Relocating with Children

The short (but unhelpful) answer is …. “maybe.” As usual in Family Law issues there are seldom any “cut and dried” outcomes, but few disputes between separated couples can be as complex or unpredictable – let alone as emotionally charged – as relocation. In an ideal world, a parent seeking to relocate with a child of a relationship should do so only with the written agreement of the other parent or a prior Order of the Family Court. 

Following separation, some parents engage in face-to-face counselling or mediation, which usually provides a forum to at least raise the relocation proposal in a measured, child-focused way. 

However, there are some circumstances, (e.g., where there has been significant domestic violence during the relationship) in which the parent seeking to relocate may feel compelled to do so without the agreement (or even knowledge) of the other. However, even in such circumstances if it is possible to commence proceedings immediately before moving, that might (in hindsight) be the preferable option. Doing so might place you in a potentially stronger position to resist a Recovery Order than if you had simply “fled the jurisdiction.” It would demonstrate that you had turned your attention to the issues of accommodation, financial support, schooling and communication with the other party, holiday “contact” etc. before simply “disappearing” objectively on a whim and without any evidence of planning, or forethought. It would also demonstrate an acknowledgment of the Court process and the other party’s right to be heard on important parenting matters, as well as some awareness of the right of the child to have (to the extent possible) a reasonably meaningful relationship with the other parent. 

What frequently occurs when people separate without a written agreement or a Court Order, is that the other “left behind” parent attempts to physically recover the child themselves by removing them back from where they are newly located. Such an approach is obviously undesirable (and justifiably discouraged) for the emotional and social stability of the child, but there are many parents who nonetheless consider this to be an appropriate response, and a “snatch” occurs to return the child to the pre-existing location and parenting arrangements previously in place. Such a series of events inevitably polarises the issues, increases both parties’ costs, stress and immediate uncertainty, and the usual outcome is a hardening of the relationship and deepening distrust between the parents. As usual in such scenarios, children are more often than not the ones who suffer most. 

If parties do not have an unambiguous written agreement or the benefit of a Court Order authorising one parent to relocate then, as soon as possible after your relocation, you should seek to obtain the other parent’s immediate retrospective written permission to the relocation (in most cases, highly unlikely) or else commence Family Court proceedings in an attempt to “legitimise” and secure the relocation after separation. However, this is easier said than done. 

There is no specific Section in the Family Law Act 1975 or the Family Court Act 1997 (WA) which deals directly with the issue of relocation, inter-state or otherwise.

The same principles will be applied in every parenting matter. However, an inter-state relocation without consent or prior Order of the Court can often give rise to an Order forcing the “unauthorised” relocating parent to immediately return the child to their former town/city of residence.

Many Judicial Officers understandably take a dim view of unilateral relocation inter-state, especially where it occurs “out of the blue.”  Again, a parent seeking to relocate with children of a relationship should do so only with the written agreement of the other parent or a prior Order of the Family Court.

If there is no agreement, an application should be filed in the Family Court effectively seeking “permission” to relocate.

A unilateral overseas relocation would invoke the provisions of The Hague Convention on the Civil Aspects of International Child Abduction, which provides a means by which the child will be located overseas, recovered by the authorities there and returned to Australia. 

If there is no agreement, an application should be filed in the Family Court effectively seeking “permission” to relocate.

Relocation with a child is certainly not something to be determined “on a whim”. Prior to taking and implementing any such decision, it is advisable to consider the many difficult and often conflicting issues as rationally and objectively as possible, including those listed below:

• Where you and the child will live after relocation, and whether your relocation to that place is intended to be temporary until final arrangements can be made, or permanent?

• Where you will secure employment (if you are still in the workforce) to support yourself and your child? Are your skills or qualifications recognised in (e.g.) another State? 

• Where will your child go to school? Will day-care or after-school care facilities be necessary and/or affordable? What are the cultural/social/language barriers that may have to be overcome? 

• How you might obtain access to health and allied medical facilities/support in the place to which relocation is being sought/considered? 

• What are the practical difficulties for your child to maintain a meaningful relationship with the other parent/family members, and other people who are significant in their life? 

• Whether it is practical for the other parent to maintain their parental obligations, and to be able to spend “face-to-face” time with and communicate regularly with the child via Face-time (and similar mediums) etc.

If domestic violence or abuse has been an ongoing feature of your relationship, it is advisable that you speak to your doctor, counsellor or other support person to determine if you will need ongoing support upon relocation, the extent of that support and what options there are for you to obtain this (both in practical and financial terms) in your proposed destination.  

During the process of deliberating whether to relocate or not, it would also be advisable for you obtain legal advice on all relevant issues from an experienced family lawyer. 

Having a well-thought out, reasoned argument as to why relocation is in the best interests of the child is likely to increase the possibility of reaching an agreement or making a Court Order by consent.

All of the potential difficulties (and there are many) should be acknowledged and addressed in a detailed plan which counters each and every objection in a practical and reasonable way.

Getting the right advice will enable you to make the best possible decision, both for you and the child. The lawyer you engage should have extensive, practical and strategic experience in addressing all these matters and will be able to provide you with guidance on all relevant issues. This advice will allude to the advantages and disadvantages of your proposals as subjectively viewed by the Court, and how to possibly best combat the other party’s (not unnatural) objections to such upheaval in all of the affected family member’s lives. 

If at all possible, you should try to reach an agreement with the other parent as to your proposal. Your lawyer can assist you in the negotiations, or you could proceed by way of a “round-table” mediation involving Family Dispute Resolution (“FDR”) Practitioners as well as your own respective lawyers. 

If an agreement to relocate can ultimately be reached, your lawyer can formalise such agreement by way of a Parenting Plan or a Court Order. The former document will set out in detail the specific provisions of what the parenting arrangements will be, including when the relocation will take place, how parenting decisions will be made upon relocation, how much time the child will spend with the other parent upon relocation, travel/flight arrangements, etc. and what communication the child and the non-relocating parent will routinely have. Your lawyer can assist you in negotiating all such “fine print” with the other parent. 

If you proceed by way of mediation, your lawyer can also assist you in that process and, if agreement is reached, your lawyer can then prepare appropriate documentation to enable you to obtain your objective.

However, you should be very careful about reaching an agreement with your former partner without advice from a lawyer. Furthermore, in such life changing decisions/situations involving relocation (whether within Australia or overseas) our recommendation would always be to formally record the agreement reached in a binding, enforceable Order, as opposed to a Parenting Plan, the latter document is not enforceable at the Family Court.

There is simply no substitute for good, detailed preparation! Compelling, reliable evidence must be produced to the Court to ensure that, ultimately, the best interests of the child will prevail. This process of determining the child’s best interests does not oblige the Court to ignore the legitimate desires of each parent, but if those (either separately or even together) are found to be in conflict with the “the best interests” principle, then the latter will prevail. 

The wishes of the child are also very important, and the Court will give such weight to those wishes as it considers appropriate. A child in their early-mid teens will always have more consideration given to their genuinely held views and wishes than, say, an infant or primary school age child. 

Importantly, the Court is not bound by the proposals of either parent and can make orders that are not specifically sought by either of them, provided that both parties are given the opportunity to address any “independent” proposals made by the Judicial Officer before any such orders are made. 

The short answer is no, unless by agreement or Court orders. If a child has been living in a settled environment post-separation (either with or without a Parenting Plan or a Court Order) and that comparatively long-standing arrangement is broken by one party’s unilateral or “covert” relocation, the parent with whom the child habitually or primarily resided should bring an urgent Application for a Location Order or a Commonwealth Information Order if that parent does not know the present whereabouts of the child. The effect of both such Orders requires any person (i.e. a third party) who possesses knowledge of the child’s location (or likely location) to provide that information to the Court. 

The Court can also issue a Recovery Order, which empowers various Commonwealth, State or Territory Police or other law enforcement authorities to do all things necessary to locate a particular child and, in extreme circumstances, forcibly take that child into custody. The child can then be formally returned in a controlled and civilised manner to the parent benefiting from the Order. However, an outcome such as this could still obviously place the child under a degree psychological and emotional trauma. 

If one parent has the benefit of a Parenting Order, and the other parent nonetheless relocates with a child without the consent of the other parent, Enforcement Proceedings can be taken against the other parent. Often, a breach of Parenting Orders can constitute a contravention. In a successful Application for Contravention of the Orders, the Court has the power to order the parent found to be in breach of the Orders to undertake a Community Service Order  or enter into a monetary bond which will be forfeited if the breach is repeated. In the most serious cases, the offending party can be imprisoned for what would, effectively, be a contempt of Court. 

Furthermore, it may be possible for the parent making the application to seek the assistance of the Police in carrying out a “welfare check” to determine whether the child is in danger and, if so, to take the child into their care (even without a formal Recovery Order). 

In limited circumstances (and depending upon the specific facts of the case) the Police may charge the parent who abducted the child with an actual criminal offence. 

Yes, only if you have provided your consent or the relocation occurs pursuant to a Court order.  It is also an offence to remove a child from the Commonwealth of Australia without the consent of the other parent or a Court order permitting same.

For a child to travel overseas, that child must have a current passport. An Australian passport can only be obtained with the consent of both parents, unless one of the parents already has the benefit of an Order for Sole Parental Responsibility. However, once a passport has been issued, it is possible for a child to be subjected to international relocation unless prevented (injuncted) by an Order of the Court. 

In emergency situations where there is an imminent risk of a child being removed from Australia either by air or by sea, an “after hours” service facility is available to secure an urgent Order injuncting the removal of the child from Australia and placing his/her name on the Australian Federal Police Family Law Watch List, which, as the name suggests, is maintained and operated by the Australian Federal Police (“AFP”). 

Depending upon the level of urgency, such an Application can be made without any prior notice to the other parent. Ordinarily in parenting proceedings, due notice of the Orders being sought by each of the parties must be given in advance of any hearing of the Application. This is done by “serving” the Application on the parties’ respective solicitors or, if proceedings have not already commenced or one party is unrepresented, by the physical service by a Bailiff, Process Server or other authorised persons. 

If such an Order is made in urgent circumstances, without notice (an “ex-parte” Application) it is usually made for only a brief period and until such time as the other parent has had an opportunity to engage in the legal process, consult a Solicitor, consider the application, etc. 

If an Order already exists prohibiting overseas travel but the child has not been placed on the Watch List; or the child is subject to a pending Application to have its name placed on the watch list; or is subject to parenting Order or injunction under Appeal to a Higher Court; then an Application can be made administratively to the AFP to place the child’s name on the Watch List. 

A child can also be placed on the Watch List administratively via the completion of the requisite form immediately an Application seeking to limit the child’s overseas travel has been filed, and even prior to its having been served upon the other parent. 

If a child has already been relocated to an overseas jurisdiction, the parent remaining in Australia can still seek the recovery of that child under the Hague Convention on the Civil Aspects of International Child Abduction (“the Convention”). This can be a long, expensive process, however, and involve the prompt co-operation of several international agencies. 

A word of warning, however. Firstly, there are various countries who are not signatories to the Hague Convention so the international recovery mechanism simply cannot apply or be enforced. You can find a list of countries that remain non-signatories to the Convention as to the date of this publication down the bottom of this page. 

Secondly, some of the countries which are bound by the Convention simply do not have the practical facilities or resources to seek the recovery of a child within their jurisdiction. In addition, it is possible for a child to travel to a non-convention country whilst passing through a convention country. 

Therefore, care needs to be taken to seek the assistance of the Convention immediately a parent becomes aware of a child’s being abducted to an overseas location, as a successful intervention can occur before the child reaches its “non-Convention” destination.

Except in rare circumstances, for example, where there has been significant domestic violence in the party’s relationship, or where the child has been the victim of a family violence, the general answer to this question is “no.”

The best means of opposing a proposed child relocation if agreement cannot be reached is to ensure that all available evidence setting out the reasons against the proposed move is put before the Court as a matter of priority.

The person best qualified to undertake this is an experienced and knowledgeable family lawyer, who knows the procedure to obtain urgent injunctions and for placing the child on the AFP Watch List.

They also know how to engage expert witnesses and can advise you on each aspect of what are mostly complex legal but also emotionally charged matters.

Put simply, at the earliest possible opportunity. Parents and other persons who are significant in the life of a child can represent themselves in family law proceedings if they so choose. However, because of the specific and detailed evidence that the Family Court requires in a relocation case (and which usually involve a high level of urgency) a self-represented person should obtain advice from a family lawyer at the earliest possible opportunity before embarking upon the legal process to prevent relocation of a child. 

Equally, if you are the parent applying to relocate with your child, then your lawyer will be able to advise you of the numerous loop – holes that can lie ahead but also assist you in presenting a clear, coherent case and addressing all of the necessary legal principles and relevant factors as to why it might be in the child’s best interests for relocation to occur.

Depending on the urgency to relocate (and once any injunction to prevent relocation has been granted) the Court on average will take between 18-24 months to reach a judicial determination of a relocation case.

That decision can always then be appealed, which could take a further 6 – 12 months. It should also be noted that it is only in the most exceptional circumstances that the Court will consider relocation on an interim basis.

The timeframes with respect to International Recovery Orders under the Hague Convention are simply “too open ended” to estimate, and involve significant geo-political issues as well as legal ones.

No such document exists per se but a Relocation Agreement could in reality simply be another name for a “Parenting Plan,”  or a Consent Order because the law does not necessarily distinguish between a specific relocation dispute and more general, “run of the mill” parenting matters. A Parenting Plan is a written document that is signed and dated by both parties. It can deal with a child moving from one residence to another in a different part of the town/city in the same State, or even inter-state or overseas. 

However, a Parenting Plan is not enforceable in the same manner as a Parenting Order, and it is not a primary document that can be used to have a child placed on the AFP watch list. It is strongly advised not to facilitate the process of a child relocation via a Parenting Plan, and you should still seek proper legal advice before – hand (even if relocation is something you are willing to consider). 

The Family Court is not bound by the terms of the Parenting Plan, although it must take its provisions into consideration when determining the matter. 

Except in highly unusual circumstances, an order either granting or prohibiting relocation with a child will form only part of a “suite” of parenting Orders addressing a wide range of issues, such as living arrangements generally, education, health, communication between the parties etc.