What will happen if I relocate my children without the other parent’s consent?

There can be serious consequences if a parent fails to inform the other parent of their intention to relocate a child.

We break down what these risks may be and why it is so important that you instruct a specialist family lawyer to advise you on the issue.

Recovery Application

In the event that either parent relocates with the children without the consent of the other parent, the parent who no longer has the care of the children may file an application with the Federal Circuit and Family Court of Australia. .

Should an urgent application be required, the filing party will commence proceedings in the Federal Circuit and Family Court of Australia, seeking Orders for the children to be returned to their former locality and/or home.

This is commonly referred to as a recovery application.

Depending on the urgency of the application, the matter may be listed for immediate determination before the Court (often within seven (7) days of the Application being filed), or, the matter may be listed for Directions (a procedural event) before a Registrar, and thereafter a Hearing.

Interlocutory Hearing

Running an urgent Interlocutory Hearing can be an expensive process for both parties, as it is common for each party to be represented by both a solicitor and a barrister.

Any application before the Court carries risks.

In a recovery application, the relocating parent carries the risk that the Court makes an Order for the children to be returned to their former home.

Court Orders

Should the Court make such an Order, the relocating parent may also risk the Court making a costs Order. This involves the unsuccessful party (being the relocating parent in this case), having to pay the legal costs or a portion of the legal costs accrued by the parent who had to file the Court application.

Conversely, if the non-relocating parent commences Court proceedings and they are s unsuccessful at Hearing, they too may also face a risk of a costs Order being made against them.

If Court proceedings are commenced and you fail to engage in the Court process or attend the Hearing, you may risk the Court making Orders in your absence. These Orders may include that the children be returned to their former residence, that the children reside with the non-relocating parent and/ or an order could be made in your absence that you pay the other party’s costs. For this reason, it is essential that you fully engage in any Court process.

Case Review

The High Court matter of U v U [2002] HCA 36 is a key case relied upon when determining an issue of relocation.

This case provides that the freedom of parents to relocate should only be taken away by the Court where the relocation would not be in the best interests of the children.

In that regard, the Court will consider whether the children will have their basic needs met at the proposed new location and whether any new arrangement will be practical in ensuring the non-relocating party will be able to maintain their relationship with the child/children.

How We Help

There can be many risks involved in relocating children without the consent of the other parent. It is extremely important that you receive tailored legal advice regarding the unique risks in your case, from a Specialist Family Lawyer.

Our Specialist Family Lawyers will provide you with specific advice, tailored to your circumstances. We will advise as to your likely chances of success should you be the person relocating, or the person considering commencing urgent Court proceedings.