What is the Hague Convention?
The Hague Convention on the Civil Aspects of International Child Abduction is the main international agreement that covers international parental child abduction. It provides a process through which a parent can seek to have their child returned to their home country.
An application under the Hague Convention for the return of a child can only be made to or from a country that has signed the convention, and which Australia has recognised. Your Lawyer will have to determine if the country the children have been taken to is a member of the Hague Convention. Countries can change from time to time. New Zealand is currently a signatory to the Hague Convention.
If the country the children have been taken to is a member of the Hague Convention, there is a presumption that the children should be returned to the country in which they normally reside (place of habitual residence). Habitual place of residence does not mean that because your children have a New Zealand passport that their habitual place of residence is in New Zealand. Put simply, the children’s habitual place of residence is where the children live. Of course, further questions should be asked, such as where did mum and dad intend for the children to live? Where have the children spent most of their life?
If an application under the Hague Convention is made, you will be appointed a senior lawyer to assist you.
Your matter will then be called before the Family Court to determine whether the children should be Ordered to return to their habitual place of residence.
There are grounds to object to the return of the children. The reasons to object are as follows: -
- That it is in the children’s welfare and best interests to remain in the other country;
- That the children are safe in the new country;
- The relocated parent has more family support in the new country;
- The children’s environment is better in the new country;
- Due to the relocated parent’s financial situation; and
- The children have settled in the new country.
The threshold to meet the above is extremely high. It is very rare for a Lawyer to be successful in a Hague Convention defence. Therefore, there is a good chance the children will be Ordered to return to their original country of residence.
How do I relocate with my children the right way?
There is a presumption under the Family Law Act 1975 that both parents have equal shared parental responsibility. The presumption encourages co-operative parenting by giving parents an equal say in the long-term decisions involving the children. An example of a long-term decision involving the children is where the children will reside.
If you and your ex-partner are unable to reach an agreement, you will be required to file an Application to the Court to seek an Order to move the child to another state or country. When a parent moves the child to another state or country, this is known as relocation.
If the move significantly reduces the time that the children spend with the other parent, depending on the circumstances of the case, the Court may not grant permission for you to relocate the children.
If you move without the consent of the other parent, the Court may order you to return the children.
You have the freedom to relocate where you like, however, there is no automatic right for you to be able to relocate with your children if doing so reduces the time the children spend with the other parent.
How can I maximise my prospects of success?
The Court will need to consider the facts of each case. The best interests of the children are the paramount consideration of the Court. In determining what is in the children’s best interests, the Court is required to consider the benefit of the children having a meaningful relationship with each of the children’s parents, the children’s right to be protected from harm, neglect, and family violence, the capacity of the parents to meet the children’s needs and the relationship of the child with each of the parents, and an assortment of other factors.
There are no specific rules that exist for a relocation to be successful. There are factors that the Court can consider if a parent wishes to relocate as follows: -
- Financial benefits;
- Occupational benefits;
- Academic benefits;
- Family support;
- Spousal employment;
- Cultural;
- Religious; and
- Mental health
When determining a relocation children’s case, the Court will consider your reasons for wanting to relocate in combination with factors relevant to what is in the best interest of the children.
If you are seeking to relocate to another state or country, or if your partner is trying to do so, you must seek legal advice as early as possible to maximise the prospects of success of your application whether that be to relocate or to refrain the other party from doing so.
Our Principal Lawyer, Tarryn, has practised family law in both New Zealand and Australia. Tarryn’s expertise is in Trans-Tasman relocation matters.
Contact us now so that we can help you achieve the outcome that you desire.
1300 414 855
tarryn@gfclaw.com.au