Separation & Children: The legalities all parents should know


Separation & Children - Resolve Conflict Family Lawyers & MediatorsWith separation comes an opportunity for change, a perfect chance to call a new place home. That new home could be a different suburb, state or even country. When children are involved the separation process becomes more complicated. After divorce, parents are no longer in a relationship; however they will remain parents to their children. The law mandates that it is in the best interests of the children to have a relationship with both parents and this means that there are certain limitations about when and where, children of a broken relationship can call a new place home.

Here we look at the legalities separating parents need to be aware of including; child custody and relocation rights and limitations.


Child Custody:[1]

Child custody is a term used to describe the legal as well as the general relationship between a parent and the child. The initial consideration of the Court when making a parenting Order, is to consider what is in the best interests of the child. The Court presumes that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child.

There is a presumption that equal shared parental responsibility is in the best interests of the child, in cases where an Order is made for shared parental responsibility, parents are obligated to consult together on issues such as the child’s schooling, religion, medical treatment among others. In certain cases, for example where there has been child abuse or family violence, the presumption of shared parental responsibility will not apply.

Sole parental responsibility surrenders all control of the child over to one parent and can take one of two forms, either legal or physical custody depending on the claim of the parent involved.

Legal child custody includes all those decisions concerning the upbringing of a child. With sole parental responsibility only one parent has the right to make the decisions on the upbringing of the child or children.

Sole physical custody is awarded in cases where the court deems one parent to be clearly unfit and incapable of raising a child, in such cases the other parent becomes the custodial parent. Importantly, physical custody can be shared between the parents.


Relocation to Country Side

If a parent plans to move with their child to another town, this is known as relocation. If the move will greatly impact the time the child would spend with their other parent, the parent must have:

  1. The consent of the other parent; or
  2. Orders from the court granting permission to move.


If parents share equal parental responsibility, they must make a genuine effort to try and reach an agreement with each other before making any arrangements regarding the child. For example, parents might agree to extend the period of time the child spends at the other’s house during school holidays. Dispute resolution services, such as mediation, may be useful for reaching an agreement. If the parents can agree, it is recommended they enter into a written parenting plan or apply to the Family Court for consent orders prior to moving.

Court Orders

However, if the parents cannot agree on relocation, an application can be made to the Court for an order to allowing the parent to move. When deciding whether to grant permission, the Court will consider the best interests and welfare for the child, balanced against the freedom to move. Alternatively, if a parent does not agree to the other moving, they can apply to the Court either for orders to stop the child leaving (a restraining order) or to have the child returned (a recovery order).


Relocation Interstate

Where one parent wants to relocate interstate with the child/ren, complications can arise. Where moving interstate is going to limit the child/ren’s time with a parent or another person who is significant in their lives, a court may not grant permission. If both parents share equal parental responsibility for their child/ren, both parents must make a genuine effort to come to agreement about major long-term decisions including plans to relocate interstate and even holidays and overseas travel.

If you are unable to agree, you will need to first attend a Family Dispute Resolution service who may be able to assist you to reach an agreement. If however you cannot agree, you will need to apply to the court. If you do decide to move interstate without an agreement the other party can apply to the court to either stop the children moving by issuing a restraining order or otherwise have the children returned by way of a recovery order.


Airport Watch List

Are you concerned that your child may be taken from Australia without your knowledge or consent? Is there a risk that if they are taken out of the Country, they may not come back?

Even if there are no parenting Orders in place, it is still possible to take steps to ensure that your child is not taken out of the country without your consent.

The Airport Watch List provides a mechanism to ensure that a child whose parents are involved in Family Law proceedings cannot be removed from the Country without the consent of the Court. Once a child’s name is placed on the Watch List, it will be made available at all international departure points around the country. If a person who’s name is on the List attempts the leave the country, they will be stopped at the airport and not allowed to leave.

If you are concerned about your child being taken out of the country, it is important to make an urgent Application to the Court for the child’s name to be placed on the list. Importantly, however, you do not need to wait until the Application is determined by the Court – as soon as an Application is made, a request can be submitted to the Australian Federal Police to have the child placed on the List.

Should you have concerns about your child leaving the Country or want further information about placing a child on the Airport Watch List, please contact our office.


The Hauge Convetion

The Hague Convention, which came into force in 2003, in a treaty in force between Australia and a number of other countries which provides a lawful procedure for seeking the return of abducted children to their home country.

The Convention seeks to protect children against the harmful effects of abduction and retention across international borders and seeks to ensure that any child who is abducted from one country to another can be safely and quickly returned to the child’s country of residence, unless in exceptional circumstances. There are several exceptions, including, where there is a risk that returning the child would exposes them to physical or psychological harm.

The Convention sets up a Central Authority in countries who are party to the Convention which has a number of different functions to assist the return of children from one country to another.

As noted by the Australian Government Attorney General Department who is responsible for the Hague Convention’s administration, the basis of the Convention is “to ensure that the decisions about the welfare of a child should be made in the jurisdiction in which the child habitually resides”.

A list of countries which are signatory to the Convention


[1] References:

Section 61DA of the Family Law Act 1975 Cth.


Should you have any questions about any of these matters you please contact our team at Resolve Conflict Lawyers.


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