When Family Support or Opportunity is Overseas

Australia is often called a nation of immigrants – and for good reason.  According to the Australian Bureau of Statistics, for the year ending 30 June 2020, there were over 7.6 million immigrants living in Australia with 29.8% of the country’s population born overseas. 

What this means is that when parents separate, the extended family (and thus support) can often reside overseas. Sometimes, this can be an issue of such magnitude for one parent that they want to relocate overseas with the child or children where there is more family support.

Relocation can also arise as an issue when one parent has a job opportunity overseas (or a significant distance from their current residence), wants to move with the children and the other parent opposes the relocation.    

Relocation is one of the more challenging and complex aspects of family law. 

Under Australian law, if a parent wants to leave Australia to live in another country with the children, they can only do so with the other parent’s consent.  If the other parent doesn’t consent to the relocation, an Order of the Court is required before someone can leave Australia with their child or children.

In the event that a parent leaves Australia with the children without a court order or without permission from the other parent, it is possible that they will be legally compelled to return (depending on which country they relocated to) until an outcome has been determined.    

Court proceedings can be stressful and costly for all parties, which is why we encourage clients to try all avenues of negotiation and mediation first .  In our extensive experience as family lawyers in Perth, we have seen many instances where separated or divorced parents have been able to reach a satisfactory agreement through informed discussion and engagement in a dispute resolution process.

If you are considering a move that could impact on the children’s time and/or relationship with the other parent,  you should consider obtaining family law advice before doing or saying anything to the other parent. Your lawyer will ask you such things as where your support networks are, where any meaningful job prospects are, education choices for the children, accommodation options, practical implementation of how the other parent will spend time with the children, and whether there is a possibility of the other parent also relocating.

Even if the relationship between couples has irretrievably broken down and the parties harbour strong negative emotions towards one another, they are still parents of the children and need to put their best interests first.

It can be valuable for parents to take a step back from the emotion of the situation and do a ‘reality check’ to ensure they are making common-sense decisions that are motivated by what is ultimately good for the child or children.  Even though one parent may be completely opposed to the prospect of a relocation, it may be possible to come to a mutually agreeable decision with the assistance of a mediator.

If you do reach an agreement or a compromise with the other parent, then you should apply to the Family Court for a Consent Order before you relocate.  Any agreement reached through dispute resolution should be formalised, ideally via a Court Order by consent.

If parents can’t agree about relocation, then one parent can apply to the Family Court for an order to allow them to move with the children.

The court process can take a considerable amount of time before a final Hearing (Trial) is held and there are many opportunities to settle during the proceedings. It can sometimes take between 12 months and 2 years before a Trial is held.    

It is also very important to note that Australian Family Law has the rights of the child as its abiding principle.  Any decision that the court makes about relocating will be made with the child’s best interests at heart.  That means that no matter how much a parent wants (or opposes) relocation, the court will always consider the child’s best interests first.

The legal principle is that each parent has Equal Shared Parental Responsibility (ESPR) irrespective of whether they are married or not married, living together or separated and whether or not they’ve been involved in the child’s upbringing.  Even if one of the parents is living interstate or overseas, the need to consult and make joint decisions for children continues unless the Family Court orders otherwise.

A family breakdown can be difficult for children to process and adjust to, and there are major psychological factors to consider. 

If you have made a decision that you want to relocate with the children and the other parent is still in opposition – and if you have tried unsuccessfully to reach agreement through dispute resolution – you can ask the court to make a decision for you both. 

At West Family Lawyers in Perth, we are committed to managing every family dispute with due respect, care and understanding for all parties and our aim is to keep matters out of court wherever possible. 

We have extensive knowledge and experience in dealing with parenting matters across a wide spectrum of scenarios and we can assist when you can’t agree on parenting issues such as relocation.  It should be noted that this article contains general information only and should not be construed as legal advice. 

You can find answers to commonly asked questions regarding family law on our FAQ page, or book an obligation-free appointment with one of our skilled and knowledgeable family lawyers.

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