Relocating with Children Post-Separation: Everything You Need to Know
One of the most common types of orders sought after post-separation is an application by a parent who wishes to relocate with their child, either within Australia or internationally.
Relocation cases are known to be some of the most contentious and emotionally charged matters in family law. The legal system is complex, and with so many different laws and many important factors to consider, it can feel overwhelming. This article breaks down what the court looks at when deciding on a relocation application, what outcomes are common in these situations, and offers practical tips for parents thinking about moving with their children.
What is considered relocation in Family Law?
Although the Family Law Act 1975 (Cth) (‘Family Law Act’) does not specifically define the term ‘relocation,’ it primarily involves situations where:
- The parent that lives with the child (the ‘residence’ parent) intends to change the child’s geographical location within Australia or to another country.
The Federal Circuit and Family Court of Australia (FCFCA) has made it clear that relocation isn’t a standalone issue, and it must be considered alongside all other parenting matters in one parenting case. Section 4 of the Family Law Act outlines a “major long‑term issue” for a child can include changes to their living arrangements that significantly hinder time spent with a parent.
When one parent proposes to relocate with a child, things can become complicated, particularly in cases where the other parent opposes the move due to it making existing parenting arrangements harder to maintain. For a child, relocation often means being hit with a ‘double whammy’ as they experience the challenges of relocation, and the emotional impact of parental separation can be tough. That’s why it is so important to think through every aspect carefully and understand what relocation really means for everyone involved, especially the child.
- Do you need the other parents’ consent?
The question of whether obtaining the other parents’ permission for relocation is required, is not a cookie-cutter answer.
If the court has granted one parent the sole parental responsibility to make decisions for the child, then obtaining the other parent’s consent to relocate is not required.
If both parents agree to the proposed move, they can record their arrangement in a parenting plan. Although a parenting plan isn’t enforceable by the Court, parents may apply to convert it into a Consent Order, which is legally enforceable.
A parenting plan or Consent Order will specify each parent’s responsibilities and may include provisions about where the child will live, for example, in the event of relocation. If drafting a full parenting plan isn’t possible, obtaining written consent from the other parent can still help simplify the relocation process.
However, if both parents are not amicable or the other parent opposes the move for whatever reason, the issue of relocation will go to the Family Court and a judge will decide based on a variety of factors discussed in the next section.
- What happens if you relocate without consent?
If a parent relocates with their child without obtaining consent or a court order prior to relocating, the other parent to the child may make an application to the Federal Circuit and Family Court of Australia for a Location Order, requiring the parent to return the child to the location originally departed from.
How Courts decide relocation disputes?
Last year in 2024, changes were made to the Family Law Act which in turn will affect how relocation cases are decided by the Court. Most of these changes commenced on May 6th 2024, with the most notable changes being the new laws relating to how Courts will decide parenting orders in the best interests of the child and the removal of the presumption of ‘equal shared responsibility.’ The exclusion of equal shared responsibility means that the court will no longer automatically assume that both parents should share equal time with the child. This opens the door for a more flexible approach from the Court, especially in terms of relocation.
Decisions relating to relocation are made under the Family Law Act, specifically the sections that deal with post-separation parenting. Since the recent 2024 amendments, the paramount consideration for the Court now is what is in the best interests of the child. There are six (6) factors the Court will consider in deciding what parenting arrangements, including relocation, will be in the best interests of the child. These factors include:
- The safety of the child - This includes any history of family violence or current family violence orders. For example, if the proposed relocation would place the child in a safer environment like closer to supportive extended family, then this may weigh favourably in terms of a successful relocation application.
- The child’s views - Depending on the child’s age and maturity, the Court may consider what they want. If a child expresses a clear view about relocating then the Court will assess how informed and genuine that view is, and how much weight it should carry.
- The child’s developmental, psychological, emotional and cultural needs - The Court also considers how the move might affect the child’s well-being, mental health, cultural identity and access to education or therapy services.
- Each parent’s capacity to care for the child - This includes whether the parent proposing the move can meet the child’s needs in the new location, and how the other parent will maintain a meaningful relationship with the child if the child is relocated.
- The benefit of the child having a relationship with both parents and other significant people - The Court recognises the importance of children maintaining close relationships with their parents, siblings and grandparents alike. Thus, it will consider how relocation might impact those relationships, and whether regular contact can still be maintained.
- Any other relevant circumstances - This includes the reasons for the proposed move such as job opportunities, the cost of living, being closer to family support, the practicality of travel arrangements for the other parent including expenses, and any existing parenting orders already in place.
It is important to remember that each relocation case is unique and there is no one-size-fits-all approach. There is no guarantee that a relocation application will be approved on the sole basis of it benefitting the relocating parent. The decision will ultimately come down to what arrangement benefits the child more in terms of safety, their developmental needs and overall well-being.
Common outcomes in relocation matters
Although every relocation case has its own unique set of circumstances, looking at how the Court has handled previous relocation matters can help to understand what factors might influence the outcome.
- MRR v GR (2010) 84 AJLR 220
The case of MRR v GR (2010) 84 AJLR 220 is an important case for relocation matters that come before the FCFCA. In that case, both parents lived in Mount Isa after separating, and the mother sought to move their eight‑year‑old to Sydney because employment prospects were scarce, and she was unhappy staying in Mount Isa. The trial judge ordered equal shared parental responsibility, but the High Court overturned that and found it wasn’t practicable for the child to spend equal time under that arrangement and permitted the mother to relocate to Sydney.
Even though the 2024 amendments to the Family Law Act have removed the presumption of equal shared parental responsibility, the case still plays a crucial role in relocation matters. Courts continue to closely examine how parental responsibility and decision‑making on major long‑term issues like a proposed move would impact or impede on the child’s best interests.
- Cunningham & Foster [2024] FedCFamC2F 1725
The case of Cunningham & Foster [2024] FedCFamC2F 1725, decided in late 2024, offers a recent example of how the Court is navigating relocation applications under the current legal framework. In this matter, the mother applied to relocate from New South Wales to Queensland with her 9-year-old son and his 2-year-old half-sister, in order to live with the younger child’s biological father, which is the 9-year-olds stepfather. She made it clear that she intended to move regardless of whether her son was permitted to relocate with her.
The father strongly opposed the move and sought to maintain the existing equal time arrangement. Failing that, he asked the Court to allow the child to remain with him full-time and to be recognised as the primary residence parent, should the mother proceed with her relocation.
The main issue before the Court was whether it was in the best interests of the child to relocate to live with the mother in Queensland or remain with the father in New South Wales. The Court acknowledged the child’s strong relationship with the father and the mother’s willingness to support and foster that bond. It also considered the likelihood that separation from the mother would cause the child more distress than separation from the father and noted that the mother was more available to meet the child’s daily needs due to the father's inflexible work schedule. With these primary considerations in mind, the Court determined it was in the child’s best interests to relocate with the mother. This case offers insight into how courts may approach relocation matters following the 2024 family law reforms. It highlights that the focus is now primarily on the best interests of the child, rather than starting with the presumption of equal shared parental responsibility as was the case prior to 2024.
- Picard & Picard (No 2) [2025] FedCFamC2F 37
Recently, the case of Picard & Picard (No 2) [2025] FedCFamC2F 37 provided further insight into how the recent amendments are shaping relocation decisions. In this case, the mother sought to relocate to Perth with her two children, aged 13 and 12. A final parenting order had been in place since 2017, which provided for the parents to share equal parental responsibility and for the children to spend equal time with each parent.
The father opposed the relocation and proposed that the children live with him full-time. However, the Court placed significant weight on the children’s emotional needs, noting they were entering puberty and had recently reached out for their mother while spending an extended period in their father's care. The Court found the mother demonstrated a greater capacity to meet the children’s emotional needs.
Additionally, the Court considered the mother’s personal circumstances, including that relocating would alleviate her stress by allowing her to balance her roles as both a mother and daughter. In reaching its decision, the Court highlighted that, as the High Court has made clear, the best interests of the children are the paramount consideration, but not the only consideration.
Importantly, the father indicated that he was willing to relocate to Perth if the children moved. The Court accepted this and noted that the children would continue to benefit from having meaningful relationships with both parents, with shared parental responsibility to remain in place.
This case shows how the Court considers the emotional needs of the child, the capacity of each parent to care for the child, and the practicalities that come with of maintaining strong family relationships when considering relocation requests since the recent 2024 Family Law amendments.
Tips for parents considering relocating
Relocating is a big step for any family, especially when children are involved. Whether the move relates to a new employment opportunity, a fresh start, or to be closer to loved ones and support networks, it’s important to consider how the change will affect your children, both emotionally and in a practical sense.
- Talk early and talk often
Children need time to process the idea of moving so being honest about the move and encouraging them to ask questions is beneficial. Be prepared for a range of emotions as they might feel angry, scared, or even excited all of which are completely valid feelings. Normalising these feelings and letting them know it’s okay to be upset and feel uncertain about the future fosters is crucial to make the process as smooth as possible. Open communication is one of the best ways to ease uncertainty and it allows children to feel like they can approach you and share their concerns.
- Keep routines consistent
When preparing to move, especially as part of a family law matter, it’s important to show that the child’s need for stability is at the paramount concern, not just before or during the move, but after too.
Courts will often consider how the move will affect the child’s daily life and this includes their routines, relationships, and emotional security. Even during the lead-up to a move, keeping routines like mealtime, bedtime and school drop-off consistent, can help keep the child feeling safe and supported.
- Plan ahead for schools and support
In relocation matters, the Court often considers whether the move will disrupt the child’s life more than necessary. The judge will look closely at how relocating might affect the child’s routine, schooling, and overall wellbeing. It’s important to consider if the child will be changing schools and if so, what those options are and if they meet the child’s educational needs or offers similar programs to their current school.
It’s also helpful to show that everyday things have been thought through, for example, finding a suitable GP and dentist in the area before moving or making a relocation application. Planning ahead and having a clear plan shows the Court that the relocation proposal has been carefully thought out, with the child’s best interests at the core.
- Don’t forget to look after yourself too!
Relocation can be a highly stressful process for parents, especially when legal proceedings are involved. Children are prone to absorbing stress and the emotional environment around them, even if they are not immediately aware of what is happening or why.
The Court may consider the emotional readiness and mental health of the relocating parent as part of its assessment of the child’s best interests. A parent who is emotionally supported and coping well with the transition is in a better position to provide a stable, nurturing environment for the child.
For this reason, it is important that parents involved in relocation matters take steps to manage their own wellbeing. This might include counselling, help from other family members like grandparents, or simply maintaining healthy routines. When parents are calm and secure, children are more likely to feel secure and this in turn can have a significant impact on how a judge views the proposed relocation.
When to seek legal advice?
Seeking legal advice is crucial, especially in complex cases involving relocation. Aegis Law Group is dedicated to providing expert guidance and Nicholas Schoenmaker, principal solicitor of the firm, has a breadth of experience handling complex and nuanced family law matters. Nicholas will ensure that your voice is heard, and that you and your child’s best interests remain at the forefront. Nicholas combines his exceptional legal expertise with a compassionate approach to guide you through every step with clarity and care. Plus, he also offers cost‑effective solutions tailored to your situation.
With Aegis Law Group at your side, you can face these challenges confidently, knowing you have a team that truly understands your needs and will advocate relentlessly on your behalf. Please reach out on (07) 3709 7610 for a confidential discussion about your options and let Aegis Law Group get the best outcome for you.
Disclaimer: This article is not intended to be legal advice. If you are seeking legal advice, please contact the firm on the number above.
