Two questions come up in almost every parenting matter that runs for more than a year. Can my former partner move away with the children? And what can I do about the new person in their life?
The two are often asked together, and one of the most useful things a lawyer can do at the first meeting is to separate them, because the law treats them very differently.
The Short Answer
On new partners: the law does not regulate when a separated parent may begin a new relationship, when they may introduce a new partner to the children, or whether the new partner may live in the home. There is no waiting period, no rule about a minimum number of months, and no requirement for the other parent’s approval. A new partner becomes a legal issue in only two situations. The first is where there is evidence that the new partner poses a risk to the children. The second is where the new relationship leads to a proposed move.
On relocation: there is no separate law of relocation. A proposed move is decided by the same test as every other parenting question, which is what is in the best interests of the child. But a move that would make it significantly more difficult for the children to spend time with the other parent is a major long-term issue, and where there are orders for joint decision-making, it cannot be decided by one parent alone. Where there are no orders, a parent who moves without agreement can expect an urgent application to bring the children back, and those applications frequently succeed.
Two things surprise people most often.
The first is that the Act says, in so many words, that a decision to form a relationship with a new partner is not, of itself, a major long-term issue. Parents sometimes come to us having been told by friends or by the internet that they must wait six months, or twelve, or must obtain consent. None of that is law.
The second is that relocation cases are decided on proposals, not just on principles. The parent who wants to move and the parent who does not each put forward a concrete arrangement, and the court chooses between them, or shapes something from them, by asking which arrangement is better for the child. A parent who has a specific, costed proposal for how the children will keep their relationship with the other parent is in a far stronger position than one who offers a general promise to be flexible.
On timing. If you are thinking about a move, raise it before you commit to it, and do so in writing. A parent who signs a lease or accepts a job interstate before the conversation has begun has narrowed their own options. A parent who moves first and seeks approval afterwards has narrowed them further still.
This page deals with both questions in detail. The wider law about children, including the best interests test and the 2024 reforms, is on our parenting arrangements page. If you would rather talk it through, we are glad to do that instead.
The statutory framework
Every decision about a child under Part VII of the Family Law Act 1975 (Cth) is governed by section 60CA: the best interests of the child are the paramount consideration. What best interests require is worked out through the considerations in section 60CC, which since 6 May 2024 comprise six general considerations, including the arrangements that would promote the child’s safety, the child’s views, the child’s developmental and psychological needs, each parent’s capacity to meet those needs, and the benefit to the child of a relationship with each parent where it is safe.
Relocation is decided by applying those considerations to the particular move proposed. Nothing in Part VII mentions relocation by name.
The former provisions that required a court to consider equal time and substantial and significant time, and that asked whether such arrangements were reasonably practicable, were repealed by the Family Law Amendment Act 2023 (Cth). Relocation cases decided under those provisions, including the High Court’s decision in MRR v GR (2010), turned on a statutory question that no longer exists, and they should be read with that in mind.
Parental responsibility continues after a new relationship
Each parent of a child under 18 has parental responsibility: section 61C. The section says expressly that this is not affected by the parents separating or by either of them marrying or remarrying. A new partner does not acquire parental responsibility by moving in, and does not displace the other parent’s.
A step-parent, which the Act defines in section 4(1) as a person who is or has been married to or the de facto partner of a parent and who treats the child as a member of the family, has no parental responsibility unless a court gives it to them. Such orders are possible, because section 65C allows any person concerned with the care, welfare or development of a child to apply, but they are uncommon and they require the court to be satisfied that the order is in the child’s best interests.
New partners: where the law actually engages
The definition of major long-term issues in section 4(1) is where the Act speaks directly to new partners. After listing education, religion, health and the child’s name, and changes to living arrangements that make it significantly more difficult for the child to spend time with a parent, it says this: a decision by a parent to form a relationship with a new partner is not, of itself, a major long-term issue in relation to the child. However, the decision will involve a major long-term issue if, for example, the relationship involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.
That sentence disposes of most of the questions we are asked about new partners. The other parent does not have a say in whether you begin a relationship, when you introduce your partner to the children, or whether your partner stays overnight. Those are matters for you, in the ordinary exercise of your own parental responsibility.
Where a new partner does become a legal issue is where there is evidence that they present a risk to the children. That is assessed under the first of the section 60CC considerations, the arrangements that would promote the child’s safety. The evidence that matters is evidence of risk: a history of family violence, a criminal history relevant to the safety of children, substance abuse, or conduct actually observed in relation to the children. What does not matter is disapproval of the relationship, its timing, or the other parent’s assessment of the new partner’s character.
Where a genuine risk is shown, the court has a range of responses short of restraining the relationship, including orders that the child not be in the presence of a named person, or that time be supervised. Where risk is not shown, an application of this kind tends to damage the applicant’s own position, because it bears on their capacity to support the child’s relationship with the other parent, and because a court will notice when an application framed as a safety concern is really an objection to the relationship.
A practitioner’s observation: there is no rule about when to introduce a new partner, but there is such a thing as good judgment. Children who are still adjusting to their parents living apart do not need another adjustment layered on top of it, and a parent who introduces a new partner early and prominently often finds that the other parent’s reaction, rather than the introduction itself, becomes the problem in the case. The law will not tell you to wait. Common sense sometimes will.
Relocation: what the court is deciding
A relocation application is an application for parenting orders under section 65D in which one of the proposed arrangements involves a move. There is no presumption for or against the move, no requirement that the parent proposing it show compelling reasons, and no requirement that the parent opposing it show harm. The High Court settled that in AMS v AIF (1999): the best interests of the child are paramount but they are not the only consideration, and a parent’s freedom to live where they choose is a legitimate factor to be weighed. In U v U (2002) the High Court added that the court is not confined to the proposals the parents put forward; it may, for example, consider whether the parent who wishes to move would remain if the move were refused.
Those cases remain the framework. What has changed is the list of considerations through which it is applied. The court now works through the six considerations in section 60CC(2), together with the additional consideration for Aboriginal and Torres Strait Islander children in section 60CC(3), and it does so without any statutory steer towards a particular division of time.
The evidence in a relocation case is directed to a fairly consistent set of questions.
- The reasons for the move, and whether they are genuine, considered and achievable. A firm job offer, a partner with a settled home, family support in the destination and a school that has confirmed a place are all evidence. A hope that things will work out is not.
- The arrangements proposed for the children’s relationship with the parent who stays. This is where these cases are most often won or lost. A proposal that identifies specific periods of time, the travel arrangements, who pays for the travel, and the mechanics of video and telephone contact is materially more persuasive than a general undertaking to facilitate contact.
- The housing, schooling, employment and support available to the children in each location, compared honestly.
- The effect on the parent who wishes to move, and therefore on the children, if the move is refused. A primary carer who would be isolated, unemployed and unhappy in Melbourne is not necessarily the better option for the children, and the court is entitled to weigh that.
- The children’s views, given weight according to their age and maturity and according to what the evidence shows about how those views were formed.
The Full Court’s decisions since the 2024 reforms illustrate the approach. In Gerard & Santino [2024] FedCFamC1A 218 a father’s appeal against orders permitting the mother to relocate a child to the United Kingdom was dismissed; the trial judge had weighed the section 60CC considerations and no error was shown. In Sujatha & Gutierrez [2024] FedCFamC1A 223 orders permitting a relocation to the United States ‘subject to the children’s wishes’ were set aside, because a court cannot hand the decision to the children or leave the mechanism unspecified. The court must decide, and it must decide on the evidence before it.
The practical point: relocation is often described as an all-or-nothing case, and it can feel like one, because either the children move and one relationship is stretched, or they stay and one parent is kept where they do not want to be. But the outcomes are more varied than that. Courts refuse moves, permit them, permit them on conditions, and sometimes make orders that change where the children live if the parent insists on moving. The parent with the better-prepared proposal shapes which of those outcomes is available.
A relocation case in practice: Sare & Rainey
Our principal, Marc Testart, appeared as counsel for the mother in Sare & Rainey [2020] FamCA 207. The mother applied for permission to relocate her two young children from regional Australia to Japan. The father opposed the application, and an independent children’s lawyer was appointed to represent the children’s interests. The matter was heard over three days before Tree J and judgment was delivered on 2 April 2020. The Court permitted the relocation, gave the mother sole parental responsibility subject to a consultation regime, and made orders for the children to spend time with their father both in Australia and in Japan on a schedule that expanded as the younger child grew older.
The judgment is worth reading because it shows, in a way that a summary of principle cannot, how the balance is actually struck. With the assistance of the parties, the trial judge identified twelve matters that told in favour of the move and four that told against it, and set them out in the reasons. In favour were the likely improvement in the mother’s financial circumstances, the family support available to her in Japan, the children’s opportunity to experience their Japanese heritage, better educational opportunities, her demonstrated history of promoting the children’s relationship with their father, and the fact that her own proposal for the father’s time would, if he took it up, give him more time with the children than he had actually spent with them in the preceding two years.
The matter that carried the most weight was different in kind. The father had a history of drug use and of disengagement from the children. The judge found that even if the move were refused there was no guarantee the father would re-engage, which meant there was, in the judge’s words, ‘a very real risk that the mother would, in effect, be forced to remain in a country where she does not wish to live, with no commensurate benefit being derived by the children, in the form of a meaningful relationship with their father’.
Against the move were the reduced opportunity for the children to spend time with their father, real doubt about whether he could afford to travel to Japan, the loss of any prospect of equal or substantial time, and the curtailment of his involvement in the children’s daily lives. The judge accepted all of that and permitted the move, being satisfied that ‘a meaningful relationship between the father and the children can be maintained from Japan, with the assistance of regular communication by Skype or similar means’. He also observed that the father’s criticism of the limited time he would have had to be weighed against the fact that he had himself chosen to spend less time with the children over the previous two years than either parent’s proposal would give him.
A practitioner’s observation: three features of that case are of general application. The first is that an international move can be permitted even where it substantially reduces face-to-face time, provided the evidence shows that the relationship can be sustained and that the move genuinely benefits the children. The second is that evidence about the moving parent’s own circumstances, their finances, their support network and their wellbeing, is not a distraction from the children’s interests. It bears directly on them, because it bears on the care the children will actually receive. The third is that conduct before the litigation counts. The mother’s history of promoting the children’s relationship with their father was expressly listed in her favour. A parent who has withheld time and then asks to move overseas is asking the court to disregard the best available evidence of what will happen after the move.
On currency. Sare & Rainey was decided in 2020, under the previous version of the Act. It applies the presumption of equal shared parental responsibility in the former section 61DA and the former section 65DAA, both of which were repealed on 6 May 2024, and the former two-tier structure of section 60CC. The principles it takes from AMS v AIF, U v U and Morgan & Miles are unaffected by the reforms, and so is the reasoning about how competing considerations are weighed against each other. That is what it is cited for here. It is not cited as an indication of outcome. Every relocation case is decided on its own facts, and the result in one case is not a guide to the result in another.
Moving without agreement
A parent who moves with the children without the other parent’s agreement and without an order exposes themselves to an urgent application. Where the move is within Australia, the application is typically for a recovery order under section 67Q, which can require the return of the child and can authorise police to find and recover the child, by force if necessary. A parent, a person with whom the child lives or spends time under an order, a grandparent, or any other person concerned with the child’s welfare may apply: section 67T. The best interests of the child remain paramount: section 67V.
Where the move is not urgent enough for a recovery order but has already happened, the court is asked to decide interim arrangements. The leading first-instance decision, Morgan & Miles [2007] FamCA 1230, cautions against deciding a child’s long-term future in an abridged interim hearing and against treating the interim hearing as a way of punishing the parent who moved. The court asks what arrangement is in the child’s best interests pending trial. Even so, a parent who has moved first is conducting the case from a position of disadvantage, and interim orders requiring the children to return are common where the move was unilateral and the other parent acted promptly.
Where the move is a change to the children’s living arrangements that makes it significantly more difficult for them to spend time with a parent, it is a major long-term issue. If there are orders for joint decision-making, section 61DAA requires the parents to consult and make a genuine effort to reach a joint decision. If there are final orders that the move would be inconsistent with, the parent seeking to move must obtain fresh orders, and unless the other parent consents that means satisfying the significant change of circumstances threshold in section 65DAAA. A new relationship in another city may be such a change, but the threshold is not met simply because circumstances have altered.
The practical point: the orderly course is to seek agreement in writing, and if it is refused, to apply for orders before moving rather than after. It is slower. It is also the course that keeps the widest range of outcomes open.
Moving overseas
International relocation is decided by the same best interests test, but the consequences of getting it wrong are more serious, because the Act makes it a criminal offence to take or send a child out of Australia in certain circumstances. Under section 65Y, where a parenting order is in force, a party to the proceedings who takes or sends the child overseas without the written consent of each person in whose favour the order was made, or without a court order, commits an offence punishable by up to three years’ imprisonment. Section 65Z applies the same rule while proceedings for a parenting order are pending. Since 2018, sections 65YA and 65ZAA have also made it an offence to keep a child overseas beyond the period for which consent or an order was given. Each offence has an exception where the conduct was reasonably believed to be necessary to prevent family violence.
Where there is a real risk that a child will be taken overseas, a parent can apply for an injunction restraining removal and asking the Australian Federal Police to place the child on the Family Law Watchlist, which operates at every international departure point. The Court’s guide to the process is at fcfcoa.gov.au. Separately, under section 11 of the Australian Passports Act 2005 (Cth), an Australian passport cannot be issued to a child without the consent of every person with parental responsibility unless a court orders otherwise, and a Child Alert can be lodged with the Passport Office.
If a child has already been taken to or kept in a country that is party to the Hague Convention on the Civil Aspects of International Child Abduction, an application for the child’s return is made through the Commonwealth Central Authority under section 111B and the Family Law (Child Abduction Convention) Regulations 1986. Where the application is made within a year of the removal, return is generally mandatory subject to limited exceptions. After a year, the court may refuse return if the child is settled in the new environment. Where the destination is not a Hague country, the position is far more difficult, and prevention is the only reliable remedy.
When orders already exist
Many relocation disputes arise years after the original orders were made. The orders will usually say where the children live and how their time is divided, and sometimes they say in terms that the children are to live within a defined distance of a place or a school. A move inconsistent with those orders cannot simply be made.
Where the parents agree to the move, they file fresh consent orders. Where they do not, the parent proposing the move applies to vary the orders, and must first satisfy the court under section 65DAAA that there has been a significant change of circumstances and that reconsideration is in the children’s best interests. How final orders are changed, and the difference between orders and a parenting plan, is dealt with on our parenting plans and consent orders page. How the required mediation works before an application can be filed is dealt with on our family dispute resolution, mediation and arbitration page.
What the process looks like in practice
Relocation matters run on two very different timetables depending on whether the move has already happened. Where it has not, the process is the ordinary parenting pathway. Where it has, the first weeks are urgent.
| Stage | What happens | Typical timeframe |
|---|---|---|
| Initial advice | We identify whether the real issue is the move, the new partner, or both, and advise on whether agreement is realistic and what a persuasive proposal would need to contain. | One to two weeks |
| Written proposal and response | The parent proposing the move sets out the proposal in writing, including the arrangements for the children’s time with the other parent. The other parent responds. | Two to six weeks |
| Family dispute resolution | A registered practitioner conducts mediation. A certificate is issued whatever the outcome, and is required before an application can be filed. | Four to eight weeks to obtain a date |
| Consent orders | Where the move is agreed, orders dealing with the move, travel, cost and communication are drafted and filed. | Two to six weeks |
| Application to the court | Where agreement is not reached, an application is filed with the certificate, a notice of risk and an affidavit setting out the proposal in detail. | Two to four weeks to prepare |
| Urgent application or recovery order | Where a parent has moved or is about to move without agreement, an urgent application is filed and is usually heard within days. | Days to two weeks |
| Interim hearing | The court makes arrangements to operate until trial. In relocation matters this often means the children remain where they were pending trial. | Six to twelve weeks after filing |
| Child expert report | A court child expert interviews the parents and, depending on age, the children, and reports on the proposals. | Three to six months |
| Trial | A relocation matter that does not settle proceeds to a final hearing. These cases settle less often than other parenting matters because there is less middle ground. | Twelve to twenty-four months from filing |
Those timeframes are indicative and they are not promises. A matter involving a risk that a child will be taken overseas is dealt with far more quickly than the table suggests, and the Court will hear a genuine emergency on the day.
What actually drives the cost
Relocation matters are among the more expensive parenting cases, because they are less likely to settle and because the evidence required is broader. The following drive the cost.
- Whether the move has already happened. A unilateral move adds an urgent application at the start, and it changes the tone of everything that follows.
- The distance and the destination. An overseas relocation involves evidence about a foreign legal system, schools and living conditions, and may involve Hague Convention issues. A move within Victoria rarely does.
- Whether the case is really about the move or really about the new partner. A case that is framed as a safety concern about a new partner, but is in truth an objection to the relationship, tends to cost more and achieve less than one that addresses the move directly.
- Whether a child expert report is required. In relocation matters it almost always is.
- How many interim hearings are needed before the arrangements are stable.
- Whether the matter settles after the expert report. Many do, once both parents can see how an independent assessor has weighed the two proposals.
We provide written costs disclosure before we act, and we will tell you at the outset if we think the likely legal cost is disproportionate to what is actually in dispute. In relocation matters we will also tell you, candidly, how strong the proposal is before you commit to running it.
Questions & Answers
Is there a rule about when I can introduce my new partner to my children?
No. The Act says expressly that a decision to form a relationship with a new partner is not, of itself, a major long-term issue. The other parent does not have to approve, and there is no minimum period. The only legal questions are whether the new partner presents a risk to the children and whether the relationship leads to a move that would significantly affect the children’s time with the other parent.
Can I stop my former partner’s new partner from being around the children?
Only where there is evidence of risk to the children, such as family violence, relevant criminal history, substance abuse or conduct observed in relation to the children. Disapproval of the relationship is not a ground. Where risk is shown, the court can make orders that a named person not be present, or that time be supervised, without restraining the relationship itself.
How far can I move with the children without the other parent’s agreement?
The Act does not set a distance. The question is whether the move would make it significantly more difficult for the children to spend time with the other parent. A move across Melbourne that leaves the fortnightly arrangement intact usually does not. A move to a regional centre that makes weeknight time impossible usually does. If it does, and there are orders for joint decision-making, it cannot be decided by one parent alone.
What happens if my former partner moves with the children without telling me?
You can apply urgently for orders, including a recovery order requiring the children’s return, and the Court will hear a genuine emergency quickly. These applications are commonly successful where the other parent acts promptly. The parent who moved then conducts the substantive case from a position of disadvantage.
Do I need the other parent’s permission to take the children on an overseas holiday?
If there are parenting orders in force, or proceedings on foot, taking a child overseas without the written consent of everyone in whose favour the orders were made, or without a court order, is a criminal offence. If there are no orders and no proceedings, there is no offence, but a parent who takes a child overseas over the other parent’s objection can expect an application on their return, and a passport cannot be issued to a child without the consent of everyone with parental responsibility unless a court orders otherwise.
Can the court stop my child being taken out of Australia?
Yes. The court can make an injunction restraining removal and request that the Australian Federal Police place the child on the Family Law Watchlist, which operates at all international departure points. This can be done urgently where the risk is immediate.
Will the court let me move if I have a good reason?
A good reason is necessary but not sufficient. The court decides what is in the children’s best interests, weighing the reasons for the move, the effect on the children’s relationship with the other parent, the proposal for maintaining that relationship, the conditions in each location, and the children’s views. A well-founded reason supported by a detailed, realistic proposal for the children’s time with the other parent is what carries weight.
We already have final orders. Can they be changed to allow a move?
By agreement, yes, through fresh consent orders. Without agreement, the parent proposing the move must first satisfy the court that there has been a significant change of circumstances since the orders were made and that reconsideration is in the children’s best interests. A new relationship in another place may be such a change, but it is not assumed to be.
Does a step-parent have any legal rights in relation to my children?
Not by virtue of the relationship alone. Parental responsibility belongs to the parents and continues after a new marriage or de facto relationship. A step-parent can apply for parenting orders as a person concerned with the child’s care, welfare or development, but such orders are uncommon and depend on the child’s best interests.
Reviewed and current as at September 22, 2026. This page states the law of the Commonwealth of Australia as amended with effect from 6 May 2024.
This article is intended as a general overview and does not constitute legal advice. The application of the principles discussed depends on the particular facts of each matter. Readers should obtain advice specific to their circumstances.
