Relocation & Travel

RELOCATION

Where a child lives is a long-term decision that should be made jointly with the child’s other parent (as a consequence of joint parental responsibility). Issues arise if you, or the other parent, unilaterally decide to relocate with your child or children.

Under family law, the court is unable to make an order that a parent not relocate to a new city, state or country. The reality is that you have a constitutional right to be autonomous and live wherever you want.

Family law courts can only make an order that your child or children remain where they are because relocation is not in the child or children’s best interests and would affect the time the child or children can spend with their other parent. Conversely, the court can grant relocation if it is in the child’s or children’s best interests to do so.

CONSENT OF THE OTHER PARENT

If you wish to relocate with your child or children, you will need the permission of the other parent. Such a request usually requires a proposal as to when the other parent should spend time with the child or children, and how this time would be facilitated. We recommend inviting the parent to meet with a child psychologist, or participate in mediation, family therapy, or a similar process (see, for example, Family Relationships Online). A neutral third party can assist negotiations, and provide advice on what might be considered in the child’s best interests.

CONSENT OF THE OTHER PARENT

If you wish to relocate with your child or children, you will need the permission of the other parent. Such a request usually requires a proposal as to when the other parent should spend time with the child or children, and how this time would be facilitated. We recommend inviting the parent to meet with a child psychologist, or participate in mediation, family therapy, or a similar process (see, for example, Family Relationships Online). A neutral third party can assist negotiations and provide advice on what might be considered in the child’s best interests.

APPLYING FOR A COURT ORDER

If the other parent ultimately opposes the move, you can make an application to the court for a parenting order which can make provision for the child or children to relocate.

In determining whether a child should relocate or remain where they are, the court will consider the following (among other things):

  • The express views of the child (if any), provided that the child is deemed to be mature enough to understand the situation;
  • The nature of the relationship the child has with both parents, and how the proposed relocation will impact on the child having a meaningful relationship with both parents;
  • How the proposed relocation will affect the child’s education and extra-curricular activities;
  • How the proposed relocation will affect the child’s relationships with friends and other relatives;
  • How far the relocation is;

APPLYING FOR A COURT ORDER CONTINUED

  • The potential cost and difficulty for the child to spend time with the non-relocating parent;
  • How involved the non-relocating parent is in the child’s life (if it is the case that the child only sees that parent once a year, relocation might not be detrimental at all); and/or
  • The reasons for the relocation (e.g. better employment opportunities or more family support).

Ordering the relocation of a child usually only occurs on a final basis. This means that an interim order (i.e. an order which will be in place until a final hearing) will usually require that the child remain where they are, unless there are exemplary circumstances which supports the child’s relocation. This is because the court will need to consider the evidence surrounding the relocation, and making a finding of fact on that basis requires a final hearing. A final hearing could take twelve (12) to eighteen (18) months.

Ordering the relocation of a child usually only occurs on a final basis. This means that an interim order (i.e. an order which will be in place until a final hearing) will usually require that the child remain where they are, unless there are exemplary circumstances which supports the child’s relocation. This is because the court will need to consider the evidence surrounding the relocation, and making a finding of fact on that basis requires a final hearing. A final hearing could take twelve (12) to eighteen (18) months.

INTER-STATE RECOVERY

If there is a risk that you might relocate, the other parent can apply to the court for an injunction, restraining relocation. If this is contravened, the other parent can bring an urgent application for contravention orders.

If you have already relocated to a different region or state within Australia without first obtaining the other parent’s consent or a court order approving the relocation, the other parent might seek a recovery order. If this is granted, the order will be issued to the Marshal of the Court, Australian Federal Police, the state police and the territory police, requiring that the child or children be located and delivered to a person nominated on the order (usually the applicant).

It is possible for a recovery order to be made on an urgent basis. In those instances, the matter might be heard within days, and could be heard ‘ex parte’ (without your prior knowledge and/or without you being present).

A recovery order can be sought even if there are not current parenting orders in place, or if parenting proceedings have not been commenced. There are different processes for applying for a recovery order in each instance. For more information, please contact our family law department.

INTERNATIONAL RECOVERY

For information about international relocation and recovery, see child abduction.

We recommend that you do not relocate without the permission of the other parent or an order of the court.

Should you wish to relocate with your child or you wish to prevent your child from relocating interstate or internationally, we are able to advise and assist you.

OVERSEAS TRAVEL

Strictly speaking, you do not need to get the written consent of your child’s other parent to travel overseas with your child if:

Your child has a valid passport;

There are no proceedings pending in relation to parenting matters; and

There is no Australian court order in relation to parenting arrangements for your child.

If there are proceedings pending in relation to parenting matters, or there is an Australian court order in relation to the parenting arrangements for time with your child, it is an offence to take the child out of Australia. The maximum penalty for child abduction is three years imprisonment.

You can take the child out of Australia if you get the written consent of your child’s other parent prior to travelling.

If the other parent does not consent, and an agreement cannot be reached in respect to your child travelling overseas, an application should be filed with the court. The court can permit overseas travel provided it is in the best interests of your child.

So that the court can consider what is in the child’s best interest, the party looking to travel is required to draft an affidavit to provide as much information to the court as possible. This can include:

  • Details and length of the proposed overseas trip;
  • Any travel alerts for the proposed destination, and whether or not it is a signatory to the Hague Child Abduction Convention;
  • Financial and personal stability of the removing parent’s life in Australia;
  • Details of any personal connections they have with the proposed destination, in particular family members;
  • Proposals for communication between the other parent and child while the child is overseas.
  • Age of the child;
  • Level of conflict between the parents and their history of compliance with orders;
  • The effect on the child if the order is denied; and
  • The risk that the child may not be returned to Australia.

If the court is concerned that the travelling parent will not return, they can order for a bond to be paid that effectively places a ‘security’ over the return of the child. For example, the travelling parent pays $50,000 to the Court to be held on trust, and that $50,000 is returned once the child is returned to Australia.

To avoid issues in the future in respect to travel (particularly where either parent travels frequently or lives overseas), it is possible to enter into a parenting consent order that stipulates specific arrangements to occur when the child is traveling overseas.

If you would like assistance, please contact our family law department.

CHILD ABDUCTION

“Child abduction” is a Commonwealth offence punishable by up to three years’ imprisonment, where a child is taken from Australia in the following circumstances:

It is contrary to a parenting order made which limits or prevents the child from travelling overseas; or
Court proceedings are incomplete.

If you have immediate concerns for the welfare of a child, contact the police on triple zero (000).

AUSTRALIAN FEDERAL POLICE WATCHLIST

If your child remains in Australia, but there is a risk that they will be abducted, we recommend you instruct us to contact the Australian Federal Police (‘AFP’) to place your child’s name on the Family Law Watchlist (‘the Watchlist’). By being placed on the Watchlist, the AFP can stop the child from being removed from Australia at the border.

Your child will remain on the Watchlist until they are removed.

To place your child on the Watchlist, you must:

  • Complete the appropriate request form; and
  • Either have a court order or file an application with the court for parenting orders.

Normally, prior to filing an application with the court for parenting orders, the parties are required to attend Family Dispute Resolution (‘FDR’) to attempt to resolve the matters. In circumstances where there is child abduction, or a risk of child abduction, attendance at FDR is not required. All that is required is an affidavit accompanying the application refers to the urgency of the matter sufficiently.

HAGUE CONVENTION

If your child has been abducted from Australia, it is possible to make an application that they be returned.

Australia is a party to the Hague Convention. This provides (among other things) international co-operation between affiliated countries to recognise and implement protective measures for children.

If your child has been removed from Australia, they are in a country who is a party to the Hague Convention and the other parent is denying you access, you can make an application under the Hague Convention to obtain access to your child.

For more information on this process, or if the country your child has been abducted to is not a part of the Hague Convention, please contact our family law department immediately and we can advise you accordingly.

MITIGATING YOUR CHILD’S RISK OF ABDUCTION

If you suspect that there is a risk of child abduction, there are particular steps you can take to mitigate the risk and/or prepare you for the chance that it may happen. These include:

  • Ensuring that your child’s official documents (particularly their passport and birth certificate) are in your possession;
  • Keeping recent photos of your child and the other parent;
  • Keeping detailed notes of the other parent’s possible contacts overseas (particularly family members);
  • Keeping detailed notes of any ‘hints’ that the other parent might be looking to relocate overseas;
  • If your child does not have a current/valid passport, submitting a Child Alert Request to the Department of Foreign Affairs and Trade (to ensure that they do not issue an Australian passport or other travel documents without alerting you first); and
  • If relevant, contact the foreign embassy, high commission or consulate of any country outside of Australia to see if they have an equivalent to a ‘Child Alert Request’ so you can be alerted if a foreign passport is applied for.

RESPONDING PARENT

We can also assist if you have been served with international court documents naming you as the respondent (or equivalent) and advise of any adverse consequences of not returning your child.

Importantly, there may be grounds for you and your child to remain in Australia, despite being served with court documents. Grounds for non-return include, for example, if the other parent was not partaking in the parenting of your child until the relocation overseas or if they consented to your relocation.

We also recommend you seek legal advice from the overseas jurisdiction at the earliest opportunity. We can also assist you in this regard.

If you require any assistance in respect to child abduction, our family law practitioners can assist or otherwise provide you the appropriate referral.

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