AUSTRALIA Law and Practice Contributed by: Kerri Phillips, Matthew Levy and Cassandra Bennett, Phillips Levy Bennet Legal
Intercountry Adoption dated 29 May 1993 (“the Con - vention”) and has programmes in place with some specific countries. Australia also has bilateral agree - ments in place with some countries with respect to adoption. Adoption orders made in Convention countries that comply with the requirements of the Convention will usually be recognised in the relevant state or territory. Adoption orders made in countries where there is a bilateral agreement in place, and where the foreign country has issued an adoption compliance certifi - cate, will usually be recognised in the relevant state or territory. In some circumstances, adoption orders made in non- Convention countries will also be recognised under state and territory law. In some states, adoption orders made in Conven - tion countries under the domestic law of that country rather than in accordance with the Convention will not be recognised under state law (for example, NSW). Depending on the particular circumstances of the child, it may not be necessary to have a foreign adop - tion order recognised under state or territory law. Under the Family Law Act, a “child” is defined to include an “adopted child” who has been “adopted under the law of any place (whether in or out of Aus - tralia)”. In relation to a child who has been adopted, “parent” means “an adoptive parent of the child”. This means that if there is a dispute between par - ents in relation to a child that they have adopted in accordance with the laws in a foreign country, either of the parents could make an application for parenting orders under the Family Law Act.
sibility for the child. Wherever possible, the consent should be clear, unequivocal and in writing. If the parent wishing to relocate has sole parental responsibility, they might still need the consent of the other parent if there are court orders in place (for example, for the child to spend time with the other parent) that cannot be complied with after the pro - posed relocation. 2.2 Relocation Without Full Consent If a parent requires consent to relocate a child and that consent is not forthcoming, they will need to make an application for an order that provides for the child to live with them in the other country, and for any other ancillary orders that they may need to effect the relo - cation (for example, an order permitting them to apply for a passport for the child). The application for parenting orders can be filed in Division 2 of the FCFCOA. Applications that involve a proposal to relocate a child to another country are usually transferred to Division 1. 2.3 Application to a State Authority for Permission to Relocate a Child 2.3.1 Factors Determining an Application for Relocation A parenting dispute involving an application by one parent to relocate a child will be resolved in the same way as any other parenting dispute. Relocation cases are not a special category of parenting cases. The best interests of the child will be the paramount consideration. When deciding what orders are in the child’s best interests, the court will have regard to the factors set out in 1.1 Parental Responsibility . The court will identify and consider each of the par - ties’ proposals for the child, and determine which arrangement is in the child’s best interests. The task is not to assess the proposal to relocate against the status quo; rather, the court will evaluate the propos - als of both parties. In undertaking that assessment, the court may prefer the proposal of the parent that involves relocation.
2. Relocation 2.1 Whose Consent Is Required for Relocation?
If one parent wishes to permanently relocate a child to a different country, they will first need to obtain the consent of any other person who has parental respon -
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