How To Stop Your Children Travelling Overseas
“My Ex Plans to Move to Australia With the Children”: What Can You Do? An Auckland Family Lawyer Explains
Finding out that your former partner intends to move overseas with your children is one of the most frightening things a parent can face. Your mind races. Will you still see your children? Can they actually do this? Is there anything you can do to stop it? As an Auckland family lawyer, I speak with parents in exactly this position, and my first message is always the same: do not panic, and do not act alone. What you do in the first days matters, and the right advice early can protect both your relationship with your children and your legal position.
Can One Parent Simply Move Overseas With the Children?
In general, no. When children are moved to another country without the agreement of the other parent, or without the approval of a court, serious legal consequences can follow. Moving children is not an ordinary parental decision. It affects where they go to school, who they live near, and how often they see their other parent, grandparents and wider family.
It also does not matter whether the destination is Australia, the United Kingdom, Canada, Asia or anywhere else. The principle is the same: a major decision about where a child will live is not one parent’s alone to make if the other parent has a genuine role in the child’s life. That said, the answer to whether a move is lawful, and what you can do about it, depends heavily on the facts: who the children currently live with, what orders or agreements exist, and how far down the track the plans are.
The Hague Convention on International Child Abduction
The most important international tool in this area is the Hague Convention on the Civil Aspects of International Child Abduction. This is a treaty between countries, designed to deal with children who are wrongfully taken from, or kept away from, the country where they normally live.
New Zealand and Australia are both parties to the Convention, along with a large number of other countries. In simple terms, where a child is wrongfully removed from their home country to another member country, the Convention aims to secure the child’s prompt return so that the courts of their home country can decide what should happen next. Speed is central to the Convention, and delay can seriously weaken a parent’s position.
The Convention Has Limits
The Convention is not a magic wand. It does not apply to every country, and it does not guarantee a child’s return in every case. There are recognised exceptions, including where there is a grave risk to the child, where an older child objects, where the other parent agreed to the removal, or where the child has become settled in their new surroundings after a significant period of time. This is why the specific facts, and the countries involved, matter so much.
What Can Be Done?
The options available to a worried parent depend on the situation, but they broadly fall into several categories:
- Reaching an agreement. Sometimes a parent’s plans change when the other parent responds calmly and clearly. Negotiated agreements about relocation, time with each parent and travel are possible, and mediation can help.
- Seeking court protection before any move. Where there is a genuine risk that children may be taken overseas, the courts have powers designed to protect children and preserve the status quo while the issue is properly considered.
- Having a court decide whether a relocation should be allowed. If the other parent genuinely wants to move and you disagree, the court can decide whether the move is in the children’s best interests.
- Hague Convention proceedings. Where children have already been wrongfully taken to another Convention country, there are processes for seeking their return.
- Protecting your relationship with your children. Whatever happens, there may be ways of securing time and communication with your children, including where they are living overseas.
Which of these applies to you, and in what order, is a matter for tailored legal advice. The wrong move, or the right move taken too late, can make a real difference.
What Real Cases Teach Us
The cases below are drawn from decided court cases. They show how differently these disputes can unfold.
Kacem v Bashir: A Mother’s Wish to Move to Australia
In Kacem v Bashir, decided by the New Zealand Supreme Court in 2010, a mother wanted to move to Australia with her two young daughters to be closer to her family. The case travelled through the Family Court, the High Court, the Court of Appeal and finally the Supreme Court. At one stage the High Court allowed the move, but the Court of Appeal disagreed, and the Supreme Court unanimously dismissed the mother’s appeal. The children stayed in New Zealand.
The lesson? There is no automatic presumption in favour of the parent who wants to relocate, and there is no automatic presumption against it either. The outcome turns on the particular children’s needs and best interests. Even a parent with strong personal reasons for moving can be unsuccessful, and judges at different levels of the court system can reach different views on the same facts.
Secretary for Justice v HJ: When Delay Changes Everything
In Secretary for Justice v HJ, a mother took two young children from Australia to New Zealand without the father’s agreement. The father did not begin Hague Convention proceedings until the children had been in New Zealand for a long time. By then they had settled into their schools and community. The Supreme Court, in a unanimous result delivered through three separate judgments, declined to order the children’s return to Australia.
The lesson? Time matters. The Convention is built around speed, and the longer a child is in a new country, the more arguable it becomes that they are settled there. A parent who delays can find that the legal landscape has shifted.
Re TC and JC: Abduction, Return and Relocation
In an English case reported as Re TC and JC (Children: Relocation), a mother took her children from England to Melbourne without the father’s agreement. After protracted proceedings in Australia, including an appeal, the children were returned to England under the Hague Convention. That was not the end of the story. The English court later heard the question of where the children should live long term and, notably, allowed the mother to relocate to Australia with the children, in part because the father was prepared to move there too and share in their care.
The lesson? A Hague return order and a relocation decision are two different things. Returning a child to their home country does not decide where they will live permanently. Cases like this show how complex, lengthy and unpredictable international disputes can become, and how much emotional and financial cost a family can bear along the way.
Why Early Legal Advice Matters
Across these cases, a common theme emerges: timing, evidence and clear thinking matter. Parents who seek advice early are usually in a better position than those who wait. Equally, taking matters into your own hands, for example by hiding passports or refusing to return children, can seriously damage your credibility and your case. Your children’s welfare must stay at the centre of everything.
If you are concerned about a possible move overseas, it is sensible to:
- Stay calm and avoid confrontations in front of the children.
- Keep a record of what you have been told about the move, including messages and emails.
- Speak to a family lawyer as soon as possible, before anything is booked, signed or sold.
Speak to an Experienced Family Lawyer
Every situation is different, and the steps that protect you will depend on your circumstances. If your ex is planning to move to Australia or anywhere else overseas with your children, I would be glad to help you understand where you stand and what your options are. Whether you are looking for an Auckland family lawyer or need advice elsewhere in New Zealand, please do not wait until it is too late.
Contact family law expert Naomi Cramer at Cramer Law to discuss your situation. Consultations are available by phone, email or Zoom.
Disclaimer: This article is general information only and is not legal advice. It does not take into account your personal circumstances, and the law may change. The case summaries are brief and simplified. You should obtain independent legal advice before acting or relying on any information in this article. No lawyer-client relationship is created by reading this article.
Republishing: You are welcome to republish this article, provided it is reproduced in full and all links, including the link to Cramer Law, are retained.
