Relocating with children: what Australian family law requires

Relocating after separation can be an entirely understandable decision. A parent may have a new job, family support, a new relationship, financial pressures or a desire to make a fresh start. But when children are involved, moving a considerable distance can have serious family law consequences.

A relocation is not simply about where one parent wishes to live. It is about how a move will affect the child’s relationship with both parents and, ultimately, whether the proposed arrangement is in the child’s best interests.

Bruce Provan, Managing Director of Page Provan Family and Fertility Lawyers, explains that relocation matters are a particular category of parenting dispute. They need to be handled carefully, preferably well before removalists are booked, schools are changed or travel plans are made.

What is a parenting relocation case?

A parenting relocation case arises where one parent wants to move with a child, or children, a substantial distance from the other parent. The move may be interstate, to a regional area a long way away, or overseas.

It is not generally about minor moves within the same city. Moving between nearby suburbs will often have little practical effect on the time a child can spend with the other parent. Relocation becomes a significant legal issue when the proposed move may reduce, disrupt or fundamentally change that relationship.

For example, a move from Brisbane to another suburb may still allow the existing parenting arrangement to continue. A move from Brisbane to Perth, rural Queensland or another country is far more likely to affect school holiday time, weekend contact, travel costs and the frequency of communication.

The parent proposing the move is not required to prove that they have a particular reason for wanting to relocate. In practice, though, their reasons will often form part of the evidence. The Court may need to understand the practical reality of the move, including work opportunities, support networks, housing, schooling and the arrangements proposed for the child to maintain a meaningful relationship with the other parent.

The child’s best interests remain the central question

There is no automatic rule that a parent can relocate simply because they are the child’s main carer. Equally, there is no automatic rule that a parent must remain in a particular town or city indefinitely.

The question in a relocation dispute is what arrangement is in the best interests of the child or children. This requires a careful assessment of the individual family circumstances.

A relocation may mean that the child has fewer face-to-face opportunities with one parent. It may also mean longer periods of time with that parent during school holidays, more travel, different communication arrangements and significant changes to daily life.

Each family’s circumstances are different. The Court must consider the likely impact of the move on the child, rather than merely deciding which parent’s preference should prevail.

For parents facing a possible dispute, early advice from an experienced family lawyer in Brisbane can help identify the issues that need to be addressed before a move is proposed or opposed.

Should the other parent’s consent be sought?

In most situations, it is a good idea for a parent who wants to relocate with children to seek the other parent’s consent first. That conversation should happen well before the intended moving date.

Early communication gives both parents an opportunity to consider practical arrangements and, where possible, reach an agreement. A proposal should be more than a statement that a move is happening. It should address how the children’s relationship with the other parent will continue after relocation.

Issues that may need to be worked through

• Where the children will live and attend school.
• How often they will spend time with the other parent.
• Whether school holiday time will need to increase.
• Who will organise and pay for travel.
• How the children will communicate with the other parent between visits.
• Whether the new arrangements are workable for the children’s ages and circumstances.

Agreement can avoid the delay, cost and stress of a Court application. But it is important that any arrangements are practical and properly thought through, particularly where significant travel will be involved.

There are exceptional cases where seeking consent may not be appropriate. This can arise where there is a history of domestic violence and a parent fears for their own safety or the children’s safety. In those circumstances, it may be in the children’s best interests not to alert the other parent to the proposed move.

That is not a decision to make lightly. A parent in this position should obtain legal advice before acting, as well as taking appropriate steps to address immediate safety concerns.

What happens if a parent relocates without agreement?

Moving first and dealing with the consequences later can create substantial problems. If a parent relocates with the children without the other parent’s consent, either parent may apply to the Court for orders about where the children should live while the relocation dispute is decided.

In some cases, the Court may require the parent and children to return to the place where they had been living until it can determine whether the relocation should be permitted. This can be disruptive, expensive and emotionally difficult for everyone involved, particularly the children.

However, a return is not automatic. There may be circumstances in which the Court allows the children to remain in the new location because that outcome is assessed to be in their best interests.

The key point is that a parent should not assume that moving creates a permanent advantage or that the Court will simply accept the new circumstances as they stand. Relocation is assessed on the evidence and on the children’s best interests.

International relocation and the Hague Convention

Relocating overseas with children raises further issues. A parent should obtain advice before taking children out of Australia to live overseas, particularly where the other parent does not agree.

Australia is a party to the Hague Convention on the Civil Aspects of International Child Abduction. Broadly, the Convention provides a process that may assist in seeking the return of children who have been taken from their country of habitual residence to another Convention country without the required agreement or authority.

Many Western countries are Convention countries, including New Zealand, the United Kingdom and the United States. If a parent takes children from Australia to one of these countries without the other parent’s consent, the left-behind parent may be able to approach the Australian Central Authority to seek their return through the Hague Convention process.

The Australian Government provides information about international parental child abduction and the Hague Convention, including the role of the Central Authority.

Convention status is an important consideration, but it is not the only issue. Not every country is a signatory to the Convention, and practical outcomes can vary between jurisdictions. Even among Convention countries, there can be complications in how international processes operate.

If the destination is not a Hague Convention country

If children are taken to a country that is not a Hague Convention country, it may be considerably more difficult for the other parent to seek their return to Australia. The question may then need to be determined by courts in the overseas jurisdiction.

That can involve unfamiliar laws, additional cost, delay and significant uncertainty. It is therefore particularly important to obtain specialist family law advice before any international relocation is contemplated.

Plan before making a move

Relocation cases are rarely straightforward. They involve the competing realities of a parent’s right to make choices about their own life and the child’s need for stable, meaningful relationships with both parents.

Before relocating with children, parents should take the time to consider:

• Whether the move is substantial enough to affect the current parenting arrangements.
• Whether the other parent agrees to the move.
• How the child’s time and communication with the other parent will work in practice.
• Whether an application to the Court may be needed before relocation.
• Whether safety concerns require a different approach.
• Whether the proposed destination is overseas and subject to Hague Convention considerations.

Bruce Provan has more than 34 years of family law experience and practises in parenting disputes, property disputes, financial agreements and mediation. His professional profile provides further information about his family law background and qualifications.

For tailored advice about a proposed relocation, an objection to a move, or urgent concerns involving children being taken overseas, contact Page Provan Family and Fertility Lawyers. Early advice may help parents understand their options and make decisions that keep the children’s best interests at the centre of the process.