Travel, Relocation, Recovery and Abduction
Where court proceedings are on foot, the opposing party’s consent is required before taking a child overseas.
Where no proceedings are on foot, a person may or may not be allowed to take a child overseas without the other parent’s consent, depending on who has parental responsibility. However, the written consent of both parents will be required before an Australian passport will be issued for a child.
A party may apply to the court for an order where he or she wishes to take a child overseas and the other side refuses to consent, including by refusing to sign a passport application. The Court will normally grant the order if it is in the child’s best interests. However, conditions may be imposed, such as the payment of a sum of money as security.
Conversely, where a party is afraid that the other side will take a child overseas and not return, he or she may seek an injunction from the Court preventing a passport from being issued for the child or preventing the child from leaving Australia.
Relocation is not a separate category of cases under Family Law Act. The normal approach to parenting orders will apply, in that the Court will compare and assess the competing proposals of the parents against the child’s best interests.
Where parents have equal shared parental responsibility, the Court is required to consider ordering equal or substantial / significant time (which would normally prevent any relocation) unless the circumstances are such that this would not be in the child’s best interests or reasonably practicable. Such circumstances include where that parent is suffering significant financial hardship and/or isolation, and where being denied the opportunity to relocate is likely to negatively affect his or her mental health or parental capacity. The parent seeking relocation is not generally required to show a compelling reason for the move even where the parties have equal shared parental responsibility.
Where a child has been taken by the other parent or a 3rd party and not returned, a recovery order may be sought providing for the child’s return and prohibiting the person responsible from taking the child again. Recovery orders may also provide for related matters such as authorising police officers and other persons to stop and search any premises or places for a child.
Where the child’s whereabouts are unknown, a location order may be sought requiring a person (including a federal government department) to provide any information they have or obtain about the child’s location.
While recovery and location orders are not strictly parenting orders, they are usually sought in support of such, and the child’s best interests typically remain the key consideration in the Court deciding whether or not to grant them.
Recovery orders can only be executed where the child is in Australia. If a child has been removed from Australia or retained in another country, action to secure the child’s return may be taken by the Commonwealth Attorney-General’s Department if the country where the child is located is a party to the Convention on the Civil Aspects of International Child Abduction (‘Hague Convention’).
Likewise, the return of children who have been removed to / retained in Australia may be sought by the government of their country of origin if they are also a party to the Hague Convention. The child’s best interests is not the paramount consideration in Hague Convention cases and the Court will generally have very little discretion to refuse to order the return of a child to his or her home country.