After a separation, it’s common for people to want to move for one reason or another. You may need to relocate for better employment prospects, to care for a family member, or for a fresh start. Many of our clients worry that their child could be relocated with the other parent without their consent. A relocation order can help manage these situations. Here’s our guide to when you may need one, the application process, and what to do if they’ve already moved.
Key takeaways
What is a relocation order in family law?
A relocation order is a type of parenting order that determines whether a parent may move with their child to a different town, state, or country than the other parent. Relocation cases can be tricky because the Family Law Act doesn’t have provisions that deal specifically with relocation.
The Federal Circuit and Family Court of Australia (FCFCOA) considers relocation matters using existing parenting provisions. The Court’s paramount consideration is what’s in the child’s best interests, which is covered in Section 60CC of the Family Law Act.
The Family Law Amendment Act 2023 removed the presumption of equal shared parental responsibility. However, the law still recognises that the benefit to the child of having a meaningful relationship with both parents is a material factor the FCFCOA considers.
When you need one
When parents move to a different part of the same town or city, it typically doesn’t have a big impact on the other parent’s ability to maintain an existing parenting arrangement. Issues tend to arise when a move involves relocating to another city, interstate, or overseas.
How to apply
To complete a proposed relocation, you may need to get a relocation order. Here’s a basic step-by-step guide to help you understand your potential options.
Try to find agreement
If your former partner is concerned about you moving your child, it can be helpful to try to resolve relocation disputes amicably. Family law courts generally require parties to make a genuine effort to make an agreement before seeking a court order.
A family dispute resolution (FDR) practitioner can work with you to find actionable solutions for the disagreements. This could include:
Understanding why the relocating parent wishes to move.
Options for helping the other parent to stay connected in their child’s life.
Alternative arrangements to maintain the child’s relationship with both parents.
If you’re able to make an agreement, you have different options to put it in place, for example:
If you’re happy with an informal arrangement, you may draft a parenting plan to clarify the child’s living situation.
For a binding agreement, you can apply for a consent order through the FCFCOA. This can give you the ability to seek enforcement if the order is breached.
If you have family violence concerns, you may not be required to attend dispute resolution. A family lawyer can help you organise an affidavit to request an exemption.
If you’re experiencing domestic violence, there are resources available:
DVConnect womensline: 1800 811 811
DVConnect mensline: 1800 600 636
1800RESPECT: 1800 737 732
File an application with the Family Court
When an agreement isn’t possible, you may decide to go forward with court proceedings. You may need to get a 60I certificate from your FDR practitioner to show you have completed mandatory pre-action procedures.
Your application can cover important details, such as:
Where you intend to relocate to.
Why the relocation is in the best interests of your child. For example, improving any mental health issues and your ability to care for them.
How the relocation may allow the other parent to continue their relationship with the child.
The FCFCOA is concerned primarily about the child’s welfare over and above the wishes of the parents.
If a party is worried that their child may be relocated in the near future, they may seek interim parenting orders while the Court determines whether to grant a final order. You may wish to seek urgent legal advice to understand your options.
Gather evidence
Evidence to support your case can show why the relocation goes against your child’s interests. This may include:
Your current involvement in your child’s routines and care.
Evidence that your child has settled into their school and other aspects of their community.
The importance to the child of having access to family support from extended family members.
The difficulties the relocation poses to your child’s ability to maintain a relationship with you and other family members.
Attend the court hearings
There are various stages to parenting proceedings. If one party applied for interim orders, you may need to attend a hearing to decide on that matter. Depending on the situation, the Court may order a family report to assess the child’s circumstances and how a relocation may affect them.
At the final hearing, both parties may provide evidence and call witnesses to establish their case. The Court will then make a decision based on the evidence provided.
Recovering a child that has been relocated
Being on the other side of a relocation can be emotionally difficult. If there’s an existing parenting order in place, relocating a child in breach of that order may have significant legal consequences. The FCFCOA can consider that conduct when making new orders for parenting matters.
Location orders
If you don’t know where a child has been moved to, the Court may issue a location order to compel a person or government agency to provide information about the child’s location. A location order application should include an affidavit that includes details, such as:
Previous family law proceedings.
The child’s living arrangements.
Where you believe the child is located and why.
What you’ve done to try to recover the child.
Why it’s in the child’s best interests to be returned to you.
What the impact will likely be if you don’t get a location order.
Why you think the other party has the information you need.
Location orders are usually in force for a year or more if the Court deems it necessary. The party a location order applies to has to produce the required information as soon as practicable.
Recovery orders
Under the Family Law Act, a recovery order can require the return of a child to parties, such as:
The child’s parent.
A person with joint or sole parental responsibility for the child under a parenting order.
Recovery orders may permit the Australian Federal Police (AFP) or other authorities to secure the child for their return. Depending on the circumstances of the case, the AFP may enter a premises to recover a child that’s subject to a recovery order.
International child abduction
A child being taken overseas without your consent makes the case considerably more complicated. Australia is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction. This provides an avenue for Australian parents to seek the return of a child that has been wrongfully removed to a participating country through the Attorney General’s Department.
What if the child was taken to a non-participating country? It’s important to have qualified legal support who can help you to act quickly. Try to maintain contact with your former partner and your child as much as possible. Explore any opportunities to negotiate a return directly with your ex-partner, or using your lawyer as an intermediary.
Document all communication you have with the other parent. Include any correspondence exchanged before and after the relocation. It can be important to have a record of your objection to the child being moved overseas.
You may also need to contact a family lawyer in the country the child was moved to. They may help you understand your rights in their jurisdiction. You can also get a sense of what prospects you have of recovering your child from that country.
Conclusion
Relocations can cause a lot of difficulties in parenting matters. Relocation orders may be needed to organise alternative arrangements that allow a party to relocate with the other parent’s consent. Whether you pursue relocation orders by agreement or through a court proceeding, professional support may be important. An experienced family lawyer can assist with securing a relocation order, or assist with a child’s recovery if a parenting order has been breached.
Do you need assistance with a relocation case?
If you’re dealing with the relocation of your child, the Shanahan Family Law team can support you. Contact us today for a free discovery call.
Disclaimer: This article provides general information only. It is not legal advice. Family law outcomes depend on your circumstances. You should speak with a family lawyer before making decisions about your matter.
