A parent cannot automatically move with a child after separation, and doing so without an agreement can result in major legal problems, particularly in circumstances involving parenting agreements and orders. 

In Australia, under the Family Law Act 1975 (Cth), parents can have shared parental responsibility for major long-term decisions, including where a child lives, who the child resides with and where the child goes to school. 

Travel Without Parenting Orders

If there are no parenting orders in place, parents should try to make and reach a travel agreement. However, if parents cannot agree, parents should try to resolve disputes at mediation and reach an agreement. If mediation is unsuccessful between parents, a parent can be given a section 60I certificate, which allows a parent to make an application to the court for travel and passport orders. 

Travel With a Parenting Matter in Court

If there is a parenting matter in court, parents should follow any orders about overseas travel, or get the other parent’s authenticated written consent for the child to travel, if there are no orders. Authenticated written consent includes the other parent’s agreement in writing, in which the agreement is signed by them, and witnessed by a lawyer or a Justice of the Peace.

Relocation

Moving houses with a child can also be known as relocation. A parent may be able to move a short distance with a child if this will not affect the time the child lives or spends with the other parent, and there is no court order stopping the parent from moving with the child.

If relocation will affect parenting arrangements, such as in situations where it could affect the child’s schooling, parents should discuss moving regarding the child. Parents may need to negotiate a new parenting agreement if they are unable to continue following the existing agreement. If there are parenting orders about the child’s schooling, parents must follow these orders.

Relocation Without Parenting Orders

If the distance a parent wants to move will affect the time the child lives or spends with the other parent, parents should try to reach an agreement about relocating and any major issues. If parents are unable to reach an agreement, parents should try to resolve disputes at mediation. If mediation is unsuccessful, parents may be given a section 60I certificate, which allows for the application to the court for a relocation order. When deciding whether to make the order, the court will consider the best interests of the child.

Relocation Without an Agreement

If a parent moves without an agreement, the other parent can apply for relocation orders. These orders can require a parent to immediately return the child to the area they moved from, or for the child to live with the other parent. If the other parent has relocated with the child without an agreement, a parent may be able to apply to the court for a relocation order or a recovery​ order. If there is an existing parenting order, you generally cannot move without the other parent’s written consent or court approval. 

In a relocation dispute, the court will consider the reason for the move, the impact on the child’s relationship with the other parent and any safety concerns. 

The Court’s priority is the best interests of the child, including their relationship with both parents. 

About Post Author

Brian Walker

B.Acc., GradDipLegPrac, Juris Dr
Barrister & Accountant.
Former Criminal Defence Solicitor. Former Federal Prosecutor for the Commonwealth Director of Public Prosecutions prosecuting Commonwealth crimes relating to drugs and child exploitation. Former Australian Federal Police member litigating proceeds of crime matters. Former Australian Taxation Office employee investigating offshore tax evasion matters.

Post Created by Jesslyn Duong, paralegal.

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