Relocation, travel & abduction
Moving away with the children to another town, state or country is known as relocation. It is essential that both parents consent to one party relocating with the children.
If a parent without a Family Court relocation order or the consent of the other parent relocates, then the Family Court or Federal Circuit Court may require that parent and the children to return. Also, if there is a parenting order in place in relation to the children's arrangements, then that parent will be in breach of the parenting order.
If the parents cannot reach agreement about the proposed relocation, then a Family Court application seeking a relocation order can be made. The Family Court will only permit the relocation if it is in the best interests of the children.
Alternatively, the parent refusing to agree to the relocation can apply to the Family Court seeking to prevent the relocation.
A parent wishing to take the children overseas should obtain the other parent's consent.
By law, the written consent of each parent must be provided before an Australian passport can be issued for a child.
If you think that your child may be taken from Australia without your consent, we recommend consulting a family lawyer for advice in relation to making a Family Court application preventing a passport being issued for the child and the child from travelling outside Australia.
We can assist you to make an urgent Family Court application where appropriate. If the court has closed and in cases of emergency, an urgent application can be made if it appears that the children may leave Australia before the court registry reopens.
The Family Law Act 1975 regulates child abduction within Australia. In the event that a parenting order is in force in relation to the children, a person must not:
- Remove the children from the care of a person.
- Refuse or fail to deliver or return the children to a person.
- Interfere with the exercise of performance of any of the powers, duties, and responsibilities that a person has under the parenting order.
If there is a risk that the children may be wrongfully removed from Australia and there is an existing Family Court parenting order in respect of the children, it is possible to have a PACE Alert put in place through the Australian Federal Police. Once a PACE Alert is issued, the children's details are held on an airport watch list at all international departures points within Australia seeking to prevent the children from departing the country.
If there is no current Family Court parenting order in relation to the children, an application to the Family Court can be filed in relation to the children and a copy provided to the Australian Federal Police. The Australian Federal Police can then issue a PACE Alert in the children's names.
The Act also prohibits parties to a parenting order from taking or attempting to take the children concerned outside of Australia.
In addition, Australia is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction. The convention only applies to member countries and requires abducted children to be returned to the home jurisdiction so that the appropriate local court can determine the matter. Before making such an order the court must be satisfied that the relevant children were “habitually resident” in a convention country immediately before their removal and that the rights of custody are attributed to a person.
If children have been wrongfully removed and the Child Abduction Regulations do not apply, then the ordinary law relating to children applies in respect of any court proceedings. This includes court proceedings for the return of the children to their home country. These proceedings are determined on the basis that the best interests of the children are the paramount consideration.
To find out more, please contact our Family Law team.