Children: Relocation, travel and the Hague Convention
Relocation
Moving with your child (or children) to another town, state or country is known as relocation. If moving is going to impact on the time that your child lives with, or spends with, a parent or another significant person in their lives, a court may not give permission for the move. If your child primarily lives with you and you want to relocate, you should first try to talk to the other party.
Reaching an agreement about the relocation
A relocation will usually mean that the existing parenting arrangements are no longer practicable. For example, travel time between the parents will often mean that it is not practicable for a school-aged child to spend time with the ‘left-behind’ (non-relocating) parent during the school week, or even during the entire school term.
Often, parents reach agreement about a relocation on the basis that the child will spend a lot of time with the left-behind parent during school holidays, to make up for not spending much time during school terms.
In some cases, the other parent may decide to relocate as well, so that they are not left behind.
If you and the other party (or other parties) have agreed to a relocation and related arrangements, you and the other party (or other parties) should formalise your agreement. See We have agreed.
If you and the other party have communicated about a potential relocation, and want help to try to reach agreement, you can attend Family dispute resolution counselling.
For more information about trying to resolve a dispute about children, see Separate smarter.
If you cannot agree, you can ask the Court to make parenting orders, including:
- if you want to relocate with a child, asking the Court for an order which allows you to do so or
- if you want to stop the other party from relocating with a child, asking the Court to make an order prohibiting the other party from relocating the child’s residence outside of a certain area (for example, that the child’s residence is not to be further than 30 kilometres from the child’s current school, or that the child’s residence is to be within a specific metropolitan area).
For more information about parenting orders see We cannot agree.
If you relocate your child’s residence without the consent of the other party, and without a court order allowing the relocation (known as ‘unilateral relocation’), a court may require you to return with the child until the case has reached an outcome.
If there is a court order in place, and your unilateral relocation means that the Court order cannot be followed, you will be contravening (breaching) the order. Contravening an order can have serious consequences, including imprisonment in extreme cases, see Compliance and enforcement.
If your child is missing or has not been returned, see Recovery orders.
Overseas travel and passports
Overseas travel
If a parenting order has been made about a child, or someone has applied for a parenting order about a child, it is a criminal offence to take (remove) or send the child from Australia except if:
- each other party to the parenting order (or parenting proceedings) has given ‘authenticated written consent’ to the child being removed from Australia (either generally, or in a particular way, such as during particular dates and/or to a particular location), or
- a court has made a parenting order which specifically allows the child to be removed from Australia (either generally, or in a particular way, such as during particular dates and/or to a particular location).
Where a child is taken (or sent) outside of Australia in accordance with authenticated written consent or an order, it is an offence to retain the child overseas in any way other than permitted by the consent or order. Examples of this include keeping the child overseas longer than permitted, or taking (or sending) the child to a place other than those places permitted.
The penalty for each of those offences is imprisonment for three years. See sections 65Y, 65YA, 65Z and 65ZAA of the Family Law Act 1975.
‘Authenticated written consent’ means:
- the consent is recorded in writing in a document
- the person giving the consent has signed the document
- a person authorised to take statutory declarations (in accordance with section 8 of the Statutory Declarations Act 1959):
- satisfied themselves about the identity of the person giving the consent, and
- witnessed the person giving consent signing the document.
See regulation 13 of the Family Law Regulations 1984.
Can I take my child overseas on holiday?
If you are planning travel overseas with your child, you should, as soon as possible, advise the other parent (or other party to the parenting order or parenting proceedings) of your intention. You should include full details of where you want to go, and confirm that, if you were permitted to go, you would provide a full itinerary, including contact numbers for hotels or relatives, flight numbers, and the like.
Importantly, you need to ask them whether they agree.
Can I stop my child being taken overseas?
If there is a possibility or threat that a child may be removed from Australia, the Court can make orders which:
- restrain the removal of the child from Australia
- request that the Australian Federal Police (AFP) place the child’s name on the Family Law Watchlist, and
- request that the AFP assist in the implementation of the orders.
For more information about what the AFP can do, see the AFP Family Law Kit.
You can also seek orders about a child’s passport.
Passports
How do I apply for a passport for my child?
If written consent is provided by all parties with parental responsibility, applications for Australian passports can be lodged at an authorised Australia Post office or any Australian Passport Office.
If written consent is not provided by all parties with parental responsibility, you can make a written request to the Approved Senior Officer of the Department of Foreign Affairs and Trade to consider issuing the passport due to ‘special circumstances’. For more information about requests to consider ‘special circumstances’, contact the Australian Passport Information Service on 13 12 32 or go to www.passports.gov.au.
To apply for a passport of another country for your child, you need to contact a diplomatic mission (such as an embassy, high commission or consulate) of that country.
How do I stop a passport being issued for my child?
You can take steps to prevent a passport being issued for a child by:
- lodging a Child Alert Request at any Australian Passport Office, or
- applying to the Court for a child alert order.
For more information about child alerts, contact the Australian Passport Information Service on 13 12 32 or go to www.passports.gov.au.
How do I stop another person from using my child’s passport?
If there is a possibility or threat that a child may be removed from Australia, you can ask the Court to make orders to stop their removal, and also ask for an order requiring the person in possession of the child’s passport to deliver it to the Court. The Court will keep it for the specific amount of time detailed in the court order or until further order of the Court.
Formalising travel arrangements
If the other parent (or other party to the parenting order or parenting proceedings) agree about travel and/or passports, you can:
- arrange authenticated written consent for travel
- jointly apply for a passport, and/or
- jointly ask the Court to make consent orders about travel and/or passports.
If you and the other party have communicated about potential travel and/or passports, and want help to try to reach agreement, you can attend family dispute resolution counselling.
If you cannot agree, you can ask the Court to make parenting orders, including:
- an order which allows you to take (or send) your child outside Australia, or
- an order prohibiting the other party or another person from taking (or sending) your child outside Australia and requesting that the AFP add the child’s name to the Family Law Watchlist. The AFP Family Law Kit provides the wording to use if you want to ask to the Court to make this kind of order, and/or
- an order about passports.
If you want to ask the Court to make parenting orders, including in relation to travel, see How do I apply for parenting orders?
What if the Court is not open when I need to make an urgent application?
The Court has an out-of-hours service for emergencies: that is, if there is a risk that a child may be taken out of the country before the next working day. Call the Court on 1300 352 000 and you will be referred to this emergency number.
The Hague Convention on the Civil Aspects of International Child Abduction
If your child (or a child you have parental responsibility for) was taken from their home country without your permission and without the authorisation of a court, you may be able to get assistance under the Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention).
The Hague Convention is the main international agreement that covers international parental child abduction. It provides a process for a parent to seek to have their child returned to their home country. The Hague Convention sets up a central authority in each signature country to deal with applications for the return of children taken to or from each country. The Australian Government Attorney-General’s Department is the central authority for Australia.
My child has been taken from Australia
If a child you have parental responsibility for has left Australia without your permission, you should contact the Commonwealth Attorney-General’s Department on 1800 100 480 or go to International parental child abduction for more information.
For a list of applicable countries, and more information about the Hague Convention, see the Hague Convention page on the website of the Commonwealth Attorney-General’s Department.
If your child is in another country, you may want to seek private legal advice in that country about your options. The Department of Foreign Affairs and Trade may be able to assist left-behind parents in accessing an English-speaking lawyer in a non-Hague country.
I have brought my child to Australia
If you have brought your child to Australia from another country, and the child’s other parent alleges that you did so without their permission, or an order of a court in that country, court proceedings may be started against you in Australia for your child to be returned to the other country.
For information on how to get legal help see Find a lawyer and support services.
Practice directions
Practice directions are procedural guidelines issued by the Court. They complement legislation, rules and regulations. They provide specific direction about the practice and procedure that must be followed in certain types of proceedings.
Practice directions are issued by the Chief Justice/Chief Judge upon advice of judges of the Court, pursuant to the Court’s inherent power to control its own processes, as well as the power under the Federal Circuit and Family Court of Australia Act 2021 for the Court to give directions about the practice and procedure to be followed in a proceeding.
In general, practice directions are issued to:
- complement particular legislative provisions or rules of court
- set out more detailed procedures for particular types of proceedings, and
- notify parties and their lawyers of matters which require their attention.
Below are links to the practice directions that apply to this area of law:
- Family Law Practice Direction – Parenting proceedings (FAM-PARENTING)
- Family Law Practice Direction – Passport proceedings (FAM-PASSPORT)
***Disclaimer – The above information was taken from the Federal Circuit & Family Court of Australia website as accurate in October 2023. If any changes are made by the court from that date they may not be reflected in this post