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    International Relocation & Family Law

    Nov 26, 2021 10:10:32 AM

    With restrictions on international travel continuing to ease in the coming months, issues
    regarding international travel with children, international relocation and overseas child abduction are
    likely to become more prevalent.

    In this article we look at:

    1. How the Family Court considers international relocation, where one parent wishes to relocate
    to another country with the children and the other parent wishes to remain in Australia. The
    parent who wishes to relocate may have ties to that country or wish to return if the parties
    had migrated to Australia.
    2. Things to consider if you are the relocating parent; and
    3. Things to consider if you are the parent staying behind.

    Relocating with children – The Law

    In all parenting matters, when it comes to determining the parenting arrangements for a child, the
    paramount consideration that the Court has to look at, is what is in the best interests of any child. In
    determining this, Section 60CC(2) of the Family Law Act 1975 (Cth) (“the Act”) provides that there are
    two primary considerations which must be taken into account. These are:
    1. The benefit to the child of having a meaningful relationship with both parents; and
    2. The need to protect the child from any physical or psychological harm (with the greater weight
    given to this consideration).

    The Court will also consider a number of additional factors outlined in Section 60CC(3), which include:
    1. Any views expressed by a child;
    2. The nature of the relationship between the child and each parent;
    3. The extent to which each parent has taken the opportunity to spend time with the child;
    4. The effect of any changes in the child’s circumstances including the effect on the child of a
    separation from either of their parents;
    5. The practical difficulty and expense of the child spending time and communicating with a
    parent;
    6. The capacity of each parent to provide for the needs of the child;
    7. The maturity, sex, lifestyle and background of the child and the child’s parents;
    8. The attitude to the responsibilities of parenthood demonstrated by each of the child’s parents;
    9. Whether there has been any family violence; and
    10. Any other fact or circumstance that the Court thinks is relevant.

    Where one parent wishes to relocate internationally with the children and the other parent wishes to
    remain in Australia, the key question the Court will need to determine, is whether it is in the children’s
    best interests to relocate internationally with one parent, or remain in Australia. The case will often
    come down to determining the competing proposals of the parties having regard to the primary and
    additional factors above.

    For example, the Court will consider questions such as:
    1. Will the proposed relocation impede on the child’s ability to maintain a meaningful
    relationship with the non-relocating parent?
    2. Does the child hold any views in relation to whether they wish to remain living in Australia or
    relocate to the proposed country?
    3. What are the reasons for relocation? Are there are convincing reasons why a parent wishes
    to relocate?
    4. What is the degree of involvement the parent, who does not wish to relocate, has had in the
    child’s life prior to the propose being made?
    5. Are both parents willing and able to facilitate and encourage a close and continuing
    relationship between the child and the non-relocating parent if permission was granted to
    relocate?
    6. Are there any concerns regarding the state of mind or mental health of the parent wishing to
    relocate if they were not permitted to relocate?
    7. Does the parent who wishes to relocate have family or a support network in the proposed
    relocation country?
    8. Does the parent who wishes to relocate have family or a support network in Australia?
    9. If relocation is permitted, is the non-relocating parent able to move to the proposed country
    and maintain a meaningful relationship with the child?
    10. If the non-relocating parent is not able to move to the designated country, what is the cost and
    practical difficulty of that parent spending time with and communicating with the child?
    11. Are there any other events or circumstances since separation that are relevant?
    Whether or not the Court would permit a parent to relocate with a child internationally, will ultimately
    depend on the circumstances of each case.

    Things to consider if you are the relocating parent

    If you are the relocating parent, it is good to have a plan with respect to your proposed relocation,
    preferably in writing.

    Be clear about:
    1. Where you plan to reside with the children.
    2. Who else will be living in the house with children. Provide details of the other people.
    3. Which school/daycare you plan on sending the children.
    4. Which days and times you propose the children spend with the other parent, for example it
    may be that the children spend more time with the other parent during the holiday period.
    5. How that “spend time” will occur, for example will the children travel to the other parent’s
    location or will the other parent spend time with the children in their location.
    6. How and when the children will communicate with the other parent, for example by telephone,
    email, Skype, or Facetime during the week and on weekends.
    7. How you and the other parent will communicate about future decisions involving the children,
    for example by text message, email or using a parenting communication App such as
    OurFamilyWizard or Divvito. 

    Things to consider if you are the parent staying behind
    If you and the other parent are unable to reach an agreement about the relocation and you have
    concerns of the other parent relocating without prior warning, it is best to take immediate action.
    Speak to a Family Lawyer about putting the children on the Family Law Watchlist. The Australian
    Federal Police maintains the Family Law Watchlist which is designed to alert police to the movement
    of children leaving Australia. Taking steps to prevent the relocation is better than taking action once the relocation has already
    occurred.

    If you or your partner are considering relocating internationally or you are concerned your partner may wish to relocate internationally with your children, we recommend you speak to one of our
    experienced solicitors at Frank Law who will be able to assist you. Please call our office on 02 9688 6023.
     

    This is not legal advice.

    This article was co-authored by Jeremy Ball & Monique Loveday.

    Monique Loveday

    Written by Monique Loveday