A parent who relocates overseas with a child may face a Hague Convention application for return if relocation orders are not in place. The considerations of the Court in assessing overseas relocation applications have evolved due to the COVID-19 pandemic.
When considering a relocation application, the Court will primarily have regard for whether the relocation will be in the best interests of the child. They will also consider the importance of the child’s meaningful relationship with both parents, in conjunction with the need to protect the child from harm.
Whilst those are the primary considerations, regard may also be given to a range of additional factors under s60CC of the Family Law Act, and further considerations such as the right of freedom of movement of the parents. These factors include:
- the maturity and perspective of the child,
- the attitude of each parent to the child and the responsibilities of parenthood,
- the extent of each parent’s participation in the child’s life and fulfilment of their parental obligations,
- the effect of relocation on the child,
- the practical difficulty and expense of the child spending time or communicating with both parents,
- the culture and background of the child,
- any relevant family violence factors, or
- any other fact or circumstance that the court considers to be relevant.
The Family Court has demonstrated regard to the following additional factors in light of the COVID-19 pandemic, when assessing relocation applications. These include:
- the rates of COVID-19 infection in the country of relocation,
- the COVID-19 vaccination rates in the country of relocation,
- the hospitalization levels in the country of relocation, and
- the morbidity rates due to COVID-19 in the country of relocation.
These additional factors were applied in the recent case of Kingsley & Secretary, Department of Communities and Justice (No. 2)  FamCAFC 144, 6 August 2021 in which the Full Court found against returning a child to Canada under a Hague Convention return application due to the grave risk of COVID-19 in the jurisdiction.