, the other parent usually does not need to agree. You must still follow any orders about time with the other parent, and that may rule the move out.
If there are no orders
Some parents assume that without orders they are free to move. That is not safe to assume. Legal Aid WA notes that moving without permission can still lead to a recovery order. This is true even if there has never been a court case about the child.
If there has been family violence
Talking to the other parent is not always safe. If there has been family violence or abuse, get legal advice before raising the move with them. A lawyer can explain your options and what steps to take first. Legal Aid WA gives this advice for parents who do not feel safe.
Trying family dispute resolution first
Before asking a court for permission to move, you generally must try to sort it out with the other parent. This is done through family dispute resolution, which is a form of mediation. It gives both parents a chance to talk through the move with an independent person.
Legal costs are a real worry for many separated parents. If money is tight, our article on how to apply for a reduction or exemption of legal fees during a divorce may help. Legal aid services may also be able to help some parents.
How a court decides
If parents cannot agree, a court may be asked to decide. The main concern in every case about children is the child’s best interests. Under the Family Law Act 1975 (Cth), the court looks at each parent’s proposal against the factors set out in the Act. The genuineness of the reasons for moving is weighed with the other evidence.
A court cannot stop a parent from moving themselves. It can, however, make orders that stop a child being taken away from an area. If the move seems aimed at cutting the other parent out of the child’s life, the application is likely to fail. Each case turns on its own facts, so outcomes vary.
Some parenting cases also involve a lawyer who acts for the child. Our article on the role of an independent children’s lawyer explains how this works. Money questions often come up after separation too. Our piece on child support when the paying parent goes bankrupt covers one of them.
Moving overseas with children
Overseas moves bring extra rules. The Attorney-General’s Department warns that taking a child overseas without the other parent’s agreement may be a criminal offence. The penalty can be up to three years in prison. To relocate, it advises getting the other parent’s written agreement or applying for relocation orders.
The Australian Federal Police runs the Family Law Watchlist. It alerts police when certain children leave Australia and applies at all points of arrival and departure. A child can be listed when a court order or injunction limits overseas travel and asks for the child to be listed. This can happen while a parenting case is before the court. A Child Passport Alert through the Department of Foreign Affairs and Trade does not place a child on the Watchlist.
If a child has already been taken to another country, act quickly. Report it to police if you are worried for the child’s safety and get legal advice. If the country has signed the Hague Convention on child abduction, the Australian Central Authority may be able to help. Once a child has left Australia, they are outside the jurisdiction of the Australian Federal Police.
When the other parent wants to move
Sometimes you are the parent who wants the child to stay. If you are worried the other parent will move the child, get urgent legal advice. Legal Aid WA says you may be able to apply for an injunction to stop the child being taken away. If the child has already been moved without your consent, you may be able to apply for a recovery order.
If a move is for a new job, check the work arrangements before anyone commits. Our article on the types of employment contracts in Australia explains the main options. Knowing whether a job is permanent, fixed term or casual can help when plans are explained to the other parent or a court.
Frequently asked questions
Can I move with my children if we have no court orders?
Not safely without agreement. Legal Aid WA says moving without permission can still lead to a recovery order, even when there are no orders. Try to reach an agreement first, and get legal advice if you cannot.
Do I have to try mediation before going to court?
Generally, yes. Before asking a court for permission to move, you usually must attend family dispute resolution. A lawyer can tell you whether any exception applies to you.
Can I take my child on an overseas holiday?
It is safest to have the other parent’s written agreement before you go. Taking a child overseas without agreement may be a criminal offence. If orders limit travel, you must follow them, and the child may be on the Family Law Watchlist.
What does a court look at in a relocation case?
The child’s best interests are the main concern. The court weighs each parent’s proposal and the reasons for the move. A move aimed at cutting out the other parent is unlikely to succeed.
This article is general information only and is not legal advice. Family law rules and court processes differ between states and change over time. For advice about your own situation, speak with a qualified family lawyer.