Following separation, one of the parties may to want to move to another city or interstate. Sometimes this is triggered by an offer of employment; sometimes it is a desire to return to the parent's own family, and at other times it might be just to get away from the old neighborhood.

If a parent believes they need to relocate urgently, they should not just pack up and go. It is very important to seek legal advice before taking any steps.

The key issue is whether a move by one parent is likely to make it more difficult for the other parent to spend time with the child and be a part of their child's life. Unless a child is at risk of harm, a parent who wants to relocate should discuss their plans with the other parent in advance.

What should I do first?

Like all big decisions in life, your proposed relocation should start with a plan, preferably in writing.

Before you go into too much detail it is a good idea to consider the pros and cons. For example, moving in with the grandparents may save money but it may also add an hour to your work commute. Once you have considered all of the pros and cons, if you are still thinking of relocating you need to develop a proposal covering aspects including:

  • where you plan to reside with the children;
  • details of other people who will be living in the house;
  • where the children will attend school or daycare;
  • the days and times that you propose the children will spend time with the other parent, for example at weekends, during school holidays or on special days such as birthdays;
  • how that "spend time" will occur, for example you will bring the children to meet the other parent at a suitable location and the other parent will return the children to your home afterwards;
  • how the children will communicate with the other parent, for example by telephone, email, Skype or Facetime;
  • how you and the other parent will communicate about future decisions involving the children, for example by text message

The next step is to approach the other parent about your proposed replication.

At a minimum, you should obtain the other parent's consent in writing (this may include by email or text message), before you leave.

If we reach agreement, what should we do?

If you and the other parent are able to discuss your proposal then you can simply write out the points that you have agreed so that there is no misunderstanding. You should consider whether to document your agreement in a Parenting Plan, which is signed and dated by each parent but may not be legally enforceable.

A better idea is to have your agreement drafted by a family lawyer and filed in the Family Court as proposed Consent Orders. These are Orders of the Court, made by consent between the parties. The parties are not required to attend Court. Once Consent Orders are granted by the Court they are legally enforceable - each party must comply with the Orders or risk a penalty for contravention (breach).

What if we cannot reach agreement?

If you cannot agree on parenting arrangements you could consider whether to attend mediation. Family mediation is a specialised area, therefore you should approach an accredited family dispute resolution practitioner such as Relationships Australia. The parties are legally required to make a genuine attempt at reaching agreement before asking the Court to decide.

If you attend mediation and still cannot reach agreement, you can apply to the Family Court for permission to relocate. This can be a lengthy and expensive process, and there is no guarantee that your matter will move through the Court system more quickly because of your desire to relocate.

How will the Court decide?

The Court will always determine questions of relocation based on what is in the best interests of the child. The Court will hear from both parents and will not always grant permission. It will weigh up the competing proposals of the parents and consider four possibilities:

(1) both parents to remain in the current location;
(2) both parents to move to the proposed new location;
(3) the relocating parent going, and the children remaining behind with the other parent; and
(4) the children relocating with the parent who is going.

In one relocation case the mother wanted to move interstate to Victoria, with her daughter aged six years, to care for her mother who was terminally ill. In that case the Court allowed the mother to move after considering:

  • The effect on the mother if she was not allowed to move;
  • The ability of the child to maintain a relationship with both her father and her paternal grandmother;
  • The desirability of the child developing a closer relationship with her maternal grandmother;
  • That the mother had a job lined up in Victoria and no employment in Sydney;
  • The mother's need to have emotional support from her family in Victoria given the feelings of loneliness and isolation she experienced in Sydney;
  • The father's concern about a permanent relocation, the fact that he could not move to Victoria and that he would see his child mainly in blocks of time during the school holidays.

In another case, the Court allowed a mother to relocate with her nine-year-old son but but only on the basis that she was to remain within 20 kilometres from the father's home, and only enrol the child in a school approved by the father. In similar cases the Court has made an Order that neither party be permitted to change a child's school, resulting in both parents having to remain living within a reasonable distance from the school.

What if I am the parent staying behind?

If you are the parent who will remain, and you think that the other parent is going to relocate without your agreement, you need to act quickly.

It is far preferable to take steps to prevent relocation than to try to address the situation once it has already happened. As you may need to commence urgent Court proceedings to restrain your former partner from reciprocating with the children, you should definitely seek legal advice as a matter of urgency.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.