Today in Australia, there is far greater social mobility than at any other time in the past. Thousands are on the move between cities and even across state borders. Some move overseas. When couples with children split up, making decisions or arrangements for their children can be compounded by the fact that the parents may also end up separated by significant distances – limiting opportunities for regular contact with their children.
Sometimes when a relationship breaks down, one of the parents may want to move to more familiar home territory, or move interstate for work or a better lifestyle.
If you want to move away from where you live and you want to take the children with you, in family law terms this is called ‘relocation’. Relocation issues may arise whether or not orders are already in place.
When people want to relocate with children, the dispute often ends up in the Family Courts. Judges are then faced with the most difficult of dilemmas – to allow or to prohibit relocation. In these situations there is usually no middle ground or compromise. It becomes a decision to allow relocation (and the relocating parent takes the children away with them) or to refuse permission (and the relocating parent goes without the children or does not go at all).
Abduction – taking the law into your own hands.
Sometimes, the arrangements specified by the court for a child to spend time with a parent are strongly opposed by the other parent. But even if you disapprove of the court’s decision and think it’s completely wrong, don’t try to remove the child from the country unless you have the approval of the court.
Attempting to flee overseas with the child or children is not recommended because:
- The other parent can arrange to have your name and/or the child’s name placed on a Federal Police watch list, maintained at every international port and airport in Australia. Once listed, you will be unable to leave Australia.
- It would be contrary to an order of the Family Court and the court does not take kindly to a party who breaches an order.
- The child or children may be ordered to be returned to Australia (at your expense) under an international Child Abduction Convention (the Hague Convention), an international agreement that applies in over 85 countries including Australia.
Taking children out of Australia in contravention of a court order is abduction. The consequences of this can be extremely severe and you are likely to be compelled to bring the children back to Australia and face court action.
If you do nothing else, make sure you get proper legal advice about your responsibilities. The abduction laws are administered by the Federal Attorney General’s Department (although any court action in Australia will still take place in the Family Courts).
If you find that your children have been abducted and taken outside Australia, get legal advice and/or advise the Commonwealth Attorney General’s Department immediately to try to have them returned. If you’re lucky, the children will have been taken to a country that is covered by the Hague Convention. Many countries are parties to this convention (including most of Europe and the United States) and the return of the children is likely to be enforced.
Beware – some of our nearest neighbours (including Malaysia, Indonesia and most Asian countries) are not parties to the convention and recovery of children from those countries may not be possible.
At Ivy Law Group we’re committed to sharing useful information regularly. We understand for some people the importance of getting some context around your legal issue before engaging legal help!
Family Law Articles
Marital separation (including divorce) and de facto separation is an unfortunate reality of the world that we live in. While some manage to navigate the emotional minefield with minimal anguish, most end up embroiled in bitter legal proceedings. While financial concerns are often of great importance when separating, far more important are matters of the heart: children. When making arrangements for children in a divorce, the Court will place the greatest amount of importance on the “best interests” of the child. But do those best interests include the child’s own wishes?