SEPARATION: CUSTODY AND OTHER CHILD-RELATED MATTERS

Relocation of children

If you are the parent of a child and you want to move with the child and that move will likely to impact on the other parent spending time with the child, you should first try to discuss it with the other parent. If the other parent does not agree to your relocation, you may have to apply to the Family Court for a relocation order.

Cases involving relocation of children are often complex and the outcome is difficult to be predicted. In determining whether or not to grant a relocation order, the most important consideration the Court will take into account is what is in the best interests of the child. The Court will also examine what options or proposals each person has made for the arrangements for the child. You will also need to inform the Court as to why you need to relocate with the child.

If you move without a court order or without the consent of the other party, the Court may require you to return until the case is finalized. If there is an order preventing you from relocating, doing so without the court’s permission will be in breach of a court order and you may face punishments including imprisonment.

On the other hand, if your ex-partner relocates with the child without your consent or the Court’s permission and the move is likely to impact you spending time with the child, you may apply for an injunction in the Family Court stopping the relocation.

Recovery Order

If you are responsible for the child’s care and the other parent takes the child away without your permission or fails to return the child to your care pursuant to an agreement/court orders, you may apply for a recovery order which the Court can require a child to be returned to you.

In determining whether or not to make an order for recovery of the child, the Court looks at what is in the best interests of the child. If a recovery order is made, the Court will generally direct the order to the Australian Federal Police for the recovery of the child. Given that having the police involved is likely to be very stressful to the child, the Court will not grant a recovery order lightly.

If the matter is urgent (e.g. you have immediate concerns about your child’s safety), the application for recovery order can be made on an ex-parte  basis and the Court may be able to hear your case on the same day as you filed your application.

If the child has been taken overseas without your consent or without the court’s permission, you may make an application in the Australian Government Attorney-General’s Department for the return of the children if the country to which the child was taken is a signatory to the Hague Convention. If this happens to your child, you should seek urgent legal advice.

Injunctions

An injunction is an order made by the Court to restrain the other party from doing certain acts or things. Under the Family Law Act, the Family Court has the power to grant an injunction to protect the welfare of a child. The injunction may be:

  • for the personal protection of the child, the child’s parents or other carers;
  • to restrain a person from entering or remaining in a place;
  • restraining a person from relocating with the child or taking the child overseas.

Often, an application for injunction has to be made urgently and on an ex-parte basis.

For injunction in financial matters, please see Disputes on financial matters.

Contravention/enforcement

When the Court makes orders (including orders made by consent), they must be followed by the parties. If your ex-partner refuses or fails to follow parenting orders without reasonable excuse, it is a contravention of the orders and you may make an application for contravention. An application for contravention informs the Court that the orders made by the Court are not being followed and upon satisfying of the contraventions, the Court may make the other person:

  • pay any expenses that you had incurred as a result of the contravention;
  • pay legal costs;
  • do community service work;
  • be put on a bond;
  • pay a fine; or
  • face imprisonment.

Usually, you will need to invite the other person to Family Dispute Resolution before commencing contravention proceedings.

Alternatively, you may make an application seeking enforcement of the parenting orders. In enforcement proceedings, the other person will not be punished for breaching the parenting orders and the orders will not be changed by the Court, but the Court may make an order that will compensate you such as allowing more time for you to spend with the child.