‍Where the other parent removes or relocates the children without consent, the Court has the power to make serious orders pursuant to Division 8, Subdivision C - Location and Recovery of Children. Available to the Court are recovery orders, location and Commonwealth information orders and injunctions (section 68B and section 114). For overseas removal, the Family Law (Child Abduction Convention) Regulations 1986 implement the Hague Convention.

Orders can also be obtained as a preventative measure and can include placing the children on the Australian Federal Police Family Law Watchlist and PACE alerts, and compelling one parent to surrender passports.

Where a person has fled with the child, in an attempt to avoid the other parent, or deprive them of time, the other parent must act quickly. For example, if a parent absconds interstate with a child, and a person waits several months before making an application, the delay itself may defeat any successful recovery order. An application made weeks or days after a person absconds with a child has far greater chances of success, but it always will depend on what is in the children’s best interests.

A unilateral interim relocation is not something that is usually endorsed by the Court, as it is reluctant to decide something as serious as a relocation matter as an interim matter (meaning before a full trial). However, a party may obtain an interim recovery order, only for the Court to make a final order to permit that same person to relocate to whence they came.

Relocation is decided by the child’s best interests and the court evaluates each competing proposal on its merits; there is no requirement that a relocating parent show a good or compelling reason to move.  A parent’s freedom of movement is relevant but yields where the child’s interests require.

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See also:

Morgan & Miles [2007] FamCA 1230

AMS v AIF[1999] HCA 26

U v U[2002] HCA 36