08 Aug Moving abroad with child after divorce

If you are looking at moving abroad with your child after divorce then this blog is for you.

What happens when the parents are separated and don’t agree?

The High Court of Australia has recently confirmed that children’s wishes although relevant, are not the only deciding factor in parenting cases.

In the recent case of a wealthy family- the Boldemontes – there were 3 children, two sons and a daughter. The parties had separated in 2010, and in 2014, interim parenting orders had been made by consent in the Family Court. The 2014 interim parenting orders allowed for the parents to take the children for international holidays provided that relevant information was given to the non-travelling parent like tickets and itinerary etc.

Relocation disguised as a “holiday”?

On 14 January 2016, Mr Boldemonte and the parties’ two sons travelled to New York for a holiday despite not complying with the 2014 interim parenting orders. Ms Boldemonte reluctantly agreed to the holiday as a result of pressure from Mr Boldemonte. The parties’ daughter did not attend the holiday.

On 26 January 2016, Mr Boldemonte decided that he wished to remain living in New York and on 29 January 2016, his solicitors advised the mother that the boys also wished to remain living in New York. After hearing of this Mrs Boldemonte started court proceedings in the U.S. for the return of the boys in accordance with the Hague Abduction Convention.

Mr Boldemonte in defending his case filed further evidence to the effect that Ms Boldemonte was too frail to care for the boys and that they may not elect to live her if compelled to return to Australia.

Children’s wishes didn’t decide the case even though they were in their late teens

Interim parenting orders were made by the Family Court of Australia requiring the boys’ return. At that time, the parties’ sons were nearly 17 years old and nearly 15 years old. The parties’ daughter was nearly 12 years old. It was accepted that the boys had lived primarily with Mr Boldemonte and the parties’ daughter primarily with Ms Boldemonte following the making of the 2014 orders. Further, the parties’ eldest son was effectively estranged from Ms Boldemonte.

After appeals were exhausted the matter went to the High Court who dismissed the father’s appeal. stating that the views or wishes of children “are but one consideration of a number to be taken into account in the overall assessment of a child’s best interests” and that the Court will “take into account not only the views expressed by the child but also “any factors…that the Court thinks are relevant to the weight it should give to the child’s views.” The factors that the provision gives as relevant are the child’s maturity or level of understanding, but plainly the Court may consider other matters to be relevant.”

Be careful before signing the kid’s passports and giving to your ex!

The case also highlights the problems with a parent attempting to relocate their children overseas -while deceptively making out to the other parent that they are just going on a holiday with the kids.  the parent left in Australia not travelling has to be careful before allowing passports to issue for overseas holidays.  Some countries are not a signatory to the Hague Convention which means their government or enforcement agencies will not get involved in enforcing any Australian orders for the return of the children.

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