Relo­cat­ing chil­dren over­seas after divorce

In Brief

As more fam­i­lies become ​“inter­na­tion­al” many are faced with the dilem­ma that on divorce (or sep­a­ra­tion) one part­ner wants to go ​“back home” with the chil­dren and the oth­er wants them to stay here. This arti­cle out­lines what to con­sid­er if you’re think­ing about leav­ing Australia.

Glob­al­i­sa­tion has led to an increase in inter­na­tion­al fam­i­lies in Aus­tralia. Unfor­tu­nate­ly, many mar­riages do not turn out to be the hap­pi­ly ever after that the cou­ple had hoped for. At the end of the mar­riage, many find them­selves liv­ing in Aus­tralia while all their fam­i­ly and sup­port net­works are in their home coun­try. Some may want to go back home with their children.

The legal term for this is ​‘relo­ca­tion’.

In Aus­tralia, you need the con­sent of the oth­er par­ent, or an order of the Court to relo­cate with your child, back to your pre­vi­ous coun­try of res­i­dence. If you leave with­out that per­mis­sion, there is a strong like­li­hood that you will be required to return to Aus­tralia with the chil­dren – and may be com­pelled to return by a court in your home country.
We rec­om­mend that par­ents speak to the oth­er par­ent to obtain their per­mis­sion first, and, as a last resort, approach a court.

Often by speak­ing to your part­ner you will be able to put their mind at rest that you have thought of ways to ensure that they don’t lose touch with their children.

What should you do if you’re think­ing about leav­ing Australia?

Think about it very care­ful­ly before speak­ing to your part­ner, and devel­op a plan or pro­pos­al for your relo­ca­tion. Make sure you have con­sid­ered things such as:

• job prospects
• sup­port system
• school appli­ca­tions
• accom­mo­da­tion options
• pro­pos­al for time to be spent with the oth­er parent
• pos­si­bil­i­ty of the oth­er par­ent also relocating

The bet­ter pre­pared you are the greater like­li­hood that you will be able to agree. It is help­ful to be sen­si­tive to how hard this might be for your part­ner, par­tic­u­lar­ly if they are not in a posi­tion to relo­cate also.

If you can’t reach agree­ment, and still want to approach the court for per­mis­sion, you should be aware that the court will approach your appli­ca­tion from what is in the chil­dren’s best inter­ests. Gen­er­al­ly, the more time a par­ent spends with chil­dren at the time the appli­ca­tion to court is made, the less like­ly a court will agree to allow you to go. This is because the greater role the oth­er par­ent is play­ing in the chil­dren’s lives the greater the dam­age may be if the chil­dren are to relo­cate and be sep­a­rat­ed from that par­ent. Courts have also shown a greater reluc­tance to per­mit chil­dren to relo­cate when the chil­dren are very young, as it is con­sid­ered more dif­fi­cult for very young chil­dren to devel­op and main­tain a rela­tion­ship with the par­ent remain­ing in Aus­tralia, with­out spend­ing fre­quent time together.

It’s best to real­i­ty test and make sure your moti­va­tion is in the right place. Are you try­ing to reduce your for­mer part­ner’s time with the chil­dren or are you seek­ing a bet­ter life for you and your chil­dren? Is the relo­ca­tion best for you, or best for your chil­dren? Is it real­is­tic to facil­i­tate reg­u­lar con­tact between your chil­dren and their oth­er par­ent, if you are per­mit­ted to go?

You should also con­sid­er that, in the event you are required to approach the Court, that there can be sig­nif­i­cant delays in the Court hear­ing and deter­min­ing your mat­ter. It may be well over 12 months from the com­mence­ment of your appli­ca­tion, to receiv­ing a deter­mi­na­tion from the judge. Will your relo­ca­tion still be as attrac­tive, in 12 to 24 months’ time?

As the world shrinks inter­na­tion­al relo­ca­tions will con­tin­ue to rep­re­sent some of the most dif­fi­cult cas­es both for sep­a­rat­ing par­ties, lawyers, and the Court.