Few questions cause more panic after separation than whether the other parent can take the children away. The honest answer depends on one thing most people skip past: are we talking about a move within Australia, or out of it? The law treats those two situations very differently. Here is how each one works, and what you can do.
Interstate and overseas are two different questions
Start here, because most online answers blur it. Moving a child to another part of Australia and taking a child out of the country are governed by different rules. One is not a crime on its own. The other can be. Treat them as the same question and you will reach the wrong answer.
The rest of this article splits along that line. First, moving within Australia, where consent, court orders, and the child's best interests do the work. Then, leaving Australia, where the Family Law Act 1975 adds criminal offences, passport rules, the Family Law Watchlist, and the Hague Convention on top.
Can you move interstate without the other parent's consent?
There is no law that automatically stops a parent moving interstate with a child, and no fixed distance that triggers a problem. What matters is whether the move would significantly disrupt the child's time with the other parent. If it would, it becomes a relocation question a court can be asked to decide.
If there are no court orders and no case on foot, a parent is not committing an offence by relocating within Australia. But acting first and explaining later is risky. If you relocate without the other parent's agreement or a court order allowing it, the court can require you to return with the child until the matter is decided. The court treats relocation as a parenting question under Part VII of the Family Law Act, with the child's best interests, set out in Section 60CC, as the paramount consideration. There is no presumption for or against a move.
What if parenting orders are already in place?
This is where an interstate move can go from risky to a breach. If there are parenting orders setting out where the child lives or spends time, a move that makes those orders unworkable breaches them. Breaching parenting orders can carry serious consequences, including, in extreme cases, imprisonment.
If a child is taken or kept away in breach of orders, the other parent can apply for a recovery order. A recovery order is defined in Section 67Q of the Family Law Act 1975. It directs the return of the child and can authorise the Australian Federal Police to find and recover the child. It applies whether the child has been moved within a state or interstate, and it usually lasts for twelve months.
Relocation disputes go through mediation first
Before either parent can ask a court to decide a relocation, they generally have to try to sort it out through Family Dispute Resolution first. Relocation is one of the most common issues that brings parents to mediation, precisely because the law expects them to attempt agreement before going to court.
If FDR does not resolve the dispute, the practitioner can issue a Section 60I certificate, which a parent needs before filing a parenting application in court. The certificate is not the goal. It is the gateway that opens only if agreement is not reached. The aim of FDR is the opposite: to reach a workable arrangement so that no one has to go to court at all.
Taking a child overseas can be a criminal offence
Leaving Australia is where the law gets much firmer. Where parenting orders are in place, or a parenting case is pending in court, taking or sending a child out of Australia without the right consent or a court order is a criminal offence carrying up to three years imprisonment.
Four sections of the Family Law Act 1975 cover this. Section 65Y applies once parenting orders have been made, and Section 65YA covers keeping the child overseas beyond what was allowed. Section 65Z applies while a parenting case is pending, and Section 65ZAA covers retaining the child overseas in that situation. Each carries the same three year maximum.
There are exceptions. It is not an offence if every person in whose favour the orders were made gives written consent, properly witnessed, or if a court order permits the travel. The law also allows a defence where a parent reasonably believed that taking or keeping the child out of Australia was necessary to prevent family violence.
What if there are no orders or court case?
This is the point almost every online answer gets wrong. The criminal offences above only apply where parenting orders exist or a case is pending. If there are no orders and no case on foot, those sections do not apply, and there is no automatic offence in a parent taking a child overseas.
That does not leave a worried parent powerless. Two practical safeguards work even when no orders exist. A child cannot leave the country without a passport, and a passport cannot be issued without consent. And a parent can apply to the court to limit travel and have the child placed on the Family Law Watchlist. The sections below explain both.
A child's passport needs both parents' consent
Under the Australian Passports Act 2005, an Australian passport cannot be issued to a child under eighteen unless everyone with parental responsibility for the child consents. In practice that usually means both parents have to sign the application. No passport, no international travel, whatever else is going on.
If one parent will not consent, the other has two routes. They can ask the court to make orders allowing the passport, or they can apply to the Department of Foreign Affairs and Trade to issue a passport in special circumstances, under Section 11 of the Australian Passports Act 2005 and the Australian Passports Determination 2015. The court cannot force the Minister to issue a passport, but it can grant one parent sole responsibility for the passport decision.
If you fear the other parent might apply for a passport without telling you, you can lodge a Child Alert request with the Australian Passport Office. A Child Alert flags any future application so it gets close scrutiny. It does not guarantee refusal, and it does not cancel a passport the child already holds. A Child Alert lasts twelve months unless a court order backs it.
Did removing equal shared responsibility change the passport rule?
No. The 2024 reforms removed the presumption of equal shared parental responsibility, but they did not change who has to consent to a passport. People often assume the two are linked. They are not. The passport rule turns on who holds parental responsibility, not on the old presumption.
The presumption that was removed, in the old Section 61DA, only ever guided how a court allocated responsibility when making orders. The underlying rule, in Section 61C of the Family Law Act 1975, still says each parent has parental responsibility unless a court order says otherwise. So if there are no orders, both parents still hold parental responsibility, and both still have to consent.
It is only different where a court has actually granted one parent sole parental responsibility. Then that parent is the only person whose consent the passport office needs. That was true before 2024 as well. Removing the presumption changed the court's starting point when deciding whether to grant sole responsibility. It did not change the passport rule itself.
The Family Law Watchlist can stop a child leaving
The Family Law Watchlist, once called the Airport Watchlist, is run by the Australian Federal Police. If a child's name is on it, the police can stop the child leaving the country through any airport or seaport. It is the practical tool for a parent who fears the child will be taken overseas.
You cannot add a child yourself. You apply to the Federal Circuit and Family Court of Australia for an order that limits or prevents the child travelling overseas and asks the police to place the child on the Watchlist. Once the application is filed, the child can be put on the Watchlist straight away, even before the first court date. The Family Law Act also restrains both parents from removing the child once that application is on foot.
Removal works the same way in reverse. The police cannot take a child off the Watchlist without a court order. So if you later agree the child can travel, or want to travel with the child yourself, you have to go back to the court to have the name removed before the trip. Leave it too late and the child can be stopped at the airport, whoever they are with.
What if your child has already been taken overseas?
If a child has already been taken or kept overseas without consent, the main avenue back is the Hague Convention on the Civil Aspects of International Child Abduction. It is an international agreement designed to secure the prompt return of a child wrongfully removed from the country where they normally live.
Australia gives effect to the Convention through the Family Law (Child Abduction Convention) Regulations 1986, made under Section 111B of the Family Law Act 1975. The Attorney-General's Department is the central authority that handles applications. A parent in this situation should contact the department on 1800 100 480, and may also need legal advice in the country where the child has been taken.
The Convention only works between Australia and other countries that have also signed it. If a child is taken to a country that is not a member, there is no treaty to compel a return, and the options are slower and harder, often involving the local courts of that country. This is one reason acting early, before a child leaves, matters so much.
How mediation helps with travel and relocation
Most of this can be avoided by agreeing the rules in advance. Travel and relocation are exactly the kind of issue Family Dispute Resolution is built for, because they turn on practical detail: where, when, for how long, and how the child keeps a real relationship with the parent who stays.
In FDR, the practitioner assigned to your matter does not decide anything or put a proposal to you. They help each parent shape and reality-check the arrangements you put to each other, so a workable plan can emerge. That plan can become a Parenting Plan, or be formalised as Consent Orders, and can spell out overseas holidays, who holds the passport, and the written consent needed for any trip. You can read more about parenting arrangements after separation and, if court ever looms, how a Section 60I certificate fits in.
Because it runs online, distance is no barrier, which matters when one parent has already moved or is planning to. If travel or relocation is on the table and you would rather settle it calmly than fight it out, a Free Discovery Call is the simplest place to start.
If you or someone you know is experiencing family violence, coercive control, or fears a child may be taken without consent, please visit our Get Help page for crisis support services and pathways to safety.
This article is general information only. It is not legal, tax, or financial advice and does not take account of your personal situation. The law changes, some measures mentioned may be proposals that are not yet in force, and fees and figures can change over time, so check anything that matters and get advice for your own circumstances from a family lawyer, an accredited Family Dispute Resolution Practitioner, or a qualified tax or financial professional before acting. If you or someone else is in immediate danger, call 000. For confidential support with family violence or concerns about a child's safety, contact 1800RESPECT on 1800 737 732.