Child Relocation & Overseas Travel | Family Law Mediator

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When can relocation with a child occur?

The best interests of the child will be considered
It is important to seek legal advice

Often life events can throw a spanner in the works of even the most cordial of parenting arrangements. For instance, one parent may wish to move away with the child to another suburb, town, state or country, due to employment, or even re-marriage. It is essential that legal advice is sought, because if the parent moves away without the consent of the other parent, then orders of the Family Court may be breached.

The most important consideration to the Family Court is the best interests of the child. However, the Family Court may allow the relocation where there is a compelling case for relocation due to employment, family support or re-marriage, and where the Family Court is satisfied that the other parent’s contact with the child will be facilitated and not otherwise adversely affected. Where the other parent’s contact with the child will be extremely restricted by the relocation, the Family Court may not grant permission.

Can family mediation help us with child relocation issues?

An attempt to reach agreement between the parents should occur
Mediation is a useful process to assist reaching such an agreement
All agreements relating to relocation should be in writing

If the child primarily lives with you and you have, for example, received a job offer that requires you to relocate, then the first thing you should do is to try to reach an agreement with the other parent. This is where mediation can assist. Instead of having a heated and emotive confrontation with the other parent when trying to speak with them about relocation (which may leave them feeling as though you are trying to “take the child away”), you can potentially invite them to participate in a mediation. For example, you may be able to agree that the child has longer holiday visits with the other parent.

Before you relocate, you should seek legal advice from your own lawyer to consider entering into a written Parenting Plan or seek fresh Consent Orders to ensure that no road blocks are encountered.

If you cannot reach an agreement at mediation, it is best not to attempt to relocate without legal advice, as you may be in breach of existing court orders, and the Family Court may order your child to return until the matter has been decided.

What do I do if the other parent wants to relocate with my child?

If the other parent is attempting to relocate, then you are able to apply for an order to stop the relocation, and the Family Court will determine what is in the child’s best interests.

When can I travel overseas with my child?

Both parents must consent to a child travelling overseas
Both parents must sign the passport application
If there are concerns that the other parent will take the child overseas without consent, then seek urgent orders from the Family Court

If you wish to take a family holiday overseas with your child, then you must obtain the consent of the other parent. You should provide full details of the itinerary and contact details for any location you will be staying. Any passport application for a child must be signed by both parents. However, in special circumstances, you may apply for a passport without the written consent of the other parent. It is important that you discuss travel plans with the other parent as soon as possible. Mediation can provide a useful forum to discuss these plans. If the other parent does not agree to the overseas travel of the child, then you will need to apply to the Family Court for permission to travel overseas with your child.

What can I do if my ex-partner wants to travel overseas with my child?

If you hold concerns that the other parent is going to take your child overseas and you do not consent to this, then you should urgently seek legal advice and apply to the Family Court for an urgent order preventing the child from leaving Australia, preventing a passport being issued for that child, or delivering the child and/or accompanying adult’s passports to the Family Court.

What do I do if my child has been taken overseas by my ex-partner?

If a parent has already relocated or taken a child without the other parent’s consent, or if the other parent has no knowledge of where their child is, this raises an emergency situation where mediation will not be the appropriate first step to take. An urgent application must be made to the Family Court. If there is a risk that the child may be removed from the country prior to the next working day, then the parent can phone the Family Court out of business hours and be referred to an emergency number for this purpose.

What is a Recovery Order for a child taken away from a parent?

A Recovery Order can be made by the Family Court to authorise the person named in the Order (namely the Australian Federal Police and state and territory police) to action the recovery and return of your child to you. If you do not already have Parenting Orders in place, you can apply for these at the same time as you make the urgent application for a Recovery Order. The affidavit that you file in support of this application should include the following:

A brief history of the parents’ relationship;
Details of previous Family Court orders and hearings;
Your child’s details and usual place of residence;
Details of how your child was not returned to you or was taken from you;
Details of where your child may be;
What steps you have taken;
Why the child should be returned to you (namely, relating to your child’s best interests); and
Anything else that may be relevant.

As in all other children’s matters, the Family Court will consider what is in the best interests of the child when deciding whether or not to grant a Recovery Order for the return of the child.

What other orders can the Family Court make if a child is relocated?

Location Order
Commonwealth Information Order
Publication Order

Other orders may also be issued to help find a child who has been relocated without consent.

What is a Location Order?

A Location Order is an order that requires a person to provide the Family Court with information about where the child is located.

What is a Commonwealth Information Order?

A Commonwealth Information Order is an order that directs Government Departments (such as Centrelink) to provide relevant information to the Family Court about the child’s possible location.

What is a Publication Order?

A Publication Order grants permission to the media to publish details of the child, including photographs of them and the person with whom they are believed to be living. As always, you should seek independent legal advice.

How can I have my child returned to me from overseas?

Act immediately
Seek legal advice and contact the Federal Attorney-General’s Department

Having your child returned from overseas is an extremely difficult matter, which will require expert legal advice. The first point of contact should be the Federal Attorney-General’s Department.

If you believe that there is a risk that your child may be taken out of Australia, you should apply to the Family Court for an urgent order to stop this. Once the child is outside of Australia, they are no longer subject to the Australian jurisdiction, and there is no certainty that they will ever be returned to Australia.

What is the Hague Convention for the recovery and return of children?

The Hague Convention on the Civil Aspects of International Child Abduction (abbreviated to The Hague Convention) is an international treaty that assists with arrangements made for returning children to their country of residence, where children have been wrongfully removed or retained. Please refer to The Hague Convention on the Civil Aspects of International Child Abduction for further information.

Conclusion

The relocation of a child, or the removal or non-return of a child, are extremely emotive and distressing situations for both parents and the child involved. It is important to try to reach a cordial agreement at the first stage when considering relocation or overseas travel before matters escalate to the removal or non-return stages.

Our mediation service is a useful process to assist you in making such arrangements at a time when emotions are running high and where there does not appear to be a solution that benefits all parties involved.

Our mediators act as a neutral third party assisting parties in reaching agreements. To remain impartial and unbiased throughout the mediation process, our mediators do not engage in legal practice or act as lawyers or provide legal advice in any way. Furthermore, Family Mediation Direct provides mediation services only. Family Mediation Direct is not a law firm, does not engage in legal practice, does not act as lawyers, and does not provide legal advice in any way.

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DISCLAIMER: The information contained on this website is for general guidance only. No person should act or refrain from acting on the basis of this information. Professional legal advice should be sought based upon your particular circumstances, because laws and regulations undergo frequent changes.