In our modern world, the reality is that parents frequently travel with their children. After separation, if a parent is from another country it is normal that they might want to return to visit or even live there.
It is often the other parents worst fear that they will take the child overseas without their consent or not return them.
It is important to understand your rights and the options available to you in the event of child abduction or you are concerned that the other parent will relocate with your child.
Airport watch list orders
In the event that you hold concerns that the other parent will attempt to leave Australia with your child without your consent, there are options available to you.
The Family Law Watch List commonly known as the Airport Watch List is a system designed to alert police to the movements of children and to prevent children who are the subject of family law orders from being removed from the Commonwealth of Australia.
In order to place your child on the Family Law Watch List, you must follow the following steps:
- file an application in the Federal Circuit Court or Family Court of Australia seeking parenting orders, including that your child be placed on the Family Law Watchlist by the Australian Federal Police; and
- complete the Family Law Watchlist request form and send it to the Australian Federal Police along with a copy of your filed initiating application / Court order placing your child on the Family Law Watch List.
If you are concerned about the imminent removal of your child from Australia you should telephone the Australian Federal Police and provide a copy of your Family Law Watchlist request form / Court orders to them by fax/email and mark it urgent.
If a child is placed on the Family Law Watch List, whether or not either parent can travel overseas with the child will depend on the contents of the Court order. Court orders may unconditionally prevent the child’s overseas travel or they may permit the travel provided that certain conditions are met.
If you are unsure if your child is on or remains on the Airport Watch List, you can seek confirmation if your child is on the Watch List by completing a Family Law Watchlist enquiry form and returning it to the Australian Federal Police.
It is essential that you confirm that you are able to travel with your child prior to making travel arrangements. If your child remains on the Family Law Watchlist and the orders prevent your child from travelling overseas, the child will not be permitted to leave Australia.
International child abduction
The Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention) is the main international agreement in relation to parental child abduction. The Hague Convention provides a process for a parent to seek the return of their child to their home country. It also provides an avenue for parents to seek access to their child in the event that their child resides in a different country.
Australia is a signatory to the Hague Convention. For a list of all signatories to the Hague Convention click here.
If you believe that your child has been wrongfully removed from Australia, or wrongfully retained overseas (and the child is located in a Hague Convention country), you can make an application for the return of your child under the Hague Convention.
It is appropriate to attempt to negotiate the return of your child by consent, however, it is important that you be aware of the length of time that these discussions/negotiations take. You can make an application for the return of your child and continue to attempt to negotiate the child’s return.
To commence the process, an application must be made to the Central Authority. The Central Authority will then assess the application on its merits against the criteria in the Hague Convention. If your application is accepted it is forwarded to the Central Authority in the country in which your child is residing and they determine how they will run your case. Commonly they will contact the other parent seeking the voluntary return of the child and if that is refused, they will make the application. It is important to note that the costs of running your matter may not be covered by the country in which your child is wrongfully detained.
The proceedings will take place in the country in which the child is wrongfully detained. There is no guarantee that your child will be returned to Australia. A Court may refuse to return the child if:
- it is not convinced that the key requirements of the Hague Convention have been met;
- the Court determines that you have agreed to the child being taken or kept in that country, or that you subsequently acquiesced to the removal or retention;
- the child has been in that country for more than 12 months and is settled there;
- the child objects to being returned and the child is old and mature enough for their wishes to be considered;
- returning the child would expose them to grave risk of physical or psychological harm, or some other intolerable situation; or
- returning the child would breach their fundamental freedoms and human rights.
If you are successful and your child is returned to Australia you may need to consider making an application to the Court for parenting orders. Contact us for more information.
Tips for parents considering authorising their child to travel overseas
If you reach an agreement with the other parent for your child or children to travel overseas you should seek legal advice in relation to the contents of the agreement. The contents of the agreement may negatively impact any application under the Hague Convention if your child is not returned to Australia in accordance with your agreement.
It is important that you obtain legal advice as soon as possible after your child has been wrongfully removed from Australia or wrongfully retained in another country to ensure that you do not take steps that are detrimental to your case.
If you have any questions in relation to parental child abduction or the steps that you can take to prevent your child being removed from Australia without your consent, contact us today!