Child Relocation 2023 Comparisons

In Australia, the primary source of law in relation to parental responsibility and children is legislation made by the federal government under the Constitution, principally the Family Law Act 1975. The right to make decisions concerning and affecting the care, welfare and development of a child is referred to as “parental responsibility”. It is defined as all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.

Both biological parents of a child who is under the age of 18 years automatically have joint parental responsibility for the care, welfare and development of their child, irrespective of whether they are married, separated or never lived together.

The Federal Circuit and Family Court of Australia (the “Court”) may make a parenting order to give a person parental responsibility for a child until that child turns 18 years of age. A parenting order does not take away or diminish any aspect of the parental responsibility of any person for the child except as expressly provided for in the order or necessary to give effect to the order.

As the law presently stands, when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child – that is, they will both have a role in making decisions about major long-term issues such as where a child goes to school or major health issues. If such an order is made, the parents must consult with one another when making major decisions about their children and make a genuine effort to come to a joint decision. The presumption relates solely to the allocation of parental responsibility for a child; it is not a presumption about the amount of time the child spends with each of the parents.

The Court is not required to apply the presumption if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or family violence.

If the Court does not consider it to be in the child’s best interests for their parents to have equal shared parental responsibility, sole parental responsibility can be conferred on one parent to the exclusion of the other. If a parent is conferred with sole parental responsibility, they are permitted to make all the major long-term decisions for their child including in relation to the child’s education, religious and cultural upbringing, health, name and living arrangements, without consulting the other parent. The Court can also order that one parent has sole parental responsibility for making decisions about specific things, for example medical decisions, and confer equal shared parental responsibility on both parents for all other major long-term decisions.

A birth/biological mother automatically has parental responsibility for a child when the child is born, except to the extent that this parental responsibility is displaced by a later parenting order which gives sole parental responsibility to another person.

A biological father automatically has parental responsibility for a child when the child is born, except to the extent that this parental responsibility is displaced by a later parenting order which gives sole parental responsibility to another person.

A non-genetic parent, such as a step-parent or same-sex partner of a biological parent, does not automatically have parental responsibility for a child when the child is born, or when they form a relationship with a child’s biological parent after the child is born.

For a non-genetic parent to obtain parental responsibility for a child, that parent would need to seek orders from the Court except if the woman was either married or living in a de facto relationship with the other intended parent at the time the artificial conception procedure occurred, and:

• the procedure was carried out with the consent of the woman and the other intended parent and the provider of genetic material consented to the material being used; or
• according to a prescribed law of Australia, its states or territories, the child is a child of the woman and the other intended parent,

then the child is a child of the woman and the other intended parent, regardless of whether the child is biologically their child, and:

• if a person other than the woman and the other intended parent provided genetic material, the child is not the child of the provider of genetic material.

A person is to be presumed to have consented to an artificial conception procedure being carried out unless it is proved, on the balance of probabilities, that the person did not consent.

If a child is born to a woman as a result of carrying out artificial conception procedures and if according to a prescribed law of Australia, its states or territories, the child is the child of either the woman or particular man, then the child is presumed to be the child of that woman or that man whether or not the child is their biological child.

A grandparent and any other person concerned with the care, welfare or development of the child, such as step-parents, can apply for a parenting order, including an order for parental responsibility.

Both biological parents of a child are deemed to have parental responsibility for the care, welfare and development of the child irrespective of whether they are married, separated or never actually lived together.

The law presumes that:

• a child born to a woman while she is married is a child of the woman and her spouse;
• a child born to a woman within 44 weeks after the death of her spouse or annulment of the marriage is a child of the woman and her late spouse or purported spouse;
• a child born to a woman within 44 weeks after the woman and her spouse finally separated, is a child of the woman and her spouse even if they had an earlier separation and one resumption of cohabitation for up to three months and are divorced;
• a child born to a woman between 20 weeks and 44 weeks after the woman cohabited with a man to whom she was not married, is a child of the man;
• if a person’s name is entered as a parent of a child on a legal register of births or parentage, that person is a parent of the child;
• where a prescribed court makes a finding that a person is a parent of the child;
• where a man has signed an instrument acknowledging he is a parent of a child; or
• a child conceived by a woman during a marriage using a sperm donor in an IVF procedure with the consent of the husband is a child of the husband and he automatically has parental responsibility for the child.

If the mother and her partner are not married, then the non-biological parent would have to prove that they were in a de facto relationship with the mother when the IVF procedure occurred, to establish that they are a legal parent of the child.

The process of obtaining parental responsibility is intended to be the same where the parents are in a same-sex relationship. Each parent has parental responsibility for the child unless the Court otherwise orders. The law does not favour a biological parent over a non-biological parent.

Where two children are born to different mothers in a same-sex relationship, both mothers are the parents of both children even if the children are not biologically connected.

A sperm donor can also be a parent of a child in some circumstances, such as where the father donated sperm to the birth mother, was registered as father on the child’s birth certificate and has spent regular time with the child who refers to him as “daddy”. A person may still be considered to be a parent of a child if they are a parent within the ordinary meaning of the word.

A child born under surrogacy arrangements will be the child of a person or persons who obtain an order from a prescribed court confirming they are the child’s parents, and they will have parental responsibility for the child. Western Australia is the only state in Australia which is yet to pass legislation to enable same-sex couples and single men to access surrogacy.

A parent or any other person concerned with the care, welfare or development of a child may apply for a parenting order, including an order for parental responsibility.

When an adoption order is made by a court in relation to a child, one or both of that child’s biological parents cease to be the child’s legal parent and the adoptive parent becomes one of the child’s legal parents.

The Court must give permission before proceedings for the adoption of a child can be commenced in a State court by the child’s parent and/or the spouse or de facto spouse of the parent. The Court should give permission to commence adoption proceedings if there is a real possibility that an adoption order would be made and to allow the adoption application to be made would be likely to promote the child’s welfare and be in the child’s best interests. When determining what is in a child’s best interests the Court must consider factors including, but not limited to:

• the benefit to the child of having a meaningful relationship with both of the child’s parents;
• the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;
• any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
• the nature of the relationship of the child with each of the child’s birth parents and other persons (including any grandparent or other relative of the child);
• the extent to which each of the child’s biological parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child and to spend time and communicate with the child;
• the extent to which each of the child’s biological parents has fulfilled, or failed to fulfil, their obligations to maintain the child;
• the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of their biological parents or any other child, or other person (including any grandparent or other relative of the child), with whom they had been living;
• the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
• the capacity of each of the child’s parents; and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs;
• the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and any other characteristics of the child that the court thinks are relevant;
• if the child is an Aboriginal child or a Torres Strait Islander child: the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture) and the likely impact of the proposed adoption order on that right;
• the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
• any family violence or family violence order involving the child or a member of the child’s family and the nature, circumstances, evidence, court findings and other matters relevant to the order;
• whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child; and
• any other fact or circumstance that the court thinks is relevant.

When the Court has granted permission for the adoption proceedings to be commenced, the adoptive parent may apply to their relevant State Court for an adoption order. When the adoption order is made:

• the child ceases to be a child of the marriage or the de facto relationship of the birth parents;
• any parental responsibility the biological parent may have had, whether joint responsibility or conferred by the Court, will end;
• all previous parenting orders in relation to the child will be automatically discharged;
• if the child’s adoptive parents are married, that child would then become a child of the marriage to the adoptive parents; and
• parental responsibility is permanently transferred to the adoptive parents.

Australia is a signatory to the Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption. It has intercountry adoption programmes with specific partner countries who are party to this Convention and has bilateral arrangements in place with other countries in relation to the adoption of children from overseas.

If one parent wishes to move a child of the family permanently out of the family home to a new country, that parent must have the consent of the other parent or permission by order of the Court.

A parent who already has a court order giving them sole parental responsibility for a child does not require the consent of the other parent to permanently relocate the child to a new country, unless the sole parental responsibility order specifically prevents a relocation.

If the parents have joint or equal shared parental responsibility for a child, and do not agree to the child relocating to a new country, the parent wishing to relocate would need to obtain an order from the Court giving them sole parental responsibility for the child and/or permitting them to permanently relocate the child overseas.

The same considerations apply if the proposed move is not to a new country but:

• to a nearby location; or
• to a location that is some distance away in the same state or to a different state,

within Australia.

However, the weight given by the Court to the relevant factors will be different depending on the distance and place of the proposed relocation, and the circumstances in that place (such as where it is remote, or there is a different language, education system or separation from family and friends). If the place of proposed relocation is nearby or to a different state, greater weight may be given to the practical difficulty and expense of the child spending time and communicating with the left-behind parent.

It is illegal for a parent to take or send a child out of Australia or retain a child outside Australia when:

• parenting proceedings have been commenced but not yet determined by the Court; or
• a parenting order is in force in relation to the child,

without the authenticated written consent of the other parent, unless the parenting order or a subsequent order gives the removing parent sole parental responsibility and/or permission to remove the child from Australia. It is a criminal offence, punishable by up to 3 years’ imprisonment. There are also criminal penalties in some circumstances imposed on the captain, owner or charterer of a vessel who removes a child from Australia.

Where parenting proceedings have been commenced but not yet determined by the Court or a parenting order has been made which does not permit a parent to remove the child from Australia or does not give that parent sole parental responsibility, either parent may place the child’s name on the airport watch list maintained by the Australian Federal Police, and a departing parent or party who attempts the unauthorised removal of a child from Australia is stopped at the airport and unable to leave.

The exception however is in circumstances where the person takes or sends the child outside of Australia because the person believes the conduct is necessary to prevent family violence and the conduct is reasonable in the circumstances as the person perceives them.

Where a child is taken or sent outside of Australia in accordance with the authenticated written consent of both parents or a Court order, it is an offence to retain the child overseas in any way other than permitted by the written consent or order. For example, it would be an offence to retain the child overseas longer than permitted or to take or send the child to a place other than those places permitted.

If a child has been removed from Australia or retained outside Australia by a parent without the relevant consent of the other parent or a court order for sole parental responsibility or permitting the parent to remove the child, the following steps can be taken to aid in the return of the child from the country to which it has been taken.

Under Australian Domestic Law

The left-behind parent may make an application to the Court for a parenting order including for sole parental responsibility and for the other parent to return the child to Australia. Whether that order can be enforced depends on whether the removing parent is still in Australia, or the removing parent and/or the child ever return to Australia (when they could be detained at the place of arrival or within Australia), and on the law in the country to which the child was removed or retained.

The relevant consideration and procedure for such an application is as set out above.

Under the Hague Convention

If the child has been wrongfully removed from Australia to a country which is a signatory to the Hague Convention or wrongfully retained in that country, without the consent of the other parent or court order permitting them to do so, the left-behind parent may make an application to the Central Authority in Australia or the Central Authority of the place to which the child was removed or retained, for the return of the child to Australia.

If the application is made within one year from the wrongful removal or retention, the Court must order the return of the child forthwith. If a period of more than one year has elapsed, the Court must also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.

The applicant must establish that:

• they are an eligible applicant (which may be the responsible Central Authority or a person such as a parent, institution or another body that has rights of custody in relation to the child for the purposes of the Convention);
• there is a relevant child who is under 16 years of age; and
• the child has been either wrongfully removed to or retained in another country which is a signatory to the Convention with Australia.

The removal is wrongful if the applicant can establish the following threshold issues:

• the child habitually resided in Australia before the removal or retention;
• the applicant had rights of custody under the law of Australia immediately prior to the removal or retention in the other country;
• the child’s removal or retention was in breach of those rights of custody; and
• those rights were actually being exercised at the time of the child’s removal or retention, or would have been exercised but for the removal or retention.       

Under the law in Australia for the purpose of the Hague Convention:

• each parent is regarded as having a right of custody unless that parent has no parental responsibility for the child because of a court order;
• a person with whom a child is to live or who has parental responsibility for a child under any parenting order has a right of custody, subject to any court order;
• a person who is responsible for the day-to-day care, welfare and development of a child has a right of custody, subject to any court order; and
• a person with whom a child is to spend time or with whom a child is to communicate under any court order is regarded as having a right of access.

The applicant in a Hague Convention case must establish that the child was habitually resident in Australia and wrongfully removed to, or retained in, a different contracting state. For that reason, determination of habitual residence is crucial.

A child can only have one habitual residence at any given time. If there is a dispute as to a child’s habitual residence, the Court will look to any shared intention between the child’s parents that the child live in a particular place with a sufficient degree of continuity to be properly described as settled. This differs from solely physical presence and intention and is more focused on what each parent intends for the child.

The Court has discretion not to order the return of a child for one or more of the following reasons.

• The applicant was not exercising their rights of custody of the child at the time of the removal or retention.
• The applicant consented to or subsequently acquiesced to the removal or retention of the child. There must be clear and unequivocal evidence of consent and/or evidence of circumstances which were wholly inconsistent with a request for the return of the child.
• There is clear and compelling evidence to suggest there would be a grave risk that returning the child would expose the child to physical or psychological harm, or otherwise place the child in an intolerable situation. The focus of risk is on the place of return (Australia), with a second category being a grave risk of harm in cases of serious abuse or neglect or extraordinary emotional dependence, coupled with the incapacity or unwillingness of the court in the country of habitual residence (Australia) to give the child adequate protection.
• The key requirements of the Convention have not been met.
• The child has been in the new country for more than 12 months and is settled there – the onus is on the party asserting that the child is settled to establish that fact.
• The child objects to being returned to its home country and is old enough and mature enough for its views to be considered. The child’s objection must be to being returned to the country from which it was removed, not the left-behind parent, and must go further than a mere expression of a preference. There is no rule requiring the child to be a certain age, however the older and more mature the child, the greater weight will be given to their views.
• Returning the child would breach their fundamental freedoms and human rights.

The Court may still order the return of the child even if one of the above grounds are made out.

Australia has been a signatory to the Hague Convention since 1986 having ratified its obligations through the Family Law (Child Abduction Convention) Regulations 1986. In respect of applications made in Australia for the return of a child to another country under the Hague Convention, the following applies.

Access to Free Legal Advice

Free legal advice can be made available to the parent of an abducted child by that parent making an application to the relevant Legal Aid body in their State. In New South Wales, Legal Aid is available for the following types of international abduction matters:

• to defend an application to the Court brought by the Australian Central Authority for the return of the child to another Convention country;
• for the return of a child who has been removed from a convention country to, or retained in, Australia;
• for access to a child who is living in Australia; and
• to make an application to the Court for a declaration that the removal of the child from Australia to a convention country, or the retention of a child in a convention country, is wrongful within the meaning of the Hague Convention.

Obtaining free legal advice in most cases is not difficult, provided the applicant satisfies the means, merit and forum tests.

The parent of a child who has been abducted can also contact the Attorney-General’s Department and apply for a financial grant to cover:

• the overseas legal costs of obtaining a court order for the return of a child to Australia;
• flights for the return of a child to Australia; and
• flights for people who are required to attend overseas legal proceedings or to escort a child back to Australia.

The Attorney-General’s Department cannot cover costs for access or visitation with a child or any Australian legal costs. Eligibility for a grant is limited to people whose child has either been removed from or retained outside of Australia by another person without their consent. Funding will not usually be granted to persons who can meet the cost without incurring serious financial difficulty, do not have reasonable prospects of having the child returned to Australia, or are eligible for legal assistance in the overseas country.

The Number of Hague Convention Cases

The Annual Report issued by the Attorney General’s Department Annual Report for 2010/2021 indicates the Department dealt with 177 international family law matters, being:

• 108 applications under the Hague Convention seeking the return of children who have been abducted to or from Australia (compared to 116 in 2019–20); and
• 25 applications under the Hague Convention seeking access to children overseas (compared to 17 in 2019–20).

Application of the Hague Convention

The Court in Australia rigorously applies the underlying principle of the Hague Convention of the immediate return of the child to its country of habitual residence – it considers all the evidence but is not more sympathetic to the defences to the Convention. The proceedings are expedited to ensure the prompt return of the child.

Procedure and Principles – Return to a Non-Convention Country

If a child is in Australia and a parent seeks an order for the return of the child to a non-Hague Convention country, the parent seeking the return of the child would commence proceedings in the Court in the manner outlined in 2.3 Application to a State Authority for Permission to Relocate a Child, seeking urgent orders or a fast-track hearing. The Court would consider the best interests of the child, to determine the future care arrangements and place of residence of the child. The Court may request the Australian Federal Police to facilitate the return of the child. There may be barriers to the enforcement of an Australian parenting order in the country from or to which the child was removed.

The Court may take into account the policy behind the Hague Convention in coming to a decision on whether to order the return of the child to a non-Hague Convention country, it is not bound by the principles governing the Hague Convention. The fact that a parent has wrongfully removed a child to Australia or wrongfully retained a child in Australia is relevant only insofar as this has some bearing upon the best interests of the child.

If Australia and the non-Hague Convention country are both signatories to the Hague Child Protection Convention as outlined below, the Court could make urgent orders and the orders could be registered in the country of habitual residence.

Hague Child Protection Convention

Australia is also a signatory to the Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children signed at The Hague on 19 October 1996 (Child Protection Convention), which came into force in Australia on 1 August 2003. The Secretary of the Attorney General’s Department of Australia is the designated Australian Central Authority under the Child Protection Convention and the Convention “provides for international co-operation between convention countries to recognise protective measures for children. In some circumstances, this includes recognition and enforcement of protection measures (such as court orders) made in one convention country in other convention countries”. If the order is registered by the Court, it has the same effect in Australia as if it were an Australian court order. Once the order is registered, a parent or other interested person may take legal proceedings in Australia to enforce the order. In some circumstances, the other parent may seek to vary the order or cancel the registration of the order. The Court in Australia would recognise the jurisdiction of habitual residence of the child and decline to assume jurisdiction and make orders other than for the return of the child.

It may be possible and appropriate to utilise the provisions of the Child Protection Convention in cases involving the abduction of a child where:

• both countries are parties to the Child Protection Convention, but one country is not a signatory to the Hague Convention; or
• where both countries are parties to both Conventions, but it is alleged that there is a risk to the child if the child were to be returned.

Under the Child Protection Convention, the Court could make urgent orders and the orders could be registered in the country of habitual residence. When registered, the orders would provide protection for the child under the law of the country of habitual residence.

Where both relevant States are parties to both the Child Protection Convention and the Hague Convention, there can be an election either to register and enforce the order which has been contravened by the wrongful removal or retention or, in the alternative, to make an application for return under the Hague Convention. The choice may be determined by jurisdictional factors, the rapidity with which the application will come before the Court or, alternatively, by the costs involved in bringing proceedings through the Central Authority or otherwise.

If the application under the Hague Convention for return of the child is refused, a party is not prevented from making an application under the Child Protection Convention for registration and enforcement of the parenting order of the other country which it is alleged had been contravened.

Australia has bilateral agreements on child welfare with Egypt and Lebanon which establish a framework between the governments of Australia and Egypt and Australia and Lebanon to assist parents of either country to resolve disputes across international borders concerning their children. Since November 1991, New Zealand and Australian authorities have worked together to help children who are the subject of protection orders, whether they are living in New Zealand or Australia, under a protocol for the Transfer of Child Protection Orders and Proceedings and Assistance.

Australia is a signatory to the Hague Convention.