Can my ex move away from me with our kids?
Relocation: Can my ex move away from me with our kids?
This page is for anyone who has concerns that their ex may be planning to either:
- Relocate/ move a considerable distance with your children; or
- Relocate overseas with your children, without your consent.
Perhaps there have been discussions or children have overhead conversations about their other parent planning to relocate with them. Maybe you have reason to fear your children being taken interstate or overseas permanently under the guise of a holiday. Whatever the case, you will likely have one or more of these questions in your mind:
- Can my ex move away from me with our kids?
- Can my ex move my child without my permission?
- Can a father stop a mother from moving (& vice versa)?
- If they do take my kids, what can I do about it?
Let’s get into what the law says in Australia about moving children away from a parent.
Can my ex move away from me with our kids?
It may be the case that your ex will be able to relocate with children you share, however that is dependent on a number of factors.
Of paramount consideration is the “best interests of the children”. There are countless references to this phrase within the legislation and while your ex moving the children away from you may seem like it is not in their best interests, there are specific considerations the Court looks at with matters like these.
Believing that there’s no way a Court would allow a parent to move children away from their other parent is what commonly leads to a parent holding off on getting legal advice.
While the “best interests of the child” are front and centre in the Court’s decision making, there are circumstances where a relocation may be permitted that parents have not always foreseen as possibly acceptable to the Court.
While not reflective of all similar scenarios, the examples below highlight the importance of getting early legal advice if you are serious about preventing the relocation of your children.
Examples where relocation has been permitted:
- Where the relocating parent has moved to to their current location for a short-term career opportunity, their contract is up and they want to return home (& the best interests of the children has been evidenced)
- Where the relocating parent is without employment opportunities in the current town/city
- Where the relocating parent is without family support and requires their support to earn a living and receive assistance for the care of the children.
Can my ex move my child without my permission?
Generally speaking there must be consent from the parent staying behind, to move away with the children. Moving without permission can be considered child abduction.However, the Court will consider:
- Whether there are any existing Parenting Orders in place (the Court document outlining your Parenting Agreement or Court Ordered rules for the care of children)
- If there aren’t any Orders, what the “best interests of the children are”, taking into account the current or existing living arrangements
- Whether there are any allegations of family violence
If there are allegations of family violence against you, whether true or false, you must reach out to us immediately to be informed of your options.
Can a father stop a mother from moving (& vice versa)?
If you have Parenting Orders in place, the Court will typically look at these first. If circumstances have significantly changed since those Orders were finalised, it may be possible for them to be revisited (however that is in very rare circumstances).
If your children live with you at any time, regardless of whether there is Sole or Shared Decision-Making Responsibility, a Court will take this into account, along with other factors.
When parents come to us with their concerns we arm them with the knowledge about what the law says about the relocation of children. Many circumstances warrant an urgent Court application, to prevent the other parent from moving away with your child/ren before it can happen.
Any application that is made to the Court, must be prepared correctly and the legislated steps required to be undertaken prior to filing, are complied with (unless it is urgent). It is devastating when a parent has their application dismissed when it could have had a genuine chance.
Avenues to stop international travel or relocation
If you are proactively looking to stop the other parent from travelling overseas or relocating overseas with your child, an application for your children’s names to be added to an Airport Watch List may be what we recommend. This is not a simple or straightforward process. The Court requires evidence, typically in the form of an Affidavit. And, given the seriousness of this matter, you must ensure that the lawyer you engage to assist you is very well versed in managing these types of applications. Time is of the essence and if your evidence is not sufficient, that can slow down the application process.
Even if you have Parenting Orders that stipulate the children are not permitted to travel overseas without your consent, but you believe the risk is still high, then an Urgent Application for an Airport Watch List may be the best course of action.
Not 100% certain they will leave with your child?
If they are yet to move, even if you’re not 100% sure, this is the best time to seek out some initial legal advice from a family lawyer who deals with matters like these every day. Knowing what to be aware of, how these scenarios may play out for your children and how the Court treats matters like these, is never “too early”.
Getting on the front foot in terms of information about what to know and do, is essential. It is always more challenging learning your options later in the process (when there are fewer of them).
What if they leave anyway, without my consent?
This can be considered child abduction and this action can have serious consequences for the parent absconding with the children. If this occurs, phone an experienced family lawyer to determine your first steps.
If your former spouse has abducted the children, we can assist you to prepare and file an Application for a Recovery Order. A Recovery Order empowers the police in every State and Territory to find your children and return them to you.
If that becomes essential, you will be required to liaise with the police to assist in the transition of the children back to your care. The Court will look at how you managed the recovery of your children, taking into account their best interests, which includes their experience of how it all unfolds.
When we assist parents in these circumstances, we ask you questions to be fully informed about the situation. We then inform you of what you need to know immediately, the actions we recommend and you decide what happens next.
When your child has been taken without consent within Australia
If they have already left/ moved, an Application for Recovery Orders will be required.
If you are unaware of where they have been moved to, Location Orders will be required.
For more information about Recovery Orders visit this dedicated page.
When your child has been taken overseas without consent
If you find yourself in the situation where the children have already boarded a flight overseas without your consent, or are already overseas, then Hague Convention Proceedings will be required. The Hague Convention is an international agreement between Australia and other countries that are also signatories to the Convention, to assist in the resolution and management of issues such as child abduction.
However, if your children have boarded the plane with the other parent, but have not yet left Australian Airspace, we can still assist you to make an Application for a Recovery Order. This type of Application is very complex and usually requires attendance at Court via Telephone at short notice. Our Partner, Timothy Nicholls has experience in making these types of time sensitive and important applications.
So too, very few family lawyers have experience with Hague Convention Proceedings so ensure you seek advice from someone with great experience and insights into how these matters should be handled.
“We’ll sort it out”
It is not uncommon for us to see circumstances where people have hesitated about seeking legal advice, only to find out later that holding off creates more problems for them when the Court needs to be involved. The Court does not accept that someone held off getting legal advice and taking action believing they could negotiate the return of the children with their ex over time.
The longer you wait, the harder it is to have your children returned to you. If you want a decent chance at ensuring the move doesn’t go ahead, or having the childrenreturned to you, you must take action early.
With the stakes so high, get informed early so you can manage this in the best way possible and when required, challenge their move from the very best position.
