As with all questions in family law matters, the answer to “Can a parent move interstate with my child?” depends on several factors. If you and the child’s other parent share co-parenting, both parties are expected to reach an agreement before your child or children relocate in most cases. Laws regarding relocating with children apply regardless of whether there are any active court orders.
If it’s a small distance, say 20 minutes across the border, that will not affect the other party’s meaningful relationship with their child or children; it’s not generally an issue.
It’s always best to seek legal advice from a family lawyer, though, if your ex-partner is planning a move that you don’t feel comfortable with. You may still need to discuss this if you’ll be managing significantly more travel time as a result. If you have shared parental responsibility, it’s important that both parties attempt to reach an agreement about what’s best for your child in terms of living arrangements.
Let’s consider a few scenarios besides a short-distance move that respects each parent’s ability to spend time with their children.
If your ex-partner has sole custody and decision-making ability.
If your child’s other parent has been granted sole custody (full care) and/or has sole decision-making responsibility, it’s likely that they may be legally able to move interstate. If you haven’t had contact in some time, and they have been given full care, it’s most likely going to be their choice to make. However, as a parent of the child or children, you can still apply to the court for a different amount of access or decision-making ability and also address the move at the same time.
Joint parental responsibility and shared care.
If your ex-partner wishes to move to a new town interstate, and you have been spending time with your children, you are able to initiate mediation, Family Dispute Resolution or make an application to the court. Even if you don’t have formal consent orders or parenting orders in place, you do have a right to ask that a meaningful relationship is maintained and contact continues.
Even with no orders in place, separated parents retain parental responsibility. This means parents can make decisions jointly or separately. Provided it is safe to do so, parents are encouraged to consult with each other about major long term issues like their children’s health and education. If you do have parenting or consent orders in place that state set time frames for each parent and the move would prevent this, you can initiate dispute resolution or court proceedings.
If the move prevents the current orders from being honoured, they will be in breach of their orders, and you can address this with a contravention order. The court will then need to decide whether a move is in the child’s best interests.
If the child’s other parent has already moved interstate with your child or children.
If your co-parent has already moved to another state, you should seek legal advice immediately if this move prevents you from seeing your children and you have been co-parenting. If the affected parent does not know the location of their children, they can apply for a location order through the court to find them or a recovery order if their location is known.
If you have not been informed of where your children are or are unable to locate them, the courts can make a location order under section 67J of the Family Law Act.
If you have any concerns about your child’s immediate safety or that they may be removed from Australia, contact the police immediately.
The Australian Federal Police and Federal and Family Circuit Court of Australia can issue urgent actions on your behalf, such as placing your child or children on a Family Law Watchlist to prevent an international relocation. They can also assist with finding your child in Australia and implementing any necessary recovery orders.
You can read more about how the AFP can help here.
Another type of court order that can be made is a Commonwealth information order, which can be used to access information about a child’s location, often through government agencies such as Services Australia.
Interstate relocation due to domestic and family violence.
If the other parent has perpetrated violence against you or your children and has relocated with the children seek urgent legal advice if you or your children are at risk of family or domestic violence or child abuse.
If your former partner has moved with your child or children to prevent harm to themselves or prevent children from immediate risk or the likelihood of being harmed, it’s essential to speak to a family lawyer.
The best interests of a child are always paramount, and if a child is at risk of harm from you or another person, such as your new partner, you will need to get legal advice about a course of action. The Federal Circuit and Family Court of Australia will need to consider whether it is in the child or children’s best interests to be returned or stay in the new location.
If there are protective orders in place, or your ex-partner has had to flee for their or their children’s immediate safety, you will need to address the matter with the courts or through the police.
If the other parent has requested to move interstate with your child but has not yet done so.
If you and your child’s other parent have been co-parenting in the same area, and they request to move with your child or children, you will need to discuss the matter in mediation or Family Dispute Resolution in most cases, before applying for a court decision to be made (if an agreement cannot be reached).
If your co-parent has a genuine reason for moving, such as to be close to family for support, to help care for a relative who is unwell, or for a job opportunity, it’s best to discuss how they would see this taking place in respect of you spending meaningful time with your child or children.
If both parents agree on a plan that works for them, this can be formalised via a court order, or privately agreed upon in writing – if you feel you can trust the other parent to honour the plan you have agreed upon.
If the other parent has initiated an application to relocate.
Parents with care (custody) of children are required to adhere to laws regarding relocation after separation or divorce, even if only a parenting plan or informal agreement is in place. Children should be able to spend time with their parents, as long as it is safe to do so, regardless of the extenuating circumstances.
Applications to relocate are commonly made when one parent who shares care of their children with the other parent wishes to relocate. This may be because they want a fresh start, to be closer to support systems or for employment reasons. If one parent wishes to relocate with the children, they must make a genuine effort to reach an agreement with the other parent first.
If you cannot reach an agreement with the other parent, you may need family dispute resolution. If parents cannot reach an agreement about relocating their child or children, the courts may become involved. These matters may be dealt with urgently in some cases, but in other cases, the timeframe for a court decision may not be immediate.
Legal advice and support for parents needing advice on relocation orders, recovery orders or location orders.
If you are facing issues related to relocating a child or your child is being relocated interstate, please contact our team. We can assist you with dispute resolution, including mediation and any required court applications.
