By Kate Wild – Special Counsel
When parents separate, it is not uncommon for one parent to seek to relocate to another city, state or even country with the children of the relationship.
A parent seeking to relocate with children will need to seek the consent of the other parent, or an Order of the Court, before relocating. Failure to do so could result in an urgent order being made requiring their immediate return.
Relocation applications are often opposed by the other parent and are some of the most hard-fought, ‘high stake’ cases that go before the Federal Circuit and Family Court of Australia. Because of the often-limited scope for a compromised outcome, relocation cases have a greater propensity to run to final hearing when compared to other types of parenting cases.
So how does the Court determine what should happen?
In 2000, the Family Court (as it was then known) delivered judgment in A v A: Relocation Approach.
The case provided guidance as to the relevant factors the Court needs to consider in determining whether a relocation application should be granted, making clear that that the child’s best interests remains the Court’s paramount consideration.
However, in relocation cases, application of the ‘best interests’ principle can be complex.
In the High Court case of AMS v AIF [1999], it was stated:
“On the one hand, the best interests of a child ordinarily favour its right to know, and to have regular contact with, each parent whilst it is growing up. On the other hand, such rights exist in a society whose members enjoy a high measure of freedom of movement, which is not lost by reason only of the responsibilities which go with custody and guardianship of a child.”
In the case of A v A: Relocation Approach, it was held that an applicant seeking to relocate need not demonstrate “compelling reasons” for a relocation. However, the reality is that in practice, an application to relocate without compelling reasons is far less likely to succeed.
The Court has granted relocations in circumstances where:
- An applicant is suffering financially, and there are financial advantages associated with the proposed relocation.
- An applicant is experiencing family violence, and the proposed relocation would provide an escape from the violence.
- An applicant has limited access to family support, and the proposed relocation would allow them access to the support of family, such as a grandparent.
- An applicant is suffering mental health issues or severe homesickness, and the proposed relocation would afford the applicant support or relief.
- An applicant has partnered with somebody who lives elsewhere.
- The proposed relocation would benefit the applicant’s career.
When assessing the likely impact of a relocation on the children, the age of the children is a key consideration, as is the children’s relationship with the other parent. A parent applying for relocation can strengthen their case by proposing measures to mitigate any impact on a child’s relationship with the other parent, such as regular electronic contact and/or frequent and substantial visits to the other parent.
Importantly, when an application for relocation is determined by the Court, the Court is not bound by the parties’ proposals. The High Court found in U v U [2002] that the Court is at liberty to make such Orders as it deems appropriate.
Changes to parenting laws in May 2024
In May 2024, changes to the Family Law Act 1975 (Cth) (Act) came into effect which significantly altered parenting laws.
- Previously, when considering the children’s best interests, the Court was required to consider the children’s right to a ‘meaningful relationship’ with both parents. The changes removed the word ‘meaningful’ from the consideration.
- Previously, the Court was required to consider a child spending ‘significant and substantial’ time with a parent, which was defined in the Act as a parent being involved in day-to-day aspects of a child’s life, as well as the child spending time on weekdays, weekends and special occasions with the parent. The changes removed this consideration.
- Previously, there was a presumption that it was in the child’s best interests for the parents to have equal shared parental responsibility for major long-term issues. The changes removed the presumption.
- Previously, where it was determined that it was in the child’s best interests for the parents to have equal shared parental responsibility, the Court was required to consider the child spending equal time with both parents. The changes removed that requirement.
So how do the recent changes to parenting laws affect relocation cases?
In January 2025, Division 1 of the Federal Circuit and Family Court of Australia considered the case of Wedekind & Nakano (No 2) [2025] FedCFamC1F 5.
The case concerned, in part, a mother’s application to relocate with the children from Australia to New Zealand. The mother’s relocation application was vigorously opposed by the father.
In Wedekind & Nakano:
- There were 2 children, aged approximately 4 and 7 years.
- The children lived with the mother and spent 3 nights per fortnight with the father, plus after school hours for dinner every second week. It was agreed the children had a close relationship with the father.
- There were no allegations of family violence. The parties had an amicable co-parenting relationship.
- The mother had family living in New Zealand and expressed a desire to return to New Zealand during the parties’ relationship.
- The mother experienced mental health issues which required careful management. Her mental health deteriorated significantly when she formed an understanding that her relocation was uncertain.
- The children spent time living in New Zealand with the mother prior to separation.
- The father was receiving compensation for an injury. He contended that he was unable to obtain work outside of Australia due to a security clearance issue, and he would not receive financial compensation while in New Zealand.
- The mother was able to continue her employment remotely while living in New Zealand.
The Court determined that the impact of a relocation on the children’s relationship with the father must be tempered by the risk posed to the mother if the relocation was not permitted. The Court ultimately granted the mother’s relocation application and made orders for the children to spend as much time with the father as practicable.
Relocation is a complex aspect of family law. If you would like advice about a relocation matter or any other family law issues, please contact us on (03) 8672 5222 to arrange an appointment with one of our experienced family lawyers.
