In Australia, what laws regulate international child relocation?
Ordinarily, parents ought to have freedom of movement. However, this must be carefully balanced against a child’s best interests which include, amongst other matters, a child’s right to:
- know and be cared for by both parents;
- spend time on a regular basis with, and communicate on a regular basis with, both of their parents and other people significant to their care, welfare and development (for example grandparents, aunts/uncles);
- be protected from harm.
In Australia, the Family Law Act 1975 (Cth) governs parenting arrangements for children post-separation. Relevantly:
- The best interests of the child are paramount, and the child’s right to a meaningful relationship with both parents is weighed against the necessity to protect a child from risk of harm.
- There is a legal presumption that separated parents have equal shared parental responsibility for a child, meaning the parents are to jointly make long term major decisions such as in respect of the child’s health, education, and religion.
- The legislation contemplates whether an equal time arrangement for that child is reasonably practicable and, if not, the child will live with one parent and spend substantial and significant time with the other parent so as to maintain the child having a meaningful relationship with both of his or her parents.
- Parents, however, can enter into Orders by consent, without the need for judicial intervention, for their parenting arrangements provided they satisfy the framework of the child’s best interests and protecting the child from harm.
- Where there are risk factors, such as one of the parents having been physically or emotionally abusive towards or in the presence of a child, then orders will necessarily be made for safety scaffolding such as supervision of time, requirement for drug and alcohol testing or counselling, as required.
- Accordingly, a parent that seeks to relocate internationally with the child is subject to the Family Law Act: if the relocation is not considered in the best interests of the child, then relocation will not be permitted.
- Further, it is an offence for a party to remove a child outside of Australia, or retain a child outside of Australia, absent consent of the other parent or court order if there are existing parenting orders in relation to that child (see Sections 65Y, 65YA, 65Z and 65ZAA). The stated penalty is 3 years’ imprisonment, although there are exceptions such as if the conduct was necessary to prevent family violence and is otherwise reasonable in the circumstances.
- Of course there is the international agreement - The Hague Convention on the Civil Aspects of International Child Abduction – which I deal with further below.
In what ways does international child relocation differ from relocation within a country?
International child relocation differs from relocation domestically or interstate, as there is no concurrent legislation applying to prevent interstate relocation. However, the same principles apply in that interstate travel may not be in the child’s best interests or impact the child’s meaningful relationship with the other parent, may pose a risk of harm to the child being separated from their other parent, or otherwise impact existing parenting arrangements.
International child relocation differs from relocation domestically or interstate, as there is no concurrent legislation applying to prevent interstate relocation.
For an Australia-based parent looking to move abroad with their child, what is the legal process involved?
A parent seeking to move abroad with their child should in the first instance obtain the other parent’s consent. If consent cannot be achieved, then they will be required to participate in Mandatory Family Dispute Resolution (Mediation) to attempt to reach an agreement or otherwise file an Application with the Federal Circuit and Family Court of Australia permitting the relocation.
If a parent were to move to relocate internationally with the child absent such consent (where there are existing parenting orders or proceedings already on foot) then they risk committing an offence in the terms addressed above, and/or an order being made by the Federal Circuit and Family Court of Australia requiring their return. Alternatively, if the other country is a party to the Hague Convention on the Civil Aspects of International Child Abduction, then an Application may be made by the Department of Social Services (the Australian Central Authority) for the child’s return.
Are there any potential difficulties that can arise during this process?
The potential difficulties are referred to above regarding the consequences where a party is found to have removed a child from their habitual place of residence. Also worth considering are the risk of costs and the disruption – particularly to the children – of moving and returning.
How can these be avoided before they jeopardise the move?
By obtaining consent, attending mediation to negotiate the relocation, or being the moving party in a court application.
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What considerations should be made for the child during relocation?
Considerations which should be made during a relocation includes what is in the child’s best interests and, practically, may include:
- What school the child will attend;
- Where the child will live;
- Arrangements for the child’s ongoing communication with the other parent and other significant persons in their life such as grandparents and aunts and uncles, both maternal and paternal;
- Who will fund the cost of such time occurring – for example, if the child or the other parent is to travel to facilitate the time;
- How communication between parents for joint decision-making will occur;
- How the relocating parent will foster and encourage the child’s meaningful relationship with the other parent from abroad;
- Whether the child has already established a strong relationship with the non-relocating parent that can withstand the test of distance.
How can an experienced family lawyer aid in a case like this?
To provide you with advice so that you can make informed decisions about your options and avoid the consequences referred to above. It is also important that such advice is obtained at an early stage – ideally before steps have been taken for the relocation (or before the relocation occurs).
Carly Mirza-Price, Partner
Level 7/151 Clarence St, Sydney NSW 2000, Australia
Tel: +61 2 8289 5877
E: cmirza-price@millsoakley.com.au
Carly Mirza-Price is a partner in the Mills Oakley family law team in Sydney, with 12 years of experience working exclusively in the area of family law. She is trusted as a subject matter expert in a range of areas including property settlements (both married and de facto), parenting matters (domestic and internationally), binding financial agreements, child support, divorce and collaborative family law. In 2022 she was named as a Recommended Lawyer in the Leading Family & Divorce Lawyers in New South Wales, Australia.
Mills Oakley is a full-service premium commercial and personal service law firm in Australia with a national client base, over 110 partners and more than 700 staff. The firm was founded in Melbourne in 1864 and has been growing ever since. Mills Oakley works with a number of ASX200 clients and assists leading corporates in transferring their legal work from higher-cost firms.
