Child Relocation 2026

Definitive global law guides offering comparative analysis from top-ranked lawyers

Definitive global law guides offering comparative analysis from top-ranked lawyers

Contributing Editor Alex Carruthers Hughes Fowler Carruthers

Practice Guides

Child Relocation

Contributing Editor Alex Carruthers Hughes Fowler Carruthers

2026

Chambers 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 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, Stephen Dinkeldein, Vivienne Button and Sean Marshall Content Reviewers Lawrence Garrett, Marianne Page, Heather Palomino, Alison Moore, Adrian Ciechacki and Michael Irvine Content Coordination Manager Nancy Tsang Senior Content Coordinators Carla Cagnina and Delicia Tasinda Content Coordinator Joanna Chivers 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

Contents

INTRODUCTION Contributed by Alex Carruthers, Liam Bennett and Stacey De Souza, Hughes Fowler Carruthers p.4

UAE Law and Practice p.116 Contributed by Awatif Mohammad Shoqi Advocates & Legal Consultancy Trends and Developments p.128 Contributed by Awatif Mohammad Shoqi Advocates & Legal Consultancy

AUSTRALIA Law and Practice p.8 Contributed by Phillips Levy Bennet Legal

BRAZIL Law and Practice p.22 Contributed by MF Ejchel International Family Law Trends and Developments p.34 Contributed by MF Ejchel International Family Law CANADA Law and Practice p.39 Contributed by McCarthy Hansen & Company LLP Trends and Developments p.51 Contributed by McCarthy Hansen & Company LLP FRANCE Law and Practice p.58 Contributed by Chauveau Mulon & Associés

UK Law and Practice p.133 Contributed by NE Family Law

USA Law and Practice p.145 Contributed by Krauss Shaknes Tallentire & Messeri LLP Trends and Developments p.154 Contributed by Krauss Shaknes Tallentire & Messeri LLP

USA – FLORIDA Law and Practice p.160 Contributed by Rafool, PLLC

USA – INDIANA Law and Practice p.169 Contributed by Faegre Drinker Biddle & Reath LLP Trends and Developments p.174 Contributed by Faegre Drinker Biddle & Reath LLP

HONG KONG SAR, CHINA Law and Practice p.64 Contributed by Zhong Lun Law Firm

ITALY Law and Practice p.76

USA – MASSACHUSETTS Law and Practice p.177 Contributed by Verrill Dana, LLP Trends and Developments p.189 Contributed by Verrill Dana, LLP

Contributed by Studio Zanetti Vitali Trends and Developments p.87 Contributed by Studio Zanetti Vitali

JERSEY Law and Practice p.92 Contributed by Carey Olsen

USA – NEW YORK Law and Practice p.194 Contributed by Alter Wolff Foley & Stutman LLP Trends and Developments p.201 Contributed by Alter Wolff Foley & Stutman LLP USA – WASHINGTON Law and Practice p.207 Contributed by The Law Office of Stacy D. Heard Trends and Developments p.217 Contributed by The Law Office of Stacy D. Heard

SINGAPORE Trends and Developments p.103 Contributed by Rajah & Tann Singapore

SPAIN Trends and Developments p.109 Contributed by MAYTEGARCIA International Family Law

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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 25 years ago, the firm specialises in ul - tra-high net worth and high-profile cases, especially those with international aspects. Hughes Fowler Carruthers retains its long-established Band 1 rank - ing in Chambers and Partners’ UK Guide, and sev - eral members of the firm are ranked in the High Net Worth Guide. The firm’s lawyers are all highly expe -

rienced, and also have in-depth knowledge of many foreign jurisdictions and excellent overseas contacts. Hughes Fowler Carruthers 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 experience in mediation and collabo - rative approaches but are also highly expert litigators. in relation to trusts and jurisdictional disputes. Alex continues to be highly commended for his expertise, with both the Chambers UK and Chambers High Net Worth Guides reconfirming his Band 1 ranking. The UK Guide comments that “he’s as good as it gets”, while the High Net Worth Guide recognises him as “an exceptional, brilliant and fearless advocate” and a “fine strategist who understands his clients’ needs and focuses on getting the best outcome”.

Contributing Editor

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 with complex legal issues, including

Co-Authors

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

Stacey De Souza joined Hughes Fowler Carruthers in 2020 after qualifying as a family solicitor in 2018. She is a senior associate solicitor,

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 committed to achieving the best possible outcome by adopting a tailored approach to each case.

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.

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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 2026 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 particu - lar employment opportunity. Due to the rise of glo - balisation, geographical conflicts 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 monu - mental 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 they have to deal with. Judges regularly com - ment upon just how difficult such cases can be to determine, given that they are often finely balanced and the impact their decision may have on the unsuc - cessful party is potentially devastating. Notwithstand - ing the complexities that arise, the number of such cases continues to increase, for the reasons identified above. As the process can be slow and sometimes cumbersome in some countries, timing is very impor - tant so as to avoid unnecessary delays; for the par - ent seeking to relocate, any opportunity that arises to

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INTRODUCTION Contributed by: Alex Carruthers, Liam Bennett and Stacey De Souza, Hughes Fowler Carruthers

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 fre - quent 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 the other parent, they should offer to do so. The court must be convinced that the applicant parent genuinely believes the relocation 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 different 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 different 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 psychological impact the opposing parent may suffer if the relocation is permitted. If one party has been found by the court to have been physi - cally, verbally or psychologically abusive towards the other, either during the relationship or post-separation, it is possible that this may also play a role in the deci - sion the court makes on a proposed relocation.

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INTRODUCTION Contributed by: Alex Carruthers, Liam Bennett and Stacey De Souza, Hughes Fowler Carruthers

Practical considerations can also be significant, such as the size of a country in an internal relocation and the distance between the two countries in an interna - tional relocation. 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 to secure the relevant visa or visas prior to any final hearing, so far as possible. 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 res - olution when they should have. Given the binary nature of relocation disputes, resolution 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. 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 2026, there are 103 parties to the 1980 Hague Convention, including most Western countries and many others that have internationally recognised legal systems. Some countries, including 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 by a parent (ie, wrongful removal and retention across international bounda - ries). It encourages the prompt return of abducted children to their country of habitual residence and provides 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 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.

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AUSTRALIA

Australia

Law and Practice Contributed by: Kerri Phillips, Matthew Levy and Cassandra Bennett Phillips Levy Bennet Legal

Sydney

Tasmania

Contents 1. The Care Provider’s Ability to Take Decisions About the Child P.10 1.1 Parental Responsibility p.10 1.2 Requirements for Birth Mothers p.11 1.3 Requirements for Fathers p.11 1.4 Requirements for Non-Genetic Parents p.12 1.5 Relevance of Marriage at Point of Conception or Birth p.12 1.6 Same-Sex Relationships p.13 1.7 Adoption p.13 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.14 2.4 Relocation Within a Jurisdiction p.17 3. Child Abduction P.17 3.1 Legality p.17 3.2 Steps Taken to Return Abducted Children p.17 3.3 Hague Convention on the Civil Aspects of International Child Abduction p.18 3.4 Non-Hague Convention Countries p.20

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AUSTRALIA Law and Practice Contributed by: Kerri Phillips, Matthew Levy and Cassandra Bennett, Phillips Levy Bennet Legal

Phillips Levy Bennet Legal is a Sydney-based bou- tique family law firm that specialises in all aspects of international and domestic law relating to children. It has Accredited Specialists in Children’s Law and experienced Independent Children’s Lawyers, and one of the founding partners is a Fellow of the In -

ternational Academy of Family Lawyers (IAFL). Areas of expertise include child abduction, summary return, international recovery, relocation, adoption, parent - age, surrogacy, care and protection, family violence, administrative review and appeals.

Authors

Kerri Phillips has over 25 years’ experience in working with children and families in public and private family law. She is a Fellow of the International Academy of Family Lawyers (IAFL) and specialises in

parentage, adoption, surrogacy, relocation and child abduction. He is regularly instructed in administrative review and appellate matters and matters involving complex or novel questions of law. He acts for government, parents and children. Matthew is a qualified Independent Children’s Lawyer and is currently undertaking specialist training in surrogacy law.

complex international parenting matters. She regularly represents parents and children in child abduction matters, involving Hague and non-Hague countries. Kerri is an Accredited Specialist in Children’s Law, the Deputy Chair of the NSW Law Society’s Children’s Legal Issues Committee and a member of the Domestic and Family Violence Steering Committee. She is also a member of the Children’s Court Advisory Committee and the Children’s Court Care Working Group.

Cassandra Bennett has lived, worked and studied across the globe. She holds a Masters in Child Studies with

Distinction from King’s College London, and is an Accredited Specialist in Children’s Law and a qualified Independent Children’s Lawyer. She specialises in high-conflict public and private family law disputes involving children, including matters involving allegations of family violence and matters that have an international element. Cassandra regularly appears in relocation and child abduction matters, involving Hague and non-Hague countries.

Matthew Levy has a wealth of experience in administrative and family law. He practises across a broad range of public and private family law matters, including those involving medical treatment,

Phillips Levy Bennett Legal Level 45, 680 George Street

Haymarket NSW 2000 Australia Tel: +61 2 7240 6792

Email: office@plblegal.com.au Web: www.plblegal.com.au

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AUSTRALIA Law and Practice Contributed by: Kerri Phillips, Matthew Levy and Cassandra Bennett, Phillips Levy Bennet Legal

1. The Care Provider’s Ability to Take Decisions About the Child 1.1 Parental Responsibility The General Rule Under Australian law, each parent of a child has paren - tal responsibility for the child, unless a state or federal court has made an order altering the common law position. This is so regardless of whether the parents have separated, re-partnered or remarried. Each state and territory has separate laws about the status of children, which helps determine who is a par - ent of a child. In some situations, an application can also be made for a declaration of parentage under the federal Family Law Act 1975. Altering Parental Responsibility for Children The courts in each state or territory have jurisdiction to make orders about children under: • the relevant child protection legislation in each state or territory; • the relevant adoption legislation in each state or territory; • the relevant surrogacy legislation in each state or territory; • the parens patriae (or inherent jurisdiction) in the relevant court in each state or territory; and • the relevant status of children legislation in each state or territory. The federal government (through the Constitution) has the power to make laws with respect to marriage and the children of a marriage. In 1987, each state and territory referred the power to make laws with respect to children born outside of a marriage to the Common - wealth (federal government), meaning that the Fam - ily Law Act 1975 (Cth) governs all private family law disputes about children who are habitually resident or present in Australia. The exception to this is where an order has been made regarding parental responsibil - ity for a child under a state or territory child welfare law, and the relevant child protection authority has not consented to a parent or other person commencing or continuing proceedings under the Family Law Act.

In most cases, proceedings under the Family Law Act are commenced in the Federal Circuit and Fam - ily Court of Australia (FCFCOA) (Div 2) or the Family Court of Western Australia (where one or more of the parties reside in Western Australia). In some cases, proceedings under the Family Law Act may also com - mence in the local court in a state or territory. Definition of Parental Responsibility Parental responsibility in relation to a child is defined in Section 61B of the Family Law Act to mean all the duties, powers, responsibilities and authority held by parents in relation to children, by law. Provided it is safe to do so, and subject to any court orders, the parents of a child are encouraged to con - sult each other about major long-term issues in rela - tion to the child and, in doing so, to have regard to the best interests of the child as the paramount con - sideration. The term “major long-term issues” is defined in the Family Law Act to mean issues about the care, wel - fare and development of a child of a long-term nature, including (but not limited to) issues of a long-term nature about: • the child’s education (both current and future); • the child’s religious and cultural upbringing; • the child’s health; • the child’s name; and • changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent. The FCFCOA can make parenting orders that deal with the allocation of responsibility for making deci - sions about major long-term issues in relation to the child. Parenting orders may provide for joint or sole decision-making in relation to some or all specified major long-term issues. If a parenting order provides for joint decision-making in relation to some or all major long-term decisions in relation to a child, such order requires each person to consult the other about the decision and to make a genuine effort to come to a joint decision, except to the extent that the order specifies. This does not,

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AUSTRALIA Law and Practice Contributed by: Kerri Phillips, Matthew Levy and Cassandra Bennett, Phillips Levy Bennet Legal

however, require any other person (eg, a doctor or teacher) to establish that a particular decision about a child has been made jointly. If a child is spending time with a person under a parenting order, that person is not required to con - sult a person who has parental responsibility for the child about any decision they make while the child is spending time with them that is not a major long-term issue, unless an order provides otherwise. A person who is not a parent (for example, a grand - parent or another person concerned with the care, welfare or development of the child) can apply for, and be granted, parental responsibility for a child. In parenting proceedings, the decision about who should have parental responsibility for a child is sepa - rate to the decision about who the child should live with, or who they should spend time with. Whilst it is common for the person with whom a child lives to hold sole or joint parental and decision-making responsibil - ity for the child, it is not uncommon for an order to be made that a child spend time with a person who does not hold any aspect of parental or decision-making responsibility. Court Considerations When Making Orders About Parental Responsibility When considering an application for a parenting order, the court is required to determine what orders are in the best interests of the child, taking the following fac - tors into account: • what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect or other harm) of the child and each person who has care of the child (whether or not that 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 case involves an Aboriginal or Torres Strait Islander child, additional matters must be considered. 1.2 Requirements for Birth Mothers A child’s gestational (or birth) mother will have parental responsibility for the child when they are born, wheth - er or not the child is biologically related to them. Each state and territory has separate laws about the status of children, and sets out presumptions of par - entage that apply in situations where a child is born following an artificial conception procedure. The Fam - ily Law Act recognises the presumptions of parentage that are made under state and territory law, and also sets out who is a “parent” of a child born as a result of an artificial conception procedure, for the purposes of the Act. As set out in 1.1 Parental Responsibility , a birth moth- er’s parental responsibility can be removed, altered or diminished by an order made by a state or federal court. 1.3 Requirements for Fathers A child’s biological father will have parental respon - sibility for the child when they are born, unless the child was born as a result of an artificial conception procedure and they are not the parent under state or territory law, or a provision of the Family Law Act. Please see 1.4 Requirements for Non-Genetic Par- ents regarding children born as a result of an artificial conception procedure. If there is an issue as to the child’s parentage, and the provisions of the Family Law Act in relation to artificial conception procedures and surrogacy do not apply, a declaration of parentage can be sought. It is important to note that there is no definition of “parent” in the Family Law Act. In Ophoven & Berzina [2025] FedCFamC1A 97, the court held that there was

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AUSTRALIA Law and Practice Contributed by: Kerri Phillips, Matthew Levy and Cassandra Bennett, Phillips Levy Bennet Legal

no requirement to establish a biological connection to the child in order to seek a declaration of parentage pursuant to Section 69VA. As set out in 1.1 Parental Responsibility , a birth father’s parental responsibility can be removed, altered or diminished by an order made by a state or federal court. 1.4 Requirements for Non-Genetic Parents Non-genetic parents may include: • a parent of a child born through an artificial con - ception procedure; • a parent of a child born through a surrogacy arrangement; • a step-parent of a child; or • a parent who has adopted a child (see 1.7 Adop- tion ). Children Born Via an Artificial Conception Procedure Where a child is born as a result of an artificial con - ception procedure, it will be necessary to consider the provisions of the status of children legislation in the relevant state or territory, which will determine who is a parent in certain situations. Such legislation includes both rebuttable and irrebuttable presumptions of par - entage, including presumptions that relate to children born as a result of artificial conception procedures. By way of example, in NSW, if a married woman becomes pregnant by means of a fertilisation proce - dure using any sperm obtained from a man who is not her husband, her husband is still presumed to be the parent of that child if he consented to the procedure. This presumption is irrebuttable. Where a person is a parent under a prescribed state or territory law, this will be recognised under the Family Law Act. Under the Family Law Act, if a woman was either mar - ried to or a de facto partner of another person at the time she underwent an artificial conception procedure and the procedure was carried out with the consent of the other person, then the child born as a result of the procedure is the child of the woman and the other

person. This is the case even where neither person is biologically related to the child. Children Born Under Surrogacy Arrangements There is currently no uniform surrogacy law in Aus - tralia; surrogacy is regulated under the laws of each state or territory. Depending on the state in which the intended parents live, if the baby was born as a result of a surrogacy arrangement, the intended parents would need to apply to the Supreme Court in their state or territory for a parentage order. In order to apply for a parentage order, the requirements of the relevant state or territory law would need to be complied with. Where a state or territory court has made a parentage order under a prescribed law, this will be recognised under the Family Law Act. Step-Parents A step-parent of a child will not have parental respon - sibility for the child, unless they seek a parenting order allocating them sole or joint decision-making respon - sibility for the child. 1.5 Relevance of Marriage at Point of Conception or Birth Some of the presumptions of parentage (at both a state and federal level) centre around the relationships that existed between the relevant adults at the time of the child’s conception. For example: • If a child is born to a woman while she is married, the child is presumed to be the child of the woman and her husband. • If a child is born to a woman and said woman cohabited at any time during the period beginning not earlier than 44 weeks and ending not less than 20 weeks before the birth of the child with a man to whom she was not married, then the child is presumed to be the child of that man. • If a child is born to a woman as a result of an arti - ficial conception procedure while she was married to, or a de facto partner of, another person (the other intended parent) and either (i) the woman, other intended parent and any other person who provided the genetic material consented, or (ii)

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AUSTRALIA Law and Practice Contributed by: Kerri Phillips, Matthew Levy and Cassandra Bennett, Phillips Levy Bennet Legal

the child is the child of the woman and the other intended parent under a prescribed law of a state or territory, then the child is the child of the woman and the other intended parent, for the purposes of the Family Law Act, and the woman and other intended parent would both hold parental responsi - bility under the common law. 1.6 Same-Sex Relationships The presumptions of parentage in relation to children born as a result of an artificial conception procedure (see 1.4 Requirements for Non-Genetic Parents ) apply to same-sex couples who are married or in a de facto relationship at the time of the child’s conception. If the relationship commences after the child’s concep - tion, the partner who is not the “parent” could apply to the court for an order to obtain parental responsibility. 1.7 Adoption Under Australian law, adoption is the permanent transfer of all legal parental rights and responsibilities to the adoptive parents. Once an adoption order is made, the law regards the child as though they were born to the adoptive parents. Adoption of Children Within Australia An application for an adoption order can only be made to the relevant court in the state or territory where the child resides. Each state or territory has enacted legislation about adoption, and the requirements may vary between different states and territories. There are restrictions on who can apply to adopt a child, under domestic law. An adoptive parent (who is not a relative or step-parent) can only apply to adopt a child with the consent of the relevant state or territory child protection authority or where that authority has enquired into the proposed adoption. Where children are in foster care, in some jurisdictions it is the state child protection agency (or other approved agency) that will make the application to the court for an adop - tion order in favour of the foster carers (also called the proposed adoptive parents). In the case of a step-parent adoption, an adoption order will not displace the existing parental responsi - bility for a child (whether that is because of the com -

mon law or an order made under the Family Law Act) unless leave was granted to commence the adoption proceedings under Section 60G of the Family Law Act. Similarly, if a parenting order is in force and leave is not granted, the parenting order will remain in force. The relevant legislation in each state and territory sets out the requirements that a proposed adoptive parent needs to meet. These requirements differ, depending on whether the proposed adoptive parent is a fos - ter carer, step-parent or relative. Requirements may include things like: • that the child has attained a certain age; • that the adoptive parent has an established rela - tionship with the child or has cared for them for a certain period; • that the adoptive parent’s spouse consents, or if the adoptive parents are a couple they have lived together for a certain period of time; and • that the adoptive parents have been domiciled in the particular state or territory for a certain period of time. In all states and territories, the relevant court will only make an adoption order if it is in the child’s best inter - ests, and if specific requirements of the law have been satisfied. The applicable legislation will set out in detail the factors that the court must consider when decid - ing whether the order is in the child’s best interests, including the child’s wishes, identity, culture, language and religion. Where the child is an Aboriginal or Torres Strait Islander child, special considerations apply. In some states and territories, a person who has been adopted can decide whether to use the new birth cer - tificate that is issued after the adoption order is made or an integrated birth certificate, which records details of the person’s birth parents and their adoptive par - ents. Recognition of Foreign Adoption Orders There are some differences under state and federal law as to when an adoption order made in a foreign country will be recognised. Australia has signed and ratified the Convention on Protection of Children and Co-operation in Respect of

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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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The court is not confined to the proposals put forward by the parties and may explore a range of outcomes that may be in the best interests of the child, provided the parties have been afforded procedural fairness. A parent wishing to relocate is not required to estab - lish compelling reasons in support of their applica - tion. They will, however, need to present a clear and detailed proposal to the court, setting out how the relocation will benefit the child, particularly where the proposal presents a significant departure from the existing arrangements. The court will explore the alternatives to restricting the freedom of movement of a parent, especially where there is a proposal to impose an obligation on a pri - mary caregiver to care for the child in a place that is not of their choosing. Factors that will have a significant bearing upon an application to relocate include: • the arrangements already in place for the child to spend time with the other parent, whether those arrangements are working and whether the par - ent seeking to relocate has been supportive of the child’s relationship with the other parent; • the child’s relationship with the non-relocating par - ent; • the support networks available in the new location; • any safety considerations, including any history of family violence; • the impact upon the parent seeking to relocate (and by implication their parenting) in terms of their mental health and wellbeing, and any financial impact of being able to relocate and/or having to remain in Australia; • whether the parents (and particularly the parent seeking to relocate) will be able to fund future over - seas travel so that the child can continue to spend time with the non-relocating parent; and • whether any orders made will be recognised and/ or could be registered and enforced in the other country. 2.3.2 Wishes and Feelings of the Child A child’s wishes and feelings will be a relevant but not determining factor; they are one of several factors

that must be considered in the overall assessment of a child’s best interests. In most relocation cases, the court will appoint an Independent Children’s Lawyer (ICL), who will make recommendations to the court about which orders are in the child’s best interests, based on the evidence. The ICL will meet with the child (if they are school age), explain the proceedings in an age-appropriate way and give the child an opportunity to express their wishes. Although a child must be given an opportunity to express their wishes, they cannot be compelled to do so. Evidence of a child’s wishes will be placed before the court through the report of an independent expert (usually a psychologist or a social worker) either employed by the court (called a Court Child Expert) or jointly appointed by the parties (called a Single Expert). The expert will also evaluate the parties’ com - peting proposals and make recommendations to the court about what arrangements they consider to be in the child’s best interests. 2.3.3 Age/Maturity of the Child Whilst a child’s wishes ought to be given proper con - sideration, their importance in a particular case will depend upon other factors, such as the child’s age or maturity and level of understanding of what is involved in the choice that they have expressed. For example, a child may not understand the long-term implica - tions of being separated from a parent, grandparent or sibling, which are factors the court must consider. The court is also required to consider the develop - mental, psychological, emotional and cultural needs of the child, and anything else that is relevant to the circumstances of the child. Although the wording of the Family Law Act has since changed, in Bondelmonte v Bondelmonte [2017] HCA 8 the High Court recognised that the influence of a parent may be relevant to the weight to be attributed to a child’s wishes. 2.3.4 Importance of Keeping Children Together The court must consider the benefit to the child of being able to have a relationship with their parents and other people who are significant, if it is safe to

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AUSTRALIA Law and Practice Contributed by: Kerri Phillips, Matthew Levy and Cassandra Bennett, Phillips Levy Bennet Legal

do so. A child’s relationship with their sibling will be a relevant consideration for the court and would typi - cally be considered by an expert, including the impact of any separation upon their relationship. 2.3.5 Loss of Contact The court must have regard to the benefit to the child of having a relationship with both parents, where it is safe to so, when determining a dispute involving a proposal to relocate. This means that loss of contact with the non-relocating parent will be an important factor for the court. The factors that impact upon this include: • whether any arrangements for telephone or video communication are workable, in light of the child’s age, their relationship with the non-relocating par - ent and the relationship between the parties; • whether the relocating parent has been supportive of the child’s relationship with the non-relocating parent; • the current relationship between the parents and their ability to communicate regarding the child; • whether either or both of the parents could meet the expense of future travel; • the practicalities of any travel arrangements, including the distance involved; • whether the non-relocating parent could travel to see the child where they live (including meeting any visa requirements); and • issues around safety and family violence. 2.3.6 Which Reasons for Relocation Are Viewed Most Favourably? Every case is different. Generally speaking, a parent’s application to relocate is more likely to be successful if the court is satisfied that said parent (usually the primary caregiver) will be better placed to care for the child in the other country because of: • family violence; • limited family and/or social support in Australia; • the impact on their mental health and functioning if they remain in Australia; • limited employment opportunities or financial sup - port in Australia; • the impact on the parent’s or child’s health or access to medical care; or

• the ability of the parent to remain in Australia because of immigration issues. 2.3.7 Grounds for Opposition to Relocation A parent does not need to establish any particular “ground” in order to oppose the other parent’s appli - cation to relocate. If a parent does not agree to the relocation, they will need to put forward an alternate proposal to the court, which they consider to be in the child’s best interests. If a non-relocating parent can demonstrate that the child would benefit from having a relationship with them but that is unlikely to happen if the child relo - cates because of the matters set out in 2.3.5 Loss of Contact , the court may be sympathetic to their posi - tion. 2.3.8 Costs of an Application for Relocation Several aspects impact on the cost of an application for relocation, including the following. • Whether either or both of the parties are eligible for a grant of Legal Aid (state and territory-based services that provide free legal services, subject to eligibility requirements). If they are not eligible for Legal Aid, they will need to represent themselves or pay a lawyer to represent them. • Whether the parties are required to pay court fees, including filing fees, hearing fees and fees for issu - ing subpoenas. In some circumstances, a party may be exempt from paying court fees. • Whether expert evidence is required, the nature of the evidence and whether the parties need to meet the costs. In some cases, the court will make an order for a Court Child Expert appointed by the Court Children’s Service to prepare a report. If a Court Child Expert is appointed, the parties will not need to pay the costs. However, if the parties are able to meet the fees of an expert, the costs will usually be shared. • Parties are required to engage in alternative dis - pute resolution prior to commencing proceedings, unless exceptional circumstances exist. There may be costs associated with this. • Where the court appoints an ICL to represent the interests of the child, the parties will usually be responsible for sharing the fees (unless they have

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