Relocation of Children - When Disputes Arise

Newsletter - Winter 2006

How the Problem Arises

Relocation disputes arise when the parent who has day-to-day care of a child wishes to change his or her place of residence, along with that of the child, and the other parent opposes the relocation. The proposed relocation may be overseas or elsewhere within New Zealand.

These cases (often described as “intractable”) are some of the most difficult and distressing imaginable for both the parties involved and also their legal advisers.

Example

A typical scenario of a relocation dispute is as follows:
A couple are together for many years before separating. They have two children. The children have lived with the mother in Auckland since separation. The father has contact with the children each weekend. The parents met in Australia. Most of the mother’s family still reside there. The mother now wishes to move to Australia with the children but the father will not consent.

Legal Issues

The parent with day-to-day care (formerly “custody”) wishes to relocate with the children to another country. In such circumstances the other parent’s consent will be required.

If the parents are unable to agree on the primary residence of their children, either parent may apply to the Family Court for the Court’s direction.

If the father was to become aware of the fact that the mother may depart despite his opposition to the move, he may file an application for an order preventing the removal of the children from New Zealand until the Court determines the relocation
issue at a substantive hearing.

Relocation disputes are dealt with under the Care of Children Act 2004 (“the Act”). The Act provides that the welfare and best interests of the children are to be the primary consideration and gives express guidance as to what matters the Court must take into account. The welfare of each child is different in every case and must be assessed on its merits.

The Act also requires the views of the children to be considered and a lawyer will be appointed by the Court to represent them.

If the relocation dispute is to be determined by the Court, a hearing will be held. Following the hearing the Court will make Orders. For example, the Court may make a Parenting Order providing for the children to be in the mother’s day-to-day
care in Australia and the father to have contact.

The reality is that in this type of case, there can be no compromise reached. One parent will “win” and the other will “lose”. In extreme cases the result may mean that one parent will end up with
significantly reduced or possibly no further contact with their child or children.

Enforcement of Orders

When children move outside the jurisdiction of the New Zealand Courts, it is important to ensure that any orders made will be adhered to. If they are not, there may be enforcement procedures available to the aggrieved party. If the children are relocating to another country that is a signatory to the Hague Convention (which governs international child relocation and abduction matters), some protection may be available from relevant authorities in New Zealand and the overseas jurisdiction. Most “Western” countries are signatories to the Hague Convention. Many other countries are not.

In any case involving relocation of children to another country, it is essential for the parents to ensure that proper safeguards are put in place before the children are relocated overseas.

For further information on this subject or any matters relating to care of children or family law in general, please contact either Michael Robinson or Claire O’Donnell.