Relocation orders during a pandemic: A legal perspective

Since 2020, for separated families and co-parents, a new level of co-parenting questions have arisen.

By Annabel Murray, Family Law Accredited Specialist at Australian Family Lawyers, Sydney.

Applications seeking relocation orders for a child to relocate with the parent in the absence of the other parent are complex cases.

Applications for the relocation of the child can be even more challenging due to the Covid 19 pandemic.

What are relocation orders?

A relocation order is a decision and order that the Court makes which allows or prevents a child and parent from moving away from the other parent, whether to another town, city, state or country.

The Court always makes decisions about relocation orders with the best interests of the child in mind.

Relocation orders and legal considerations

In the matter of Denham & Newsham [2021] FamCAFS 141 (6 August 2021), the Court of Appeal ordered the rehearing of the case. The Court had ordered that the mother may relocate the child from Australia to Belgium, commencing in 2023.

In the Court of Appeal’s decision, amongst other considerations, was that since the original trial, practical considerations had arisen. These included the ability of the father to spend time with his child at times contemplated in the orders, in light of travel restrictions due to the Covid pandemic.

These practical considerations included:

• border restrictions;
• the need for permissions for the father and child to travel;
• quarantine requirements;
• and the limited flight services for the father’s and child’s travel in spending time with each other.

In addition, the Court considered financial considerations, including the costs of quarantine.

Whilst this case is considered international travel, parents in Australia seeking to relocate a child will feel its implications.

Related reading: How to co-parent during a pandemic

Relocating a child in Australia

As we have seen in Australia during lockdowns:

• states and territories have imposed border restrictions;
• persons intending to enter states and territories are subject to permission to do so;
• flights are more limited; and 
• there are quarantine requirements.

The judgment of the case above includes the statement that the “documents issued by both countries demonstrate, the situation is fluid, and the conditions are subject to change”.

As we have seen with clients whose children live interstate, the decisions made to permit the relocation did not contemplate a pandemic, and for those families, the left-behind parent and child have not been able to enjoy physical time together.

Related reading: Parental separation and schooling

For those matters where a parent is seeking to relocate within Australia, consideration might be had about the matters raised in this decision, given they are not factors unique to international relocation.

We’ve all experienced the fluidity in moving in and out of lockdowns. Subsequently, it will be interesting to see what types of orders could be made that contemplate the impact of future restrictions and facilitating time and communication between relocated children and their parents, should an order be made for a parent to relocate a child.

If you need any advice about relocation orders, we can help. Give us a call directly, or request a callback from our friendly team via the form below.