Relo­cat­ing chil­dren after divorce — When is it okay?

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 us see­ing more inter­na­tion­al fam­i­lies. With the increas­ing divorce rates, 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, a par­ent can­not leave Aus­tralia with the chil­dren with­out first obtain­ing the per­mis­sion of the oth­er par­ent or approach­ing the court for per­mis­sion to relocate.

In the event that a par­ent packs up and goes home with­out obtain­ing that per­mis­sion they can be brought back to Australia.
We always 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?

Do your home­work and think about it very care­ful­ly before speak­ing to your part­ner. 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.

The bet­ter pre­pared you are the greater like­li­hood that you will be able to agree. Be sure to have insight into how hard this might be for your partner.

If you can’t resolve it and still want to approach the court for per­mis­sion remem­ber the court is going to look at it from what’s in the chil­dren’s best inter­ests. 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.

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?

As the world shrinks this issue will be con­tin­ue to be on the rise for fam­i­ly lawyers.