When families separate, the question of relocating with children can become a complex issue – especially when international borders are involved. One parent’s desire to move overseas with a child creates significant legal and practical challenges that require careful consideration. If you’re facing this situation, seeking advice from international family lawyers in Melbourne early in the process can help you understand your rights and responsibilities.
Key Takeaways
- Parental consent is typically required before relocating overseas with a child
- Australian courts decide relocation cases based on the child’s best interests
- The Hague Convention provides remedies if a child is wrongfully removed overseas
- Early legal advice and thorough preparation are essential regardless of which side you’re on
- Communication and detailed planning can help create workable arrangements
Can A Parent Move Overseas With A Child?
When both parents agree
The simplest scenario is when both parents consent to the relocation. Even with agreement, it’s advisable to document the arrangements formally. This might include a written parenting plan or court-approved consent orders.
Parental consent should cover specific details, including:
- Travel arrangements and passport control
- Living and schooling arrangements in the new country
- How the child will maintain a relationship with the parent staying in Australia
- Financial responsibilities and child support
- Holiday and return visit arrangements
When a parenting order already exists
If there’s already a parenting order in place, relocating overseas may breach its terms. The parent wishing to relocate must either:
- Obtain written consent from the other parent, or
- Apply to the court to vary the existing orders
Moving without addressing existing orders could result in contravention proceedings and potentially orders for the child’s return.
When the other parent objects
If one parent opposes the move, the relocating parent must apply to the court for permission. During this process, the objecting parent can seek:
- Interim orders preventing the removal of the child from Australia
- Airport watch list alerts
- Passport controls requiring both parents’ consent for passport issuance
Australian Legal Framework and Principles
Family Law Act and the child’s best interests
Australian courts make decisions based on what’s in the child’s best interests. The Family Law Act outlines primary considerations, including:
- The benefit of children having meaningful relationships with both parents
- The need to protect children from physical or psychological harm
Additional factors include:
- The child’s views (considering age and maturity)
- The impact of change on the child
- Practical difficulty and expense of contact arrangements
- Each parent’s ability to provide for the child’s needs
Parenting orders and making a change to orders
Courts can make various orders in relocation cases, including:
- Allowing relocation with specific contact arrangements
- Refusing permission to relocate
- Setting conditions for relocation (such as financial contributions for travel)
“Each family’s situation is unique, and courts will carefully examine the specific circumstances to determine whether relocation is in the child’s best interests. There’s no presumption for or against relocation – the analysis is always child-focused.” – Pearsons Lawyers.
Family dispute resolution and court application requirements
Before applying to court, parents usually must attempt family dispute resolution and obtain a certificate. Exceptions exist in urgent cases or where family violence is involved.
Court Process When One Parent Opposes Relocation
How to apply to vary or make a parenting order
Applications are typically made to the Federal Circuit and Family Court of Australia. The process generally involves:
- Filing an initiating application
- Attending a first court date for interim arrangements
- Participating in court-ordered mediation
- Preparing evidence and attending a final hearing if necessary
Evidence the court will want to see
Courts expect detailed evidence about:
- Proposed accommodation and living arrangements overseas
- Educational opportunities for the child
- Support networks in the new location
- Employment prospects and financial stability
- Proposed arrangements for maintaining the relationship with the other parent
- The child’s connection to both countries
Possible court outcomes and conditions
Court outcomes vary widely based on individual circumstances. They might include:
- Conditional approval with specific communication requirements
- Arrangements for extended holiday visits
- Financial provisions for travel costs
- Regular reviews of arrangements
International law and child protection (Hague Convention)
When a child is taken overseas without permission
If a child is wrongfully removed to or retained in another country, the Hague Convention on the Civil Aspects of International Child Abduction may provide a remedy. This treaty, to which Australia and many other countries are signatories, facilitates the prompt return of children to their country of habitual residence.
Limits and exceptions to Hague Convention remedies
The Convention only applies between signatory countries. Additionally, exceptions to mandatory return include:
- If the return would expose the child to physical or psychological harm
- If the child objects and is of sufficient age and maturity
- If the application was made more than 12 months after removal and the child is settled
Steps to take if you suspect unlawful removal
If you believe your child has been or may be taken overseas without permission:
- Contact the Australian Federal Police immediately
- Contact the Australian Central Authority (within the Attorney-General’s Department)
- Seek urgent legal advice
- Consider emergency court applications to place the child on airport watch lists
Practical Checklist Before Proposing Or Opposing A Move
Documents and records to prepare
Gather important documents, including:
- Birth certificates and citizenship documents
- Current parenting orders or agreements
- School and medical records
- Immigration and visa information for the destination country
- Evidence of proposed accommodation and schooling
Financial and logistical planning
Consider the practical aspects of relocation:
- How child support arrangements might change
- Cost of relocation and establishing a home
- Healthcare arrangements in the new country
- School enrolment requirements
- Employment prospects and financial stability
Communication and parenting arrangements
Develop detailed proposals for:
- Regular video calls and a communication schedule
- Holiday and extended visit arrangements
- Travel logistics and costs
- Keeping the other parent informed about the child’s development
Working with professionals
The complexity of international relocation cases means professional advice is essential. Depending on your circumstances, this might include:
- Family lawyers with international experience
- Migration agents for visa advice
- Child psychologists to help prepare children and assess the impact
- Family consultants who can provide court reports
Conclusion
Relocating overseas with children after separation involves complex legal, practical and emotional considerations. Whether you’re the parent hoping to move or the one opposing relocation, early preparation and clear evidence are key to presenting your case effectively. Throughout this process, focusing on your child’s best interests will help guide your decisions and approach. Pearsons Lawyers can provide expert guidance through this challenging process, helping you understand your rights and responsibilities while working toward arrangements that serve your child’s wellbeing.
