Moving After Separation or Divorce

Perhaps you are a parent or a grandparent wondering ‘Can a parent move away with a child?’ or you yourself are wondering, ‘Can I move with my child?’ You will find answers on this page. We will also explore:

• Common reasons why relocation may be considered by a parent;
• What to do if the other parent moves a child without your consent;
• Possible consequences for the parent who relocates a child without permission; 
• Relocation steps if there are Parenting Orders in place; and
• The most effective way to approach it, if it is you who is looking to relocate.

There are numerous factors that are considered with relocation so it is important to get advice tailored to the circumstances before taking any steps.

Common Reasons for Relocating

It can be common for one parent to look at relocating with a child after separation. A desire to move may be triggered by an employment opportunity or perhaps in an effort to be closer to family members for support. 

If you are the parent who wants to relocate, you may need to get the other parent’s consent before you move. Especially if you have existing parenting arrangements and relocation may impact the time a child spends with each parent.

However, in the event that you do not have shared care arrangements, or shared responsibility (shared decision making for your children), consent may not be required. It is essential to check with a family lawyer before proceeding with any plans to relocate.

In the event there is not an agreement between parents (who have shared parental responsibility) for the child to relocate, you should be aware of the updated ‘best interests of the child’ considerations as set out in the updated Family Law Act when considering relocating with a child after separation.

Can I Relocate With My Child?

The guiding rule for all decisions relating to children in family law is whether the decision is in the best interests of the child. This applies to whether a child can be relocated. 

The Best Interests of the Child

The Family Law Act has recently been updated, and the Court considers the following factors in determining whether a decision is in the child’s best interests: 

1. What arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of the child; and each person who has care of the child (whether or not that person has parental responsibility for the child). 
2. Any views expressed by the child; 
3. The developmental, psychological, emotional and cultural needs of the child; 
4. The capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
5.  The benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so; and 
6. Anything else that is relevant to the particular circumstances of the child.

The recent changes to the Family Law Act included a new best interests factor requiring a Court to consider the right of Aboriginal and Torres Strait Islander children to enjoy their culture, by having support, opportunity and encouragement.  If the child’s right to access, explore, enjoy or develop a positive appreciation of their culture is compromised by the relocation, this must be considered.

Moving after separation or divorce must always be considered with the child’s best interests at the forefront. 

In many circumstances it may be in a child’s best interest to have a meaningful relationship with both parents. This however is no longer a presumption in family law. The factors above must be considered in the particular circumstances of the child in considering whether moving after separation or divorce is in their best interests.

How Far Can I Move With My Child?

Generally speaking, if the relocation of a child will mean that their relationship with one parent will be negatively impacted, a relocation may not be permitted. That being said, geographic proximity can be important, but not always.

If you are separated or divorced and planning to move to a different suburb with your child, and the move will not affect the parenting arrangements you have with the other parent or their schooling arrangements, then, generally speaking, you should be able to relocate with the child. Although you should notify the other parent where you are moving to – if safe to do so. 

However, if you have plans to move further away, including interstate, overseas or somewhere where the move will impact the children’s ability to spend time with the other parent, or even somewhere which would be too far away for a child to continue to attend at the same school, the answer may not be straightforward and you should obtain legal advice.

Amicable Relocation Arrangements 

Sometimes long distance relocation can be managed between parents by agreeing to alternative arrangements. That may look like one parent having the child in their care for the duration of school holidays and regular phone or video call contact in between holidays. Shared care arrangements should take into account a parent’s work hours, the children’s ages, amongst other considerations. There is no one right way.

If parents cannot agree to the relocation, an application to Court may be necessary. 

Arrangements can be agreed upon between parents, however, it is harder if Orders have been previously made.

Relocation Steps Where There Are Existing Orders In Place

If you have Court Orders (whether decided by a Judge or made by Consent) in place for your parenting arrangements, your relocation may not be possible. 

It is important to note that the Court treats Orders by consent the same as if you had Orders made by a Judge at a trial. If parents cannot agree to change the Court Orders – the Court is reluctant to intervene and allow an application to vary the parenting Orders unless there has been a “substantial or significant change” in circumstances.

The new amendments to the Family Law Act include a section that formalises this principle. Where a final parenting order has been made, the Court must not consider changing the final parenting order unless: 

1. The Court has considered whether there has been a significant change of circumstances since the final parenting order was made; and
2. The Court is satisfied that, in all the circumstances (and taking into account whether there has been a significant change of circumstances since the final parenting order was made), it is in the best interests of the child for the final parenting order to be reconsidered.

If you believe that there has been a significant change in circumstances, then revisiting Court Orders may be necessary to support the ‘child’s best interests’. Speak to a family lawyer to see if those circumstances are likely to be considered relevant.

If you wish to revisit existing Court Orders, you can obtain the other parent’s consent through a negotiated agreement, or independently apply for a variation from the Court.

If you wish to investigate the avenues available to you, to have the best chance of success in your circumstances, seek specialist legal advice from a family lawyer before doing anything. When clients come to us in matters like these, we tell them what is appropriate and either handle the negotiation process with you and with your child’s other parent, or if you have Court Order, determine what, if any, variations may be appropriate. 

At this point, it is important you are aware that if you, or the other parent act in a manner that results in a breach of any Orders in place, there are likely to be serious consequences.