International relocation of children in Australia: overview

A Q&A guide to international relocation of children in Australia.

This Q&A gives a high level overview of matters relating to rights and responsibilities of parents, right to remove, procedure for relocation, dispute resolution in relocation matters, right to appeal, as well as child abduction.

This Q&A is part of the global guide to international child relocation law.

Gillian Coote, Gary Yan and Simon Fuller, Coote Family Lawyers
Contents

Rights and responsibilities of parents

Legal responsibility for upbringing

1. What is the legal position of married and unmarried parents in relation to a child's upbringing, and is there a difference? Who has legal responsibility for a child's upbringing?

Treatment of children born of married versus unmarried parents

In Australia, the Commonwealth Family Law Act 1975 (FLA) is the principal statute governing the rights and responsibilities of parents and the concepts of custody and access to children. Before the formation of the FLA, there were distinctions between children born of married parents and children born of unmarried parents. Under the Constitution, the Federal Government was responsible for legislating for children born of married parents, while the states were responsible for legislating for children born of unmarried parents.

In practice, between 1986 and 1990, all Australian states (except Western Australia) referred their legislative power relating to "guardianship, custody, maintenance and access" in relation to ex-nuptial children to the Commonwealth. From this period onwards, the FLA has had jurisdiction over both nuptial and ex-nuptial children, and the same principles apply to both. The state of Western Australia elected to retain local jurisdiction for children born of unmarried parents and has legislated accordingly. However, in effect, these laws are the same as those relating to children born of married parents.

As a result, there is no distinction in Australia, from a legal perspective, between nuptial children and ex-nuptial children. This has been supported in all states that have enacted statutes abolishing the once-held status of illegitimacy and preventing discrimination against ex-nuptial children. These laws reflect the contemporary community standard in Australia that there is no distinction between nuptial and ex-nuptial children.

Legal responsibility for a child's upbringing

One of the guiding principles of the FLA is that children have the right to know and be cared for by both their parents, regardless of whether their parents (section 60B(2)(a), FLA):

  • Are married.

  • Are separated.

  • Have never married.

  • Have never lived together.

The issue of legal responsibility for a child is covered by the concept of "parental responsibility" in the FLA. By default, both parents of a child have parental responsibility (section 61C, FLA), a power that continues after the parents have separated (section 61C( 2) , FLA). Parental responsibility is the allocation of the "duties, powers, responsibilities and authority" which, by law, parents have in relation to a child (section 61B, FLA). While there is no precise definition of parental responsibility, it is often referred to as a decision-making power in relation to a child's long-term issues (for example, residence, education, health and religion). It is similar to the concept of guardianship used in other jurisdictions.

It is not always appropriate for both parents to have parental responsibility for a child. In these circumstances, the allocation of parental responsibility can be changed by court order (known as a "parenting order"). When a court is making a parenting order in relation to a child, there is a presumption that it is in the child's best interests for his or her parents to have equal shared parental responsibility (section 61DA, FLA). The presumption can be rebutted in circumstances of:

  • Child abuse.

  • Family violence.

  • Where it is not in the child's best interests for the presumption to be applied.

Circumstances where it is not in a child's best interests for the presumption to be applied include high conflict parents and where the distance between the child's parents is significant.

In practice, it is rare for a court to order a parent to have sole parental responsibility. The statutory intention is clear that an interference or diminution of the responsibility of either parent to care for a child is only appropriate where the welfare of the child will be clearly advanced by that order being made.

There is a distinction between the default allocation of parental responsibility and the allocation of parental responsibility by court order. Parents with a default allocation of parental responsibility can exercise the responsibility independently or jointly. If, as a result of a court order, both parents of a child have parental responsibility, there is an obligation that they will consult and confer in relation to a child's major long-term issues (section 65DAC, FLA). There is no obligation to consult in relation to the child's minor day-to-day issues (section 65DAE, FLA).

Who is the parent?

In Australia there are no legal distinctions between parents, regardless of the origins of their parentage. The laws, both in the state and federal jurisdictions, recognise that parentage does not necessarily stem from a marriage or a long-term relationship. It is not uncommon for children to be born with the assistance of artificial conception procedures or through surrogacy arrangements. Australian law approaches the issue of parentage with the assistance of certain presumptions, including:

  • A presumption that if a person is listed on a birth certificate of a child, that person is the child's parent (section 69R, FLA ( Cth); section 8, Status of Children Act 1974 (Victoria); section 11, Status of Children Act 1996 (New South Wales)).

  • A presumption of parentage arising from marriage (section 69P, FLA).

  • A presumption of parentage if a man and a woman cohabited for a period beginning not earlier than 44 weeks and ending not less than 20 weeks before the birth of the child (section 69Q, FLA; section 10 Status of Children Act 1996 (NSW)).

  • Presumptions arising from the use of artificial conception procedures (section 60H FLA; section 10C Status of Children Act 1974 (Vic); section 17, Status of Children Act 1978 ( Qld)) and surrogacy arrangements (section 60HB, FLA; section 19, Status of Children Act 1974 (Vic)).

The above examples are not exhaustive. Each state and territory has their own individual legislative presumptions in relation to parentage.

Presumptions of parentage can be rebutted by evidence to the contrary. In parenting proceedings under the FLA, the courts can require parties to undergo paternity testing, in the event of a question regarding paternity (section 69W, FLA).

Rights and responsibilities post-separation

2. Do parents continue to share rights and responsibilities for the child following separation?

The allocation of parental responsibility continues after a child's parents have separated and even after they have re-partnered or remarried (section 61C( 2) , Family Law Act). The allocation can be altered by court order (see Question 1, Legal responsibility for child's upbringing).

 
3. How do parents generally share the care of children following separation?

Custody and access

In Australia the concepts of "custody" and "access" were replaced in 2006 with the concepts of "live with" and "spend time and communicate with". The concept of "guardianship" was also replaced with the concept of "parental responsibility". For an explanation of parental responsibility, see Question 1.

In making a parenting order, the "paramount" consideration is the child's best interests (section 60CA, Family Law Act (FLA)). This notion informs the entire decision-making process. The following objects and principles are also relevant in parenting proceedings, as they guide and inform a court's determination (section 60B, FLA):

  • Ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child.

  • Protecting children from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence.

  • Ensuring that children receive adequate and proper parenting to help them achieve their full potential.

  • Ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

The principles underlying the objects are the following:

  • Children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together.

  • Children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (for example, grandparents and other relatives).

  • Parents jointly share duties and responsibilities concerning the care, welfare and development of their children.

  • Parents must agree about the future parenting of their children.

  • Children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

When making a parenting order, a court must rule on two issues:

  • The allocation of parental responsibility.

  • How the child's time will be divided between each of the child's parents.

A parenting order triggers the application of the presumption that it is in the best interests of the child for each of the parents to have equal shared parental responsibility (section 61DA(1) , FLA). That presumption can be rebutted in situations of child abuse or family violence and also where it would conflict with the child's best interests (section 61DA( 2) and section 61DA(4) , FLA) (see Question 1, Legal responsibility for a child's upbringing).

If a court makes an order for equal shared parental responsibility, the court must then consider whether or not spending equal time with his or her parents is in the child's best interests and is also reasonably practicable (section 65DAA(1) , FLA). If the answer is in the affirmative, the court must consider making an order for equal time. If the answer is not in the affirmative, the court must consider if spending substantial and significant time is in the child's best interests and also reasonably practicable (section 65DAA((2) , FLA). If neither answer is in the affirmative, then the issue of who the child lives with or spends time with is to be determined in accordance with the child's best interests (section 60CA, FLA).

The child's best interests are determined by an analysis of the "primary" and "additional" considerations on a case-by-case basis. These considerations reflect the objects and principles of FLA. The primary considerations are the (section 60CC( 2) , FLA):

  • Benefit to the child of having a meaningful relationship with both of the child's parents.

  • Need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

The additional considerations include:

  • The child's views and maturity.

  • The nature of the child's relationship with its parents and other persons.

  • The extent to which the child's parents have taken the opportunity to spend time and communicate with the child.

  • The extent to which the child's parents have fulfilled their obligations to maintain the child.

  • The likely effect of any changes in the child's circumstances.

  • The practical difficulty and expense of the child spending time with a parent and whether that difficulty will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis.

  • The capacity of the parents to provide for the child's needs.

  • The maturity, sex, lifestyle and background of the child and its parents.

  • The child's right to enjoy its indigenous culture.

  • The attitude to the child and the responsibilities of parenthood demonstrated by the child's parents.

  • Family violence involving the child or a member of the child's family.

  • Whether it would be preferable to make an order that would be least likely to lead to the institution of further proceedings.

  • Other facts or circumstances the court thinks are relevant.

The court's consideration of the child's best interests can also be assisted by a report prepared by a family consultant, who is a psychologist or social worker with expertise in children and issues arising from the breakdown of a relationship (section 62G, FLA). These reports are useful and are frequently obtained in practice.

Court orders

A court application for a parenting order cannot be filed unless and until the parties have attempted an alternative dispute resolution process known as family dispute resolution. There are a number of public and private entities around Australia that provide this service. Relationships Australia is the largest public provider of family dispute resolution and has offices located in each of the states and territories. Family dispute resolution is not required in circumstances of family violence, child abuse, urgency, non-compliance, incapacity or with the consent of both parties.

Once family dispute resolution has been attempted by the parties, the court has jurisdiction to make a parenting order. In practice, most parenting orders deal with the allocation of parental responsibility and how often a child is to spend time with its parents. However, a parenting order can also include considerations of limits on the child's communication with other persons, the process for resolving future disputes, the child's school, the child's religion and medical procedures. The court has power to make any order dealing with the child's care, welfare or development.

Courts exercising jurisdiction under the FLA also have power to make orders (other than parenting orders) relating to the welfare of a child (section 67ZC, FLA). This provision enables the court's role to protect and act for those children who are in need of protection (parens patriae jurisdiction). The jurisdiction conferred by the power is broad and can include, for example, removing children from situations of abuse or neglect. However, in practice, the welfare of a child is usually dealt with by the relevant child protection authority in each state or territory of Australia.

 

Relocation/right to remove

Overview

4. Are relocation cases a familiar feature of family law within your jurisdiction?

Relocation cases are one of the most complex issues for Australian courts exercising jurisdiction under the Family Law Act (FLA). These cases involve emotionally complex decisions that have a significant impact for the children at issue and also for their parents. Often there is no easy or sensible solution.

Relocation cases are not considered as a separate category of cases in the courts and as such, there are limited statistics available. However, the issue of relocation is a familiar feature of family law in Australia and is regularly litigated, often proceeding to trial.

 
5. When do relocation disputes tend to arise and what are the most common reasons for parents seeking to relocate?

Australian law does not define the notion of "relocation". There are no specific legislative references on the issue. Relocation disputes arise where it is proposed that a child moves with one parent away from the other parent and the effect of that move affects the opportunity for the child to spend time with the second parent. There are also often issues between the child's parents beyond that of the proposed relocation, including:

  • Parental incapacity.

  • Drug or alcohol issues.

  • Alienation.

  • Intractable parental conflict.

  • Family violence.

  • Child abuse.

The issue of a child's residence and any proposed "changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent" is one of the major long-term issues that parents with equal shared parental responsibility are expected to consult and discuss (section 4, Family Law Act (FLA)).

The key issue is the distance of the proposed relocation and the impact that distance has on the child's relationship with the non-moving parent and the child's best interests at large.

There are a number of common reasons why parents may seek to relocate including:

  • An attractive job offer or better job opportunities.

  • A new partner and his or her circumstances.

  • Health reasons of the parent or the child including the opportunities for support and the nature and availability of medical treatments.

  • Social or economic support from family members that is not present in the child's regular domicile.

  • Family violence.

  • Homesickness.

  • Religious and cultural reasons.

General principles and guidance

6. What is the legal position of a parent who seeks to relocate a child internationally?

The legal position of a parent seeking to relocate with a child internationally is similar to that of a parent seeking to relocate domestically. The relevant statute in all relocation cases is the Family Law Act (FLA).

Parents with equal shared parental responsibility for a child must consult in relation to the child's major long-term issues (section 65DAC, FLA), including the issue of relocation. A failure to do so is not only detrimental to a parent's prospects of success in future litigation, it also contravenes the general obligations that arise from the making of a parenting order (see subdivision C Part VII, FLA) and risks contravention proceedings.

For the purposes of a proposed international relocation, a parent should take notice of certain criminal offences contained in the FLA. If an existing parenting order is in force or the making of a parenting order is pending in relation to a child, it is a criminal offence for a party to a parenting order or an agent of that party to remove the child from Australia, without written consent or court order (section 65Y and section 65Z, FLA). It is also a criminal offence for an owner or operator of an aircraft or vessel to permit a child to leave Australia (section 65ZA and section 65ZB, FLA).

 
7. What are the legal principles applicable to relocation disputes?

There are no specific references in the Family Law Act (FLA) concerning relocation. The legislation in Australia approaches the issue of a child's proposed relocation in the same manner as an ordinary parenting dispute. The courts are clear that there is technically no separate category of relocation cases. These cases are best described as "parenting cases where the proposal of one of the parties involves relocation" (A v A: Relocation approach [2000] FamCA 751).

A relocation dispute and the legal principles that are relevant are the same principles that are applicable to all parenting disputes. The key consideration, as in all parenting disputes, is the child's best interests (section 60CA, FLA). For further information on the principles applicable to parenting disputes, see Question 3.

There are no principles specifically relating to relocation issues in the FLA. There are also no presumptions (either in the legislation or in the case law) in favour of or against relocation. Therefore, Australia can be described as a "neutral jurisdiction" in its approach to relocation.

 
8. Do the principles applicable to relocation disputes differ in cases where the parent is seeking to relocate temporarily rather than permanently?

The principles applicable to a proposed relocation of a temporary nature do not differ to those of a permanent nature. Temporary relocations are determined in the same way as other relocations (see Question 7).

While parents sometimes seek to relocate on an interim basis, they are rarely permitted to do so, given that factual disputes can generally not be tested in an interim hearing.

 
9. Have the courts in your jurisdiction provided any guidance to help the judges to apply the principles correctly?

2006 legislative amendments

There is no one definitive case that provides a comprehensive pathway for approaching relocation disputes. However, there are a number of authoritative judgments that do provide some guidance. The applicability of these judgments must be qualified in light of major amendments that were made to the Family Law Act (FLA) in 2006.

Before 2006 the FLA did not accord any particular weight or priority to particular considerations in assessing a child's best interests. The 2006 amendments divide the relevant considerations into two categories, "primary" considerations and "additional" considerations (see Question 3). The primary considerations are the benefit of the child having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm or from being exposed to abuse, neglect or family violence (section 60CC( 2) , FLA). In a conflict between the two primary considerations, the need to protect from harm is given greater weight (section 60(2A), FLA). Section 60CC(3) lists the additional considerations that are relevant to the court's assessment of the child's best interests. The 2006 amendments also introduced a number of objects and principles that inform the decision-making process in making a parenting order (section 60B, FLA). One of the objects is to ensure that a child has the benefit of both of the child's parents having a meaningful involvement in the child's life, to the maximum extent consistent with the best interests of the child (section 60B(1)(a) , FLA).

Noting the amendments discussed above, there appears to be a legislative intent in favour of a substantial involvement of both parents in a child's life (Goode v Goode (2006) 206 FLR 212, 72; M and S (2007) FLC 93-313; Taylor and Barker (2007); McCall & Clark (2009) FLC 93-405). It is the introduction of this legislative intent, particularly the "meaningful relationship" primary consideration that has particular importance for relocation disputes, due to the likely impact the proposed relocation will have on the child's meaningful relationship with the non-relocating parent.

The principles to be applied

The case law consistently reminds us that a relocation dispute is just like any other parenting application (see Question 3). The most important aspect in the assessment of any parenting application is the consideration of the child's best interests (section 60CA, FLA).

If the court determines that the presumption of equal shared parental responsibility is rebutted or is not in the child's best interests, the question of the proposed relocation is to be determined simply in accordance with the child's best interests (section 60CA, FLA).

If an order for equal shared parental responsibility is made, the court must then consider whether spending equal time or substantial and significant time with his or her parents is in the child's best interests and is also reasonably practicable (section 65DAA(1) , FLA). A proposed relocation, particularly an international one, is likely to have significant implications for the reasonable practicality requirement for an equal time or substantial and significant time order. In determining reasonable practicality, the courts must consider (section 65DAA( 5) , FLA):

  • How far apart the parents live from each other.

  • The parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents.

  • The parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind.

  • The impact that an arrangement of that kind would have on the child.

  • Such other matters as the court considers relevant.

Case law

The approach taken by courts in relocation disputes since the inception of the FLA has changed over time in accordance with changes in societal values and amendments to the legislation.

A useful 2000 decision of the Full Court of the Family Court is A v A: Relocation Approach (2000 FLC 93-035). The court provided seven guiding principles that are relevant in relocation matters:

  • The best interests of the child are the paramount consideration but not the sole consideration.

  • A court cannot require the applicant to demonstrate "compelling reasons" for the relocation.

  • The court must evaluate the competing proposals of the parties.

  • The evaluation cannot occur in a way which separates the issue of relocation from that of residence and the best interests of the child.

  • The evaluation of the competing proposal must weigh the evidence and submissions as to how each proposal would hold advantages and disadvantages for the child's best interests.

  • It is necessary to consider the relevant sections of the FLA that relate to the best interests of the child.

  • The objects and principles (of Part VII of the FLA) provide guidance to the court's obligation to consider issues relating to the child's best interests (see Question 3).

The decision of A v A must be read noting that it was decided before the 2006 FLA amendments (see above, 2006 legislative amendments). Subsequent decisions of both the Full Court and the High Court have not deviated significantly from the principles outlined in A v A, although a number of additional considerations have been provided, including:

  • The court is not limited to the proposals or positions advanced by the parties to the litigation. It can consider alternate arrangements that neither of the parties have proposed provided that the parties are afforded an opportunity to respond to the alternate arrangements (U v U (2002) FLC 93-112).

  • The non-relocating parent's capacity and ability to relocate to the proposed location (U v U (2002) FLC 93-112). The parent's job, mobility, and dependants are relevant in this regard.

  • The nature of the relocating parent's current or future residence and its appropriateness to accommodate children. For example, in the High Court decision of MRR v GR [2010] HCA 4, the court considered a proposed relocation from rural Mt Isa to Sydney. In Mt Isa the mother's accommodation options were limited and she was forced to live in a caravan park. The court noted that "it could not be said that such an environment is usually ideal for a child".

  • Opportunities for employment for both the relocating and non-relocating parent. For example in MRR v GR, the court noted that the mother's employment opportunities in Mt Isa were limited compared to Sydney.

  • The right of freedom of movement of the parent who wishes to relocate (U v U (2002) FLC 93-112; Bolitho v Cohen (2005) FLC 93-224).

  • The health status of either parent, particularly mental health considerations. For example, in Hunt & Planey [2013] FamCA 442 the court considered the case of a mother seeking to relocate to the United States, who suffered from major depression and anxiety. The court accepted expert evidence advanced by the mother that if she was not permitted to relocate her mental health would be compromised.

 
10. What is the perception of the public and/or legal profession of the way in which relocation disputes are determined by the courts?

The perception of the public is likely different to that of the legal profession. It is possible that there is a commonly held public view that mothers are generally permitted to relocate with children. This view is not reflective of the law in Australia, nor the decisions of the courts.

For those in the legal profession who practise in family law, it is particularly difficult to provide clients with reasonably definitive advice regarding relocation disputes. This is primarily because there is no single definitive case providing a comprehensive pathway for resolving relocation disputes. Nor is there specific legislative reference in the Family Law Act (FLA) for relocation disputes. An outcome will often depend, for example, on the way in which an applicant in relocation proceedings conducts themselves in the proceedings, and whether that is indicative of how positive they will be in maintaining the relationship with the absent parent, if the relocation is permitted.

 
11. Where are the most common places to which parents seek to relocate with children from your jurisdiction?

There are no available data or studies examining the most common places to which parents seek to relocate from Australia.

However, based on anecdotal evidence, parents regularly seek to relocate (internationally) to the United States, Great Britain, New Zealand and Asian countries due to Australia's economic and social links.

Jurisdictions that are not a party to the HCCH Convention on the Civil Aspects of International Child Abduction 1980 (Hague Child Abduction Convention) are less likely to be allowed as destinations for relocations.

Procedure for relocation

12. What is the legal procedure for seeking to relocate?

Procedure

An initiating application must be made seeking an order for the relocation. The application will set out both the final orders and interim orders sought. Once issued, the matter is generally listed for a directions hearing to determine what steps must be made. Any interim issues will also be determined at that hearing (or at a later interim hearing). Generally, there will be an order for a family report to assess the best interests of the child and to make recommendations to assist the presiding judge with their decision. A trial date will also be allocated for the matter to be heard by the judge once all the necessary evidence has been obtained.

Duration of procedure

The time between the filing of the initiating application and the final hearing can vary, depending on which court the application is made to. The process can take up to 18 months. However, the judge has overall discretion to manage the case as the judge considers appropriate and in the child's best interests.

From July 2012, the Melbourne Registry of the Federal Circuit Court of Australia ran a pilot "relocation list", which was established for hearing relocation cases (both domestic and international) where there is a need for a quick decision (for example, where there is an offer of employment or a transfer of the place of employment of a parent or significant person in the life of the parent or child). Cases in this list were subject to special procedure and directions to allow the matter to be dealt with expeditiously. However, this list was disbanded from July 2015 due to limited judicial resources.

 
13. What steps can be taken to prevent a parent removing the child from the jurisdiction without the agreement of the other parent or the court's permission?

If a parent is concerned that an Australian passport will be obtained without his or her consent, a child alert request can be made to the Australian Passport Office. This notifies the Office that there can be certain circumstances that must be considered before an Australian passport is issued to a child.

If a child already has an Australian passport or alternatively a foreign passport, and a parent suspects that child will be removed from the jurisdiction without consent, then an urgent application must be made to the court for:

  • An injunction preventing the suspect parent from removing the child from Australia.

  • The listing of the child on the Australian Federal Police's airport watch list. This list records the child's details and prevents the child from leaving Australia from international departure points (that is, airports and ports).

Once a court makes an injunction or an airport watch list order, it must be served on the Australian Federal Police (AFP) immediately. The AFP have jurisdiction to enforce certain orders under the Family Law Act and also have various arrest and search powers.

Alternative dispute resolution (ADR)

14. Are methods of ADR used to help to resolve relocation disputes in your jurisdiction? How effective are these ADR methods in such cases?

Before an application for a parenting order can be filed in a court, the parties must attempt a compulsory form of alternative dispute resolution called Family Dispute Resolution (FDR). FDR is a mediation-type forum for parties to discuss their dispute and is run by both publicly-funded and privately-funded bodies.

FDR is not required in some circumstances, for example, family violence or urgency and communications are confidential and inadmissible in court proceedings.

In some cases the court can also order that the parties attend mediation before the trial takes place and upon receipt of the Family Report.

Factors in relocation cases

15. What significance do the child's wishes and feelings have in a relocation case and how are these ascertained/presented?

The child's wishes and feelings are relevant in a relocation case (and in every parenting case) as part of the court's consideration of what is in the child's best interests. The weight that is placed on any wishes and feelings expressed by the child will depend on their age and level of maturity. The child's wishes and feelings are usually ascertained via a Family Report assessment in which both parents and the children take part.

In relocation cases an independent children's lawyer (ICL) is usually appointed to represent the best interests of the child and again, depending on the child's age and level of maturity, any views expressed by the child may form part of the decision of the ICL in their assessment of the what is in the child's best interests.

 
16. Are there any differences between geographical regions/areas in your jurisdiction in the way in which relocation disputes are determined by the courts?

There are no differences amongst the states of Australia in the way relocation disputes are determined. Relocation disputes are governed by the Family Law Act (FLA), which is a federal statute.

Offers of security

17. Do offers of security for the return of the child to spend time with the other parent feature in relocation disputes in your jurisdiction? What form do these take?

Offers of security for the return of the child to spend time with the other parent do sometimes feature in relocation disputes. These generally take the form of an agreement or an order to place a certain amount of funds into a solicitors' trust account (or a transfer of property) and for those funds to be released (or property sold) in the event of a failure to return the child to enable the other party to fund the legal and other costs associated with any proceedings to return the child.

Financial security is more often ordered as a condition of permitting a short trip, such as a holiday, rather than in relocation cases where the move is permanent.

Rights of appeal

18. If a parent is dissatisfied with the decision made by a court in a relocation case, does the parent have a right to appeal?

An appeal can be made to the Full Court of the Family Court of Australia to set aside a decision made by a family court judge or a federal circuit court judge. However, an appeal is not a re-hearing of the original dispute. A notice of appeal must be filed within 28 days of the order made by the family court or federal circuit court judge. However, filing a notice of appeal does not automatically affect the original order made. An application must also be made to stay (that is, suspend) the operation of the orders until the appeal is decided. This is particularly relevant in relocation cases.

 

Abduction

Overview/domestic and international law

19. What is the position if a parent removes a child from your jurisdiction to another without the consent of the other parent and/or permission from the court?

If a child is removed from Australia without consent or permission from a parent or an Order of the Court, urgent proceedings for the return of the child can be instituted. Under Australia's obligations under the HCCH Convention on the Civil Aspects of International Child Abduction 1980 (Hague Child Abduction Convention), the court can order that the removal of the child from Australia was wrongful and then request the relevant central authority of the jurisdiction to which the child was removed for assistance in the child being returned to Australia (if that other country is a signatory to the Convention).

Under Australian law, if an existing parenting order is in force or the making of a parenting order is pending in relation to a child, it is a criminal offence for a party to a parenting order or an agent of that party to remove the child from Australia, absent written consent or court order (section 65Y and section 65Z, Family Law Act (Family Law Act)). It is also a criminal offence for an owner or operator of an aircraft or vessel to permit a child to leave Australia (section 65ZA and section 65ZB, FLA).

 
20. Is your jurisdiction a signatory to any relevant treaty or convention concerning child abduction?

Australia is a party to the HCCH Convention on the Civil Aspects of International Child Abduction 1980 (Hague Child Abduction Convention), which was enacted into Australian law on 29 October 1986 when the Family Law (Child Abduction Convention) Regulations 1986 took effect.

Factors

21. Are there any defences which could be raised by a parent to attempt to avoid the child's return?

Defences which could avoid a court order for the return of a child are consistent with the defences in the HCCH Convention on the Civil Aspects of International Child Abduction 1980 (Hague Child Abduction Convention) and include:

  • The application was made over one year since the date of the wrongful removal/retention and the child is settled in the country.

  • The applicant was not actually exercising rights of custody when the child was removed to or first retained in the country.

  • The applicant consented to or subsequently acquiesced to the removal or retention of the child.

  • There is a grave risk that the return of the child would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.

  • The child has expressed a strong objection to the return and the child is of an age that it is appropriate to take account of the child's views.

  • The return is not permitted by the fundamental principles of Australia relating to human rights and fundamental freedoms.

 
22. How are the child's wishes/feelings ascertained or presented in an abduction case?

In any parenting matter, the child's wishes and feelings are relevant as part of the court's determination of the child's best interests (see Question 15). In an abduction case made under the HCCH Convention on the Civil Aspects of International Child Abduction 1980 (Hague Child Abduction Convention), the wishes must be very strong in order to be relevant. It is a significantly higher standard than the weight ordinarily given to children's wishes and preferences.

 

Reform

23. Are any legal developments in progress or planned in the law which may affect the law or practice in relocation or abduction cases?

In 2006 the Australian Family Law Council considered the status of the law of relocation in Australia (see Question 9). After various submissions and public consultations, the Council published its recommendations, including one that additional consideration be inserted into the Family Law Act (FLA) that have specific relevance to relocation cases. The government has not yet acted on these recommendations.

While there are no planned amendments to the law of relocation in Australia, family law legislation is regularly varied in accordance with changing societal views and psychological research.

 

Online resources

ComLaw

W www.comlaw.gov.au/

Description. ComLaw is the official Federal Government website containing current legislation and subordinate legislation (rules etc). The Family Law Act 1975 (Cth) and the Family Law Rules 2004 (Cth) can be obtained from this website without charge.

AustLII

W www.austlii.edu.au/

Description. AustLII (Australasian Legal Information Institute) is a free online resource of Australian legal information. It is a joint collaboration of the Faculties of Law from the University of Technology Sydney and the University of New South Wales. Case law from the Family Court of Australia and the Federal Circuit Court of Australia can be obtained from this website.



Contributor profiles

Gillian Coote, Principal

Coote Family Lawyers

T +61 3 9804 0035
F +61 3 9804 0037
E mail@cootefamilylawyers.com.au
W www.cootefamilylawyers.com.au

Professional qualifications. Bachelor of Arts, Melbourne University; Bachelor of Laws, Monash University; admitted to practise as a solicitor in Victoria; admitted to practise as a solicitor in the High Court of Australia; Law Institute of Victoria Accredited Specialist, family law, 1991.

Professional associations/memberships. Member of the Law Institute of Victoria; member of the Family Law Section of the Law Council of Australia.

Gary Yan, Partner

Coote Family Lawyers

T +61 3 9804 0035
F +61 3 9804 0037
E mail@cootefamilylawyers.com.au
W www.cootefamilylawyers.com.au

Professional qualifications. Bachelor of Economics and Law, University of Tasmania; admitted to practise as barrister and solicitor in Tasmania, 2001; admitted to practise as a solicitor in Victoria, 2003; admitted to practise as a solicitor in the High Court of Australia, 2003; admitted to practise as solicitor in England and Wales, 2008; Law Institute of Victoria Accredited Specialist, family law, 2013.

Professional associations/memberships. Member of the Law Institute of Victoria; member of the Family Law Section of the Law Council of Australia.

Simon Fuller, Solicitor

Coote Family Lawyers

T +61 3 9804 0035
F +61 3 9804 0037
E mail@cootefamilylawyers.com.au
W www.cootefamilylawyers.com.au

Professional qualifications. Bachelor of Law, Monash University; Bachelor of Arts, Monash University; admitted to practise as a solicitor in Victoria, 2012; admitted to practise as a solicitor in the High Court of Australia, 2012.

Professional associations/memberships. Member of the Law Institute of Victoria; member of the Family Law Section of the Law Council of Australia.


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