If you’re looking to take your child or children to another town, city, state or country, you will need the permission of the other parent. If the other parent does not consent to this move, then the court will be required to make a decision about whether the children’s relocation is allowed.
If you or your partner are considering relocating with a child, you should seek legal advice as early as possible.
Reaching agreements about relocation
Before relocating and/or before making an application to the Court for relocation with a child, you and the other parent should first attempt to reach an agreement together.
Sometimes, the best chance for reaching an agreement is via attendance at Family Dispute Resolution as couples have a better chance of reaching an amicable conclusion about relocation while still allowing them to maintain control over the outcome.
If Family Dispute Resolution is successful and allows you to come to an agreement over the future care of a child, consideration should then be given as to whether the agreement should be documented by way of a Parenting Plan or a Consent Order.
These will document the agreement you have reached about the future care of a child. A parenting plan is not a legally binding document, but Consent Orders are. Legal advice should be sought before signing either document.
What if we cannot agree?
Depending on the circumstances surrounding the move, there is a possibility that Family Dispute Resolution will not work. If you and your partner cannot agree on whether the child should move/relocate and you have attempted Family Dispute Resolution first, then you can apply to the court for Relocation Orders and the Court will consider your application for your child to move with you.
In doing so, the Court must consider what is in the best interests of the child or children involved before they make a decision. There is no guarantee that your application will be successful and the court may not grant permission.
When making a decision, the court will consider:
- whether the proposed arrangements would allow them to have or develop a meaningful relationship with both parents (and in particular, the left behind parent);
- The views of the child (if they are mature enough to express a view);
- The attachments of the child to each parent (and any other significant people in the child’s life) and the effect on the child of being separated from that parent/those people;
- The practical difficulty and expense of the child spending time with each parent (again, in particular, spending time with the left behind parent);
- The ability of the parents to communicate and foster a meaningful relationship with each parent;
- How the changes will affect the child;
- Any other aspects they believe are relevant.
In considering these factors, a court will attempt to balance the rights of the relocating parent with the best interests of the child.
What if I want to go on an overseas trip?
If you’d like to take your child out of the country for a shorter trip or a holiday, you’ll also need the permission of the other parent. In order for your child to be issued with an Australian passport, the written consent of each parent is required.
If you obtain written consent, a passport application can be lodged as normal. If it is not, then you can apply and ask for special circumstances to be considered. This application should be made to the Approved Senior Officer of the Department of Foreign Affairs and Trade.
If this application is refused, then you can apply to the court for an order that permits your child to travel internationally. However, absent the other parent’s consent, the court will only allow the child to travel if they consider it to be in the child’s best interests to do so.
What if I move without permission?
If you relocate with the child without a court order and you do not have the consent of the other party, you may be faced with a recovery order application and/or a Hague Convention Application for the return of the child if you have taken the child to another Hague Convention country.
A court may require you to return to your previous residence until the case has reached an outcome. If there is currently a court order in place that you have breached by relocating, then the other parent can apply to court to have that order enforced .
