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.
What Is International Relocation?
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.
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.
However, 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.
It is preferable that the child’s primary caregiver is living in a country of their own choosing and in an environment that does not cause them any stress.
The wishes of the child are also taken into account in accordance with the child’s age, maturity and understanding of the situation.
The presumption of equal shared parental responsibility means that the court must consider making orders that the child spend equal time or substantial and significant time with each parent, as it is presumed that a relationship with each of their parents is in a child’s best interests.
When the court is satisfied that this is not in the child’s best interests, for example in cases of child abuse or domestic violence, they will disregard this presumption.
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 without 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.
Molloy & Reid  FamCAFC 89 (11 May 2018)
Earlier this month the Family Court of Australia in Brisbane heard an appeal in which a woman, Ms Molloy, sought to relocate to New Zealand with her three children.
Her ex-partner, Mr Reid, opposed the relocation and wished for his children to remain in their current Queensland town.
The former couple met in 2003 while on holiday.
Ms Molloy was living in the United Kingdom at the time and Mr Reid was working as an electrician in his Queensland hometown, known in the proceedings as O Town.
The mother grew up in New Zealand and had moved to the UK to work as an accountant.
She has a large family in New Zealand, where her parents operate the family farm.
The father grew up in O Town and the majority of his family reside there.
Ms Molloy and Mr Reid began living together overseas in a de facto relationship in 2004, and in 2006 they moved to O Town.
Their three children were born in 2008, 2009 and 2012.
Since their separation in November 2015, the mother and father have been living in separate houses in O Town.
The trial took place in June 2017.
Ms Molloy was refused permission to move to New Zealand.
The judge ordered for equal shared parental responsibility and a custody arrangement in which the children would live with the mother and spend four nights a fortnight with their father, plus half of each school holiday period.
The trial judge’s reasoning included assessing the effect relocation would have on the mother’s emotional and financial circumstances and her parenting capacity.
Living in O Town caused her considerable stress, particularly as the prospect of interaction with Mr Reid made her very anxious, and created a feeling of being trapped.
Relocation to New Zealand would result in an improvement in her emotional circumstances, and therefore her parenting capacity and emotional availability to the children, as well as some improvement in her financial circumstances.
Even though Ms Molloy experienced difficulties in communicating with the father, the trial judge found that their communication was adequate for an order of equal shared parental responsibility.
The judge determined that Ms Molloy had been able to cope with living in O Town for the past ten years despite the stress it caused her and that it would not be reasonably practicable for Mr Reid to relocate to New Zealand.
The best interests of the children were the paramount consideration: improving the mother’s situation would heavily reduce the children’s ability to have a meaningful relationship with their father.
From the children’s point of view, the judge decided, the disadvantages of international relocation outweighed any benefits.
Ms Molloy lodged seven grounds of appeal.
She contended that the trial judge’s reliance on a previous case, Morgan & Miles 2007, was erroneous as he focused too heavily on going through a “checklist” of considerations.
The checklist was a list of eleven issues the trial judge examined to determine the case outcome.
The mother believed that the primary judge limited the matter of the reasonable practicality of relocation to two checklist headings, therefore preventing a well-rounded approach.
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 judge found that the checklist headings worked as a shorthand way of describing the larger issues.
The mother contended that the trial failed to find that the father had committed domestic violence against her.
However, in the transcript of the trial, the judge states that he considered that acts of domestic violence had been committed.
The primary judge focused heavily on the ways the children’s relationship with their father would diminish should they move with their mother to New Zealand, and Ms Molloy asserted that this was an error of law.
She said that the father was not as well attuned to the children’s emotional needs as herself and that she would be a better parent if she moved to New Zealand, while still facilitating a meaningful relationship between the children and Mr Reid.
A family report writer, however, stated that separation from their father would have a very significant impact on the children.
They would likely see him between three and fives times in a year and would, especially at first, suffer a reaction of grief upon moving overseas.
The youngest child, born in 2012, still has a primary attachment to her mother but needs the opportunity to establish an attachment to her father, the family report writer stated.
Her relationship with her father might not survive international relocation.
The judge must take the perspective of the best interests of the children, and the appeal judge agreed with the trial judge that it was better for the welfare of the children to remain in O Town.
For similar reasons, Ms Molloy’s next argument that the primary judge had failed to determine the better proposal for the children was found to have no merit.
Finally, the mother argued that her “fall-back position” – i.e. no international relocation – was elevated to the position of a proposal.
The trial judge did not elevate the father’s fall-back position – if the mother did relocate with the children – to a proposal.
The appeal judge agreed that a mother’s refusal to abandon her children must not be given the status of an alternative proposal.
However, simply because the court makes an order that was consistent with a fall-back position does not mean it was regarded as a proposal.
The appeal judge believed the first judge had carefully evaluated the benefits and disadvantages of relocation.
Ms Molloy’s appeal was therefore dismissed.
When judging cases of international relocation, the court always concentrates on the best interests of the children and the impact moving countries would have on them.