FACT SHEET RELOCATION

Transcription

1 women s legal service FACT SHEET RELOCATION Can I move with my child(ren) without the other parent s permission? If you want to move with your child(ren), the other parent's permission will be required if: the move would mean that the time the child(ren) spends with the other parent would be more difficult to arrange; or there are Court Orders that say a parent can't move or relocate. Whether or not you can move with your child(ren) depends on where you want to move and what proposals you make for the other parent to see your child(ren). For example, moving to a different suburb has different consequences than if you move to a new state. You will often hear this kind of action referred to as "Relocation Proceedings". Where there are Court Orders in place, or an application for Court Orders in progress that allow for: 1. a child to live with a person; 2. a child to spend time with or communicate with a person; or 3. a person to have parental responsibility for a child; you may be prevented from moving the child(ren) at all unless you have written agreement from all the people named on the Court Orders. If you move you will be in breach of a Court Order and legal consequences may follow. You should get legal advice if you are thinking of moving away with your child(ren). If there are other significant people in the child(ren)'s lives (like grandparents) who spend regular time with the children, it is sensible to get their agreement before you move. This way, you might avoid a Court application being filed. What happens if I move without getting the other parent s permission? If you move locally and it does not affect the other parent spending time with your child(ren), usually no action by the other party will follow. An exception to this is where there are Court Orders that stop you from moving. You should get legal advice on your particular circumstances.

2 If you are planning on moving interstate, overseas, or any other move that has the effect of changing the way the other parent spends time with your child(ren), you should either get the other parent to agree in writing or ask the Court for an Order allowing you to move. If you do not do either of these things and you move, the other parent can ask the Court for a recovery order to return your child(ren) to where they normally live. This can happen even if you do not have Court Orders for your child(ren). What will the Court look at? Firstly, the Court looks at the best interests of the child(ren). In determining what is in the best interests of the child(ren), the Court will consider the following: The proposals for the other parent to spend time with the child(ren) if the Court was to allow the child(ren) to move; The existing relationship between the child(ren) and the parent they live with; Whether the parent the child(ren) lives with, has been the primary carer for some time and is the preferred parent for the child(ren) to live with; How much time the child(ren) currently spends with the parent they do not live with, and what their relationship is like and whether the relationship will continue or be maintained if the move is allowed; The distance and permanent nature of the move; What impact it will have on the child(ren) to leave things like friends, extended family and school etc; The wishes of the child(ren); The age of the child(ren); The cost and ease of the other parent spending time with the child(ren); Other ways the child(ren) can continue to have a relationship with the other parent; In addition to considering the best interests of the child(ren), the Court may also consider: The reasons for moving, such as financial or economic reasons (ie a new job) or personal reasons (ie moving closer to family), and whether these reasons are genuine, optional or essential for the parent wishing to move and for the child(ren); The rights of the parents to move on with their lives; The rights of the parents to form new relationships; The rights of the parents to freedom of movement; Travel costs.

3 In coming to a decision, the Court will look at each parent s proposals and will make an order based on the best interests of the child(ren). The Court will not necessarily make orders that follow what either parent has suggested. You should seek legal advice if you are planning on relocating and have not been able to reach an agreement with the other parent. How do I stop the other parent moving with my children? Travel within Australia If you are concerned that the other parent may move away within Australia with your child(ren) you can ask the Family Court for an injunction to stop them going. If the other parent ignores the injunction you can then apply for a recovery order in the Family Court to have your children returned to you. International travel If your child(ren) has not been issued with a passport, you can lodge an alert with the Department of Foreign Affairs and Trade. This alert warns the Department of Foreign Affairs and Trade that you do not agree for your child(ren) to be given a passport. This alert lasts for 12 months and can be renewed each year. If the alert is Court ordered, then it can last until a child turns 18. If your child(ren) has been issued with a passport, or you are worried they may get a passport from another country, you can apply for an injunction in the Family Court. If the Court thinks there is sufficient risk that your child(ren) will be taken out of the country, the Court can make an order that the child(ren) s passport or the passport of any other person, be delivered to the Court. If you obtain an injunction or start proceedings in the Family Court for an injunction you can also put your children on the Federal Police's Airport Watchlist. This is a list that contains details of children that are not to be taken out of Australia. It is used at every land and sea port in Australia. You can obtain information and copies of forms from the Federal Police's Family Law Unit. My ex wants to take our children on holiday but I am worried they will not come back If you have good reason to think that your child(ren) will not be returned after a holiday there are some measures you can ask the Court to put in place. First, you should obtain legal advice about whether or not your concerns will be enough to satisfy the Court that it will need to make orders. You may need to explain to the Court: the other parent has refused to give you details of the travel arrangements including how long the holiday will be, where your child(ren) will be staying etc;

4 the other parent has been acting like they are not coming back and are for example, selling their house, moving all the belongings into storage, closed all their bank accounts etc; the other parent has family and friends at the holiday destination who will be able to support him / her; the other person has the financial means to stay away or has taken a job at the holiday destination; the other person is travelling to a country that is not a signatory to the Hague Convention on the Abduction of Children and you will not able to get them back from that country with the help of Australian authorities. If the Court considers there is a real risk the other party will not return with your child(ren) after the holiday it can make all or some of the following orders: prevent the parent from taking the child(ren); order the parent to pay a bond to the Court that with the Court's permission you will be able to access if you have to start proceedings to return the child(ren). The Court is able to use any property of the other person for this purpose; order the person to give contact details, including phone numbers, an itinerary, addresses where the child(ren) will be staying etc. What if my child does not return from overseas? If your child(ren) does not return from overseas after a holiday, or is taken away overseas, then the Australian Government has procedures in place to search for and commence legal proceedings in that country to bring the child(ren) back. These types of proceedings are called Hague Convention matters and are named after the agreement that countries all over the world have signed and will act upon in such matters (however some countries have not signed and it may be difficult to commence legal proceedings in those countries). First, you will need to determine if your child(ren) are in a Convention country. A Convention country is a country that has signed the agreement. Secondly, you will need to contact the Central Authority in your state (in WA it is the Commissioner of Police). More information, copies of application forms and a list of convention countries can be found at the Attorney General's website. What do I have to do to get a passport for my child? Both parents must agree to and sign the application form for a passport. If a child is in the care of the Department for Child Protection the CEO of the Department can consent to a passport being issued for the child. There are exceptions to this and the Passports Office of the Department of Foreign Affairs and Trade can decide to issue a passport with one signature only. Visit the Passports office website for more information. If you cannot agree and do not fall under an exemption you can ask the Court to make an order allowing you to get a passport for the child(ren).

5 Where do I go to find out more information? If you are familiar with using the internet, go to the Family Court or Legal Aid Queensland website. You can also call us between 9am and 1pm on Tuesday, Wednesday and Thursday each week on our free telephone advice line: Disclaimer This publication is intended to give general information about the subject of law that it deals with. While every effort has been made to ensure accuracy, the law is complex and constantly changing. You should contact a qualified solicitor for detailed specific information on any of the information in this publication. No responsibility is accepted for any loss, damage or injury, financial or otherwise, suffered by any person acting, refraining from action or relying on information contained or omitted from this publication.