By Rachael Murray, Partner and Riley Fraser, Lawyer
The recent decision in Kilduff & Tyree [2026] FedCFamC1F 441 suggests not, providing a timely reminder to parents and family lawyers alike about the proper process that should be followed for all relocation matters. It is critical for parents to seek advice about their position in order to avoid the risk that the Court might order the return of children on an interim basis, rather than allow a parent’s unilateral actions to create a new “status quo” before the evidence can be properly tested at trial. In Kilduff & Tyree, the Court ordered the return of three young children to Sydney after their mother declined to return them from what the father maintained was intended to be a temporary overseas holiday.
The children were six, three and one years old at the time of the hearing. They had spent their entire lives in the Sydney region, primarily in their mother’s care, and had spent approximately seven hours with their father each week. In December 2025, the mother travelled with the children to “Country B”. According to the father, the trip was intended to be a temporary holiday, with the children due to return to Australia in January 2026. After arriving in Country B, the mother informed the father that she and the children would not be returning. Following unsuccessful negotiations, proceedings were commenced.
The mother sought interim orders retrospectively authorising the relocation of the children’s primary place of residence from New South Wales to Country B. The father opposed the application and sought orders requiring the children’s return to Australia. Both parents raised allegations of family violence about the other and advanced arguments that they had concerns about the other parent’s parenting capacity. Those allegations had to be considered on an interim basis and with the constraints accordingly imposed about the lack of ability to test the evidence through cross examination.
Relocation is not a separate category of parenting law. A proposed relocation must be determined under the parenting provisions in Part VII of the Family Law Act 1975 (Cth), with the children’s best interests remaining the paramount consideration. In this matter, the Court identified a number of established principles relevant to relocation cases:
The Court considered five principal questions:
Because Country B was a non-Convention country, the Court was required to determine whether it had jurisdiction under s 111CD(1)(e) of the Family Law Act 1975 (Cth). Relevantly, that provision can establish jurisdiction where a child is habitually resident in Australia.
Habitual residence is not determined solely by a child’s physical location. It requires consideration of the child’s circumstances and degree of integration into the relevant country.
The Court found that the children remained habitually resident in Australia despite not being present in Australia at the time that the proceedings were commenced. All three children were born and raised in Sydney and had established family, educational and social connections in that city. Their comparatively recent removal to Country B was insufficient to displace their habitual residence in Australia.
Although the children had some family connections in Country B, those connections were not sufficiently strong to demonstrate that they had ceased to be habitually resident in Australia. The practical lesson is important: a parent cannot assume that taking children overseas will, of itself, change their habitual residence or place the dispute beyond the jurisdiction of the Australian courts.
The Court had little evidence about the legal or practical basis upon which the children could continue living in Country B. The mother indicated that she wished to remain there and might “visit” Australia in one or two years. However, the Court was not provided sufficient evidence about the children’s immigration status or the period for which they were entitled to remain in Country B. Both parents were self-represented. It is therefore difficult to know whether more detailed evidence about the children’s visas, residency rights and longer-term living arrangements might have affected the Court’s assessment. Nevertheless, the evidentiary gap was significant. A fundamental component of a successful proposed international relocation matter is reliable evidence that the children can lawfully and sustainably reside in the proposed country.
Both parents raised allegations of family violence, risk and deficient parenting. The father’s allegations against the mother included concerns about physical discipline, verbal aggression, inadequate supervision, motor vehicle safety and the management of a child’s illness. The Court did not make findings about those allegations because the evidence was untested and the allegations did not need to be resolved to determine the narrow interim issue. The Court also considered it relevant that the father had previously agreed to the children travelling internationally with the mother for approximately five weeks.
The mother alleged conflict, intimidation, emotional abuse, controlling behaviour, verbal aggression, threats and physical violence by the father. Again, the evidence was limited and untested. The Court also considered the mother’s subsequent conduct, including her facilitation of unsupervised time between the father and the children, when assessing the risk she alleged he presented.
The Court considered that the parental relationship was likely conflictual and dysfunctional and that the children had probably been exposed to family violence however, it was not in a position to make findings about the disputed allegations on an interim basis. At [41], Anderson J explained that the Court could not make findings of fact about the family violence concerns and, in any event, did not consider that attempting to do so would “authentically influence the determination of the dispute”. Accordingly, the unresolved allegations did not disrupt the Court’s conclusion that the children’s best interests required their return to Australia.
Perhaps the most significant aspect of the decision for family lawyers is the Court’s approach to determining the “status quo”. Interim parenting hearings are necessarily limited and the Court does not have the opportunity to test all disputed evidence or make the detailed factual findings that are otherwise available after a final hearing. Courts must therefore exercise a cautious approach about substantially changing children’s established arrangements, or prejudicing the legal position of the other parent, before the evidence can be fully examined.
Anderson J was concerned that allowing the children to remain in Country B pending a final hearing would permit the mother’s unilateral decision to create a new “status quo”. The passage of time could have strengthened an argument that the children had become settled in Country B. Their enrolment in schools and increasing acclimatisation to their new environment might then have been relied upon as reasons not to require their return to Sydney. That could have placed the father at a significant forensic disadvantage. It would also have allowed the mother to derive a potential benefit from circumstances created by her unilateral conduct. The Court did not accept that this would be an appropriate outcome in the circumstances of this case, or that the steps taken by the mother to establish the children in Country B demonstrated that remaining there was in their best interests.
The decision sends a clear message to family lawyers advising clients about prospective relocation matters to ensure that their clients understand precisely how difficult it can be to achieve relocation (particularly on an interim basis) and the risks to their position if they do take unilateral steps without the Court’s permission and are compelled to return.
Another important feature of the judgment was what Anderson J described as a “lacuna in the evidence with respect to the ability of the children to remain in Country B”. The Court had limited information about the children’s proposed lives in that country, including their immigration status, living arrangements and the nature and extent of the mother’s support network. That was contrasted with evidence of established family support in Australia, including the maternal grandmother and maternal uncle, both of whom lived in New South Wales.
The absence of evidence raises an interesting question: would a comprehensive case concerning the children’s integration into Country B have altered the result? The judgment does not provide a definitive answer. However, it reinforces an important principle. It is not sufficient to show that a proposed destination is attractive or theoretically viable as a residential location. The Court must be provided with probative evidence demonstrating why the proposed relocation is in the children’s best interests, addressing the following points where possible:
Without detailed evidence addressing these matters, the Court will have difficulty concluding that the proposed relocation should be permitted, particularly on an interim basis.
In concluding that the children’s best interests required their return to Australia, the Court placed particular weight on the following factors:
The children were very young. The Court was satisfied that the unilateral relocation had disrupted their relationship with their father and recognised the importance of frequent interaction in maintaining parental relationships and attachments at those ages.
The maternal grandmother and maternal uncle lived in New South Wales. By contrast, the nature and extent of the support available to the mother from extended family in Country B was unclear.
The children’s lives had been centred in New South Wales. The steps subsequently taken by the mother to establish them in Country B did not justify allowing the mother’s unilateral conduct to create a new status quo.
The Court ordered that the mother return the children’s primary place of residence to Sydney, that they continue to live with her and spend regular time with the father pending trial. Orders were also made restraining both parents from removing the children from Australia, and for the appointment of an Independent Children’s Lawyer.
Kilduff & Tyree is a powerful cautionary reminder against adopting an “ask for forgiveness, not permission” approach to international relocation. A parent should not assume that relocating the residence of a child before seeking orders permitting this will create any strategic advantage in their favour, or that the Court will be unwilling to order the return of the child(ren) pending a final hearing. For parents contemplating any relocation, but particularly an international mover, the prudent course remains clear: obtain the other parent’s written agreement or secure appropriate court orders before taking any active steps. Proceeding without either may result not only in the institution of urgent parenting proceedings, but also the risk of the court making adverse findings on an interim basis, and the imposition of costs consequences.
If you would like further information or have any queries regarding other matters, please do not hesitate to contact:
