Children can sometimes find themselves in the middle of separation disputes when one parent tries to relocate the children, such that the relocation makes it significantly more difficult for the child to spend time with the other parent. Obviously, these situations are can be traumatic for everyone, so it is important to understand what to do if this happens to you.
Steps to take
It’s critical that both parents attempt to come to some form of agreement before the child is moved. Relocation like this have a big impact on your child’s life. Both parents consent is required for the move unless they can demonstrate that it is in the child’s best interest to do so. That includes moving from region to region, state to state, or even overseas.
Prior to moving, if there has been no agreement and there is no court order already in place, the first step 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, and you still can’t work it out between you, the next logical step is to invite them to participate in a mediation. Mediations provide all parties with an opportunity to discuss the issues and agree to children’s orders moving forward. It’s important that while this process is playing out, you seek a written undertaking from the other parent that they will not move until they receive either your consent or a court order permitting their move.
If the issues are resolved at the mediation, it can be finalised in Court by drafting and filing consent orders. If the issues are not resolved, the next step is to file an application in the Federal Circuit of Australia and the court will determine what is in the child’s best interests.
What happens a parent just moves anyway?
This is the nightmare situation for a lot of parents. What happens if they just up and move anyway? Or if they do it first without telling me?
If a parent moves either with or without participating in mediation or providing a written undertaking, then it is important that you take decisive action by speaking to us about filing an application with the Federal Circuit Court as soon as possible. Sometimes people are in situations where they are unsure where the parent has gone. In this case, 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) investigate their customer databases to ascertain if the other parent has listed any new addresses. This will then allow you to locate them so subsequent court materials can be served on them, including notices of the upcoming Court dates.
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 that 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 consideration.
These situations are stressful for everyone so our best advice is to never hesitate to get in touch with us if you find yourself in this circumstance.
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.