Relocating Your Child Without The Other Parent's Consent

Relocating with a child in Australia 

Under the Family Law Act there is a presumption of equal shared parental responsibility. This means that regardless of the relationship status of the parents, all major life decisions relating to the child or children of the relationship must be made jointly (unless parental responsibility has been removed by a court). This includes major decisions such as where the child or children of the relationship should live.

Unfortunately too often we see parents relocate with their children without first obtaining the consent of the other parent. If your former partner has relocated with your child section 67Q of the Family Law Act 1975 (Cth) provides the court with the authority to make a Recovery Order.

A Recovery Order is an order of the court that requires the child to be returned to either:

• a parent of that child;
• a person who the court has ordered the child to live with, spend time with or communicate with; or
• a person who has parental responsibility for that child.

When executed, a recovery order can permit or direct that appropriate action be taken (often by the Australian Federal Police) to find, recover and deliver the child to one of the people mentioned above.

You can make an application for a recovery order if :

• You have been awarded parental responsibility of the child by a court; or
• A court has ordered that the child lives with, spends time with or communicates with you; or
• You are a grandparent of the child; or
• You are the person that the child ordinarily resides with and you are concerned with the care, welfare and development of the child and that child has been relocated without your consent.

If your child has been relocated and you are unable to determine the whereabouts of that child, you can request that the court make either a Location Order or a Commonwealth Information Order.

A Location Order requires a person or persons to provide the court with information that will lead to the location of the child. A Commonwealth Information Order requires Commonwealth agencies such as the Child Support Agency, the Australia Taxation Office or the Department of Human Services to provide the court with information relevant to the child’s location contained in public records.

Once the child’s location is known, either one of the two orders will be made:

1. An order that the child be returned at a specified time and place; or
2. If circumstances permit, an order authorising the Australian Federal Police (AFP) to find, recover and deliver the child.

In the event that a child is unilaterally relocated outside of the Commonwealth of Australia, the process for seeking the child’s return is far more complex.

Australia is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction. This means that if one parent takes a child from their home country without the permission of the other parent or the court, provided the country that the child has been taken to is a signatory to the convention, there is a lawful procedure for seeking the return of that child.

If you have concerns that your former partner may try and remove your child from the Commonwealth of Australia we urge you to seek legal advice without delay. A solicitor can help you make an urgent application to the court that will place the child on the Family Law Watchlist to prevent their removal.