Co-parenting after divorce or separation can be complex, even under the best of circumstances. When one parent wants or needs to relocate interstate or overseas, the situation becomes even more challenging.

What is important to understand is that while both parents are likely to be interested in maintaining an ongoing relationship with the child under these circumstances, the legal framework will focus on balancing the rights of both parents while putting the best interests of the child up front as the paramount consideration.

Understanding the Legal Framework

In Australia, the Family Law Act 1975 governs parenting arrangements post-separation. The Act prioritises the best interests of the child, focusing on their right to have a meaningful relationship with both parents and to be protected from harm. When a parent seeks to relocate, these principles become critical in assessing whether the move should be permitted.

A relocation dispute arises when one parent wishes to move with the child, potentially disrupting the existing parenting arrangements. Such a decision can have significant implications for the child’s relationship with the other parent and their overall stability.

Key Considerations in Relocation Cases

The courts consider several factors when deciding whether to approve a relocation:

The Child’s Best Interests
This is the central consideration. The court assesses how the proposed move will impact the child’s relationship with each parent, their education, social connections, and emotional well-being.
Reason for Relocation
The parent seeking to move must provide a valid reason for the relocation. Common reasons that are typically considered valid include employment opportunities, better education options, or moving closer to extended family for support.
Impact on the Child’s Relationship with the Other Parent
The court will evaluate how the relocation will affect the child’s ability to maintain a meaningful relationship with the non-relocating parent.
Practical Arrangements for Ongoing Contact
The relocating parent must propose realistic plans to ensure the child can continue to spend time with the other parent, whether through travel, digital communication, and/or other methods.
Parental Cooperation
The court will consider the parents’ ability to cooperate and communicate effectively to make arrangements work despite the distance.

Seeking Consent or Court Approval

If a parent wishes to relocate with their child, they must first obtain the other parent’s consent. Without consent, the parent seeking to move must apply to the Federal Circuit and Family Court of Australia (FCFCOA) for permission.
Conversely, if a parent is concerned about the other relocating without agreement, they can apply for a court order to prevent the move. Breaching such orders can result in serious consequences, including penalties.

Applying to the Court: The Process

Before applying to the court for relocation with children, Australian Family Law requires parents to complete pre-action procedures (unless an exception applies), including attending a mediation conference and demonstrating genuine efforts to compromise on parenting arrangements. If these steps fail, the relocating parent may then file an application with the court to begin the formal process. This process includes:

Filing an Application
The parent seeking relocation files an application with the FCFCOA. They must provide evidence supporting their request, including details about the move, the impact on the child, and plans for maintaining the child’s relationship with the other parent.
Interim Orders
If the matter is urgent, the court may make interim orders to address immediate concerns while the case is pending.
Family Reports and Expert Evidence
The court may request a family report or involve an independent children’s lawyer to assess the situation and provide recommendations.
Hearing and Final Decision
Both parents present their cases, and the court makes a decision based on the child’s best interests. This process can be lengthy and emotionally taxing.

Practical Challenges of Relocation

Relocating interstate or overseas poses practical challenges for co-parenting, including:

Travel Costs and Logistics
Travel expenses for visits and time away from work can become significant barriers. Both parents may need to negotiate financial contributions to facilitate ongoing contact.
Schooling and Routine Changes
The child’s education and social connections may be disrupted, requiring careful planning to ensure a smooth transition.
Digital Communication
While technology such as video calls can help maintain relationships, it cannot fully replace in-person contact.

Alternatives to Relocation Disputes

Relocation cases are often contentious and emotionally charged. However, parents can explore alternatives to court litigation, including:

Mediation
Family dispute resolution (FDR) is a structured process where both parents negotiate with the help of a neutral mediator. This approach can lead to mutually acceptable solutions without court intervention. Attempting a mediation conference is also a requirement prior to filing any court applications, unless an exception applies.
Parenting Plans
A parenting plan is a written agreement that outlines how co-parenting will work, including arrangements for travel and communication. While not legally enforceable, an agreed-on parenting plan can be an effective way of setting boundaries and expectations for all parties, and can be converted into a court order if necessary.
Consent Orders
If both parents agree on the relocation, they can apply for consent orders to formalise the new arrangements, providing legal protection for both parties.

Tips for Managing Relocation Issues

Whatever the circumstances, there is every chance that one parent’s interest in relocating will cause some tension. Given that, it’s important to first retain the services of a skilled family lawyer that can help you work through these points of potential conflict. Secondly, it’s important to go into the discussion in the right frame of mind, and be open to it being a two-way conversation.

Communicate Openly
Open and honest communication can help reduce misunderstandings and build trust.
Focus on the Child
Keep the child’s best interests at the forefront, prioritising their needs over personal preferences or grievances.
Be Flexible
Understand that both parents may need to compromise to find a workable solution.
Seek Legal Advice
Relocation cases are complex, and seeking advice from a family lawyer can help you understand your rights and responsibilities.

Conclusion

Relocation after divorce is a challenging aspect of co-parenting that requires careful consideration of the child’s best interests and the rights of both parents. While Australian law provides a framework for resolving disputes, successful outcomes often depend on the willingness of parents to work together and prioritise their child’s well-being. Whether through negotiation, mediation, or court proceedings, understanding the legal process and practical implications is essential for navigating this emotionally charged issue. For personalised advice, consult a family lawyer and child custody lawyer to guide you through your specific circumstances.

Co-Parenting After Divorce: What if One Parent Needs to Move Interstate or Overseas?