One of the most common reasons why separating parents end up in court is that one parent wishes to move or travel with the children and the other parent does not wish that to happen. If parents are unable to reach an agreement either through discussion between themselves, negotiation between their lawyers or in family dispute resolution (mediation), then the decision as to whether the relocation or travel should take place must be made by a judge. The difficulty is that the Family Law Act does not specify how or when relocation or travel should be allowed. The judge must base their decision on the ‘best interests of the child’ as the primary consideration. This will include the benefit to the children of having a meaningful relationship with both parents as well as the need to protect the children from harm. These interests will be balanced against the parents’ right to have freedom of movement. One Family Court judge has said that relocation decisions are among the most difficult decisions that the family law courts must make. Since every relocation case has its own unique facts it is rarely possible to determine in advance which way the decision will go.

It is extremely important that you do not move your children’s home or take them overseas without the other parent’s written agreement or a court order allowing you to do so. If you do, the court can order you to return with the children to the place where you were previously living until court proceedings are finalised. This can cause significant financial and emotional stress – particularly if the police come knocking on your door to deliver the court’s order. In general, the court will be very reluctant to approve a unilateral relocation (that is, relocation without the other parent’s consent) unless you can prove that the move was necessary for the safety of the children.

The further away a parent wishes to move, the more difficulty they will have in convincing the court that the move is in the children’s best interests, particularly if the move involves the children changing schools and being separated from friends and extended family. Given the cost, damage to relationships and uncertainty of court proceedings it is always better for the children if their parents are able to reach a business-like agreement on such matters. However, there are so many details that need to be worked out regarding frequency of visits, the method of transport for the children and who has responsibility for the cost of their travel, it is hardly surprising that relocation cases almost always involve high levels of conflict even between parents who have previously had a good levels of communication.

Finding a cooperative solution that works for your family may involve thinking creatively about the available options. For example, both parents may agree to move to lessen the travel time for children or your children may be able to enjoy longer stays with the other parent during school holidays. You may decide to postpone your move until your children have finished primary school or offer to become the non-primary carer for a period while you establish yourself in the new location. If you have a realistic plan for ensuring that your children continue to have a meaningful relationship with the other parent, you will have more chance of convincing them (or the court) that your relocation desires have the children’s best interests at heart. Your willingness to facilitate and encourage a close and continuing relationship between your children and the other parent is another factor that the court will take into account, along with the practical difficulty and expense of ensuring the children have contact with the other parent.