In a family separation matter, either parent may wish to move out of town to another state (or country) once the matter is complete. This is referred to as ‘relocation’.
Relocation involves moving the child(ren) to and from different locations during their period of care. However, this may be difficult in circumstances where the parent has relocated to an area which is not easily accessible – for example, a different country, a different state, etc.
In circumstances where the relocation has had/would have a negative impact on the other parent’s time with the children, the Court may prohibit the parent from relocating.
Party agreement regarding relocation
To assist in the relocation, both parties should discuss the possibility and impacts it may have on the parties and/or children.
If a party is persistent on relocating, possible compromises that parties may come to include:
- The children visiting the relocating parent for a longer period of time in the school holidays and/or longer visits during the year (as opposed to frequent weekly visits); or
- The other parent agreeing to move closer to where the other party is relocating to.
If parties are able to agree on a suitable parenting arrangement which involves the parent relocating, it is advise that the parties enter into a Parenting Order through the Court to make the terms enforceable.
Disagreements regarding relocation
If the parties cannot come to a suitable agreement, there are several pathways to approach this situation.
- Applying to the Court for Orders which prevent the child(ren) from moving with the parent
- Under these Orders, the Court takes into consideration the best interests of the child(ren) and determines whether the move would be beneficial for the children, despite the non-agreeing parent’s disapproval.
- In circumstances where one parent has already relocated without the consent of the other parent and/or the Court, the disagreeing parent can apply to the Court for Orders which require the relocating parent to return the children until the Court has reached a decision.
Travelling overseas with the children may be possible, as long as the other parent is made aware beforehand.
The trip must be properly planned prior to leaving the State. Once the trip is planned, the parent taking the children on the holiday trip must inform the other parent of the details of the trip.
- The dates of travel;
- Flight/transport details;
- The destinations of travel;
- A full itinerary;
- Contact details for hotels and/or other traveling adults.
Passport Applications for Children
If a parent wishes to take the children travelling overseas, they are required to obtain a passport for the children.
However, where both parents have care for the children, written consent must be provided by the other party prior to making a passport application.
If the parent does not provide their written consent, and if there are ‘special circumstances’ for travelling, the parent may be able to receive written consent from an Approved Senior Officer of the Department of Foreign Affairs and Trade.
Preventing a child from leaving Australia
If a parent is concerned that the other parent is planning on taking the children overseas without their consent, it is urged that they seek legal advice to apply for an Order from the Court to prevent the parent from doing so.
The Order that the Court hands down:
- Prevents the children from applying for/receiving a passport;
- Requires someone to deliver the child’s and/or accompanying adult’s passport to the Court (to prevent them from travelling outside of Australia); and
- Prevents the children from leaving Australia.
In the unfortunate situation where a parent has taken the child(ren) interstate or overseas for longer than notified to other parent, and has therefore breached the Parenting Arrangements or Orders, the Court is able to issue a ‘location order’.
A Location Order requires other people and/or organisations to provide to the Court any information they may have regarding the whereabouts of the parent and the child(ren).