Can I change where I live with my children?
If you are the parent or guardian of a child and you want to move with the child and that move will impact on the child or the child's other parent spending time with the child, then you may need to get the other parent's permission or an order from the Family Court before you move. An application for Family Court orders of this sort are often referred to as "relocation proceedings".
If you already have an order from the Family Court (parenting orders) that say you cannot move or relocate with the child, you will need to seek legal advice.
Whether or not you will be able to move with your children will depend on where you want to move to and what proposals you make for the other parent to see the child. For example, moving suburb has different consequences to moving state.
What if there are parenting orders in place?
If there are parenting orders in place about a child that allow for the child to live with, spend time with or communicate with a person, you must not do things that would prevent that person doing what is specified in the orders. This means that unless the other person agrees, you should not move with a child so far away from where they were previously living that it prevents the other person from spending time with the child as specified in the orders.
If you have parenting orders that provide for you to have equal shared parental responsibility with the other person/parent, then a major move (for example a move that requires the child to move schools or interstate) should be agreed between the parents as it is a major long term decision affecting the child. If you move without seeking the other person’s permission, you will likely be in breach of the order for equal shared parental responsibility.
If there are already parenting orders in place, or an application for parenting orders has started, it is an offence to take the child overseas, even for a short time, without the written consent of all the people mentioned in the parenting orders (unless the orders provide specifically that the child can be taken overseas). The written consent must be in the form of a statutory declaration.
If there are other significant people in the children's lives, such as grandparents, who spend regular time with the children, it is sensible to get their agreement before you move. This way, you might avoid a Court application being filed.
If you are thinking about moving, seek legal advice to discuss your particular circumstances.
What happens if I move without getting the other parent or person's permission?
If you only move a short distance away and it does not affect the other parent spending time with your child, the other parent or person might not do anything about the move. However, if there are parenting orders that stop you from moving, there may be consequences. You should get legal advice on your particular circumstances.
If you are planning on moving interstate or overseas or any other move that will affect the way the other parent or person spends time with your child you should either get the other parent to agree or ask the Family Court for an order allowing you to move. If you do not do either of these things and you move, the other parent may ask the Family Court for a recovery order to return your child to where they normally live. A recovery order can be made even if there are no parenting orders in place. For more information, see Recovery orders.
How does the Family Court decide if a child can move?
The Family Court will look at what is in the Best interests of the child as the most important (but not the only) consideration.
The Family Court will also examine what options or proposals each person has made for the arrangements for the child. The Family Court will not necessarily make orders that follow what either person has suggested, and can make different orders if it considers those orders to be in the best interests of the child.
The reasons for the proposed move will also be considered. These might be financial or economic reasons such as a new job, or personal reasons such as moving closer to family. The Family Court will look at whether these reasons are genuine, optional or essential for the parent wishing to move and for the child.
Although the Family Court does not want to stop people from moving around freely, the Court needs to hear from each person as to whether or not the move is in the best interests of the child. The Court will take into account considerations such as:
- the proposals for the other parent to spend time with the child if the Family Court allows the child to move
- the existing relationship between the child and the parent they live with
- whether the parent the child lives with has been the primary carer for some time and is the preferred parent for the child to live with
- how much time the child currently spends with the parent they do not live with, what their relationship is like and whether the relationship will continue or be maintained if the move is allowed
- the distance and permanent nature of the move
- what impact it will have on the child to leave friends, extended family and school etc
- the wishes of the child
- the age of the child
- the cost and ease of the other parent spending time with the child
- other ways the child can continue to have a relationship with the other parent
You should seek legal advice if you are planning on relocating and have not been able to reach an agreement with the other parent.
Can I get legal aid if I want to relocate?
Relocation applications are considered on a case-by-case basis. Grants of legal aid are usually reserved for urgent matters where a parent or person is threatening to take a child out of the State or out of Australia and will only be granted to a person wanting to move in exceptional circumstances - that is, where you can show risk of child abuse or severe family violence.
How do I stop the other parent moving with our children?
If you become aware that the other parent plans to move away with your children to a location where it would be very difficult for you to spend time with your children and you do not agree to this move, you may be able to seek an injunction from the Family Court preventing them from moving. For more information on injunctions, see Abduction of children under the heading What is an injunction and can it help me?
If you are concerned that the other parent may take your child out of the State or out of the country without your permission, see Abduction of children.
Last reviewed: 31/10/2012