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  • Writer's pictureAmanda Sommerville

Moving with the kids after separating

It’s generally a hard adjustment for every family when there’s a relationship breakdown, especially when one parent wants to move away with the children of the relationship.

In family law, this moving away is referred to as ‘relocation’. Relocation is a serious matter if the move will result in the non-relocating parent’s time with the children being reduced, restricted or sometimes frustrated completely.

Can an agreement be negotiated?

When separated parents agree on the relocation of the children, the agreement reached should be formalised with Family Court consent orders to ensure the agreement is clearly documented in a Court order and enforceable. Even if Court orders aren’t obtained, any written evidence of the agreement reached between the parents (eg by letter, text message or email) can be useful evidence of the parental agreement if there are problems in the future.

If agreement can’t be reached between the parents regarding relocation, the parties should try to negotiate an agreement via a Family Dispute Resolution mediation. This is a non-Court process where a mediator will try to assist the parents to reach an agreement which will be workable for everyone.

Is the Family Court's assistance needed?

If the mediation doesn’t result in an agreement, or the matter is urgent, the parent proposing the relocation should make an application to the Family Court to seek an order permitting that parent to relocate the children.

If the caregiving parent relocates without parental agreement and without a Court Order (called ‘unilateral relocation’), the other parent may make urgent application to the Court for the children to be returned.

Cases involving the relocation of children are often difficult for the Court to decide and are considered on a case by case basis, with the Court considering a number of different factors. The Court’s paramount consideration is the best interests of the children, but this is not the only consideration.

Factors the Court will consider

Some of the matters that should be given careful consideration in a relocation matter include:

  • The need to protect the children from physical or psychological harm, from being subjected or exposed to abuse, neglect or family violence.

  • The benefit of the children having a meaningful relationship with both parents. This requires the Court to consider things such as the intended location for the children – the greater the distance between the two parents’ homes, the greater the effect on the time the children spend with the other parent.

How the move will impact the children’s relationship with the non-relocating parent? The Court is less likely to oppose a relocation where the non‑relocating parent has had little meaningful contact with the children.

  • The children’s views on the proposed relocation – but this depends on the respective children’s ages and maturity.

  • The reason for the relocation. A parent doesn’t require a compelling reason to move, but the reason for moving is still an important consideration.

A sound emotional or economic reason for the move will attract more weight than a whim. Sound reasons include moving for family support, better job prospects or educational needs.

  • The relocating parent’s ‘freedom of movement’ is relevant, particularly where the Court refusing a parent’s request or decision to relocate may negatively affect that parent’s state of mind and mental health, which may then detrimentally affect the parent’s ability to parent the children.

  • The cost and practical difficulty of the non-relocating parent spending time/communicating with the children after the move. Can technology be used to facilitate the children’s relationship with the non‑relocating parent? Are the children old enough to fly unaccompanied? Who will be responsible for handover including the time and costs of travel?

  • The Court will also consider the competing proposals of the parents in relation to the children. Each parent’s proposal should cover how they will care for the children and how the other parent will spend time with the children. Proposals for the other parent’s time should be practical and workable.

  • The Court will consider the family and support network available to the children and parent and whether other siblings will be relocating. Thought should be given to the proposed school and day-care. The children’s sporting, religious and cultural needs may also be relevant considerations.

  • Depending on the situation, the Court may also consider whether the parent opposing the relocation could move to the proposed town as well.

The power of the Family Court

Although the Court considers each parent’s proposals, the Court makes the orders it considers to be in the children’s best interests. The Court doesn’t have to choose either parent’s proposals. The Court has the power to order something different, if the Court considers that to be most appropriate. It is possible that the end result are Court orders which neither parent is particularly happy with.

If a parent has already moved away with the children and the Court decides the unilateral relocation shouldn’t have occurred, the Court will order the children to return to the original location. It is generally the children who will be ordered to return to the original location, not the parent themselves. In this situation, the Court may give the caregiving parent the option of returning with the children or it may order that the children live with the other parent.

The above matters are only a brief, generalised discussion of some of the matters the Court will consider in a relocation situation. It is not a comprehensive discussion of all possible factors. Each case is considered by the Court on its own facts and merits, in an attempt to balance the children’s best interests with the competing wishes of the parents.

What to do next

A parent considering relocation should obtain legal advice at an early stage to determine the best course of action for their individual circumstances. A parent wishing to oppose a relocation (or have children returned) should act quickly and not delay in obtaining legal advice.

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