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28 July 2017 Relocating children overseas after divorce

By Monique Robb, Senior Associate


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.

Monique Robb, Senior Associate  |  Phone: +61 2 9233 5544  |  Email: mcr@swaab.com.au

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This article is not legal advice and the views and comments are of a general nature only. This article is not to be relied upon in substitution for detailed legal advice.

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