WA Permanent Residency - Relocating to Another Country After Divorce?

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Broom

Member
29 May 2019
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Hi there,

We (myself, wife and 2 kids,6 yo and 4 yo) relocated to Oz a few years ago and we're on a permanent residency visa. My wife and I had a lot of ups and downs in the last 2 years, but recently we agreed to separate.

In these 2 years, my wife always said that if we are going to separate she will take the kids and go back to our homeland.

I have 3 questions:
1. Can she do that without my consent?
2. Is it possible for her to ask for residency cancellation for herself and the kids and take them away? Do the laws apply to her although she cancelled her residency?
3. She can claim that she does not have a family in Australia and she's all alone, is it a stronger argument than let the kids be close to their father?


Thanks in advance for your opinions.
 

Tim W

Lawyer
LawTap Verified
28 April 2014
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1. Can she do that without my consent?
She herself can go anywhere she wants, anytime she wants.
No person acting on their own account requires the consent of their spouse to go anywhere or do anything.
But no, as a general thing, she does not get to take the kids overseas without your consent.
2. Is it possible for her to ask for residency cancellation for herself and the kids and take them away? Do the laws apply to her although she cancelled her residency?
There's no such thing as cancelling residency. If an adult PR wants to leave, then they can just leave.
But they don't get to just take the kids and go. Lawyers call this "abduction".
And yes, as long as she's geographically in Australia, then the law of Australia applies to her.
Certain bits of it can actually follow her overseas.
3. She can claim that she does not have a family in Australia and she's all alone, is it a stronger argument than let the kids be close to their father?
Not always and automatically.
In deciding about residence, the court will consider the interests of the kids ahead of the personal preferences of the parents.
This includes the right of the kid(s) to know and have a relationship with both parents. That's a right that may or may not be made more difficult to exercise by them being outside Australia.

First things first - you need to locate kids (foreign) passports, and secure them for safekeeping.
Second, you need advice from a Family Law lawyer who can help you make arrangements (such as court orders, watch lists etc) to reduce the risk of them being abducted and taken overseas.
Third, get your head together. This is never pretty.
 
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