International relocation requests are some of the most complex parenting matters in Australian family law. Understanding how the Court decides these cases is crucial for any parent considering a move abroad.
International Relocation: Can I Move Overseas With My Child?
Relocating internationally with a child after separation is a complex process under Australian family law. A parent who wishes to move to another country with a child and shares equal shared parental responsibility must either obtain the consent of the other parent or seek permission from the Federal Circuit and Family Court of Australia (FCFCOA). This article explores how the Court assesses international relocation cases and the key legal principles that guide its decisions.
What is an international relocation case?
An international relocation case arises when a parent proposes to move the child’s residence to another country, significantly affecting the child’s time and relationship with the other non-relocating parent. The relocating parent must apply for a parenting order permitting such a move. Common motivations include employment, remarriage, family support overseas, a fresh start or returning to one’s home country.
According to the FCFCOA website, these cases occur if:
- both parents have joint parental responsibility;
- one parent wishes to move a child to a new country; and
- there is no prior formal agreement regarding the relocation and related agreements.
However, if a court order grants one parent sole decision-making responsibility under s 61D(3) of the Family Law Act 1975 (Cth), that parent does not need the other’s consent to relocate the child, unless the order specifically excludes decisions about relocation.
It is important to note that if a parent to a current parenting order takes or sends the child outside of Australia, they commit an offence. This also applies if there are pending proceedings: s 65Z of the Family Law Act 1975 (Cth). The maximum penalty is 3 years imprisonment.
The Legal Framework
Relocation cases are not considered a special category of case under the Family Law Act 1975 (Cth) but are cases under Pt VII of the Family Law Act 1975 (Cth). To assess whether an international relocation should be permitted, the paramount consideration, as in all parenting matters under Australian law, remains the best interests of the child (s 60CA of the Family Law Act 1975 (Cth)). When one parent seeks to relocate internationally with a child, the Court conducts a holistic analysis based on s 60CC of the Act, which outlines the relevant considerations for determining a child’s best interests, including, but not limited to:
- the benefit to the child of having a meaningful relationship with both parents;
- the impact of the relocation on the child’s relationship with the non-relocating parent;
- the practicality of maintaining that relationship through international travel and communication;
- the need to protect the child from physical or psychological harm;
- the child’s views (where age-appropriate); and
- the capacity of each parent to provide for the child’s needs.
The Court’s Approach: A Balancing Act
The Court does not apply a presumption for or against relocation. In U v U [2002] HCA 36, the High Court confirmed that each case is decided individually on its own facts and unique circumstances, with the best interests of the child as the paramount consideration.
In A & A: Relocation Approach [2000] FamCA 751, the Court also clarified that a relocating parent need not demonstrate “compelling reasons” to justify the move. However, the Court does assess whether the parent has genuine motivations and a detailed, practical plan to preserve the child’s relationship with the non-relocating parent.
The 2000 decision also outlines a structured approach for the Court in determining international relocation cases as follows:
- Identify the relevant competing proposals of each party.
- For each relevant factor, set out the relevant evidence and the submissions as to the advantages and/or disadvantages for that factor and make findings for each.
- Determine and explain why one of the proposals is to be preferred.
Illustrative Case Examples
The following cases illustrate how the Court applies these principles in different factual contexts:
In this case, the Court permitted the mother to relocate with the parties’ six-year-old child to Germany, her country of origin. The primary judge found that the mother, who had always been the child’s primary carer, suffered from major depressive disorder and was experiencing declining mental health, exacerbated by social and financial isolation in Australia. The Court accepted that relocation would offer her improved emotional stability, family support and better employment prospects, which are factors directly influencing her capacity to parent effectively.
While the father opposed the move, the Court found that a change in residence to him would have a “profound negative impact” on the child. The Court acknowledged that relocation would likely diminish the child’s relationship with her father but found it would not be lost. Orders were made for the child to spend four weeks annually with the father in Australia and, if feasible, an additional four weeks in Germany, with regular virtual contact.
On appeal, the Full Court upheld the trial judge’s discretionary decision, confirming that the relocation was in the child’s best interests.
This case involved a mother’s application to relocate her children from Australia to New Zealand, citing emotional and financial benefits. The father opposed, raising concerns about the impact on his relationship with the children.
The primary consideration for the Court, as stated above, was the best interests of the children. The trial judge applied the framework established in Morgan & Miles [2007] FamCA 1230, assessing factors such as the potential impact on the children’s relationship with both parents, the practicality of the proposed relocation and the mother’s reasons for moving. The Court found that the relocation would significantly impair the children’s relationship with their father and that the mother’s reasons, while genuine, did not outweigh this concern. Consequently, the mother’s application was denied, ensuring the preservation of their relationship with both parents within Australia.
On appeal, the Court dismissed the mother’s appeal and found that the trial judge did assess the children’s best interests and there is no basis for the Court to interfere with his Honour’s exercise of a very broad discretion.
Here, the Court considered a mother’s application to relocate internationally with her two-year-old twin children to Country B. The mother, who was the children’s primary carer, sought to relocate due to her lack of emotional, practical and financial support in Australia. She also highlighted the availability of extended family in Country B and the children’s cultural connections there.
The father opposed the relocation, citing concerns about his ability to maintain a meaningful relationship with the children. However, the Court considered several relevant factors under s 60CC, including the children’s safety due to the father’s history of alcohol and illicit drug use, one child’s special developmental needs and the mother’s mental health.
In the end, the Court permitted the relocation, granting the mother sole parental responsibility under s61D(3). Orders were made for the father to spend time with the children under strict supervision conditions, supported by ongoing drug and alcohol testing. The Court found that the children’s best interests would be best served by allowing the move with appropriate safeguards in place.
Practical Considerations for Parents
Given the above-discussed complexity of relocation cases, parents considering international relocation should:
- Seek legal advice early: Applications for relocation require strategic planning and thorough preparation.
- Document the benefits: Detail how the move will benefit the child (e.g., education, extended family, safety, cultural connection or overall welfare).
- Establish genuine reasons: Be prepared to present legitimate motivations for the move (e.g., better career opportunities, support networks or improved living conditions).
- Provide a practical contact plan: Demonstrate how the child will maintain a meaningful relationship with the non-relocating parent (e.g., video calls, school holidays or travel arrangements).
- Remain child-focused at all times: Avoid framing the move as a parental right or preference. The child’s needs and welfare must guide your reasoning and presentation to the court.
International Relocation and the Hague Convention
While the ideal scenario involves a court-ordered relocation, there are situations where a parent relocates without permission, raising serious legal consequences
Where one parent relocates overseas without the other’s consent, it may constitute international child abduction. Australia is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction, which provides a legal mechanism to secure the prompt return of children wrongfully removed from their country of habitual residence.
Applications are made through the Central Authority (i.e., the Australian Government Attorney-General’s Department for Australia) and must show that the removal breached a parent’s custody rights. While the Convention generally requires the return of the child, exceptions may apply, such as where there is a grave risk of harm or where the left-behind parent consented.
Importantly, a return order under the Hague Convention does not decide long-term parenting arrangements, but ensures those decisions are made in the appropriate jurisdiction. In non-Convention countries, however, Australian parenting orders may have limited enforceability, making early legal advice essential.
Ultimately, international relocation is one of the most emotionally charged and legally complex issues in family law. While parents may seek new beginnings abroad, the central question for the Court is always:
Is the move in the child’s best interests?
The Court must delicately balance a parent’s desire to relocate with the child’s need for meaningful and ongoing relationships with the other parent—always placing the child’s welfare above all else.
RAMSDEN FAMILY LAW – HOW WE CAN HELP
At Ramsden Family Law, our experienced team understands the legal, emotional and practical complexities of international relocation cases. Whether you are seeking to move or objecting to a proposed relocation, we provide strategic advice and dedicated representation to ensure your child’s best interests are protected.
We help clients develop comprehensive relocation proposals, negotiate workable parenting arrangements and present strong cases in Court. Contact us today for tailored advice and support in your parenting matter,
The content of this article is intended to provide general guidance to the subject matter and must not be relied on as legal advice. Specific advice should be sought about your circumstances.
