Many relationship breakdowns involve children – which leaves the question, “How will the children spend time with their mother and father post separation?”. The paramount consideration in all disputes involving children is the concept of the “child’s best interestsR...
Some post separation parenting disputes involve the removal of children from their geographical location. Changing a child’s living arrangements, such that it makes it significantly more difficult for the child to spend time with a parent is a major change in a child’s life and something which should be discussed by both parents, prior to any move. A parent cannot move a child from region to region, state to state, or even overseas without the other parent’s consent, unless the moving parent can demonstrate that it is in the child’s best interests to do so – e.g. to protect the child from suffering harm at the hands of the other parent as a simple example.
Where there are no court orders in place, the first logical step in resolving a dispute which involves the location or recovery of children is to make contact with the other parent, detail your concerns and ask them to tell you whether they still intend to move. If they do intend to move, the next logical step is to invite the other parent to participate in a mediation with a family dispute resolution practitioner to discuss the issues and agree to children’s orders moving forward. You should also seek from the parent intending to relocate, a written undertaking that they will not move until they receive either your consent, or a court order permitting their move.
If the issues are resolved at mediation, then it is a good idea to speak to a Solicitor about drafting up consent orders (link to other article on consent orders). If the issues are not resolved at mediation, the next step is to file an application with the Federal Circuit of Australia and the court will determine what is in the child’s best interests.
What happens if the other parent just moves anyway?
If the other parent moves either with, or without participating in mediation or providing a written undertaking, then it is important that you take decisive action by filing an application with the Federal Circuit Court of Australia to recover the child, as soon as you are able. If you do not know where the other parent and child are living, your application will also ask the court to locate the child and issue orders that all government Agencies in the Australian jurisdiction (such as Centrelink, Department of Immigration, Department of Education) to investigate their customer databases to ascertain if the other parent has listed any new addresses. The purpose of locating the other parent is to serve them with a copy of your court material and notice of the upcoming Court date.
If, despite the combined best efforts of you and the court, the other parent is unable to be found, the court will issue a warrant authorising the police to search for the other parent and take them into custody when found. In this situation, which occurs very rarely, it is likely the other parent will be punished by being sentenced to a period of imprisonment, so when they are found the child will be returned to you. If the other parent insists on continuing to be involved in the child’s life, the court will determine what is in the child’s best interests, but obviously take the other parent’s behaviour into account.
If you have reason to believe that your ex partner intends to move out of the region or interstate with your child without your consent you should make an urgent appointment with the team at MCG Legal to discuss your legal options.