Planning an overseas move with your children after separation raises important legal issues. There is no automatic right to relocate a child internationally. The Family Law Act 1975 (Cth) does not specifically define relocation. However, it is commonly referred to as relocation matters, and any decision will ultimately hinge on the child’s best interests.

The Federal Circuit and Family Court of Australia place the utmost importance on the best interests of the child. When it comes to relocation orders, there are several common questions that arise. In this blog, we will explore what the Court takes into consideration when evaluating these requests and provide practical steps to help prepare a strong, child-focused proposal for relocation.  

What Is Overseas Relocation? 

Overseas relocation is a move that would make it significantly harder for your child to spend time with the other parent or maintain regular contact. Because international travel involves distance, cost, visas and time zones, the Court treats it as a major change to a child’s life. Even long holidays can raise issues if they affect time with the other parent, or there is a risk that the child will not return. 

How the Court Decides International Relocation Cases 

The Court compares each parent’s proposal and decides what is in the child’s best interests. Key factors include: 

1. Safety first: Protecting the child from harm or family violence. This is given the greatest weight. 
2. Relationship with both parents: Whether the child can maintain a meaningful relationship with the other parent if living overseas, and how the proposed parenting arrangement would support or hinder that connection.
3. Workability: Practicality of time and communication across borders, flight times, cost, visas, time zones, school calendars, and who pays for travel. 
4. Impact on the child: Schooling, language, health care, community ties, special needs, and disruption to routines. 
5. The child’s views: Depending on age and maturity, often through a Family Report or an Independent Children’s Lawyer. 
6. Capacity and attitude: Each parent’s ability to meet the child’s needs and support the child’s relationship with the other parent. 
7. Culture and family: Extended family support, cultural identity, and, where relevant, Aboriginal and Torres Strait Islander connections. 
8. Legal and safety environment overseas: Stability, health care access, schooling standards, and whether the destination country is a signatory to the Hague Child Abduction Convention (which affects enforceability and return mechanisms). 

The Court does not decide whether you personally can move; it decides where the child lives. Practically, the Court chooses between the child relocating with one parent or remaining in Australia and living with the other parent, with arrangements for time and communication under a parenting arrangement.

Evidence That Helps Your Relocation Case 

A clear, detailed plan carries more weight than general intentions. Useful evidence includes: 

1. Relocation plan: Country and city, housing, employment offer, salary, visas or residency status, health insurance, school enrolment, childcare, medical providers, and a cost-of-living comparison. 
2. Time and travel plan: Specific schedules for in-person time in Australia and overseas, who pays for flights and transfers, escort arrangements for younger children, accommodation, changeover locations, and regular video/phone contact. 
3. Financial documents: Employment contracts, budgets, airfare quotes, and any relocation allowances. 
4. Safety and legal considerations: Evidence of family violence or risk (if relevant), destination country’s Hague Convention status, and any measures to ensure return after visits (for example, mirror orders overseas or notarised undertakings). 
5. Reports and expert input: Family Report or other expert assessments addressing the child’s best interests and the practicality of the plan, including input from an Independent Children’s Lawyer where appointed.

Possible Outcomes 

1. Relocation allowed: Where the moving parent has a robust, child-centred plan, the move improves stability or safety, particularly in cases involving past family violence, and there is a realistic, funded plan for maintaining a meaningful relationship with the other parent (e.g., two long holiday blocks annually, regular video calls, and the relocating parent paying most travel costs). 
2. Relocation refused: Where the plan is uncertain, travel arrangements are unrealistic or unaffordable, the child has strong ties to school and community in the present local residence, or the move would substantially reduce the child’s relationship with the other parent.
   
   In complex cases, especially where allegations of family violence are present, the Court may appoint an Independent Children’s Lawyer to advocate solely for the child’s interests and assess whether the proposed parenting arrangement truly reflects their best interests.

Practical Steps Before You Decide 

1. Think child first 
2. Do not leave without consent or orders 
3. Try to negotiate with the child’s other parent 
4. Prepare a detailed proposal 
5. Manage timing and interim parenting issues
   
   If you and the other parent reach an agreement, you can formalise your parenting arrangement through a consent order. This offers legal certainty and avoids future disputes. A consent order is especially recommended when relocating overseas, as it can include specific obligations about travel, communication, and return guarantees.
   

Hague Convention and Return Risks 

If the destination country is a Hague Convention country, there are established processes for returning a wrongfully removed or retained child. If it is not, enforcement can be very difficult. The Court will consider this risk, particularly where concerns about family violence or non-return exist, and may require undertakings or mirror orders to be filed overseas to bolster the enforceability of any consent order or parenting order. 

Key Takeaways 

1. There is no automatic right to relocate a child overseas. 
2. Obtain written consent or a Court order before any international move. Ideally, via a formal consent order that reflects your agreed parenting arrangement.
3. Success depends on a detailed, child-centred plan, realistic travel and communication arrangements, and solid evidence, including assessments by an Independent Children’s Lawyer where appropriate.
4. Family violence concerns must be clearly documented and addressed in your proposal.
5. Act early: negotiate, prepare evidence, and, if needed, apply for appropriate orders, including passport and travel orders.

At Shan Lawyers, we have experience assisting our clients with relocating with their children or resisting relocation when it is not in the children’s best interests to relocate.  

From your initial consultation with us to finalising your matter, including drafting a legally sound consent order or representing you in contested proceedings involving family violence, complex parenting arrangements, or the appointment of an Independent Children’s Lawyer, we will walk you through the process. 

About the Author 

Thirumalai Selvi Shanmugam is the founder, and Director, and Principal lawyer at Shan Lawyers and is a leading family law specialist in Australia whose expertise is often sought by organisations and the media. 

Need help relocating with your child?

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