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Can a parent take a child out of the state without the other parent’s consent?

In child custody matters, taking a child out of the state without the other parent’s consent can pose several complex legal and emotional problems both for the parents and the child concerned.

Relocation cases are by their nature high in conflict and sensitive.

Australia is a free country and people are entitled to move freely within it.  The difficulty for the law is how to balance the rights of children to have engaged, consistent and close contact with their parents as well as respecting their parents’ entitlements to move freely.

Certainly not easy!

We know that it is always best to discuss any changes in a child’s living arrangements with the other parent.  Being separated or divorced does not give any parent the right to remove a child from having a relationship with their mum or dad.  You may no longer like your ex or want anything to do with them- but this does not mean that your child should be stopped from having a loving and connected relationship with the other parent.

On rare occasions, there will be circumstances where the decision to relocate without the other parent’s consent or knowledge is justified (in cases of prolonged and relentless family violence or where one parent has had little or no relationship with the child).

The case of Barda and Teak[2018]is such a case!

The facts are relatively simple:

  • Mr Barda and Ms Teak had a tumultuous relationship marked by frequent drug use and delinquent behaviour.
  • In 2013 their child was born.
  • The child is now 5 years of age and she has not seen or spent time with her father for 2 and half years (half her life).
  • The mother, Ms Teak unilaterally relocated to Adelaide with her grandparents and other child (Ms Teak is estranged from her birth mother and was raised by her grandparents).

Mr Barda, the father in this case brought proceeding to have the mother returned to Queensland where he lives.  The father has another child there and has recently obtained work.  The mother relocated with her children and grandparents to Adelaide to care for her great-grandmother.

The matter was addressed by the Court on an interim basis.  It was decided that in these circumstances the mother would not be ordered to return to Queensland with the child because:

  • It is best for the child to remain living with the Mother and supported by her grandparents.
  • The Mother has taken genuine measures to rehabilitate herself and knows that to remain off the drugs she must live with her grandparents.
  • The Father has had no relationship with the child for half of her life.
  • The Father has offered no genuine financial support to the Mother should she relocate.
  • The decision to remain in Adelaide gives the child the best stability.

We do not know yet what will happen on a final basis, but it seems that until the Father can show the Court that he is no longer a drug user and he can offer the Mother financial support as well as be sensitive to the needs of his daughter – it may be that his time with the child is only as agreed between the parties or even supervised.

Disclaimer

The information contained herein is not legal advice.  It is intended as general information only, on what happens when a parent takes a child out of the state without the consent of the other parent.  Should you require specific legal advice contact us on info@cominoslawyers.com.au

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