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Moving with children – do you need your ex-partners consent?

If you and your ex-partner share equal parental responsibility for your children, then you will need to communicate with each other and try and agree on “major long term” decisions that will affect them. This includes any decision about moving – particularly where it might mean that the distance will significantly affect their ability to have a relationship with the parent who is staying behind.

If a parent moves away with a child without seeking or obtaining the consent of the other parent, then the other parent can apply to the court for an order to stop the parent leaving or to have the children returned.

Parents must make a genuine effort to work out an arrangement that both parents agree to – this may involve family mediation.

If the parents cannot agree, then either parent may make an application to the court to decide the best outcome. The court will make a decision focused on what is in the child’s best interests balanced against the parents freedom to move.

When planning to move you should be aware that a court decision may take many months or even years, and there is no guarantee the children will be allowed to move. You shouldn’t assume that it’s all right to move with children because there are no court orders in place. If you move with children without the other parent’s agreement and they apply for a court order, it’s likely you will be ordered to return the children.

What if children are taken or moved without your permission?

If your children are taken or moved within Australia, and it affects your ability to have a meaningful relationship with them, you can apply to the court for a recovery order to have them returned. The Australian Federal Police are usually involved in returning children, but sometimes it is the state police. The cost of returning the children is your responsibility.

What if you don’t know where your children are?

If the children are taken without your agreement, you think they’re in Australia, but you don’t know where they are, you can apply for a location order to find out where they are.

The court can order individuals or government agencies to provide information about where they may be. For example, Centrelink may know the location of the parent who has the children.

If the court decides it’s in the children’s best interests, it can order them to be returned to you.

Holiday travel – do you need your ex-partners consent?

You should always tell the other parent if you’re taking the child interstate on holiday (as a matter of courtesy).  If there is no court order in place, there is nothing stopping you from taking a child interstate for a holiday.

If there’s a court order in place, it may prevent children from leaving a particular state or territory—even on holiday. If you’re in dispute about holiday travel, you should try to reach an agreement. A family dispute resolution service may be able to help you. If you can’t reach an agreement, you may need to apply to court. Get legal advice.

Moving children because of violence of child abuse

If you or your children are at risk from family or domestic violence or child abuse, you should get urgent legal advice and support.

Warning

The laws dealing with moving children, finding missing children and recovering (or returning children) in Australia are complicated. Some may require you to take urgent action – in fact, a delay in taking action can have a negative bearing on your case.

If you want to move or travel with your children without the other parent’s permission, you should seek urgent legal advice.

If your children are taken without your consent, your should seek urgent legal advice about your options.

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The information on this information sheet is general guidance only and is not legal advice. You should consult a lawyer for legal advice.