Separated parents moving away : Legal issues

24 May 2025 in Family and Divorce Law | 4 min read | skip to FAQs

This article examines the key factors courts consider in relocation cases. That is, the legal issues involved when parents that have separated move away from the other parent. It also explores strategies for negotiating relocation agreements and balancing the needs of both parents while prioritising the child’s best interest.

It is common for parents to want to relocate themselves and their children, for greater career opportunities, to be with a new partner, to be closer to family support or just for a change of pace. This can become complicated when the parents of the child are separated and either parent wants to relocate. When the parent with primary care of a child attempts to relocate, it can sometimes mean the other parent loses regular time with their child or even struggles to maintain a meaningful relationship at all. In light of this, relocation is often opposed and can become a highly emotional and contested issue.

How the Family Court of Australia views Relocation

When making a parenting order related to relocation, sections 60B and 60CA of the Family Law Act 1975 (‘The Act’) requires that the Federal Circuit and Family Court of Australia (‘the Court’) paramount (but not only) consideration is the best interests of the children involved. In determining these best interests, the Court considers the following factors in section 60CC of The Act:

1. The child’s safety, including protection from family violence, abuse, neglect, or harm.
2. The child’s views, depending on their age and maturity.
3. The child’s needs, including developmental, psychological, emotional, and cultural well-being.
4. Each parent’s ability to meet the child’s needs and provide a stable environment.
5. The importance of maintaining relationships with both parents and other significant people in the child’s life, as long as it is safe to do so.
6. Any other relevant factors specific to the child’s circumstances.
7. If the Court is making orders about an aboriginal or Torres Strait Islander child, they also consider how parenting arrangements will help that child to experience their culture.

Case Law on Parental Relocation

In cases where relocation may not be in the child’s best interests, the Court cannot immediately prevent the separated parent moving away. Instead, the court must consider both the children’s best interest and the parent’s right to relocate. The judgement of Ainslie-Wallace, Murphy and Kent JJ made in Adamson v Adamson [2014] FamCAFC  232, the Full Court of the Family Court indicated that relocation should only be prevented or ordered because of the children’s best interests ‘where those interests would be so adversely affected as to justify interference; and then the interference is legitimate only to the extent that it is necessary to avoid such adverse effects.’

This principle sets a high threshold, which was reiterated in the judgement of Oswald v Karrington, where the Court noted that coercive orders to either force or prevent relocation lie at “the extreme end” of judicial discretion. Such orders should only be made in rare or exceptional circumstances.

As such, unless there is a severe negative impact on the child’s best interests then the court will usually allow the primary carer to relocate with the children.

Legal Considerations related to a New Partner

Issues may arise if the primary carer of the children has a new partner. They may want to move in with them, and this new location of residence may be outside the reach of the other parent. While such a move would impact on the ability of the child to have a relationship with the other parent, there are other relevant benefits to the child’s best interest worth considering:

1. Moving to a Dual Income Household may improve the primary carer’s capacity to care for their child’s needs;
2. Living closely with their new partner may make them happier and thus more able and willing to care for their child’s needs; and
3. The new partner may already be an important person in the child’s lives, and having a relationship with them will be of benefit.

The Court may also need to consider the importance of the new partner maintaining a relationship with their own children, and how this relates to the practicality of any arrangement.

A separated parent seeking to relocate for a new job opportunity can also be considered to be in the child’s best interests as it can improve either the income or work hours of the carer, which may enhance their caring for the child’s needs.

The role of Consent Orders when separated parents move away

If an informal agreement is made between the parties when one of the separated parents moves away, it is highly recommended to have the agreement formalised through consent orders filed with the Federal Circuit and Family Court of Australia. Consent orders formalise the agreement between both parties and once submitted and accepted by the court, makes the agreement legally binding. This significantly reduces the risk of the other party changing their mind in the future and reduces the risk of future litigation. The experienced family and parenting lawyers at BSM Sydney Lawyers are skilled negotiators and can draft the application and persuasively represent your view in Court.

How can BSM Sydney Lawyers assist you?

The family lawyers at Brander Smith McKnight Sydney lawyer have experience with the issue of separated parents moving away. Our expert lawyers can explain how the legal system views this issue primarily in relation to the ‘best interests of the child’. We can advocate and negotiate for you if your ex-partner seeks to relocate with your children or relocates and revised agreements regarding access to your children need to be made. Our family lawyers work hard to protect our clients rights and reduce the stress associated with this difficult and emotional process. We pride ourselves on providing a cost effective service with a strong emphasis on avoiding litigation. Over 95% of our divorce and parenting matters are settled without going to court, saving our clients time, money and stress. The senior family lawyers at BSM Sydney Lawyers provide a free 20 minute consultation.

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