Relocation Cases and the Illusion of Choice

Perhaps it's just me, but I've received a noticeable increase in relocation briefs over recent months.

Whether that is a function of cost-of-living pressures, the delayed unravelling of post-COVID relationships, or simply the cyclical nature of family law is difficult to say. But there is another possibility that is harder to ignore: that relocation is, in some disputes, becoming a more deliberate strategy - whether consciously framed that way or not- to redraw the practical boundaries of a child’s relationship with the other parent.

Relocation cases have always been difficult. That is not new. What feels more pronounced, however, is the frequency with which they now sit at the intersection of genuine hardship, tactical decision-making, and outcomes that, while legally orthodox, are increasingly difficult to reconcile at a human level.

There is, in many of these cases, a discernible structure to the reasoning. One could describe it, somewhat uncomfortably, as an algorithm. Not in any crude or mechanical sense, but in the way certain factors - stability, status quo, the practical capacity of each parent to meet the child’s needs - begin to exert gravitational pull on the outcome. The result is that while each case is, on its face, unique, the pathway to the outcome is often predictable.

And yet the consequences are anything but.

At the centre of every relocation case is a tension that is rarely acknowledged with sufficient candour. The Court is not, in formal terms, determining where an adult may live. But in practical terms, it is doing precisely that. The oft-repeated formulation is that a parent is free to live wherever they choose, but the children may not follow. That framing suggests neutrality. It is not neutral. It presents a binary that, for many parents, is no real choice at all.

Some will leave. Some cannot. Some will never even contemplate it. But the law proceeds on the basis that this is a choice freely made. That premise deserves closer scrutiny.

In one of my recent matters, the mother had already relocated interstate prior to proceedings being issued. The relocation had not been agreed. It had occurred unilaterally. Granted, the pre-trial litigation was lengthy, but by the time the Court was asked to determine the issue, the child had been living in the new location for a significant period. The child was settled. Social connections had formed. The child’s day-to-day life had become anchored in that environment.

There were other factors supporting the mother’s position - family support, stability, employment, a coherent plan moving forward. But it would be artificial to ignore the fact that the relocation itself had fundamentally reshaped the landscape of the case. The mother had, by virtue of that move, become the primary carer in a practical sense. The child’s “status quo” had shifted, not through a gradual evolution, but through a single, decisive act.

By the time the matter went to trial, the question was no longer whether the child should relocate. That had already occurred. The question was whether the Court should unwind a reality that had taken hold.

The answer, unsurprisingly, was no.

For the father, the outcome was devastating, even if it was legally explicable. He was left with a stark and deeply personal decision: remain in his existing life - his work, his extended family, his community - or relocate to maintain a meaningful presence in his child’s life. He considered relocation seriously. Not as a theoretical possibility, but as a genuine reconfiguration of his life.

What makes cases like this particularly difficult is that the symmetry is illusory. Had the mother been required to return, she would have faced the same dislocation - leaving her support network, uprooting her life. But the fact remains that the asymmetry was, in part, created by the unilateral act itself. The practical advantage that followed was not incidental. It was a foreseeable consequence.

None of that renders the outcome legally wrong. But it does raise a question as to whether the system is sufficiently equipped to respond to that kind of factual sequencing without, in effect, entrenching it.

A second matter I've had recently presented a very different set of facts, but an equally troubling outcome. In that case, there had been no unilateral move. The mother had not attempted to pre-empt the Court’s involvement. To the contrary, she had done what is so often urged upon litigants: she remained in Melbourne, she moved as close as she could to the father and the children within her means, and she sought to maintain the children’s relationship with their father in a practical, cooperative way.

What she could not do was make Melbourne affordable.

While the father emerged from the separation largely unscathed, re-establishing himself in comfortable financial circumstances, the mother’s position deteriorated significantly, with the cost of living becoming a constant and immediate constraint. Her proposal to relocate was not strategic. It was not motivated by a desire to diminish the father’s role. It was, in any real sense, an attempt to survive and to rebuild.

And yet, when assessed against the statutory framework and the relevant considerations, the prospects of that relocation being permitted were, realistically, low. The children had well-established lives in Melbourne and were spending close to equal time with both parents. While remaining in Melbourne was unquestionably more difficult for the mother, it was not impossible. In that sense, her case - though entirely understandable - was one the law was unlikely to accommodate.

The outcome presented to her was no less stark than in the first case: she could relocate and leave the children, or she could remain and continue to endure financial instability.

The law did not regard that as coercion. It was framed as a choice.

But it is difficult to describe that scenario, in any meaningful sense, as a free choice. It is a constrained one, shaped by economic reality and legal consequence in equal measure.

What is striking when these cases are considered together is not that one outcome was right and the other wrong. Both were, in their own way, legally orthodox. Both were grounded in the child’s best interests as the paramount consideration. And in neither case could it fairly be said that the Court failed to engage carefully with the evidence.

The difficulty lies elsewhere.

It lies in the fact that relocation cases so often require the Court to prefer one form of hardship over another, and to do so in a way that is expressed as principled, but experienced as deeply personal loss.

There is a tendency, particularly in professional discourse, to speak in terms of balance - balancing competing considerations, weighing relevant factors, arriving at an outcome that best promotes the child’s welfare.

But that language can obscure what is actually occurring.

In practical terms, the Court is often deciding which parent will carry the greater burden of the separation: who will absorb the financial strain, who will forgo proximity to their child, who will be required to reconstruct their life around a decision they did not choose.

That is not a criticism of the task. It is an acknowledgment of its reality.

And it is perhaps why relocation cases leave a particular kind of residue. They are not simply disputes about time or logistics. They are disputes about geography, identity, and the structure of family life moving forward.

For clients, these cases arise at a point where perspective is at its narrowest. The focus is immediate. The loss feels absolute. It is often difficult, if not impossible, to see beyond the present configuration of their lives.

One of the more difficult conversations to have, in that context, is that life does not remain fixed in that moment. Children grow. Circumstances change. What feels determinative at one stage may, over time, soften or shift in ways that cannot be anticipated at the point of litigation.

That does not diminish the significance of the decision. But it does sit uneasily alongside the finality with which these orders are often experienced.

Family law, for all its attempts at precision, is not a system that can deliver fairness in any universal sense. It can deliver outcomes that are justified. It can prioritise the interests of children, as it must. But it cannot eliminate the reality that, in doing so, one parent may bear a consequence that feels profoundly unfair.

Relocation cases expose that tension more starkly than most. They are often described as difficult. That is true, but incomplete. They are difficult because, in many cases, there is no outcome that does not come at a cost. And it is a cost that is, almost inevitably, not evenly shared.

By Ashleigh Morris, Family Law Barrister at Victorian Bar.

For briefing enquiries, please email a.morris@vicbar.com.au or contact Patterson's List on 03 9225 7888.