For some parents, it is a concerning thought that their child might be taken out of the country by the other parent. This is especially true for instances where one parent has significant ties to another country.
It may also be a concerning prospect when one parent intends to relocate a child to another city or state within Australia, or to a remote location which will make it difficult for regular contact to occur with both parents.
So, what can be done to prevent this, and what happens when a child has already been relocated?
When a child has been taken to a country that is not part of the Hague Convention, unfortunately there is not much that can be done. Preventative measures are imperative to prevent children from being taken to countries which are not signatories of the Hague Convention.
Court orders preventing children from leaving the country and placing children on the Family Law Watchlist may be necessary. If a child has been taken to a country which is part of the Hague Convention, the Court may make recovery orders for the child to be returned to Australia.
The Hague Convention
The Hague Convention on the Civil Aspects of International Child Abduction is an international agreement which came into effect in Australia in 1987 and provides a mechanism for the return of children to their home country who have been wrongly removed.
There are many countries that are not signatories to this agreement and so return of children from these countries can be extremely difficult.
Some of the many countries which are not parties to this agreement include:
- China;
- Cambodia;
- India;
- Sri Lanka;
- Thailand; and
- Vietnam
There are additionally some countries which are signatories to the Hague Convention yet have a reputation for poor compliance such as Mexico, Japan, Turkey, Austria and Romania.
When a child has been abducted to a party of the Hague Convention, an application under the convention can be made. It is necessary to obtain legal representation to apply for recovery of a child under the convention.
Orders for Prevention of Child Relocation
For parents who disagree with the other parent trying to relocate their child’s residence, there is a way to prevent the child being relocated. The parent that wishes to restrict the relocation may apply to the court for an order prohibiting the other party from relocating the child’s residence outside certain parameters such as within a certain area, or within a certain distance from the child’s school.
Where parenting orders have been made, or an application for parenting orders has commenced, it is a criminal offence to remove the child from Australia even for a holiday unless the other parent has given authenticated written consent, or the court has made a parenting order which allows for the travel.
To prevent a child from being taken overseas, a parent can seek orders restraining the removal of the child, and can request the child be placed on the Family Law Watchlist with the assistance of the Australian Federal Police.
Additionally, orders can be sought to prevent a passport from being issued to a child by lodging a Child Alert Request with the Australian Passport Office or by obtaining a child alert order from the Federal Circuit and Family Court of Australia.
The Court can also make an order requiring the person in possession of the child’s passport to hand it over to the Court. The Federal Circuit and Family Court of Australia has an emergency phone line for times where there is a risk the child will be taken overseas before the next business day.
Family Law Watchlist
The Family Law Watchlist is designed to alert police to the movement of children who are on the Watchlist.
To place a child on the Watchlist, a Family Law Watchlist request form must be completed and in order to be eligible, one of the following circumstances applies:
- A court order or parenting order is in place which limits the child’s international travel and includes conditions for the child to be placed on the Family Law Watchlist; or
- An application has been filed with the Court for a court order or a parenting order that limits the child’s international travel and which also requests the child be placed on the Family Law Watchlist; or
- An appeal has been filed with the Court against an order made by the Court relating to limiting the child’s international travel and had requested the child be placed on the Family Law Watchlist.
At a minimum, a Court sealed initiating application to commence proceedings is required, however the Court has an emergency phone number and can push through an urgent initiating application if they deem the matter urgent. The Court can be contacted for this number at 1300 352 000.
Child Alert Request
A child passport alert request can be made through the Australian Passport Office.
Only individuals with parental responsibility for a child can request a passport alert and it does not guarantee that the child will be refused a passport, only that the passport application will be under greater scrutiny and may not be granted.
Child Alert Requests remain valid for up to 12 months after they have been issued.
To request a child passport alert, a Child Alert Request form must be obtained from a passport office. The form must be completed and signed and include a statement about why the alert is being requested. Any Court orders relating to the child must also be attached.
Orders for Recovery
In instances where a parent is keeping a child from the parent they normally reside with or is breaching Court orders and preventing the child from spending time with the other parent, then that parent may apply to the Court for recovery orders.
Only a parent of a child, a person who has a parenting order stating the child resides or spend times with them, or a person who has parental responsibility of a child may seek recovery orders.
- Recovery orders can enable an authorised person such as a Police officer to take action to find and deliver the child to a parent.
- Recovery orders can also prevent the removal of the child again and may stipulate the legal consequences such as arrest of the person if they take the child again.
For children that have been taken to a Hague convention signatory country, Australia has agreements with these countries for the return of abducted children. To start this process, an application needs to be made with an affidavit and certified copies of relevant documents such as birth certificate and any court orders attached.
There are also a number of conditions that must be satisfied including:
- The child must be under 16 years old;
- The person seeking return of the child must have parental rights in relation to the child;
- The parent must have been exercising these parental rights at the time the child was wrongly removed from Australia;
- The child must have been a resident in Australia immediately before they were removed;
- The child must have been taken to a country that is part of the Hague Convention; and
- The child must have been taken from Australia without the parent’s consent or without a Court order.
The parent seeking return of the child should not commence proceedings in the country where the child has been taken.
Location, Publication and Commonwealth Information Orders
If a parent does not know where the child is located, they can apply to the Court for an order to find out the location of the child.
Location orders are an order made by the Court which requires a person to provide information about a child to the Court as per section 67J of the Family Law Act 1975 (FLA).
A Commonwealth information order is a specific type of location order which requires a person to provide all of the information in their records about the location of the child. These requests are usually made to the Secretary of a Government department or other similar authority.
As a last resort, a Court may order a publication order which lifts the penalties that apply to the publishing of material related to family law proceedings. It emails media outlets to publicise some details of a case to help locate a missing child. The order will stipulate the specific information which can be published.
Time is of the essence in relation to child abduction matters. It is vital that you seek legal advice immediately if you suspect your child will be relocated to another part of Australia or another country. Delay may result in the child settling into their new residence and schooling, making it more difficult to seek the return of a child, or it may result in the child being taken to a country that is not a party to the Hague Convention.
At Matthies Lawyers, we are here to cater to your family law needs. Our team of family lawyers proudly serves clients in South Yarra, Toorak, Windsor, Prahran, Armadale, and Richmond.
Contact us today for expert legal advice and support or call +61 3 8692 2517.
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Kate Scolyer – Solicitor– Matthies Lawyers
Disclaimer: This article contains general information only and is not intended to be a substitute for obtaining legal advice.