

Not all countries have signed the Hague Convention, particularly in Asia or the Middle East, and when courts are considering whether to give permission for an overseas trip, the Hague status of the destination can be very relevant to the outcome.
The important protection of the Hague Convention is that normally decisions about the child will be made by the courts of the country of normal residence. So, for example, if an Australian child, living with the mother in Australia, is not returned to Australia by, say, an American father after a holiday in America, the American courts would send the child back to Australia for our courts to make a decision about changes to the parenting arrangements. If a proposed destination is not a Hague convention country, courts may require some financial security against the child’s return, and if there had been threats to relocate a child in such a country, permission to travel might well be very hard to obtain.
Can I relocate interstate or overseas with my children after separation?
In considering an application for relocation of children the Court will have regard to a number of factors including the following:
- The views of the children
- The nature of the children’s relationships with each parent
- The likely effect of any change in circumstances on children of a separation
from either parent - The practical difficulty and expense of contact and whether the practical
difficulty and expenses will substantially affect the children’s right to
maintain personal relationships and direct contact with both parents - The capacity of each parent to provide for the children’s needs including
emotional and intellectual needs - The children’s maturity, sex and background
- The need to protect the children from harm
- Whether there is any family violence and the impact of the violence on the
ongoing relationship of the children with their parents - The Order that is least likely to lead to further proceedings
The Court tends to favour an approach to relocation cases that identifies the competing proposals of the parties and considers which proposal is preferable in the particular circumstances of the case, having regard to the interests of the children.
Following the High Court decision of MRR and GR, the Court must consider the reality of the situation, in particular whether the proposed arrangements for the children are reasonably practicable. This will involve a consideration of, among other things, whether a parent’s proposal for the children to spend time with the other parent is sufficient to maintain the children’s relationship with the other parent. This will be particularly challenging in circumstances where the proposed distance between the parties is great, the cost of travel between the two residences is high and the children have enjoyed substantial and significant time with the other parent.
If you are considering such a move, it is critical to obtain legal advice early, and preferably to be open about your intentions to move. You need to think clearly about how you will facilitate a meaningful and regular relationship between the children and the other parent. Can you afford to cover regular airfares to and from your new home for the children to have that contact?
Are you prepared to forsake greater holiday time in favour of the other parent? Unfortunately, there is no easy answer when it comes to the issue of relocation. It remains a balancing act in which the ultimate result will depend on the facts and circumstances of each case.
Child Dispute Conference – Family Law
What happens at a Child Dispute Conference?
How do I prepare for a Child Dispute Conference? In nearly all family law proceedings involving disputes about the care arrangements for children, the parents are ordered by the Court to attend a Child Dispute Conference. The Conference is an opportunity for parties to meet with a Family Consultant and attempt to resolve the issues they have in relation to agreeing upon parenting arrangements and other specific issues about their children.
Family Consultants are psychologists or social workers (counsellors) who have been appointed by the Court and specialise in working with families and in particular, working with children.
At the Child Dispute Conference the Family Consultant will meet with both parties, either separately or together or a combination of both, and explore the issues that are in dispute about the children and what arrangements need to be made for the children. The Family Consultant will attempt to assist the parties in reaching an agreement. Attendance at the Child Dispute Conference is compulsory. Lawyers do not attend. Following the Child Dispute Conference, the Family Consultant will prepare a Memorandum to the Court to advise the Judicial Officer whether any agreement was reached; what issues are in dispute and any recommendations. In some cases, a further Child Dispute Conference may be ordered or, often a Family Report may be recommended.
Family Reports assist the Court in making decisions about a child or the children. Family Reports can also be used as an aid to settle a matter. If a Family Report is ordered, a series of interviews can occur both individually and with both parties present. Children are commonly interviewed separately, and the Family Consultant may also interview other persons of significance in your child or children’s life for example grandparents or the new partners of one of the parties.
The information obtained by the Family Consultant will include the issues in dispute, the views and wishes of the children and the past and current parenting arrangements and each parties availability for the future. The information that each of the parties and the children provide to the Family Consultant is not confidential and is admissible. The Family Consultant will include all the relevant information provided as well as their own observations and recommendations into a Report which is then provided to the Court and the parties and/or their lawyers. For this reason, whilst lawyers do not attend at such conferences, careful preparation is recommended so as to prepare and familiarise oneself with the process.
Disputes about children are often resolved through Child Dispute Conferences or following receipt of Family Reports prepared by Family Consultants as they can often provide a useful tool for assisting in settlement negotiations. Having said that we have been involved in many matters where regretfully the Family Consultant has simply ‘got it wrong’ and in which event they will be required to be in attendance at court for cross examination in order that the deficiencies in their report may be brought to the court’s attention.