Moving with Children: The Law on Relocation and Recovery


In Western Australia, there is no defined geographical specifications for relocation, it is considered in the circumstances of each case. Generally speaking a relocation is a change in the residence of a child which may impact upon the child’s ability so spend time with a parent.http://www.kottgunn.com.au/services/family-law/

What to do when you want to relocate

The first step in any matter concerning a potential relocation of a child is to discuss the matter directly with the other parent. Parties to family law proceedings in relation to parenting matters are required to attend mediation with a registered Family Dispute Resolution Practitioner. In the event a resolution cannot be reached the parties will be issued with a section 60I certificate, which is required to commence proceedings in the Family Court of Western Australia.

The Law on Relocation

The paramount consideration of the Family Court in all parenting matters, including those concerning an application for a change in the child’s living arrangements, is the best interests of the child.[1]

The following non-exhaustive list of examples are factors which the Family Court may consider when determining an application for relocation:

  • any reasons or interests the parent proposing the relocation may have for wanting to move. It is not however necessary for that parent to propose compelling reasons for the relocation;[2]
  • the nature of the relationship between the child and each parent, as well as other significant people in the child’s life, and the impact the proposed relocation would have on those relationships;
  • the practical implications the proposed relocation would have on the non-resident parent’s ability to spend time with or communicate with the child such as travel costs; and
  • proposals for the non-resident parent to spend time with and/or communicate with the child.

It is important to remember that the Family Court must consider the competing proposals presented by each parent however the Family Court may deviate from both of those proposals and make alternative orders as they consider are in the best interests of the child. The best interests of the child is to be carefully considered by the Family Court against the right to freedom of movement of the parents involved.[3]

Recovery Orders

If one parent unilaterally relocates a child or fails to return the child to your care you may be able to seek a recovery order in the Family Court. In circumstances which are urgent (such as concerns for the safety of the child) a recovery order may be heard on an ex-parte basis. This means that the hearing will be on the same day as the application is filed or as soon as possible thereafter.

In Western Australia, orders for recovery granted by the Family Court are acted upon by the West Australian Police.

Kott Gunning Recommends

In the event that you are considering relocating with a child we recommend that you contact a member of our family law team to discuss the merits of your application. If you are concerned that your former partner has relocated with your child or refuses to return your child, please contact our offices to schedule an urgent appointment.

The information published in this paper is of a general nature and should not be construed as legal advice. Whilst we aim to provide timely, relevant and accurate information, the law may change and circumstances may differ. You should not therefore act in reliance on it without first obtaining specific legal advice.

[1] Family Law Act 1975 (Cth) s60CC.

[2] U v U (2002) 211 CLR 238 at [259-260].

[3] Morgan & Miles (2007) FLC 93-343.