It may be necessary to apply to the Court for a Recovery or a Location Order when a party unilaterally relocates with the child.

Time is of the essence in such matters and you should seek legal advice at the earliest opportunity.

Relocating with children

Overseas relocation should not be contemplated without seeking legal advice. Where Orders are in place, a party who relocates overseas with a child risks the Court Ordering the return of the child to Australia at that party’s expense.

If a Parenting Order is in place or Court proceedings seeking parenting Orders have been commenced, it is illegal to remove a child from Australia without having:

  1. A Court Order; or
  2. The other parent’s written consent to travel overseas.

Relocation is a complex issue.

A parent relocates for a variety of reasons. Some need a change of scene, others take up new employment opportunities and some find a new relationship. Whatever the reason for relocating, the Court may Order that the child be returned.

Since 2006, the Family Law Act 1975 provides that where Orders are in place, the issue of where a child shall live is a “major long-term issue” and as such must be decided by the parents jointly if they have shared parental responsibility.

The issue of relocation comes up with regular frequency in judgments issued by the Courts. The case of MRR v GR [2010] HCA 4 ended up in the High Court of Australia over the mother’s wish to relocate from Mt Isa to Sydney with the parties’ child.

If an agreement cannot be reached, an application to the Court will need to be made. We can assist you with this application.

Recovery and Location Orders

If one party has sufficient basis for relocation with the child, it is necessary to apply for a variation of the Parenting Orders unless the other parent agrees to the proposed relocation.

In the event of unilateral relocation, a party can apply to the Court for what is known as a “Recovery Order”. This application would seek the return of the child. If the whereabouts of the child is unknown, a Location Order will need to be sought.

 Practical Tips

  • If there is an immediate danger of a child being removed from Australia, legal advice should be sought promptly. Once an application has been filed, the Australian Federal Police can be contacted and the child’s name will be placed on the Airport Watch List. This will prevent the child’s removal from Australia.
  • Do not delay. Although a number of countries are a party to the Hague Convention which will result in the appropriate Court in that country making an Order for the return of the child to Australia, some of our closest neighbour countries are not, including many Asian countries. Once the child has been removed from Australia to one of the non-convention member countries, a parenting dispute would be determined in that country pursuant to the laws of that country.
  • If there is a Parenting Order in place, the Australian Federal Police can be contacted directly to place the child on the Airport Watch List at www.afp.gov.au.

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