Moving within Australia
The court’s first advice to a parent the child mainly lives with is to try to talk to the other parent before moving.
A move usually means the existing arrangements stop working. The court’s example is travel time that makes school-week visits impractical for a school-aged child, or even visits during the whole school term. It says parents often agree on a move on the basis that the child spends a lot of time with the other parent in school holidays, and that sometimes the other parent decides to move as well.
If you agree
The court says parents who agree on a relocation and the new arrangements should formalise the agreement, as a parenting plan or consent orders. See parenting plans and parenting orders.
If you cannot agree
Either parent can ask the court for parenting orders: one allowing a parent to move with the child, or one stopping the other parent from moving the child’s home outside a set area. The court gives the example of an order that the child live no further than 30 kilometres from their current school.
Moving first and asking later
Moving a child without the other party’s consent or a court order is what the court calls “unilateral relocation”. A court may require the parent to return with the child until the case is decided. If a court order is in place and the move means it cannot be followed, the order is breached, which the court says can have serious consequences, including imprisonment in extreme cases.
Where final orders already exist, a court will look again at them only if there has been a significant change in circumstances and reconsidering them is in the child’s best interests. In deciding a relocation, the court considers the child’s best interests and welfare, set out in what the court must consider.
Taking a child overseas
Taking or sending a child out of Australia is a criminal offence once a court has made a parenting order about that child, or once anyone has applied for one, unless every other party has given “authenticated written consent” or a court order specifically allows it. Keeping a child overseas beyond what the consent or order permits is also an offence. The penalty for each is imprisonment for three years.
Authenticated written consent has a precise meaning. The court lists three parts:
- the consent is written down in a document
- the person giving consent has signed it
- a person authorised to witness statutory declarations has checked the identity of the person giving consent and watched them sign.
A holiday overseas
The court suggests telling the other parent, or other party, as soon as possible, with full details of where you want to go, and confirming you would give a full itinerary, such as flight numbers and contact numbers for hotels or relatives. Importantly, it says, ask whether they agree.
If the parents agree, they can arrange authenticated written consent, apply for a passport together, or jointly ask the court for consent orders about travel and passports. If they cannot agree, either can ask the court for orders allowing or preventing travel.
If you fear a child will be taken overseas
The Attorney-General’s Department says it is extremely important to act quickly.
Keep documents together
The department suggests having the child’s official documents, including any passport, recent photos of the child and the other parent, and contact details of family and friends overseas where the child might be taken.
The Family Law Watchlist
The court can order that a child not be removed from Australia, and ask the Australian Federal Police to put the child’s name on the Family Law Watchlist. The department recommends legal advice about orders that allow the child’s name to be placed on it.
A Child Alert Request
A parent, or a person with parental responsibility, can lodge a Child Alert Request on the Australian Passport Office website, warning that there may be circumstances to consider before an Australian passport is issued. It will not stop a child travelling who already holds a passport. A court can also make a child alert order, or order whoever holds the child’s passport to hand it to the court.
Out of hours
If there is a risk that a child could be taken overseas before the next business day, the court runs an out-of-hours emergency service: ring 1300 352 000 and you will be put through to the emergency number.
For a child’s Australian passport, the court says applications with written consent from everyone with parental responsibility can be lodged at an authorised Australia Post office or a passport office; without that consent, a parent can ask the Department of Foreign Affairs and Trade to consider issuing it because of special circumstances. The details are on the Australian Passport Office website.
If a child has been taken from Australia
The department’s first step is to report the matter to your local police straight away if you are concerned about the child’s welfare and safety.
If the child is in Egypt or Lebanon, or in a country where Australia has the Hague Convention on the Civil Aspects of International Child Abduction in force, the Australian Central Authority, part of the department, may be able to help with an application for the child’s return. It can be reached on 1800 100 480, or +61 2 6141 3100 from outside Australia. In other countries, limited consular help may be available from the Department of Foreign Affairs and Trade.
The department also warns parents thinking of taking a child overseas without the other parent’s agreement that doing so may be a criminal offence punishable by up to 3 years in prison, and suggests legal advice about relocation orders instead.
Next guide Help for parents in Queensland