Child Relocation 2026 Comparisons

The General Rule

Under Australian law, each parent of a child has parental responsibility for the child, unless a state or federal court has made an order altering the common law position. This is so regardless of whether the parents have separated, re-partnered or remarried.

Each state and territory has separate laws about the status of children, which helps determine who is a parent of a child. In some situations, an application can also be made for a declaration of parentage under the federal Family Law Act 1975.

Altering Parental Responsibility for Children

The courts in each state or territory have jurisdiction to make orders about children under:

• the relevant child protection legislation in each state or territory;
• the relevant adoption legislation in each state or territory;
• the relevant surrogacy legislation in each state or territory;
• the parens patriae (or inherent jurisdiction) in the relevant court in each state or territory; and
• the relevant status of children legislation in each state or territory.

The federal government (through the Constitution) has the power to make laws with respect to marriage and the children of a marriage. In 1987, each state and territory referred the power to make laws with respect to children born outside of a marriage to the Commonwealth (federal government), meaning that the Family Law Act 1975 (Cth) governs all private family law disputes about children who are habitually resident or present in Australia. The exception to this is where an order has been made regarding parental responsibility for a child under a state or territory child welfare law, and the relevant child protection authority has not consented to a parent or other person commencing or continuing proceedings under the Family Law Act.

In most cases, proceedings under the Family Law Act are commenced in the Federal Circuit and Family Court of Australia (FCFCOA) (Div 2) or the Family Court of Western Australia (where one or more of the parties reside in Western Australia). In some cases, proceedings under the Family Law Act may also commence in the local court in a state or territory.

Definition of Parental Responsibility

Parental responsibility in relation to a child is defined in Section 61B of the Family Law Act to mean all the duties, powers, responsibilities and authority held by parents in relation to children, by law.

Provided it is safe to do so, and subject to any court orders, the parents of a child are encouraged to consult each other about major long-term issues in relation to the child and, in doing so, to have regard to the best interests of the child as the paramount consideration.

The term “major long-term issues” is defined in the Family Law Act to mean issues about the care, welfare and development of a child of a long-term nature, including (but not limited to) issues of a long-term nature about:

• the child’s education (both current and future);
• the child’s religious and cultural upbringing;
• the child’s health;
• the child’s name; and
• changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.

The FCFCOA can make parenting orders that deal with the allocation of responsibility for making decisions about major long-term issues in relation to the child. Parenting orders may provide for joint or sole decision-making in relation to some or all specified major long-term issues.

If a parenting order provides for joint decision-making in relation to some or all major long-term decisions in relation to a child, such order requires each person to consult the other about the decision and to make a genuine effort to come to a joint decision, except to the extent that the order specifies. This does not, however, require any other person (eg, a doctor or teacher) to establish that a particular decision about a child has been made jointly.

If a child is spending time with a person under a parenting order, that person is not required to consult a person who has parental responsibility for the child about any decision they make while the child is spending time with them that is not a major long-term issue, unless an order provides otherwise.

A person who is not a parent (for example, a grandparent or another person concerned with the care, welfare or development of the child) can apply for, and be granted, parental responsibility for a child.

In parenting proceedings, the decision about who should have parental responsibility for a child is separate to the decision about who the child should live with, or who they should spend time with. Whilst it is common for the person with whom a child lives to hold sole or joint parental and decision-making responsibility for the child, it is not uncommon for an order to be made that a child spend time with a person who does not hold any aspect of parental or decision-making responsibility.

Court Considerations When Making Orders About Parental Responsibility

When considering an application for a parenting order, the court is required to determine what orders are in the best interests of the child, taking the following factors into account:

• what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect or other harm) of the child and each person who has care of the child (whether or not that 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 case involves an Aboriginal or Torres Strait Islander child, additional matters must be considered.

A child’s gestational (or birth) mother will have parental responsibility for the child when they are born, whether or not the child is biologically related to them.

Each state and territory has separate laws about the status of children, and sets out presumptions of parentage that apply in situations where a child is born following an artificial conception procedure. The Family Law Act recognises the presumptions of parentage that are made under state and territory law, and also sets out who is a “parent” of a child born as a result of an artificial conception procedure, for the purposes of the Act.

As set out in 1.1 Parental Responsibility, a birth mother’s parental responsibility can be removed, altered or diminished by an order made by a state or federal court.

A child’s biological father will have parental responsibility for the child when they are born, unless the child was born as a result of an artificial conception procedure and they are not the parent under state or territory law, or a provision of the Family Law Act. Please see 1.4 Requirements for Non-Genetic Parents regarding children born as a result of an artificial conception procedure.

If there is an issue as to the child’s parentage, and the provisions of the Family Law Act in relation to artificial conception procedures and surrogacy do not apply, a declaration of parentage can be sought.

It is important to note that there is no definition of “parent” in the Family Law Act. In Ophoven & Berzina [2025] FedCFamC1A 97, the court held that there was no requirement to establish a biological connection to the child in order to seek a declaration of parentage pursuant to Section 69VA.

As set out in 1.1 Parental Responsibility, a birth father’s parental responsibility can be removed, altered or diminished by an order made by a state or federal court.

Non-genetic parents may include:

• a parent of a child born through an artificial conception procedure;
• a parent of a child born through a surrogacy arrangement;
• a step-parent of a child; or
• a parent who has adopted a child (see 1.7 Adoption).

Children Born Via an Artificial Conception Procedure

Where a child is born as a result of an artificial conception procedure, it will be necessary to consider the provisions of the status of children legislation in the relevant state or territory, which will determine who is a parent in certain situations. Such legislation includes both rebuttable and irrebuttable presumptions of parentage, including presumptions that relate to children born as a result of artificial conception procedures.

By way of example, in NSW, if a married woman becomes pregnant by means of a fertilisation procedure using any sperm obtained from a man who is not her husband, her husband is still presumed to be the parent of that child if he consented to the procedure. This presumption is irrebuttable.

Where a person is a parent under a prescribed state or territory law, this will be recognised under the Family Law Act.

Under the Family Law Act, if a woman was either married to or a de facto partner of another person at the time she underwent an artificial conception procedure and the procedure was carried out with the consent of the other person, then the child born as a result of the procedure is the child of the woman and the other person. This is the case even where neither person is biologically related to the child.

Children Born Under Surrogacy Arrangements

There is currently no uniform surrogacy law in Australia; surrogacy is regulated under the laws of each state or territory.

Depending on the state in which the intended parents live, if the baby was born as a result of a surrogacy arrangement, the intended parents would need to apply to the Supreme Court in their state or territory for a parentage order. In order to apply for a parentage order, the requirements of the relevant state or territory law would need to be complied with.

Where a state or territory court has made a parentage order under a prescribed law, this will be recognised under the Family Law Act.

Step-Parents

A step-parent of a child will not have parental responsibility for the child, unless they seek a parenting order allocating them sole or joint decision-making responsibility for the child.

Some of the presumptions of parentage (at both a state and federal level) centre around the relationships that existed between the relevant adults at the time of the child’s conception. For example:

• If a child is born to a woman while she is married, the child is presumed to be the child of the woman and her husband.
• If a child is born to a woman and said woman cohabited at any time during the period beginning not earlier than 44 weeks and ending not less than 20 weeks before the birth of the child with a man to whom she was not married, then the child is presumed to be the child of that man.
• If a child is born to a woman as a result of an artificial conception procedure while she was married to, or a de facto partner of, another person (the other intended parent) and either (i) the woman, other intended parent and any other person who provided the genetic material consented, or (ii) the child is the child of the woman and the other intended parent under a prescribed law of a state or territory, then the child is the child of the woman and the other intended parent, for the purposes of the Family Law Act, and the woman and other intended parent would both hold parental responsibility under the common law.

The presumptions of parentage in relation to children born as a result of an artificial conception procedure (see 1.4 Requirements for Non-Genetic Parents) apply to same-sex couples who are married or in a de facto relationship at the time of the child’s conception.

If the relationship commences after the child’s conception, the partner who is not the “parent” could apply to the court for an order to obtain parental responsibility.

Under Australian law, adoption is the permanent transfer of all legal parental rights and responsibilities to the adoptive parents. Once an adoption order is made, the law regards the child as though they were born to the adoptive parents.

Adoption of Children Within Australia

An application for an adoption order can only be made to the relevant court in the state or territory where the child resides. Each state or territory has enacted legislation about adoption, and the requirements may vary between different states and territories.

There are restrictions on who can apply to adopt a child, under domestic law. An adoptive parent (who is not a relative or step-parent) can only apply to adopt a child with the consent of the relevant state or territory child protection authority or where that authority has enquired into the proposed adoption. Where children are in foster care, in some jurisdictions it is the state child protection agency (or other approved agency) that will make the application to the court for an adoption order in favour of the foster carers (also called the proposed adoptive parents).

In the case of a step-parent adoption, an adoption order will not displace the existing parental responsibility for a child (whether that is because of the common law or an order made under the Family Law Act) unless leave was granted to commence the adoption proceedings under Section 60G of the Family Law Act. Similarly, if a parenting order is in force and leave is not granted, the parenting order will remain in force.

The relevant legislation in each state and territory sets out the requirements that a proposed adoptive parent needs to meet. These requirements differ, depending on whether the proposed adoptive parent is a foster carer, step-parent or relative. Requirements may include things like:

• that the child has attained a certain age;
• that the adoptive parent has an established relationship with the child or has cared for them for a certain period;
• that the adoptive parent’s spouse consents, or if the adoptive parents are a couple they have lived together for a certain period of time; and
• that the adoptive parents have been domiciled in the particular state or territory for a certain period of time.

In all states and territories, the relevant court will only make an adoption order if it is in the child’s best interests, and if specific requirements of the law have been satisfied. The applicable legislation will set out in detail the factors that the court must consider when deciding whether the order is in the child’s best interests, including the child’s wishes, identity, culture, language and religion. Where the child is an Aboriginal or Torres Strait Islander child, special considerations apply.

In some states and territories, a person who has been adopted can decide whether to use the new birth certificate that is issued after the adoption order is made or an integrated birth certificate, which records details of the person’s birth parents and their adoptive parents.

Recognition of Foreign Adoption Orders

There are some differences under state and federal law as to when an adoption order made in a foreign country will be recognised.

Australia has signed and ratified the Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption dated 29 May 1993 (“the Convention”) and has programmes in place with some specific countries. Australia also has bilateral agreements in place with some countries with respect to adoption.

Adoption orders made in Convention countries that comply with the requirements of the Convention will usually be recognised in the relevant state or territory.

Adoption orders made in countries where there is a bilateral agreement in place, and where the foreign country has issued an adoption compliance certificate, will usually be recognised in the relevant state or territory.

In some circumstances, adoption orders made in non-Convention countries will also be recognised under state and territory law.

In some states, adoption orders made in Convention countries under the domestic law of that country rather than in accordance with the Convention will not be recognised under state law (for example, NSW).

Depending on the particular circumstances of the child, it may not be necessary to have a foreign adoption order recognised under state or territory law.

Under the Family Law Act, a “child” is defined to include an “adopted child” who has been “adopted under the law of any place (whether in or out of Australia)”. In relation to a child who has been adopted, “parent” means “an adoptive parent of the child”. This means that if there is a dispute between parents in relation to a child that they have adopted in accordance with the laws in a foreign country, either of the parents could make an application for parenting orders under the Family Law Act.

If one parent wishes to permanently relocate a child to a different country, they will first need to obtain the consent of any other person who has parental responsibility for the child. Wherever possible, the consent should be clear, unequivocal and in writing.

If the parent wishing to relocate has sole parental responsibility, they might still need the consent of the other parent if there are court orders in place (for example, for the child to spend time with the other parent) that cannot be complied with after the proposed relocation.

If a parent requires consent to relocate a child and that consent is not forthcoming, they will need to make an application for an order that provides for the child to live with them in the other country, and for any other ancillary orders that they may need to effect the relocation (for example, an order permitting them to apply for a passport for the child).

The application for parenting orders can be filed in Division 2 of the FCFCOA. Applications that involve a proposal to relocate a child to another country are usually transferred to Division 1.

Whether or not a parent needs consent from the other parent to relocate will depend upon the parenting orders that are in place and the nature of the proposed location. It is necessary to consider, for example, whether the proposed relocation would involve reconsideration of the arrangements for the child to spend time with the other parent, or a change in school.

If the orders provide for the parents to share parental responsibility with respect to decisions about school, then consent is required. If the proposed relocation would make it difficult for the child to spend time with the other parent in accordance with existing parenting orders, then consent is required to vary the arrangements.

In some circumstances, the removal of a child from Australia, or the retention of a child outside of Australia, without the consent of all the adults who have parental responsibility for the child, or a court order, is a criminal offence punishable by up to three years in prison.

In Australia, human trafficking, slavery and slavery-like practices, including forced marriage, are also illegal. It is a crime to take a child overseas for the purposes of forced marriage, even if the parent or other adults with parental responsibility consent to the travel. It is an offence to be involved in bringing about the forced marriage, or to be a party to the forced marriage, unless you are the victim. Forced marriage offences carry a maximum penalty of seven years’ imprisonment, or nine years for an aggravated offence. If the victim is under 18 and taken overseas for the purpose of forced marriage, the maximum penalty increases to 25 years’ imprisonment.

If a child has been removed from Australia, or has been retained in another country, without the consent of their parent or anyone else with parental responsibility, there are different ways that the parent or other person can seek the return of the child to Australia.

First, if the country where the child is physically present is a signatory to the 1980 Convention on the Civil Aspects of International Child Abduction (the “Child Abduction Convention”) and the Convention is in force between Australia and that country, an application can be made for the return of the child under the provisions of the Child Abduction Convention. International Social Service Australia (ISS) provides free advice and assistance to parents who want to make an application for the return of a child to Australia under the Child Abduction Convention.

Secondly, a parent could make an application to the FCFCOA for orders to facilitate the return of the child to Australia under the provisions of the Family Law Act. When considering an application for an international recovery order, the court will consider, amongst other things, whether it has jurisdiction to make orders about the child and, if so, whether the court should exercise jurisdiction to make the orders sought. The court will consider the following factors, amongst others.

• Whether the child is habitually resident in Australia, even though they are physically present in the other country.
• Whether the Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (the “Child Protection Convention”) is in force between Australia and the country where the child is physically present.
• If the Child Protection Convention is not in force in the other country, whether that country (or part of that country) is a “prescribed jurisdiction” for the purpose of the Family Law Regulations 2024. If the other country is a prescribed jurisdiction, it means that some types of orders made by the FCFCOA can be registered and enforced in that other country, and vice versa. For example, New Zealand and most states of the United States of America are prescribed jurisdictions.

• If the Child Protection Convention is not in force in the country where the child is physically present, and the country is not a prescribed jurisdiction, it does not necessarily mean that the other country will not recognise orders made by the FCFCOA. It may mean, however, that expert evidence is required about the operation of law in that country.
• There are some cases where the FCFCOA will still make orders to facilitate the return of a child, even if the orders will not be recognised, or cannot be registered or enforced in the other country. For example, if the parent or adult who removed or facilitated the removal of the child is present in Australia, the court can sometimes make orders requiring that person to return the child to Australia. In these types of cases, the parent or other adult might be prevented from leaving Australia until the child is returned.

Finally, a parent or other person with parental responsibility for a child who has been removed to or retained in another country without their consent can apply to the Overseas Child Abduction Scheme for assistance to cover the costs of legal representation in the other country and flights. The funding is not usually available if the parent could meet the costs without incurring serious financial difficulty, does not have reasonable prospects of success, or would be eligible for legal assistance in the other country. Funding is available in all types of child abduction cases, whether or not the Child Abduction Convention applies. More information can be found on the Overseas Child Abduction Scheme.

It is important to remember that steps can be taken to prevent a child being removed from Australia. For example, a parent or person with parental responsibility can submit a Child Alert Request to the Australian Passport Office. This is a warning to the Department of Foreign Affairs and Trade that there may be some issues to consider before issuing a child with an Australian passport or travel document. The Australian Federal Police can also place a child’s name on the Family Law Watchlist, if parenting proceedings have started or an order has been made by the court.

Implementation of the Child Abduction Convention into Australian Domestic Law

Australia signed the Child Abduction Convention in 1983, following which the Convention was implemented into Australian domestic law through the Family Law Child Abduction Regulations 1986 (“the Regulations”). It is the Regulations that govern the way in which Hague return proceedings are conducted in Australia, rather than the Convention itself.

An application for a return order is made to the FCFCOA. In most cases, the application is made by the Australian Central Authority (ACA) through the relevant State Central Authority (SCA), which is usually the state authority responsible for child protection. The taking parent is the respondent to the application. The requesting parent is a witness in the SCA’s case. The child will not be a party to the proceeding, but in many cases an ICL will be appointed to represent the child’s best interests. The ICL is treated in the same way as a party to the proceeding.

A Hague return proceeding will be given priority and will usually be heard and determined within a relatively short timeframe.

If the prerequisites for a return order are established (also called the “jurisdictional facts”), the court must make a return order, unless the parent opposing return can establish a defence (or exception) to return. If a defence to return is established, the court has discretion to return.

Jurisdictional Facts

Regulation 16(1A) provides that a child’s removal to, or retention in, Australia is wrongful if all of the following things can be proven:

• the child is under 16;
• the child was habitually resident in a Convention country immediately before they were removed to or retained in Australia;
• the person, institution or other body seeking the child’s return had rights of custody immediately before the removal or retention;
• the child’s removal to or retention in Australia is in breach of those rights of custody; and
• at the time of the child’s removal or retention, the person, institution or other body was actually exercising rights of custody, or would have done so if the child had not been removed or retained.

Defences to Return

Regulation 16(3) provides that a court may refuse to make a return order if the person opposing return establishes that:

• the person, institution or other body seeking the child’s return was not actually exercising rights of custody and would not have exercised the rights of custody if the child had not been removed or retained, or they consented or subsequently acquiesced in the child being removed to, or retained in, Australia;
• there is a grave risk that the return of the child under the Convention would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation;
• the child objects to being returned, and has attained an age and a degree of maturity at which it is appropriate to take account of their views; or
• the return of the child would not be permitted by the fundamental principles of Australia relating to the protection of human rights and fundamental freedoms.

Grave Risk and Family Violence

In considering whether the “grave risk” defence has been established, the court may have regard to any risk that the return of the child would expose them to family violence. The court may also have regard to the extent that the child would be protected from any such risk if the child was returned. The court may have regard to these matters regardless of whether or not it is satisfied that the family violence occurred, has occurred or will occur.

There are a number of cases in which the court has considered allegations of family violence in the context of a grave risk defence. The court will refuse to make a return order if doing so would imperil a child’s safety or psychological stability, and inadequate protective measures are available in the other country, or where the conduct of the perpetrator is such that any protective measures would be disregarded or could not be enforced.

Delay in Making an Application

If an application for a return order is filed more than a year after the day on which the child was first removed or retained in Australia, and the taking parent establishes that the child is now settled in their new environment, the court must not make a return order. This is sometimes referred to as the “settled” defence.

Conditions to Return

The court can make conditions to return, whether or not a defence has been established. Where the court is considering whether to refuse to make a return order, it must consider any conditions proposed by a party, or by the ICL.

Conditions can be in the form of “soft landing” (also called “safe harbour orders”) or protective measures. Soft landing orders are directed at making the child’s return more comfortable and can include things like having the requesting parent provide financial assistance for flights or accommodation, provided the requesting parent has the capacity to provide the assistance.

Protective measures are designed to address issues of grave risk or intolerability, and can include a broad range of services, advice and support. The court will only consider measures to be effective if they can be enforced in the other country. For example, undertakings that cannot be enforced in the other country will generally not be accepted as a way of ameliorating risk.

Mediation

In Hague return proceedings, the parents will often be encouraged to attend mediation, if appropriate. Mediation can be facilitated through the court, through the relevant Legal Aid Commission (if one of the parents has a grant of Legal Aid or there is an ICL) or through International Social Service Australia.

Costs of Proceedings

A parent (or other person) responding to an application for a return order can apply to the Legal Aid Commission in the state or territory where the proceedings are taking place. To be eligible for a grant of Legal Aid, a responding parent must meet both a means and a merit test.

In May 2024, the Attorney-General’s Department launched the International Child Abduction Respondents Scheme (ICARS). Funding is available to people:

• defending or proposing to defend an application for a return order filed in an Australian court pursuant to the Regulations;
• appealing or proposing to appeal a return order made by an Australian court under the Regulations; or
• responding to or proposing to respond to an appeal against a decision to dismiss an application for a return order made by an Australian court under the Regulations.

Under ICARS, respondents can obtain funding for advice, representation, mediation and disbursements. The funding is not retrospective. More information can be found at the Attorney General’s Department on the Australian Government website.

There are limited circumstances in which the court can make orders requiring parties to pay costs in Hague return proceedings.

Australia has signed and ratified the Child Abduction Convention and the Child Protection Convention. Australia also has mechanisms in place to register orders made in some other countries, called “prescribed jurisdictions” (see 3.2 Steps Taken to Return Abducted Children).

There are bilateral agreements in place between the governments of Australia and Egypt, and the governments of Australia and Lebanon, to assist parents to resolve disputes across international borders about their children. Applications for assistance under these agreements should be made to the Commonwealth Attorney-General’s Department.

If a child has been brought to Australia, it is possible for the requesting parent to make an application for the summary return of the child to their country of habitual residence. It is possible to make this kind of application regardless of whether or not the Child Abduction Convention is in force between Australia and the other country.

Finally, if an application for summary return is not appropriate, a parent outside Australia could still make an application for parenting orders if the child is present in Australia, including seeking an order that the child reside with them in the other country.

A parent outside Australia may be eligible for a grant of Legal Aid for parenting proceedings if they meet the means and merit tests. It is also possible for a parent outside Australia to seek the court’s permission to participate in the proceedings remotely.