AUSTRALIA Law and Practice Contributed by: Kerri Phillips, Matthew Levy and Cassandra Bennett, Phillips Levy Bennet Legal
2.4 Relocation Within a Jurisdiction Whether or not a parent needs consent from the oth - er parent to relocate will depend upon the parenting orders that are in place and the nature of the proposed location. It is necessary to consider, for example, whether the proposed relocation would involve recon - sideration of the arrangements for the child to spend time with the other parent, or a change in school. If the orders provide for the parents to share parental responsibility with respect to decisions about school, then consent is required. If the proposed relocation would make it difficult for the child to spend time with the other parent in accordance with existing parenting orders, then consent is required to vary the arrange - ments. In some circumstances, the removal of a child from Australia, or the retention of a child outside of Aus - tralia, without the consent of all the adults who have parental responsibility for the child, or a court order, is a criminal offence punishable by up to three years in prison. In Australia, human trafficking, slavery and slavery-like practices, including forced marriage, are also illegal. It is a crime to take a child overseas for the purposes of forced marriage, even if the parent or other adults with parental responsibility consent to the travel. It is an offence to be involved in bringing about the forced marriage, or to be a party to the forced marriage, unless you are the victim. Forced marriage offences carry a maximum penalty of seven years’ imprison - ment, or nine years for an aggravated offence. If the victim is under 18 and taken overseas for the purpose of forced marriage, the maximum penalty increases to 25 years’ imprisonment. 3. Child Abduction 3.1 Legality 3.2 Steps Taken to Return Abducted Children If a child has been removed from Australia, or has been retained in another country, without the consent of their parent or anyone else with parental responsi - bility, there are different ways that the parent or other person can seek the return of the child to Australia.
a grant of Legal Aid or can otherwise demonstrate that they do not have capacity to pay). • The number of witnesses, length of hearing and complexity of the matter will also impact on the overall costs. 2.3.9 Time Taken by an Application for Relocation The court generally gives some priority to parenting matters over property matters, and the aim is to list parenting matters for hearing within 12 months from the date the application is filed. Relocation matters are often given some priority but the time taken can be impacted by the following fac - tors: • whether the parties are represented; • whether an application has been made to appoint a solicitor for one or both of the parties under the cross-examination scheme; • whether the parties appoint an independent expert to prepare a report and the availability of that expert, or the waiting time within the particular court registry for a report to be completed through the Court Children’s Service if the parties are unable to afford the costs of an expert report; and • whether there are any interim or interlocutory appli - cations that require resolution before the matter can proceed to a hearing, and whether the out - come of any application is subject to an appeal. The number of witnesses involved and the number of days the hearing will take will impact on the availability of a Judge to hear the matter. Following the hearing, the decision will usually be reserved and the waiting time for a judgment varies. If a party files an appeal, they may also seek a stay of the judgment, pending determination of the appeal. 2.3.10 Primary Caregivers Versus Left-Behind Parents The court will evaluate each of the parent’s proposals and determine which proposal is in the best interests of the child. There is nothing in the legislation or case law that requires the court to look more favourably on an application by a primary caregiver.
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