Q&A - Can I take my son to live in Australia without asking his father's permission?

Q: My husband and I divorced five years ago. We have a ten-year old son who lives with me. He is supposed to see his dad every other weekend but this rarely happens as his dad regularly cancels last minute. This really upsets my son and he has been playing up at home and at school because of it. My sister wants us to emigrate to Australia so that she and her husband can help me bring him up, but I just know my ex-husband will object. Can I take my son to live abroad without my ex's permission?

A: If his father has parental responsibility you cannot take your son to live abroad without his permission. You must ask his permission and if he refuses you can apply to the court for permission. This type of application is known as an application for leave to permanently remove the child from the jurisdiction.

There is no specific provision under family law regarding permission of this type but your son's welfare will be the court's primary consideration. Whilst there is no presumption that the court will allow an application for a primary care applicant to take a child to live overseas, such applications are in many instances successful.

The court will first want to establish that the application is borne out of a genuine reason (as opposed, for example, to just wanting to prevent the other parent access). It will want to ascertain that the relocation plan is feasible and in the child's best interests. It will also require proof that you will be able to support yourself and your child financially and what arrangements you have made for childcare and schooling.

As applications of this nature rely on the correct argument and information being put forward it would be best to seek advice from a specialist family lawyer.