Lawyer Monthly - April 2022

EXPERT INSIGHT 68 WWW.LAWYER-MONTHLY.COM | APR 2022 The Complexities of International Child Relocation Few aspects of family law are more prone to difficulties than the process of a parent relocating abroad with their child – particularly if the move is contested by the other parent. What laws are applicable in this scenario, and what steps can be taken to iron out issues ahead of time? Carly Mirza-Price, partner at Mills Oakley, offers an overview of the subject in the context of Australian family law. n Australia, what laws regulate international child relocation? Ordinarily, parents ought to have freedom of movement. However, this must be carefully balanced against a child’s best interests which include, amongst other matters, a child’s right to: • know and be cared for by both parents; • spend time on a regular basis with, and communicate on a regular basis with, both of their parents and other people significant to their care, welfare and development (for example grandparents, aunts uncles); • be protected from harm. In Australia, the Family Law Act 1975 (Cth) governs parenting arrangements for children post-separation. Relevantly: (a) The best interests of the child are paramount, and the child’s right to a meaningful relationship with both parents is weighed against the necessity to protect a child from risk of harm. (b) There is a legal presumption that separated parents have equal shared parental responsibility for a child, meaning the parents are to jointly make long term major decisions such as in respect of the child’s health, education, and religion. (c) The legislation contemplates whether an equal time arrangement for that child is reasonably practicable and, if not, the child will live with one parent and spend substantial and significant time with the other parent so as to maintain the child having a meaningful relationship with both his or her parents. (d) Parents, however, can enter into Orders by consent, without the need for judicial intervention, for their parenting arrangements provided they satisfy the framework of the child’s best interests and protecting the child from harm. (e) Where there are risk factors, such as one of the parents having been physically or emotionally abusive towards or in the presence of a child, then orders will necessarily be made for safety scaffolding such as supervision of time, requirement for drug and alcohol testing or counselling, as required. (f) Accordingly, a parent that seeks to relocate internationally with the child is subject to the Family Law Act: if the relocation is not considered in the best interests of the child, then relocation will not be permitted. (g) Further, it is an offence for a party to remove a child outside of Australia, or retain a child outside of Australia, absent consent of the other parent or court order if there are existing parenting orders in relation to that child (see Sections 65Y, 65YA, 65Z and 65ZAA). The stated penalty is 3 years’ imprisonment, although there are exceptions such as if the conduct was necessary to prevent family violence and is otherwise reasonable in the circumstances. (h) Of course there is the international agreement - The Hague Convention on the Civil Aspects of International Child Abduction – which I deal with further below. In what ways does international child relocation differ from relocation within a country? International child relocation differs from relocation domestically or interstate, as there is no concurrent legislation applying to prevent interstate relocation. However, the same principles apply in that interstate travel may not be in the child’s best interests or impact the child’s meaningful relationship with the other parent, may pose a risk of harm to the child being separated from their other parent, or otherwise impact existing parenting arrangements. I

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