Child Relocation 2024 Comparisons

The Constitution in Australia confers power on the Commonwealth (“Federal Government”) to make laws with respect to parental responsibility, primarily through the Family Law Act 1975 (Cth) (“Family Law Act”).

Parental responsibility is a parent's authority to make decisions in relation to major long-term issues affecting the care, welfare and development of a child. It is defined under Section 61B of the Family Law Act as “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”.

Major long term-issues are defined under Section 4(1) of the Family Law Act as being issues relating to the “care, welfare and development of a child of a long term nature”, which can include the child's education, religious and cultural upbringing, health and name, and changes to living arrangements that make it significantly more difficult for the child to spend time with a parent.

When a child is born, each birth parent ordinarily has joint parental responsibility for the care, welfare and development of the child until the child is 18 years of age. This responsibility continues irrespective of any changes in the nature of the relationships of the child's parents (such as the child's parents becoming separated or by either parent marrying or remarrying).

However, the Federal Circuit and Family Court of Australia (the “Court”) has the power to make a parenting order allocating parental responsibility for a child until the child is 18 years of age. A parenting order does not expressly diminish any aspect of the parental responsibility, except to the extent it is expressly provided for in the order or necessary to give effect to the order.

As of 6 May 2024, the law with respect to making parenting orders in relation to a child in Australia has changed significantly (the “amendments”). Prior to the amendments, the Court was required to apply a presumption that it was in the child's best interests for the parents to have equal shared parental responsibility for the child – that is, both parents are required to agree on major long-term issues for the child.

The amendments sought to remove the requirement for the Court to consider making an order that the child spent equal or substantial and significant time with each parent if an order for equal shared parental responsibility was made. This was because the requirements were often incorrectly interpreted as being a right by a parent to have equal time with a child. The amendments also removed references to equal shared parental responsibility, and instead refer to joint decision-making or sole decision-making.

The new amendments now provide that any allocation of responsibility for major long-term issues is based on what is in the child's best interests. When determining the best interests of the child, the Court will consider the following six factors of equal weighting:

• what arrangements would promote the safety of the child (including safety from family violence, abuse, neglect or other harm) and of each person who has care of the child (whether or not a person has parental responsibility for the child);
• any views expressed by the child;
• the developmental, psychological, emotional and cultural needs of the child;
• the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
• the benefit to the child of being able to have a relationship with the child’s parents and other people who are significant to the child, where it is safe to do so; and
• anything else that is relevant to the particular circumstances of the child.

Pursuant to Section 61DAA, if the Court makes a parenting order that provides for joint decision-making about any issue, parents are required to consult each other in relation to each major long-term decision and make a genuine effort to come to a joint decision.

Despite a parenting order allocating joint parental responsibility for a child, there is no requirement for a parent to consult on issues that are not major long-term issues whilst the child is in their care.

If the Court does not consider it to be in the child's best interests for the parents to have joint decision-making in relation to all major long-term issues, the Court may confer sole decision‑making in relation to parental responsibility on one parent to the exclusion of the other. If one parent is conferred with sole decision-making, they are permitted to make all the major long-term decisions for the child without consulting the other parent.

The Court can also order that one parent has sole decision-making in relation to specified issues but confer joint decision‑making in relation to all other major long‑term issues.

In the absence of court orders, parents automatically have parental responsibility for a child and are encouraged to consult with each other about major long-term issues if it is safe to do so. This provision is not enforceable, but merely acts as a guide to litigants in the absence of court orders.

A birth mother inherently retains parental responsibility for a child when the child is born. The only exception would occur in circumstances where the Court allocates sole decision-making to another person.

A birth father inherently retains parental responsibility for a child when the child is born, except in the following circumstances:

• the Court allocates sole decision-making to another person; or
• the birth father has donated sperm for the child's conception through an artificial conception procedure and is not married to or in a de facto relationship with the birth mother at the time of conception.

A non-genetic parent may include a step-parent or adopted parent of a child. Non-genetic parents do not automatically have parental responsibility for a child, but must obtain a parenting order from the Court, including an order for either sole or joint decision-making responsibility. If a child is adopted, an adoption order from the Supreme Court of the relevant State in Australia will be made, which will then permanently confer all legal responsibilities for the child on the adopted parents, including parental responsibility.

If the non-genetic parent is classified as the “other intended parent” for the purposes of Section 60H(1) of the Family Law Act, the non-genetic parent will also automatically have parental responsibility for the child upon the child's birth.

A non-genetic parent will be classified as the “other intended parent” if they were:

• married or the de facto partner to the birth mother at the time the artificial conception procedure occurred; and
• the birth mother and the other intended parent consented to the procedure being carried out, and any other person who provided genetic material consented to the use of the material in the artificial conception procedure; or
• under a prescribed law of the Commonwealth or the State, the child was a child of the birth mother and the other intended parent.

If a person other than the birth mother and the other intended parent (such as a sperm or egg donor) provides genetic material, the child is not the child of the provider of the genetic material.

Grandparents or any other person who is concerned about the care, welfare or development of a child can also apply for a parenting order that confers either joint decision-making or sole decision-making on that person.

If the Court is considering making a parenting order (which includes the allocation of parental responsibility) by consent in favour of a non-parent who is not a parent, grandparent or relative of the child, the Court must not make the order until the parties have attended a conference with a family consultant or until the Court is satisfied that there are circumstances that make it appropriate for the proposed order to be made without attending with a family consultant.

A child's biological parents automatically have parental responsibility for the child after the child has been born. The relationship of the biological parents, including whether they are married, separated or have never been in a relationship, is not relevant to the conferral of parental responsibility following the birth of a child.

Marriage and de facto relationships are relevant at the point of conception in relation to artificial conception procedures (as outlined in 1.4 Requirements for Non-genetic Parents) and in relation to presumptions of parentage that the Court may apply in determining who is a child's parent in the absence of direct evidence. For example:

• a child born to a woman while she is married is presumed to be a child of the woman and her husband; and
• 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 presumed to be a child of said man.

Please see 1.4 Requirements for Non-genetic Parents regarding the process of obtaining parental responsibility for parents in a same-sex relationship. Provided those requirements are met, the process of obtaining parental responsibility is intended to be the same as for parents in a heterosexual relationship.

Once parental responsibility has been conferred at birth, each parent has parental responsibility, unless the Court makes other orders. No preference is given to a biological parent under the Family Law Act, mainly because the Court considers the child’s best interests as a paramount consideration rather than the circumstances of the child’s conception or the gender of the child’s parents.

A provider of genetic material, such as a sperm donor, who has given consent to the use of their genetic material has no automatic parental responsibility for a child born as a result of an artificial conception procedure.

However, a sperm donor may still apply to the Court for parenting orders, including declarations as to parentage, if the donor is actively involved in the child's life, fulfils the roles and responsibilities of a parent, and is perceived by the child as a parent or “dad”. It is unlikely, however, that a sperm donor could be included on a child's birth certificate if the birth mother and the other intended parent were already named. This is because birth certificates in Australia are currently restricted to recording only two parents.

A same-sex couple using a surrogate to conceive a child are required to apply to a prescribed Court for the purpose of transferring legal parentage from the surrogate mother and her spouse (if any) to the intended parents. Once the order is made, the intended parents will be regarded as the legal parents of the child and will assume parental responsibility. All states in Australia, with the exception of Western Australia, permit access to surrogacy for same-sex couples and single men. The Western Australian government, however, is expected to introduce a law reform to ensure equal access to surrogacy.

Adoptive parents (excluding step-parents or de facto step-parents) are required to make an application directly to the Supreme Court of the relevant State in Australia seeking an order for adoption (adoption order).

However, if a step-parent or de facto spouse of a parent seeks to adopt a child, an application must first be brought in the Court, seeking permission to commence adoption proceedings in the State Court. In determining whether to grant this permission, the Court must assess whether there is a real possibility that an adoption order will be made by the State Court, and consider whether granting permission would be in the child's best interests by considering the following factors:

• what arrangements would promote the safety of the child (including safety from family violence, abuse, neglect or other harm) and of each person who has care of the child (whether or not a person has parental responsibility for the child);
• any views expressed by the child;
• the developmental, psychological, emotional and cultural needs of the child;
• the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
• the benefit to the child of being able to have a relationship with the child’s parents and other people who are significant to the child, where it is safe to do so; and
• anything else that is relevant to the particular circumstances of the child.

If the Court is satisfied that permission should be given, an application can then be made by the potential adoptive parent to the relevant Supreme Court.

In direct applications to the Supreme Court, and applications to the Supreme Court with leave from the Federal Circuit and Family Court of Australia, once an adoption order is made, legal parentage of the child is transferred from the birth parents to the adoptive parents. The child's birth certificate is also changed to reflect the names of the adopted parents.

In relation to intercountry adoptions, Australia has signed the Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption dated 29 May 1993. This means that intercountry adoptions are facilitated through Australian adoption programmes and support agencies that liaise with specific countries that are also parties to this Convention. Australia will also facilitate intercountry adoptions if there are bilateral agreements in force.

If there is a court order allocating sole decision-making responsibility for the child to one parent, that parent does not need consent from the other parent to permanently relocate the child to a new country, unless the sole decision-making order excludes relocation decisions.

If both parents have parental responsibility, and one parent wishes to move a child to a new country, that parent must first obtain the consent of the other parent or a court order permitting the relocation. There may be exceptional circumstances where consent or a court order are not required in the first instance, including where there is a grave risk of physical or psychological harm to the child in remaining in that country.

A change to a child's living arrangements, such as an overseas relocation, that makes it significantly more difficult for a parent to spend time with the child is considered a major long-term issue.

Therefore, if a parent who holds joint parental responsibility for a child does not consent to the child relocating to another country, the parent seeking to relocate the child's residence would need to make an application to the Court seeking permission to relocate the child overseas.

If the child was relocated to another country without such an Order, an application could be brought for the return of the child to Australia under the Hague Convention on the Civil Aspects of International Child Abduction 1980 (the “Hague Convention”).

The same considerations apply if the proposed relocation is within the same jurisdiction. However, the Court may apply different weight to different considerations depending on the location of the proposed relocation and the distance between the child and the left-behind parent.

It is also open to the Court to consider, as an option, the left-behind parent relocating to a location closer to the child if the child is permitted to relocate. Whilst this option is available to the Court to consider in international relocation applications, it is potentially a much more practicable proposal depending on the proximity of the proposed relocation. Consideration of this option would require the Court to give the parties notice of such an option being considered by the Court, and an opportunity to respond to it.

If a parent who holds parental responsibility for a child does not consent to the child's removal from Australia, it is an offence to remove that child from Australia if parenting proceedings have been initiated (and not determined), or if parenting orders have been made in relation to the child (unless those orders include specific travel provisions).

Failure to obtain written consent could result in a criminal conviction for the wrongful removal of a child from Australia. In such circumstances, there is a penalty of up to three years' imprisonment in Australia if a child is removed from Australia. In certain circumstances, there may also be criminal ramifications for owners or captains of vessels removing a child from Australia. It is also a criminal offence to retain a child outside of Australia for longer than consented to by the other parent or ordered by the Court.

An exception exists where a person removes a child from Australia (or retains a child outside of Australia) to prevent family violence and the conduct is reasonable in the circumstances as perceived by the person who removed the child.

The following steps can be taken if a child has been removed from Australia or retained in another country outside of Australia without a parent's consent.

• The left-behind parent can seek an order from the Court for sole decision-making in relation to the child, and for the child to be returned to Australia. Such an order would only assist if the child was to return to Australia, or if the country to which the child was taken would enforce the Australian court order through some type of registration process. It is unlikely that an Australian court order would be enforced by an overseas jurisdiction.
• An application can be made under the Hague Convention.

The Hague Convention is an agreement to protect children from international abduction and arrange the prompt return of children who are wrongfully removed from their home country. Australia is a party to the Hague Convention and has ratified its obligations under the Convention through the Family Law (Child Abduction Convention) Regulations 1986 (Cth).

If a child has been removed from Australia to another country that is a party to the Hague Convention (without consent or a Court order permitting the removal), the following steps can be taken to return the child to Australia.

• An application for the return of the child to Australia can be made by the Central Authority in Australia to the Central Authority of the Hague Convention country where the child has been taken.
• The applicant must establish that:
1. they are an eligible applicant (if a child is wrongly removed from Australia or retained in a Convention country, only the responsible authority may apply);
2. there is a relevant child under the age of 16 years; and
3. the child has been either wrongly removed or retained in a country that is a party to the Hague Convention.

The Court in the jurisdiction where the child has been removed to and/or retained is required to order the return of a child to Australia if:

• an application is made for a child to be returned;
• the application is filed within one year of the child being removed from or retained in another country; and
• the court is satisfied that the child's removal or retention was wrongful.

The Court considers the following criteria in determining whether the child's removal or retention was wrongful:

• the child is under 16 years;
• immediately prior to their removal, the child was habitually resident in the country from which they were removed;
• immediately prior to the removal or retention, the parent seeking the return of their child had rights of custody in relation to that child;
• the wrongful removal or retention of the child breached that parent’s rights of custody; and
• at the time of the removal or retention, the parent seeking the return of their child was exercising those rights of custody or would have exercised those rights had the child not been removed or retained.

If the Court is satisfied all of the above criteria are met, it is required to order the return of the child.

If the parent who has taken the child can satisfy the Court that they meet one of the following exceptions, then the Court may determine that, whilst the above criteria are met, the child does not have to return to the country they came from.

• If the child were returned, there would be a grave risk that the child would be exposed to physical or psychological harm or be placed in an intolerable situation.
• The parent seeking the return consented to the removal or retention, or subsequently acquiesced to the removal or retention.
• The child objects to returning to the previous country and the Court considers it appropriate to take into account those views due to the child's age and level of maturity.
• The parent seeking the return:
1. was not actually exercising rights of custody when the child was removed or retained; and
2. those rights of custody would not have been exercised by that parent if the child had remained in the country.
• It would otherwise not be permitted by the principles of fundamental freedoms or for the protection of human rights.

If a return order is made, this is not determinative of where the child will continue to live for the foreseeable future. The purpose of the Hague Convention is to return a child who has been wrongfully removed or retained to the country where it is most appropriate for their family law parenting matters to be determined.

Australia is a signatory to the Hague Convention and has ratified its obligations under the Convention through the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“Family Law Regulations”).

Access to Free Legal Advice

Free legal advice in relation to the abduction of a child is available by contacting the International Social Service (ISS) Australia. ISS is a not-for-profit charity that provides a range of free legal services to those affected by international child abduction. The relevant services include:

• free legal assistance with the preparation and submission of a return application or access to a child under the Hague Convention;
• free legal advice to overseas applicant parents during mediation;
• advising and representing parents whose return application has been filed in court in Australia in any mediation regarding that application; and
• counselling and social support services, including advice, information and referral to other services.

Legal aid is also available in each state or territory to provide free advice in relation to international abduction matters, including assisting with applications brought for the return of the child to another Convention country, provided the parent meets the relevant means, merit and forum tests.

The Central Authority in Australia can also provide limited advice without cost. However, while the interests of a parent of an abducted child and the Central Authority are often the same, the Central Authority does not act on the instructions of the parent and can provide only limited advice to that parent.

The Central Authority can also provide financial assistance. Applications can be made to cover the overseas legal costs of obtaining a court order for the return of a child and flights to return a child to Australia (as well as flights for those who are required to attend proceedings overseas). These grants do not cover the costs to access a child, nor any Australian legal costs. Eligibility requirements mean funding will generally be limited to those experiencing financial difficulties, who have reasonable prospects of the child being returned, and who are not otherwise eligible for legal assistance.

As of 1 January 2024, the International Child Abduction Respondents Scheme (ICARS) may also provide funding to a parent who is responding to an application seeking the return of an abducted child made in an Australian court. The parent must be named as the respondent and is subject to certain eligibility requirements. Funding covers the reasonable costs of an Australian lawyer as well as disbursements, including the costs associated with obtaining an expert report or any court fees that may be incurred.

The Number of Hague Convention Cases

The Attorney General's Department Annual Report for 2022/2023 indicates that the Department dealt with 159 international family law matters (compared to 101 in 2021/2022). The outcome of these matters is not recorded.

Application of the Hague Convention

Australia rigorously applies the underlying principle of the Hague Convention for the immediate return of the child to its habitual residence. However, in doing so, the Court does carefully consider and balance the totality of the evidence, including in relation to any defences to the Convention.

Australia is bound to give effect to the Hague Convention insofar as it has been endorsed by the Regulations, limiting, to some extent, judicial discretion. This is reflected under the Regulations, which provide that the Court is also required to expedite the determination of any Hague Application, ensuring the immediate return of the child. Accordingly, matters involving the Hague Convention are expedited by the Court.

Returning a Child to a Non-Convention Country

If the child is in Australia and a parent seeks an order for a child to be returned to a non-Hague Convention country, the parent seeking the return of the child would need to file an application in the Court following the principles set out in 2.3 Application to a State Authority for Permission to Relocate a Child. In making such an application, the parent could seek that the application be dealt with urgently.

Although not bound by the principles of the Hague Convention, the Court must always consider the best interests of the child, and may consider the policy behind the Hague Convention in reaching a decision. Evidence of a foreign parenting order conferring parental responsibility on the parent seeking return of the child may be given weight, particularly where it is a recent order, as may evidence of communication between the parties prior to, and after, the removal of the child. Other relevant evidence includes:

• source documents from the non-Hague Convention country (including school reports and medical records); and
• expert evidence of the laws in the non-Hague Convention country, in respect of family and criminal law.

If the Court makes an order to return a child to a non-Hague Convention country, the Court may request the Australian Federal Police to assist with the return of the child.

There may be difficulty enforcing any Australian parenting order in the non-Hague Convention country unless said country is a signatory to the Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children (the “Hague Child Protection Convention”), which requires member states to recognise and enforce parenting orders made in other member states. Australia ratified the treaty in 2003 and implemented it through the 2003 Child Protection Convention Regulations.

If a parent with orders made in a Convention country intends to travel to Australia and wants those orders to be binding in Australia, they can provide the order to the Central Authority in their home jurisdiction, which will then transmit it to the Australian Central Authority. The Australian Central Authority will then arrange for the order to be issued by the Family Court of Australia as a foreign-registered measure. Once the overseas orders are registered, they will be enforceable in Australia.

Similarly, the Child Protection Convention may assist in circumstances where both countries are signatories to the Child Protection Convention but one country is not a party to the Hague Convention. In such circumstances, orders made in Australia could be registered in the non-Hague Convention country. Once registered, the order may be enforceable in that country.

Costs and Average Timescale for Hague Applications

An application under the Hague Convention is typically made by the Central Authority on behalf of the left-behind parent. Such application is without legal cost to the left-behind parent, who may also seek funding from the ISS to assist with an application.

In contrast, there are several grants available to a parent responding to or defending an application under the Hague Convention in Australia. Grants include legal aid in the relevant state, ICARS and the ISS. See Access to Free Legal Advice, above, for more information.

Time

A Hague Application may be conducted on the papers, meaning the Court can make orders without any oral submissions or cross-examination. While the Court is required to expedite the determination of a Hague Application, an application on the papers is more efficient. Other variables influencing timescale include:

• whether the location of the child is known;
• whether the application is heard on an ex parte basis;
• the conduct of the respondent; and
• the number of defences and types of disputes raised.

This is not applicable, as Australia is a Hague Convention country.