Moving or Travelling with Children After Separation

Navigating the complexities of parenting arrangements after separation or divorce can be challenging, especially when it involves moving house or travelling with children. The Family Law Act 1975 (Cth) serves as the foundation for addressing issues related to the care of children after separation in Australia and the family law system aims to ensure that the best interests of children are at the centre of all parenting decisions.

This article explores the considerations involved when it comes to moving children within Australia and travelling with them after separation. The information is general only and we recommend that you obtain professional advice relevant to your circumstances.

Moving House with Children

Relocating with children is a significant decision that can introduce major changes and impact the child’s relationship with both parents. Family law legislation provides that unless a court order is in place stating otherwise, each of the parents of a child has parental responsibility for that child. Parental responsibility means the duties, powers, responsibilities and authority that parents have in relation to children.

When one parent wishes to move with the children, they should seek consent from the other parent. If both parents consent, they can work together to adjust parenting arrangements to accommodate the move. Of course, effective communication and cooperation between co-parents is essential to navigating the process of relocating with children. Ideally, parents should work together to create a parenting plan that addresses the child’s needs and maintains a strong relationship with both parents if it is safe to do so.

If existing court orders are in place and the proposed relocation is likely to upset the provisions of those orders, for example, the amount of time a child spends with the other parent or a change in schooling, then the move may not be permitted under those orders and consultation between the parents will be necessary to have the orders changed.

If no agreement can be reached, then it may be possible to obtain a court order to allow the move to occur. In such cases, the paramount consideration must be the best interests of the child. The Family Law Act 1975 was amended, effective May 2024, to remove the presumption of shared parental responsibility in parenting matters, and the following factors must now be considered by the Court when determining what is in the best interests of the child:

• The safety of the child and each person who has care of the child
• Any views expressed by the child
• The child’s developmental, psychological, emotional and cultural needs
• The capacity of each person with parental responsibility, whether current or proposed, to meet the child’s developmental, psychological, emotional, and cultural needs
• The benefit to the child in having a relationship with their parents, and other people significant to the child, if it is safe to do so
• Any other factors that the court deems relevant to the specific circumstances of the child

In addition, the Court will consider the child’s connection to ‘family, community, culture, country, and language’ when determining what is in the best interests of Aboriginal or Torres Strait Islander children.

Travelling with Children

Travelling with children after separation can also be a complex issue, particularly when one parent intends to take the child on an international trip. Several considerations and legal requirements come into play. For instance, both parents’ consent is generally required for a child to obtain a passport. If one parent opposes international travel, they can prevent the child from leaving the country by refusing to provide this consent. This can effectively curtail the plans of the parent who wishes to travel with their child.

In the case where one parent has sole parental responsibility, they can make decisions about the child’s travel without the other parent’s consent. However, sole parental responsibility has, in the past, rarely been ordered by the Court, and typically only when there have been specific safety concerns. In addition, even if one parent has sole parental responsibility, they may still be required to notify the other parent about international travel plans, including destination, dates, and contact information during the trip.

Child Abduction

A common concern for separated parents is that the parent travelling with the child may not return to Australia. The Family Law Act addresses international child abduction, providing mechanisms for the return of children who have been unlawfully taken or retained overseas by one parent.

A parent whose child has not been returned can apply to the Court for a recovery order. This empowers Australian Federal Police to investigate the activities and movements of the missing child and abducting parent. In the case of an international abduction and the abducting parent has removed the child from Australia, the AFP will cooperate with international agencies to find and return the child.

Seek Assistance

Moving or travelling with children after separation in Australia involves complex legal considerations that revolve around the child’s best interests and the responsibilities of both parents. Communication, cooperation, and a focus on the child’s well-being are paramount in addressing these issues amicably whenever possible.

When disputes arise, seeking legal advice and, if necessary, obtaining court orders can provide clarity and ensure that decisions align with the legal framework established by the family law. Ultimately, the goal is to provide stability and a supportive environment for the child, even in the midst of a significant life transition, and always with the children’s best interests at the forefront.

This is general information only and you should obtain professional advice relevant to your circumstances. If you or someone you know wants more information or needs help or advice, please contact us on +61 2 9283 3344 or email [email protected].