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Relocation: Court Orders explained in full

Court Orders about Relocation

 Relocation when Court Orders have previously been made

If you have Court Orders in place, hopefully they will contain a clause which prevents a parent from relocating.

If your Court Orders do contain a strong relocation clause, then relocation is a contravention (breach) of the Order, and the non relocating parent can file a Contravention Application in the Federal Circuit Court of Australia.

Unfortunately neither the State Police or the Federal Police will enforce a Court Order to recovery or take the Child from a Parent, unless the Court has actually made a Recovery Order which contains a specific clause empowering the Federal Police to act.

A parent wishing to relocate in circumstances where a Court Order prevents relocation, must first apply to the Court to vary the Court Order and obtain permission to relocate.

An additional safeguard might be the type of ‘Parental Responsibility Order’ you have if your Orders were made since 1 July 2006.

The default position is a presumption of shared parental responsibility.

 



 

If your Order says the parents have “ Equal Shared Parental Responsibility” then this means the parents must discuss and agree upon major long-term issues affecting the child.

Long term issues are defined by the Family Law Act 1975 to include changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.

So if “ Equal Shared Parental Responsibility” applies, then if a parent intends to move elsewhere with a child, they are supposed to consult with the other parent, so they should at least inform the other parent, but really, they are supposed to discuss and try to reach agreement upon it.

Relocation if Court Orders haven’t previously been made – Is it Kidnapping?

Is it ‘kidnapping’ if a Parent takes a Child and moves away with them?  No it is not. It is often referred to being kidnapping in America and that can make it confusing in Australia when we hear of that.

In Australia, moving away with your own biological Child, is not a criminal offence, nor any civil offence.

The most it can be  is only a contravention of previous Orders, if Orders have previously been made about where the Child is to live and spend time with.

If there are not any Orders in place about who a Child should live with, then the Child can be with either Parent, until a Court makes a decision about what is in the best interests of that Child and makes some Parenting Orders for that Child, either on an Interim or Final basis.

When faced with a relocation or recovery application, there are different types of Orders which might be made by a Court and we go through those different options below.

Can a Parent be Ordered to move back or is it just the kids?

Courts recognise a Parent’s freedom of movement, so it is rare for a Court to actually make a ‘Coercive Order’ to make a Parent who has relocated with children move back to their former place of residence.  There is wider power about orders for Kids however.

When Courts hear these types of applications, there is normally evidence before the Court as to whether if ordered to do so, the relocating Parent will return to live in their former area near the other Parent, or whether they are unable to do so at all (ie due to a Job etc).

That means the main issue before the Court will be about whether:

  • the children can stay with the parent who relocated; or
  • be ordered back to live with the other parent (non relocating parent); or
  • the relocation is to be refused and the relocating parent has indicated if ordered to do so, they will return with the kids.

If a parent wants to move they might make an Application seeking an Order permitting them to move.  Or they might just move and then bring an Application after the fact seeking an Order to be able to stay where they have moved.

Alternatively, the parent who is left behind, who didn’t move, might bring a ‘Recovery Order’ seeking the Children be returned to them in the area where they lived previously.

Types of Relocation or Recovery Orders a Court can make

Courts can make a variety of different types of Orders. This includes:

  • a ‘Recovery Order’ providing that the Child is to live with the Parent that didn’t relocate, meaning they will hve to be returned to the former area of residence to live with the other Parent;
  • that they can stay living with the Parent in the area to which they have relocated;
  • An ‘Option A’ or ‘Option B’ order.  In this type of situation, the ‘Option A’ Orders would be Orders to apply if the parent who relocated moves back with the Children.  This type of Order will enable the Child to either live with the parent who relocated & spend time with the other parent, or have shared care with both parents, but only if the parent who moved away, moves back to the former area.  The cour will also make analternative Order to apply if the relocating Parent doesn’t move back.  That alternative Order being the ‘Option B’ Order.  That alternate Order will usually provide for the Child to live with the parent who didn’t move away and what time they will then spend with the other parent who has moved away;
  • Courts will often include an Order restraining a Parent from moving the Child a certain distance or out of a metropolitan area;
  • If one of the Parents are from Overseas, or has extended family overseas, or connections overseas, then a Court might also make Orders about who holds the Passport for a Child if a Passport has been issued, or might even Order the Children be placed on the Airport Watch List for a period of time.

Whenever a Court is asked to make a determination on whether a relocation with the children should be permitted or refused, or a recovery order issued for the children to be returned to the parent who did not move away, the Court will usually also always make Interim Orders about not only who the Children are to live with, but the time they are to spend with the other Parent.

You can read actual cases on what Courts have Ordered in different relocation or recovery applications, on our website.

Relocation – More Information

The sorts of things a Court wants to know, this issues and what a considers if they are deciding a case involving a parent who either has already moved away or who wants to move away, is explained in the information sheet How does a court decide Relocation cases if a parent moves away or wants to move away.

If you already have a Court Order or are getting a Court Order then you should also read our information sheet Court Orders & Relocation explained in full.

Our information sheet The other parent might Relocate: Do I need to do anything might also be helpful to you.

Relocation, Domestic & International Child Abduction: More Information

We also have the following pages providing additional information in relation to both Relocation of a Parent with a Child within Australia (domestically) and International Child Abduction:

 

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