Under the Australian Constitution, Australia guarantees its citizens freedom of movement. Consequently, a Family Law Court will never stop a parent moving to another part of the State, or interstate or overseas. What it will address is whether a parent is allowed to relocate the children of a relationship to that intended destination.
The test a Court applies in deciding a child relocation case, is whether it is in the best interests of the child or children to relocate.
People seek to relocate and take their children for a number of different reasons. This can include where:
- The relocating party has secured employment elsewhere; or
- Their new partner works or lives at the intended new location; or
- Perhaps the other parent takes little to do with the children and for whatever reason does not play an active part in the children’s life, and a new step-parent is seen as offering more input and stability for the family; or
- The relocating parent wants to be nearer close family or friends (forcing a parent to remain in one place can cause that parent to sustain significant psychological or social distress); or
- The relocating party lives in a remote location and wants to be nearer better health and high school facilities.
- Regrettably, sometimes parties seek to relocate to deliberately limit/damage the relationship children have with the other parent.
Relocation Within The State
Where a relationship breaks down it is not unusual for one party to move to a different area of the town or city where they lived with their former partner. Sometimes they choose to move to a different part of the State.
This can result in significant extra travel for the parents and the children. It can also result in a change of routine. If this happens, parties need to work together to sort out future travel arrangements and length and frequency of periods to be spent between the non-resident parent and the children, to ensure that the children continue to see both parents regularly.
Such situations are not uncommon. A Court is unlikely to fetter the movements of the relocating parent, particularly if the move is a reasonable one in all the circumstances, and the relationship between the children and the other parent can continue.
Relocation Interstate or Overseas
Real difficulties arise where a long distance relocation is contemplated. In such a case, it often becomes impractical for the children to see the other parent as regularly. Further, that parent is unlikely to be able to continue to participate in established mid-week sporting and other leisure activities.
When deciding whether to allow an interstate or overseas relocation of children, the Court looks at such things as:
- The best interests of the children;
- The calibre of the existing relationship between the children and the other parent;
- The willingness of the relocating parent to acknowledge and encourage the children’s relationship with the other parent;
- Family support, employment, lifestyle and other factors at the intended new destination;
- The costs of travel;
- What other means of contact such as telephone, Skype and modern technology opportunities are available for regular communication;
- Where the relocation is to be overseas, the likelihood of the foreign country’s Courts working with the Australian authorities to make sure ongoing child contact Orders are enforced and children recovered if there are breaches of the new Orders;
- The particular facts and circumstances of the case.
Application For A Court Order
If the other party plans to relocate and you object, you should file an Application with the Family Court or Federal Circuit Court immediately. If the departure is imminent, you should ask for an abridgement (shortening) of time and an interim Order to try to stop the move occurring. If the destination is overseas, your Application should include an Airport Watch List Order to prevent the children being taken out of Australia.
If you are the party seeking to relocate with the children, it is generally advisable to talk this through with the other parent particularly if the children already enjoy a meaningful relationship with that parent or if Children’s Court Orders are already in place. Sometimes these issues can be worked through in Family Dispute Resolution and this should be attempted at the first opportunity.
If there are existing Children’s Orders in place (live with/time with) then the party seeking to relocate and change these arrangements, needs to first seek a Variation Court Order before proceeding. Acting in violation of an existing Court Order can have severe consequences.
If your child is abducted from Australia and taken overseas, the Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”) establishes a process through which a parent can try to have his or her child returned home to Australia.
However, not all countries have signed up to the Convention. Australia is a party.
Australia has certain bilateral arrangements with other countries including with some countries which have not gone as far as signing up to the Hague Convention. These treaties relate to service of Court documents and can be effective in moving child recovery forward.
Further, Australia and New Zealand have a Trans-Tasman treaty together, enforcing Court Orders as between their respective countries.
Hague Convention cases are normally conducted by a Government Bureau in Canberra, called the “Central Authority”. However, as lawyers we can help you (and the Bureau) preparing the case, gathering evidence and presenting appropriate information.
In circumstances where children have been removed to a non-treaty country, then very careful instructions need to be taken and the Applicant parent needs to brace him/herself for a potentially difficult legal process.
If you require advice in relation to relocation or child abduction, or have concerns about your children, please feel free to contact the Family Law Team at Pearce Webster Dugdales for some preliminary no-obligation advice. We can also help with obtaining sensible Children’s Orders to regulate your family’s living arrangements, going forward.