Definitive global law guides offering comparative analysis from top-ranked lawyers
CHAMBERS GLOBAL PRACTICE GUIDES
Child Relocation 2025 Definitive global law guides offering comparative analysis from top-ranked lawyers
Contributing Editor Alex Caruthers Hughes Fowler Carruthers
Global Practice Guides
Child Relocation Contributing Editor Alex Carruthers Hughes Fowler Carruthers
2025
Chambers Global Practice Guides For more than 20 years, Chambers Global Guides have ranked lawyers and law firms across the world. Chambers now offer clients a new series of Global Practice Guides, which contain practical guidance on doing legal business in key jurisdictions. We use our knowledge of the world’s best lawyers to select leading law firms in each jurisdiction to write the ‘Law & Practice’ sections. In addition, the ‘Trends & Developments’ sections analyse trends and developments in local legal markets. Disclaimer: The information in this guide is provided for general reference only, not as specific legal advice. Views expressed by the authors are not necessarily the views of the law firms in which they practise. For specific legal advice, a lawyer should be consulted. Content Management Director Claire Oxborrow Content Manager Jonathan Mendelowitz Senior Content Reviewers Sally McGonigal, Ethne Withers, Deborah Sinclair and Stephen Dinkeldein Content Reviewers Vivienne Button, Lawrence Garrett, Sean Marshall, Marianne Page, Heather Palomino and Adrian Ciechacki Content Coordination Manager Nancy Laidler Senior Content Coordinators Carla Cagnina and Delicia Tasinda Content Coordinator Hannah Leinmüller Head of Production Jasper John Production Coordinator Genevieve Sibayan
Published by Chambers and Partners 165 Fleet Street London EC4A 2AE Tel +44 20 7606 8844 Fax +44 20 7831 5662 Web www.chambers.com
Copyright © 2025 Chambers and Partners
Contents
INTRODUCTION Contributed by Alex Carruthers, Liam Bennett and Stacey De Souza, Hughes Fowler Carruthers p.4
MAURITIUS Law and Practice p.99 Contributed by The Chambers of Narghis Bundhun SC
AUSTRALIA Law and Practice p.9 Contributed by Lander & Rogers
SINGAPORE Trends and Developments p.107 Contributed by Rajah & Tann Singapore LLP SOUTH AFRICA Law and Practice p.111 Contributed by Miller du Toit Cloete Inc
BRAZIL Law and Practice p.23
Contributed by Chieco Advogados Trends and Developments p.31 Contributed by MF Ejchel International Family Law FRANCE Law and Practice p.36 Contributed by Chauveau Mulon & Associés
SPAIN Law and Practice p.120 Contributed by E. Susín International Law Firm Trends and Developments p.131 Contributed by MAYTEGARCIA International Family Law, slp UAE Trends and Developments p.138 Contributed by Awatif Mohammad Shoqi Advocates & Legal Consultancy
HONG KONG SAR, CHINA Law and Practice p.42 Contributed by Withers
ITALY Law and Practice p.53
UK Law and Practice p.145 Contributed by NE Family Law
Contributed by Studio Zanetti Vitali Trends and Developments p.64 Contributed by Studio Zanetti Vitali
USA Law and Practice p.157 Contributed by Krauss Shaknes Tallentire & Messeri LLP Trends and Developments p.167 Contributed by Krauss Shaknes Tallentire & Messeri LLP
JAPAN Law and Practice p.69 Contributed by Tokyo Kokusai Partners Law Office
JERSEY Law and Practice p.78 Contributed by Carey Olsen Trends and Developments p.88 Contributed by Carey Olsen
USA – FLORIDA Trends and Developments p.172 Contributed by John F. Schutz PL
MALTA Law and Practice p.93 Contributed by Robert Thake – Legal Office
3 CHAMBERS.COM
INTRODUCTION
Contributed by: Alex Carruthers, Liam Bennett and Stacey De Souza, Hughes Fowler Carruthers
Hughes Fowler Carruthers is one of London’s lead - ing divorce and family law practices. Established more than 20 years ago, the firm specialises in ul - tra-high net worth and high-profile cases, especially those with international aspects. Hughes Fowler Car - ruthers retains its long-established Band 1 ranking in Chambers and Partners’ UK Guide 2025 and, in Chambers and Partners’ High Net Worth Guide 2025, one partner and a consultant were ranked as “sen - ior statespeople”, with three other partners ranked in Band 1 or as “star individuals” and two other lawyers
being individually ranked – although all partners are highly experienced. The firm’s lawyers also have in- depth knowledge of many foreign jurisdictions and excellent overseas contacts. Hughes Fowler Carru - thers is the firm of choice for high-value prenuptial and postnuptial agreements – especially those with cross-jurisdictional aspects – and is renowned for keeping clients’ businesses and cases away from the glare of publicity. The lawyers have extensive experi - ence in mediation and collaborative approaches but are also highly expert litigators.
Contributing Editor
Co-authors
Alex Carruthers is a founding partner at Hughes Fowler Carruthers. He specialises in divorce and financial work, and in children’s work (particularly international cases). His clients are high net worth individuals
Liam Bennett joined Hughes Fowler Carruthers in 2016 after qualifying as a family solicitor that same year. He is a senior associate solicitor and deals with all aspects of financial remedies cases on the breakdown of a
with complex legal issues, including in relation to trusts and jurisdictional disputes. Alex continues to be highly commended by Chambers and Partners for his expertise. Both Chambers UK 2025 and Chambers High Net Worth 2025 reconfirmed Alex’s Band 1 ranking – with the former commenting “he’s as good as it gets” and the latter recognising him as “an exceptional, brilliant and fearless advocate” and a “fine strategist who understands his clients’ needs and focuses on getting the best outcome”.
marriage, often where there are disputes of a complex financial or international nature. He has been involved in various reported cases. Liam also regularly advises on private law children matters including relocation applications, residence and contact disputes, parental alienation and financial provision for unmarried parents. Although many of his cases settle through negotiation, Liam is a shrewd and proactive litigator when proceedings are necessary. advising on a wide range of family law matters, including divorce, financial relief, emergency injunctions, and private law child matters. Stacey is adept at working with international and domestic clients from a variety of backgrounds, including high net worth individuals. She deals regularly with complex financial disputes, often involving high-value business assets, offshore assets, trusts and inherited wealth. Stacey is highly regarded by clients and peers and is confident, calm, and committed to achieving the best possible outcome by adopting a tailored approach to each case. Stacey De Souza joined Hughes Fowler Carruthers in 2020 after qualifying as a family solicitor in 2018. She is a senior associate solicitor
4 CHAMBERS.COM
INTRODUCTION Contributed by: Alex Carruthers, Liam Bennett and Stacey De Souza, Hughes Fowler Carruthers
Hughes Fowler Carruthers Academy Court 94 Chancery Lane London WC2A 1DT United Kingdom
Tel: +44 20 7421 8383 Fax: +44 20 7421 8383 Email: a.carruthers@hfclaw.com Web: www.hfclaw.com
Global Overview of Child Relocation in 2025 Another year has passed with a large number of relo - cations having taken place around the world. When a marriage or other form of intimate relationship breaks down, one or both parties may want to make a change in their lives. For some, this may mean returning to their home country, starting afresh in a new country, pursuing a new relationship or seeking out a particular employment opportunity. Due to the rise of globali - sation and cross-cultural relationships, one parent’s desire to relocate, either internally within the same country or internationally, is arguably becoming an increasingly prevalent issue across many jurisdictions. Any relocation has monumental implications for the children of divorcing or separated couples; therefore, the parent seeking to move should carefully consider their plans and how a relocation could be achieved, both with and without the other parent’s agreement, before pursuing it. Internal and international relocation For those seeking to relocate, returning “home” to the country they came from (often to gain a support network of family and friends living there) and forging a new relationship with someone from another coun - try are common reasons for doing so. In deciding between countries, a compromise must be reached about where to live. Even once a decision is reached, it might then become necessary to relocate for work – a factor that still disproportionately affects men. In international families, one party will often have to live in the country of the other. When they split up, the decoupling process works in reverse, and this
potentially makes the issue of relocating children more acute. Obviously, these issues do not just affect the nuclear family – they also apply to blended families and in the case of adopted children, where different considerations may apply from country to country. The decision of whether or not to relocate with a child following the breakdown of a marriage or relationship can be an incredibly difficult one to make. The laws relating to relocation differ between differ - ent jurisdictions. In many countries, such as England and Wales, a parent cannot relocate with a child (whether internally or internationally) unless the other parent consents or there is a court order permitting the relocation following contested proceedings. In other countries, such as the USA, there are different legal jurisdictions within the same country. The laws in some states presume that a custodial parent has the right to change the residence of a child unless the other parent can provide evidence to convince the court that such a move would be detrimental to the child, whereas other states first require consent or a court order. This can make it very difficult for one party to leave the state and move elsewhere in the country. The family courts have long recognised relocation cases as some of the most contentious and difficult matters which they have to deal with. Judges regularly comment upon just how difficult such cases can be to determine, given that they are often finely balanced and the potentially devastating impact their decision may have on the unsuccessful party. Notwithstanding the complexities that arise, the number of such cases continues to increase for the reasons identified above.
5 CHAMBERS.COM
INTRODUCTION Contributed by: Alex Carruthers, Liam Bennett and Stacey De Souza, Hughes Fowler Carruthers
Given that the process can be slow and sometimes cumbersome in some countries, timing is very impor - tant so as to avoid unnecessary delays, and, for the parent seeking to relocate, any opportunity that arises to negotiate and to try to reach an agreement with the opposing parent, either before or during the course of proceedings, should be taken. Conversely, delay often suits the parent opposing the relocation. When trying to reach an agreement, the parent seeking to relocate should, where viable, invite the other parent to also relocate and offer generous contact proposals. Although the key considerations typically remain the same, different jurisdictions vary in how they balance the right of the primary carer (often the mother) to go to a place where she would prefer to be against the change to the child’s relationship with their father. In trying to achieve the right balance between the two, the law may be a blunt instrument – given that the fac - tual narrative of each relocation case is, by definition, unique and distinctly human. It can also be a costly exercise involving multiple hearings within lengthy proceedings. Choosing to use the courts to deal with issues relat - ing to children can be a bit of a sledgehammer and an expensive one, too – requiring people to spend their hard-earned savings on trying to ensure that they will see their child again or potentially prevent the child from moving to another country. Whether individuals can afford good legal counsel will depend on their financial situation or whether legal aid is available in their country. In some countries, relocations can be resolved out of court through avenues such as media - tion or arbitration. The key consideration in such cases is often the wel - fare of the child. The weight placed on such issues and evaluating what is in the child’s best interests will depend on the jurisdiction. In England and Wales, where the same welfare approach applies to internal and international relocations, the courts must weigh up various factors under a welfare checklist, such as: • the child’s wishes and feelings; • the child’s sex and background; • the child’s physical, emotional and educational needs; and
• the likely effect on the child of a change in circum - stances. This list is non-exhaustive. Careful preparation of writ - ten evidence and credible contact plans facilitating frequent contact between the opposing parent and child are key aspects of any relocation application. If the parent seeking to relocate can afford to pay for at least some return flights for themselves and the child, so the child can spend time with other parent, they should offer to do so. The court must be convinced that the relocation is one that the applicant parent genuinely believes to be in the best interests of the child, rather than motivated by a desire of one parent to “get away” from the other and to marginalise the other’s role in the child’s life. The age and maturity of the child or children will often be a key consideration in jurisdictions that take account of their wishes and feelings. The impact on the child is likely to increase with age – for example, a 15-year-old is typically more able than a five-year- old to articulate and express their desires about their relationships with their parents. However, the amount of weight given to the child’s views can vary in differ - ent jurisdictions, and one aspect with which the courts have to regularly grapple is whether the expressed wishes and feelings of a child represent their own independent voice or whether they are, for whatever reason, stating what they think one parent wants to hear. Where different children express strongly differ - ent wishes, this might result in families/siblings being split up. The courts will also consider other factors such as the potential harm that could be caused to the primary carer of a child who is refused permission to relocate. It is widely accepted that it is important for a child to have a relationship with their non-resident parent; however, it is similarly important for the child to have a principal carer who is psychologically stable and emotionally well. The court will likely be concerned for the primary carer if they assert that they are lonely and isolated with no support network in the country where the parties are living, although this is just one aspect amongst many others that the court will need to consider, including the sense of loss and psycho - logical impact the opposing parent may suffer if the
6 CHAMBERS.COM
INTRODUCTION Contributed by: Alex Carruthers, Liam Bennett and Stacey De Souza, Hughes Fowler Carruthers
Child abduction Where permission to relocate is not obtained (whether through the court or otherwise), the relocation of a child can result in child abduction. This is a criminal offence in many countries, and the child’s return will often be governed by the terms of the Hague Conven - tion of 25 October 1980 on the Civil Aspects of Inter - national Child Abduction (the “1980 Hague Conven - tion”), a multilateral treaty relating to international child abduction and supplemented by the Hague Conven - tion on parental responsibility and protection of chil - dren (“HCCH 1996”). As of 2025, there are 103 parties to the 1980 Hague Convention, including most West - ern countries and many others that have internation - ally recognised legal systems. Some countries, includ - ing India, Bangladesh and the UAE, are not signatories to the 1980 Hague Convention. Certain countries that are signatories (eg, Russia, Turkey and Mexico) may not always demonstrate compliance. This guide aims to provide some understanding of the broad principles that apply in such cases. In reality, the application of the 1980 Hague Convention within countries that are signatories will differ, as will the length of time taken to deal with such cases. The 1980 Hague Convention protects children from the harmful effects of abduction (ie, wrongful removal and retention across international boundaries) by a parent. It encourages the prompt return of abducted children to their country of habitual residence and pro - vides a procedure to bring about their return. The 1980 Hague Convention essentially operates on the principle that if there is a relocation without the consent of both parties, the child should be returned to the country from which they were taken, and any decisions about the child’s future residence and living arrangements should then be taken in that country. The existence of the 1980 Hague Convention dem - onstrates that the international community recognises the scale of the problem and the pressing need for a mechanism for returning children. Parents are best advised to act quickly to prevent an abduction if they believe that their child may be at risk – for example, by obtaining an order prevent - ing removal where available. Once a child has been wrongfully removed, the legal mechanisms for forcing
relocation is permitted. If one party has been found by the court to have been physically, verbally or psy - chologically abusive towards the other, both during the relationship or post separation, it is possible that this too may play a role in the decision it makes on a proposed relocation. Practical considerations, such as the size of a country in an internal relocation and the distance between the two countries in an international relocation can also be significant. Moving from one side of Australia to the other, for example, could have a distinct impact on a child, but less so on a child moving 30 miles away. Travelling times can also be material. It may well be quicker and easier for one person to travel from London to visit another in Paris than it is to go to Northumberland. Post-Brexit, the UK is no longer subject to EU regula - tions. Potential issues might therefore arise in relation to an order previously made by an EU country in terms of enforceability. Equally, the removal of freedom of movement now makes it harder for people (particularly EU citizens) to spend significant time in the UK. Immi - gration has also become a more challenging issue in the UK, which makes some practicalities more difficult, whereas movement within the EU remains straightfor - ward. Specialist immigration advice is often essential before issuing relocation proceedings, as is taking all the necessary steps so far as possible to secure the relevant visa or visas prior to any final hearing. The Family Procedure Rules in England now require parties to consider non-court dispute resolution before issuing private law applications relating to children. This pre-action protocol applies to parties wishing to make a relocation application, and it is therefore important to get advice at an early stage. The court also has the power to adjourn court proceedings if it considers that the parties have not engaged in non-court dispute resolution when they should have. Given the binary nature of relocation disputes, resolu - tion through mediation is rare, but not impossible. For those who can afford the cost of a private arbitrator, arbitration offers a fast-track approach to receiving a determination.
7 CHAMBERS.COM
INTRODUCTION Contributed by: Alex Carruthers, Liam Bennett and Stacey De Souza, Hughes Fowler Carruthers
a return can be protracted and require applications in various jurisdictions. It is better to act pre-emptively to avoid this difficult, lengthy and expensive process. Relocation applications are only going to become more frequent in our increasingly interconnected world and are something that parents and the courts in different jurisdictions are going to have to deal with.
8 CHAMBERS.COM
AUSTRALIA Law and Practice Contributed by: Eleanor Lau, Skye Owen and Monica Bayas Inglis Lander & Rogers
Australia
Sydney
Tasmania
Contents 1. The Care Provider’s Ability to Take Decisions About the Child p.11 1.1 Parental Responsibility p.11 1.2 Requirements for Birth Mothers p.12 1.3 Requirements for Fathers p.12 1.4 Requirements for Non-Genetic Parents p.12 1.5 Relevance of Marriage at Point of Conception or Birth p.13 1.6 Same-Sex Relationships p.13 1.7 Adoption p.14 2. Relocation p.14 2.1 Whose Consent Is Required for Relocation? p.14 2.2 Relocation Without Full Consent p.14 2.3 Application to a State Authority for Permission to Relocate a Child p.15 2.4 Relocation Within a Jurisdiction p.18 3. Child Abduction p.18 3.1 Legality p.18 3.2 Steps Taken to Return Abducted Children p.19 3.3 Hague Convention on the Civil Aspects of International Child Abduction p.20 3.4 Non-Hague Convention Countries p.22
9 CHAMBERS.COM
AUSTRALIA Law and Practice Contributed by: Eleanor Lau, Skye Owen and Monica Bayas Inglis, Lander & Rogers
Lander & Rogers is a leading Australian law firm, comprising more than700 people, including 100 part - ners, across seven areas of practice. The family and relationship law group is the largest in Australia, with the highest number of family law Accredited Special - ists of any firm in Australia. With offices in Melbourne, Sydney and Brisbane, Lander & Rogers provides specialist advice, both nationally and internationally, in all areas of family law, including divorce, financial agreements, property settlements, parenting, reloca -
tion and maintenance. It regularly represents clients with cross-jurisdictional issues involving countries such as Singapore, China, Hong Kong, the UK Eu - rope, the USA, the UAE, and more. It has language expertise in Mandarin, Cantonese, Korean, Greek, Hebrew, Spanish and Hokkien. The firm is a member, and several of its partners are fellows, of the Inter - national Academy of Family Lawyers (IAFL) and can draw on specialist corporate advice from its commer - cial practice groups to assist family law clients.
Authors
Eleanor Lau is a partner in the family and relationship law team at Lander & Rogers, an accredited family law specialist, a member of the Specialist Accreditation Family Law Advisory Committee, and a fellow of the
Skye Owen is a special counsel at Lander & Rogers and an accredited family law specialist. Having worked in family law for nearly 20 years, she has been a member of the Association of Family and Conciliation
International Academy of Family Lawyers. She is experienced in advising clients across the spectrum of family and relationship law matters, and has particular expertise in financial matters involving complex structures, and complex parenting matters, particularly in cases that cross international jurisdictions.
Courts and Australian Association of Collaborative Professionals. Skye provides advice across the spectrum of family and relationship law matters, but has a particular interest in complex parenting matters, including relocations, issues involving special medical procedures and cases involving overseas jurisdictions. Holding a master’s degree in international relations, Skye also has a keen interest in international matters, including overseas child abduction, overseas maintenance and child support matters.
Monica Bayas Inglis is a lawyer at Lander & Rogers and works closely with clients across a range of complex parenting and property matters. Monica previously worked as a legal associate for a judge in the
Federal Circuit and Family Court of Australia (Division 1). She has particular experience in domestic and international child relocation and child abduction matters. Monica’s expertise in family law is fuelled by a genuine passion for justice and a commitment to ensuring that individuals facing legal challenges find the support and guidance they need. She approaches each case with empathy, diligence and a determination to achieve the best possible outcomes for her clients.
10 CHAMBERS.COM
AUSTRALIA Law and Practice Contributed by: Eleanor Lau, Skye Owen and Monica Bayas Inglis, Lander & Rogers
Lander & Rogers Level 5 33 Alfred Street Sydney NSW 2000 Australia Tel: +61 02 8020 7700 Email: law@landers.com.au Web: www.landers.com.au
1. The Care Provider’s Ability to Take Decisions About the Child 1.1 Parental Responsibility The Constitution in Australia confers power on the Commonwealth (the “Federal Government”) to make laws with respect to parental responsibility, primarily through the Family Law Act 1975 (Cth) (the “Family Law Act”). Parental responsibility is a parent’s authority to make decisions in relation to major long-term issues affect - ing the care, welfare and development of a child. It is defined under Section 61B of the Family Law Act as “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”. Major long term-issues are defined under Section 4 (1) of the Family Law Act as being issues relating to the “care, welfare and development of a child of a long term nature”, which can include the child’s edu - cation, religious and cultural upbringing, health and name, and changes to living arrangements that make it significantly more difficult for the child to spend time with a parent. When a child is born, each birth parent ordinarily has joint parental responsibility for the care, welfare and development of the child until the child is 18 years of age. This responsibility is defined under Section 61C of the Family Law Act and continues irrespective of any changes in the nature of the relationships of the child’s parents (such as the child’s parents becoming separated or by either parent marrying or remarrying).
However, the Federal Circuit and Family Court of Aus - tralia (the “Court”) has the power to make a parenting order allocating parental responsibility for a child until the child is 18 years of age. A parenting order does not expressly diminish any aspect of parental responsibil - ity, except to the extent it is expressly provided for in the order or necessary to give effect to the order. On 6 May 2024, the law with respect to making par - enting orders in relation to a child in Australia changed significantly. Previously, the Family Law Act required the Court to apply a presumption that it is in the best interests of a child for parents to have equal shared parental responsibility. Now, rather than a presump - tion of equal shared parental responsibility, the Court has discretion to decide what form of parental respon - sibility is in the child’s best interests. In the absence of any order to the contrary, both parents will retain shared parental responsibility for their child/children. Pursuant to Section 61DAA, if the Court makes a par - enting order that provides for joint decision-making about any issue, parents are required to consult each other in relation to each major long-term decision and make a genuine effort to come to a joint decision. Despite a parenting order allocating joint parental responsibility for a child, there is no requirement for a parent to consult on issues that are not major long- term issues whilst the child is in their care. If the Court does not consider it to be in the child’s best interests for the parents to have joint decision- making in relation to all major long-term issues, the Court may confer sole decision‑making in relation to parental responsibility on one parent to the exclusion
11 CHAMBERS.COM
AUSTRALIA Law and Practice Contributed by: Eleanor Lau, Skye Owen and Monica Bayas Inglis, Lander & Rogers
of the other. If one parent is conferred with sole deci - sion-making, they are permitted to make all the major long-term decisions for the child without consulting the other parent. The Court can also order that one parent has sole decision-making in relation to specified issues but confer joint decision‑making in relation to all other major long‑term issues. The purpose of the legislation is to allocate any responsibility for major long-term issues based on what is in the child’s best interests and when deter - mining the best interests of the child, the Court will consider the following six factors of equal weighting: • what arrangements would promote the safety of the child (including safety from family violence, abuse, neglect or other harm) and of each person who has care of the child (whether or not a person has parental responsibility for the child); • any views expressed by the child; • the developmental, psychological, emotional and cultural needs of the child; • the capacity of each person who has or is pro - posed to have parental responsibility for the child to provide for the child’s developmental, psycho - logical, emotional and cultural needs; • the benefit to the child of being able to have a rela - tionship with the child’s parents and other people who are significant to the child, where it is safe to do so; and • anything else that is relevant to the particular cir - cumstances of the child. In the absence of court orders, parents automatically have parental responsibility for a child and are encour - aged to consult with each other about major long-term issues if it is safe to do so. This is not enforceable, but merely acts as a guide to litigants in the absence of court orders. 1.2 Requirements for Birth Mothers A birth mother inherently retains parental responsibility for a child when the child is born. The only excep - tion would occur in circumstances where the Court allocates sole decision-making to another person. The Family Law Act does not automatically recognise
intended parents in surrogacy arrangements as legal parents, and surrogacy laws are not uniform across Australia. However, the Australian Law Reform Com - mission is conducting a review of surrogacy laws, aim - ing to propose uniform national standards by 29 July 2026. Such reforms may see a change to how parental responsibility is allocated in these cases. 1.3 Requirements for Fathers A birth father inherently retains parental responsibility for a child when the child is born, except in the follow - ing circumstances: • the Court allocates sole decision-making to another person; or • the birth father has donated sperm for the child’s conception through an artificial conception proce - dure and is not married to or in a de facto relation - ship with the birth mother at the time of concep - tion. 1.4 Requirements for Non-Genetic Parents A non-genetic parent may include a step-parent or adopted parent of a child. Non-genetic parents do not automatically have parental responsibility for a child, but must obtain a parenting order from the Court, including an order for either sole or joint deci - sion-making responsibility. If a child is adopted, an adoption order from the Supreme Court of the relevant State in Australia will be made, which will then perma - nently confer all legal responsibilities for the child on the adopted parents, including parental responsibility. If the non-genetic parent is classified as the “other intended parent” for the purposes of Section 60H(1) of the Family Law Act, the non-genetic parent will also automatically have parental responsibility for the child upon the child’s birth. A non-genetic parent will be classified as the “other intended parent” if they were: • married or the de facto partner to the birth mother at the time the artificial conception procedure occurred; and • the birth mother and the other intended parent consented to the procedure being carried out, and any other person who provided genetic material
12 CHAMBERS.COM
AUSTRALIA Law and Practice Contributed by: Eleanor Lau, Skye Owen and Monica Bayas Inglis, Lander & Rogers
consented to the use of the material in the artificial conception procedure; or • under a prescribed law of the Commonwealth or the State, the child was a child of the birth mother and the other intended parent. If a person other than the birth mother and the other intended parent (such as a sperm or egg donor) pro - vides genetic material, the child is not the child of the provider of the genetic material. Grandparents or any other person who is concerned about the care, welfare or development of a child can also apply for a parenting order that confers either joint decision-making or sole decision-making on that person. If the Court is considering making a parenting order (which includes the allocation of parental responsibil - ity) by consent in favour of a non-parent who is not a parent, grandparent or relative of the child, the Court must not make the order until the parties have attend - ed a conference with a family consultant or until the Court is satisfied that there are circumstances that make it appropriate for the proposed order to be made without attending with a family consultant. 1.5 Relevance of Marriage at Point of Conception or Birth A child’s biological parents automatically have paren - tal responsibility for the child after the child has been born. The relationship of the biological parents, includ - ing whether they are married, separated or have never been in a relationship, is not relevant to the conferral of parental responsibility following the birth of a child. Marriage and de facto relationships are relevant at the point of conception in relation to artificial conception procedures (as outlined in 1.4 Requirements for Non- Genetic Parents ) and in relation to presumptions of parentage that the Court may apply in determining who is a child’s parent in the absence of direct evi - dence. For example: • a child born to a woman while she is married is presumed to be a child of the woman and her husband; and
• a child born to a woman between 20 weeks and 44 weeks after the woman cohabited with a man to whom she was not married is presumed to be a child of said man. 1.6 Same-Sex Relationships Please see 1.4 Requirements for Non-Genetic Par- ents regarding the process of obtaining parental responsibility for parents in a same-sex relationship. Provided those requirements are met, the process of obtaining parental responsibility is intended to be the same as for parents in a heterosexual relationship. Once parental responsibility has been conferred at birth, each parent has parental responsibility, unless the Court makes other orders. No preference is giv - en to a biological parent under the Family Law Act, mainly because the Court considers the child’s best interests as a paramount consideration rather than the circumstances of the child’s conception or the gender of the child’s parents. A provider of genetic material, such as a sperm donor, who has given consent to the use of their genetic material has no automatic parental responsibility for a child born as a result of an artificial conception pro - cedure. However, a sperm donor may still apply to the Court for parenting orders, including declarations as to par - entage, if the donor is actively involved in the child’s life, fulfils the roles and responsibilities of a parent, and is perceived by the child as a parent or “dad”. It is unlikely, however, that a sperm donor could be included on a child’s birth certificate if the birth mother and the other intended parent were already named. This is because birth certificates in Australia are cur - rently restricted to recording only two parents. A same-sex couple using a surrogate to conceive a child are required to apply to a prescribed Court for the purpose of transferring legal parentage from the sur - rogate mother and her spouse (if any) to the intended parents. Once the order is made, the intended parents will be regarded as the legal parents of the child and will assume parental responsibility. All states in Aus - tralia, with the exception of Western Australia, permit access to surrogacy for same-sex couples and single
13 CHAMBERS.COM
AUSTRALIA Law and Practice Contributed by: Eleanor Lau, Skye Owen and Monica Bayas Inglis, Lander & Rogers
men. The Western Australian government, however, is expected to introduce a law reform to ensure equal access to surrogacy. 1.7 Adoption Adoptive parents (excluding step-parents or de facto step-parents) are required to make an application directly to the Supreme Court of the relevant State in Australia seeking an order for adoption (adoption order). However, if a step-parent or de facto spouse of a parent seeks to adopt a child, an application must first be brought in the Court, seeking permission to commence adoption proceedings in the state court. In determining whether to grant this permission, the Court must assess whether there is a real possibility that an adoption order will be made by the state court, and consider whether granting permission would be in the child’s best interests by considering the follow - ing factors: • what arrangements would promote the safety of the child (including safety from family violence, abuse, neglect or other harm) and of each person who has care of the child (whether or not a person has parental responsibility for the child); • any views expressed by the child; • the developmental, psychological, emotional and cultural needs of the child; • the capacity of each person who has or is pro - posed to have parental responsibility for the child to provide for the child’s developmental, psycho - logical, emotional and cultural needs; • the benefit to the child of being able to have a rela - tionship with the child’s parents and other people who are significant to the child, where it is safe to do so; and • anything else that is relevant to the particular cir - cumstances of the child. If the Court is satisfied that permission should be giv - en, an application can then be made by the potential adoptive parent to the relevant Supreme Court. In direct applications to the Supreme Court, and applications to the Supreme Court with leave from the Federal Circuit and Family Court of Australia, once
an adoption order is made, legal parentage of the child is transferred from the birth parents to the adoptive parents. The child’s birth certificate is also changed to reflect the names of the adopted parents. In relation to intercountry adoptions, Australia has signed the Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption dated 29 May 1993. This means that intercountry adoptions are facilitated through Australian adoption programmes and support agencies that liaise with specific countries that are also parties to this Conven - tion. Australia will also facilitate intercountry adoptions if there are bilateral agreements in force. If there is a court order allocating sole decision-making responsibility for the child to one parent, that parent does not need consent from the other parent to per - manently relocate the child to a new country, unless the sole decision-making order excludes relocation decisions. If both parents have parental responsibility, and one parent wishes to move a child to a new country, that parent must first obtain the consent of the other par - ent or a court order permitting the relocation. There may be exceptional circumstances where consent or a court order are not required in the first instance, including where there is a grave risk of physical or psychological harm to the child in remaining in that country. 2.2 Relocation Without Full Consent A change to a child’s living arrangements, such as an overseas relocation, that makes it significantly more difficult for a parent to spend time with the child is considered a major long-term issue. 2. Relocation 2.1 Whose Consent Is Required for Relocation? Therefore, if a parent who holds joint parental respon - sibility for a child does not consent to the child relocat - ing to another country, the parent seeking to relocate the child’s residence would need to make an applica -
14 CHAMBERS.COM
AUSTRALIA Law and Practice Contributed by: Eleanor Lau, Skye Owen and Monica Bayas Inglis, Lander & Rogers
tion to the Court, seeking permission to relocate the child overseas. If the child was relocated to another country without such an Order, an application could be brought for the return of the child to Australia under the Hague Convention on the Civil Aspects of International Child Abduction 1980 (the “Hague Convention”). 2.3 Application to a State Authority for Permission to Relocate a Child 2.3.1 Factors Determining an Application for Relocation In determining relocation cases, the Court must have regard to what is in the child’s best interests by con - sidering the factors set out in Section 60CC of the Family Law Act (see 1.1 Parental Responsibility ) and by carefully considering the proposals of each of the parties. Whilst the child’s best interests remain the paramount consideration for the Court, they are not the only consideration. Relocation cases are not a separate category of par - enting cases, and the Court must not treat relocation as a “discrete issue”. The Court is also not confined to the proposals of the parties but is required to con - sider all possible options when a parent is seeking to relocate with a child. It is well-settled law in Australia that a parent seeking to relocate the residence of a child is not required to demonstrate “compelling reasons” for the proposed relocation. However, if a parent is seeking to relocate, it is important to establish a link between the parent’s wish to relocate and the welfare of the child. To do this, the proposal to the Court must be detailed, clear and specific, and not speculative. The evidence must support a finding that an improvement in that party’s situation, by relocating, will impact positively on the child. Since changes to a child’s living arrangements that make it significantly more difficult for the child to spend time with a parent is considered a major long- term decision within the definition of parental respon - sibility, outcomes of relocation applications may be difficult to predict pending decisions made by the Court.
Applying existing case law, and noting the few cases published since the amendments, the following steps will be undertaken by the Court in determining reloca - tion applications: • identify and consider the competing proposals of the parents; • identify the key issues in dispute; • consider the Section 60CC factors in determining what is in the child’s best interests; and • assess the parties’ competing proposals, including the advantages, disadvantages and practicality of the proposals, in deciding where the child should live and what orders are in the best interests of the child. By following this process, the Court is then able to determine whether or not the child can relocate. Neither party bears an onus to establish a proposed change or continuation of the existing arrangement, and a parent’s right to freedom of movement must defer to the child’s best interests. The Court may also consider the following matters when determining relocation cases. • Was there an equal time arrangement or a signifi - cant and substantial time arrangement in place prior to the proposed relocation? • Is there a “fragile or tenuous” attachment to the non-relocating parent? • Is the relocating parent “idealistic” in relation to what might be gained from relocating, and do they have the resources or ability to “turn the vision into a reality?” • Does the relocating parent have established sup - port in the proposed new location? • Does the relocating parent have mental health or substance abuse issues? • Is the relocating parent realistically able to fund the planned contact visits with the non-relocating par - ent, as proposed? • Has the relocating parent been supportive of the relationship between the child and other parent in the past? • Is there a history of extensive conflict between the parents?
15 CHAMBERS.COM
AUSTRALIA Law and Practice Contributed by: Eleanor Lau, Skye Owen and Monica Bayas Inglis, Lander & Rogers
Relocation cases are some of the most complex par - enting cases determined by the Court. It is important to bear in mind that the Court does have the power to make orders not sought by either of the parties when determining such applications. 2.3.2 Wishes and Feelings of the Child In parenting cases, a child’s “best interests” are placed at the centre of decision-making, and there are two key methods by which a child’s views can be brought before the Court. • Through family or child impact reports – these reports are prepared by an independent third party, usually an experienced social worker or psycholo - gist, who examines the dynamics of a co-parenting relationship and makes recommendations intended to promote the child’s best interests. These inde - pendent reports will be sought in the vast majority of contested relocation cases and are a helpful piece of evidence for the Court or for the parties to consider. • Through the appointment of an Independent Children’s Lawyer (ICL) – an ICL will generally be appointed in cases involving an international relo - cation. The role of an ICL is to represent a child’s best interests and provide a perspective that is independent of the parties in relation to parenting arrangements. Subject to some limited exceptions, ICLs are now required to meet with the child whose interests they are appointed to represent and give the child an opportunity to express any views on matters relating to the proceedings. One of the six core considerations in relation to what is in the best interests of a child is “any views expressed by the child”. Therefore, once a child’s views are obtained, the Court will consider the weight to be given to such views as part of the broader inquiry as to what is in the best interests of the child. This will largely depend on the age and maturity of the child. 2.3.3 Age/Maturity of the Child Although the Court does consider “any views expressed by the child”, it is not bound by those views or wishes.
The Court will still consider the developmental, psy - chological, emotional and cultural needs of the child. Although a child’s views are relevant, factors such as a child’s age, maturity, development and level of insight and understanding will affect how much weight a court will likely give to a child’s views. By way of example, a court may give significant weight to the views of a mature teenager who is consistently expressing a strong opinion about relocation. However, the views of a young child of a child who is determined to be experiencing strong influence or alignment with a par - ticular party are unlikely to be given significant weight. 2.3.4 Importance of Keeping Children Together The Court places a significant priority on keeping chil - dren together as far as possible and preserving sibling relationships. The Court must have regard to the benefit of the child being able to have a relationship with other people who are significant to the child, where it is safe to do so. These relationships extend to parents, siblings and other extended family members/people of signifi - cance to that child. Although each factor has equal weighting, the Court will make parenting orders for children to live together where such arrangements are in the child’s best interests. 2.3.5 Loss of Contact Loss of contact with a left-behind parent is a con - sideration for the Court when determining whether a relocation is in a child’s best interests. This is because the Court must have regard to the benefit of a child having a relationship with both parents, where it is safe to do so. The recent amendments, however, have removed the focus on preserving a meaningful relationship as a primary consideration when assessing the bests inter - ests of the child. The effect of this change remains unknown in terms of how it will be implemented. Some commentators have opined that the de-prioriti - sation of this factor (and the effect of no contact with the left-behind parent) likely means that there will be more orders in favour of relocation in cases where family violence is a significant factor.
16 CHAMBERS.COM
AUSTRALIA Law and Practice Contributed by: Eleanor Lau, Skye Owen and Monica Bayas Inglis, Lander & Rogers
2.3.6 Which Reasons for Relocation Are Viewed Most Favourably? Each relocation case must be determined on its own facts. Generally, however, the Court does appear to be more sympathetic in relocation applications involving: • family violence; • limited family support or social structures, which may impact the relocating parent’s mental health; • limited employment opportunities, or financial sup - port, for the relocating parent; and • health issues for the relocating parent or the child, which are negatively impacted by their current residence. The Court will tend to avoid (as far as possible) any impingement on the freedom of movement of a par - ent, particularly in circumstances where that parent is exposed to family violence or is the primary carer for a child. 2.3.7 Grounds for Opposition to Relocation Although the Court is no longer required to consider (as a primary consideration) the benefit to a child in having a “meaningful relationship” with both parents, this may still be taken into account by the Court as “anything else that is relevant to the particular circum - stances to the child”. The Court may therefore be sympathetic to arguments that a child’s relationship with the non-applicant par - ent may be lost and/or significantly diminished, par - ticularly in the following circumstances: • if the child is very young and does not have an established relationship with the non-applicant parent; • if neither of the parents are able to facilitate the child’s travel to spend time with the non-applicant parent; or • if there is any concern that the parent relocating will not support the child’s relationship with the non-applicant parent. 2.3.8 Costs of an Application for Relocation The likely cost of a relocation application varies depending on what issues are in dispute, how com -
plex those issues are and what evidence is required to determine the issues. Relocation cases are the most highly contested par - enting matters, with little room for compromise. As a large proportion of such applications proceed to a final hearing, the cost of legal representation and expert evidence can be significant. If a party does not have means to fund legal representation and the case is considered to have merit, that party may qualify for publicly funded legal assistance, although the avail - ability of such legal representation is limited to those who meet very specific criteria. The following applies in addition to the costs of legal representation associated with the final hearing. • Parties are also required to engage in alternative dispute resolution prior to commencing proceed - ings (unless exceptional circumstances exist) and generally again during the course of litigation. The cost of private mediation alone can vary depend - ing on the experience of the mediator. There are a number of government-subsidised mediation services and Court-funded dispute resolutions that can reduce the costs associated with this process, although they tend to have a longer waiting list. • There are costs set by the Court associated with initiating parenting proceedings, including filing fees, daily hearing fees and setting down fees for hearings. • The Court will generally appoint an expert to evalu - ate the parties’ respective proposals and provide an objective analysis of the potential impact of the relocation on the child’s well-being and relation - ships with both parents. An expert appointed by either the Court or the parties jointly will interview both of the parents and meet with the child. A report will then be prepared by the expert, setting out their observations of the child and the par - ents, and making recommendations to the Court. Although the Court does not have to accept the recommendations of the expert, the report and its recommendations are a significant piece of evi - dence taken into account in determining what is best for the child, including whether to allow the relocation application. The costs of a private single expert can vary depending on the experience and
17 CHAMBERS.COM
Page i Page 1 Page 2 Page 3 Page 4 Page 5 Page 6 Page 7 Page 8 Page 9 Page 10 Page 11 Page 12 Page 13 Page 14 Page 15 Page 16 Page 17 Page 18 Page 19 Page 20 Page 21 Page 22 Page 23 Page 24 Page 25 Page 26 Page 27 Page 28 Page 29 Page 30 Page 31 Page 32 Page 33 Page 34 Page 35 Page 36 Page 37 Page 38 Page 39 Page 40 Page 41 Page 42 Page 43 Page 44 Page 45 Page 46 Page 47 Page 48 Page 49 Page 50 Page 51 Page 52 Page 53 Page 54 Page 55 Page 56 Page 57 Page 58 Page 59 Page 60 Page 61 Page 62 Page 63 Page 64 Page 65 Page 66 Page 67 Page 68 Page 69 Page 70 Page 71 Page 72 Page 73 Page 74 Page 75 Page 76 Page 77 Page 78 Page 79 Page 80 Page 81 Page 82 Page 83 Page 84 Page 85 Page 86 Page 87 Page 88 Page 89 Page 90 Page 91 Page 92 Page 93 Page 94 Page 95 Page 96 Page 97 Page 98 Page 99 Page 100 Page 101 Page 102 Page 103 Page 104 Page 105 Page 106 Page 107 Page 108 Page 109 Page 110 Page 111 Page 112 Page 113 Page 114 Page 115 Page 116 Page 117 Page 118 Page 119 Page 120 Page 121 Page 122 Page 123 Page 124 Page 125 Page 126 Page 127 Page 128 Page 129 Page 130 Page 131 Page 132 Page 133 Page 134 Page 135 Page 136 Page 137 Page 138 Page 139 Page 140 Page 141 Page 142 Page 143 Page 144 Page 145 Page 146 Page 147 Page 148 Page 149 Page 150 Page 151 Page 152 Page 153 Page 154 Page 155 Page 156 Page 157 Page 158 Page 159 Page 160 Page 161 Page 162 Page 163 Page 164 Page 165 Page 166 Page 167 Page 168 Page 169 Page 170 Page 171 Page 172 Page 173 Page 174 Page 175Powered by FlippingBook