It’s now easier than ever to travel the world. As a result, more and more people are choosing to live in different countries at different stages of their lives.
Sometimes, the breakdown of a relationship will trigger a desire to move overseas – for example, for job purposes or for a person to return to their country of origin or where there extended family resides.
When children are involved, this type of application or matter is referred to as an ‘international relocation matter’ and it can mean major changes in terms of child custody, contact time and communication.
Agreements on international relocation
While some parents could not fathom consenting to their children relocating internationally with the other parent, other parents might be open to the idea. For example, if the children are older and have expressed a desire to move overseas with a parent, the other parent may be willing to do so. In other circumstances, the time the children spend with a parent may be unaffected by an international relocation – for example, where one parent lives in Brisbane and the other in Perth and they spend time with one another during the school holidays, and the international relocation is one that might take the children to New Zealand but have no effect on the amount of time they spend with the parent left behind.
The first and best approach to an international (or any type of) relocation, is to discuss it with the other parent and try and reach an agreement.
For example, you may be able to reach an agreement with your partner about allowing the child to stay with the other parent for longer periods of time during the school holidays, or by allowing them to have longer visits throughout the year. Alternatively, if you still have a good relationship with your former partner, then you may be able to come to an agreement about one party moving to where the other is relocating either now or at a later date.
If you cannot reach an agreement on your own, we recommend that you utilise the services of a Family Dispute Resolution Practitioner. This is a necessary step before being able to initiate court proceedings, however, the major benefit is that they can assist you in reaching an agreement that allows you and your former partner to maintain control of the process and the outcome, rather than the court.
If you and your partner agree on international relocation, then we strongly recommend that you enter into a Consent Order with your former partner. This will ensure that the terms of the agreement are enforceable by the Court.
If you cannot reach an agreement: Applying for court orders
Either parent can apply to the court for consent orders. This means that either the parent desiring to relocate can apply for an order allowing them to do so with the child, or the other parent can apply for an order to stop the relocation of a child.
Under the Family Law Act, there is no specific provision for dealing with relocation cases. Resultantly, these cases are determined under part VII of the Act, which ensures the court consider the best interests of the child.
In making a decision, the court will balance the rights of a parent’s freedom of movement with what is in the best interests of the child. In determining what is in the best interests of a child, a Court will consider, under each set of proposed orders:
- Whether the child can have a meaningful relationship with both parents
- Whether the child needs to be protected from violence, abuse or neglect
- The views of the child (if appropriate to do so)
- The practical difficulty and expense of the child spending time with the other parent
- The nature of the relationship the child has with each parent and other family members
- Whether both parents are willing and able to encourage (and facilitate) a relationship between the child and the other parent
- How the change in location will affect the child’s circumstances
- Anything else the court considers to be relevant
What if my former partner relocates the children without my permission?
If your partner relocates without your permission or the permission of the court, then you may be able to make an Application for them to be returned to Australia under the provisions of The Hague Convention on the Civil Aspects of International Child Abduction.
It is unlawful for a parent to move out of the country with their child without a court order or the consent of the other parent. This means that, if you refuse permission, then your ex-partner will need to apply to the court for an order permitting a child to travel internationally.
If you’re concerned your child may be taken out of the country without your permission, you can prevent a passport being issued or prevent your child leaving the country by placing them on the Family Law Watchlist. If you’re concerned that your child may be taken from the country imminently, then you should speak to your lawyer about the options available to you immediately.
Get expert advice about international relocation and family law today
At Damien Greer Lawyers, we have over three decades of experience in international family law matters. We recognise that a change in relationship can be a stressful and traumatic experience. Due to this, we aim to resolve your dispute in a constructive, sensitive and timely manner. Plus, we will work with you to achieve the outcome that best meets your goals and addresses your concerns.
We take into account the constantly changing business and personal circumstances of our clients.