Relocation and recovery of children

Relocation: what the court is actually deciding

There is no separate part of the Family Law Act about relocation, and no legal right to move or to stop a move. The court decides an ordinary parenting application in which the competing proposals happen to be in different places.

That framing matters. The court does not ask whether the parent has a good reason to move, as a threshold. It asks what arrangement is in the child's best interests under section 60CC, and then makes orders. The parent's reasons are relevant because they bear on the practicality and stability of the proposed arrangement, not because permission has to be earned.

What tends to carry weight

• Safety, including whether the move is a response to family violence.
• The child's existing relationship with each parent and how much it depends on frequency.
• Whether the proposed arrangement is genuinely workable, including flight costs, school terms and who does the travel.
• Support available in the new location, such as extended family, housing and employment.
• The child's age, views, schooling and connections in the current location.
• Whether the moving parent has proposed realistic arrangements to maintain the other relationship, rather than a token one.

Distance is not the test either. A move from the Gold Coast to Cairns can be more disruptive than a move from Southport to northern New South Wales.

If you want to move, or you have just been told about a move

If you are the parent who wants to relocate, tell the other parent before you go, in writing, with a genuine proposal for the time the child will spend with them and who will bear the cost. Attempt family dispute resolution. If agreement is not reached, apply to the court before you move.

Moving first and asking later is the most expensive approach available. The court can and does order children returned pending a final hearing, which means the child moves twice, changes schools twice, and the moving parent argues the case from a weakened position.

If you have just been told the other parent is moving, act immediately. Where a move is imminent, an urgent application can be made, including on short notice, to restrain the relocation until the matter is determined. Delay is read as acquiescence, and every week the child is settled in the new place changes the practical calculation.

Recovery orders

A recovery order under section 67Q of the Family Law Act requires a child to be returned to a parent or other person, and can authorise the Australian Federal Police and state police to find, recover and deliver the child. It can also prohibit a further removal.

Who can apply: a person the child lives with, spends time with or communicates with under a parenting order, a person with parental responsibility, a grandparent, or another person concerned with the care, welfare or development of the child.

You do not need existing parenting orders to apply, though having them makes the application much simpler. The court still applies the best interests test in deciding whether to make the order.

1. Get advice the same day. Recovery applications are usually filed as urgent and can be heard quickly.
2. Gather what you know: last known address, vehicle, employer, school enrolment, phone numbers, flight bookings, social media activity.
3. Report it to police if you believe there is a risk to the child, and keep the report number.
4. Preserve messages. Do not delete the conversation in which the other parent said what they were going to do.

Overseas travel, the watchlist and the Hague Convention

Taking or sending a child outside Australia can be a criminal offence. Under sections 65Y and 65Z of the Family Law Act it is an offence, punishable by up to three years imprisonment, to take or send a child out of Australia where a parenting order is in force, or where parenting proceedings are pending, without the consent in writing of each person with the relevant order or the permission of the court.

Where there is a real risk of removal, an order can be made placing the child on the Family Law Watchlist maintained by the Australian Federal Police, so the child is stopped at any international departure point. A request form and a court order are required, and a child is generally added as soon as the application is made pending the order.

If a child has already been taken overseas, the Hague Convention on the Civil Aspects of International Child Abduction may allow an application for their return, but only to and from countries that are parties to the Convention and have been recognised by Australia. Applications go through the Commonwealth Attorney-General's Department as central authority. Speed matters enormously, both because of the Convention's one-year settlement provision and because tracing a child gets harder every week.