Many people move to different countries at different stages of their lives, so it is no surprise that after the breakdown of a relationship a parent may want to live overseas with their children. This is called international relocation.
Moving away – whether to another country, another city or even another part of the same city – can mean major changes in terms of child custody and contact and communication with the children.
When One Parent Agrees with International Relocation
If a person decides that they wish to relocate overseas, they need to discuss it with the other parent of their children, and anyone else who has parental responsibility.
Sometimes, the parties can reach an agreement about one party moving overseas, allowing longer stays or visits with the parent remaining in the home country, for example during the school holidays.
The parents can formalise their agreement by writing it into a parenting plan or applying to the court for consent orders.
Consent orders make the decision official and enforceable by law.
When One Parent is Against International Relocation
If one party wants to relocate internationally with the children but their ex-partner is against it, they may seek orders from the court that allow them to do so.
The court will not necessarily grant permission for the international relocation.
The court considers the best interests of the children in determining the outcome. This is the most important consideration.
The best interests of the children include maintaining a meaningful relationship with both parents and the emotional and psychological effects of international relocation.
The court also considers the wishes of the parent making the application.
The child’s primary caregiver should be living in a country of their choosing and in an environment that does not cause them any stress.
The wishes of the child are also taken into account by the child’s age, maturity and understanding of the situation.
When Courts Can Prevent International Relocation
The court has the authority to make orders that prevent the relocation of a child as well as orders that force a parent to relocate.
It is unlawful for a parent to move out of the country with their child without a court order or the consent of the other parent.
If this occurs, the other parent may apply for child recovery orders under the Hague Convention.
The Hague Convention is an international multilateral accord that works to ensure the return of a child to their primary jurisdiction for family law matters to be resolved there.
If a parent fears their child may be taken out of Australia, they can add the child’s name to the Airport Watchlist.
This will alert the authorities if the child tries to board a plane at the airport.
Also read: How to Win Child Relocation Case
International Relocation Case
Molloy & Reid [2018] FamCAFC 89 (11 May 2018)
Background
Ms. Molloy and Mr. Reid, former partners residing in Queensland, Australia, were involved in a legal dispute regarding the relocation of their three children to New Zealand. Ms. Molloy, originally from New Zealand, desired to move back with her children, while Mr. Reid opposed the relocation, wishing for them to remain in their current town. The trial court denied Ms. Molloy’s request for relocation, citing the potential negative impact on the children’s relationship with their father.
Trial Court Finding
The trial court ruled against Ms. Molloy’s relocation request, prioritising the children’s best interests and maintaining a meaningful relationship with their father. Despite acknowledging the potential benefits of relocation for Ms. Molloy’s emotional and financial well-being, the court determined that the disadvantages of international relocation outweighed the advantages from the children’s perspective.
Grounds for Appeal
Ms. Molloy appealed the trial court’s decision, raising seven grounds of appeal. One of the key arguments was that the trial judge had excessively relied on a previous case, Morgan & Miles 2007, and a “checklist” of considerations, which limited the assessment of the relocation’s practicality.
Decision: Molloy & Reid [2018] FamCAFC 89 (11 May 2018)
In the appeal decision, Molloy & Reid [2018] FamCAFC 89, the court reevaluated the trial court’s findings and the application of the “checklist.” The decision emphasised the importance of a comprehensive approach to relocation cases, considering all relevant factors beyond a simple checklist. The court also acknowledged the potential benefits of relocation for the mother and the need to balance the interests of both parents.
Also read: Can a Mother Lose Custody for Not Having a Job
Reasonable practicality is evaluated by considering:
- How far apart the parents live
- The parents’ capacity to implement a custody arrangement
- Their capacity to communicate effectively and resolve any difficulties
- The impact of the proposed arrangement on the child
- Any other matters the judge finds relevant
The appeal court addressed Ms. Molloy’s contention regarding domestic violence, noting that the trial transcript indicated the judge had considered the issue, although not explicitly finding that domestic violence had occurred. Regarding the focus on the children’s relationship with their father, the court acknowledged the importance of this factor but also considered the potential benefits of relocation for Ms. Molloy’s emotional well-being and parenting capacity.
A family report highlighted the significant impact of separation from their father on the children, particularly the youngest child, and the potential for their relationship to suffer as a result of international relocation. The appeal court ultimately agreed with the trial court’s decision, prioritising the children’s best interests and concluding that remaining in O Town was more beneficial for their welfare.
Ms. Molloy’s arguments regarding the “better proposal” and the “fall-back position” were also dismissed by the appeal court. The court clarified that the mother’s refusal to abandon her children should not be considered an alternative proposal and that the trial judge had carefully evaluated the benefits and disadvantages of relocation.
Ultimately, Ms. Molloy’s appeal was dismissed, with the court emphasising the paramount importance of the children’s best interests and the impact of international relocation on them. This case serves as a reminder that relocation decisions in family law prioritise the well-being of children and the need to balance the interests of both parents.
Navigating International Relocation with Justice Family Lawyers
Considering an international move with your children? The legal landscape of relocation can be complex and emotionally charged. At Justice Family Lawyers, we specialise in guiding families through these challenging situations, ensuring the best interests of your children are protected.
Contact us today for expert advice and dedicated support throughout your relocation journey.
Principal of Justice Family Lawyers, Hayder specialises in complex parenting and property family law matters. He is based in Sydney and holds a Bachelor of Law and Bachelor of Communications from UTS.
