What if your ex-partner takes your children overseas without your consent or stays longer than you agreed to?
Unfortunately, it is not uncommon for a parent to internationally abduct their children. That is, take or send their children from Australia to a place outside Australia. There are more than 100 applications made by Australia each year to other countries who are signatories to the Hague Convention for the return of children. Though the exact figure is difficult to measure because not all countries are signatories, experts estimate that there are closer to 1000 instances of international parental child abduction each year.
Family Law Act 1975 Amendment
Fortunately, on 24 April 2019 the Family Law Act 1975 was amended and two new sections were introduced, intended to deter parents thinking about taking or keeping their children overseas, and penalising those who do. Before the amendment, if you or the Court had given your ex-partner permission to take your children overseas for a certain period of time, then they could not be criminally prosecuted for keeping them there beyond that period. Now, your ex-partner will face up to three years in jail if they retain your children overseas for longer than you agreed. Payments of child support will also be able to be suspended by the Court.
What Does This Mean For Parents?
Before the amendment, parents or carers only faced a civil penalty for breaching the Court orders. This usually meant that it would only be you or your lawyer contacting international authorities. If you had obtained a Recovery Order, the Australian Federal Police (AFP) could make enquiries, but they were not always treated earnestly by international authorities because it was considered a civil matter. Now that it is a criminal matter, it is anticipated that when contacting their international counterparts, the AFP enquiries will be taken more seriously. The AFP also now have greater investigatory powers and are empowered to get bank records, pull phone records and conduct phone tapping.
What If I’m Fleeing From Violence?
You are, however, able to defend yourself for leaving the county with your children and going against court orders, if you are fleeing from violence or protecting the children from imminent harm.
What if there are no orders or current court proceedings?
If there are no Court orders in place and no current court proceedings in relation to the children, then your ex-partner will not be committing a criminal offence if they take or keep your children overseas. This is because, until the Court orders otherwise, you both have parental responsibility for your children. In these circumstances, you can still apply to have your children returned to Australia, but your ex-partner cannot be charged with the offence.
What can I do if I’m worried?
If you are worried that your ex-partner might take or keep your children overseas you should make sure you have their official documents, recent photos of your children and your ex-partner and the contact details for any international friends or family where the child might be taken.
Family Law Watchlist
You can have your childrens’ names placed on the Family Law Watchlist. This will prevent them from being removed from Australia. You do need a Court Order to have their names added to the Family Law Watchlist, so we recommend that you seek urgent legal advice about the process. If your children have already been removed from the country, then you may need to apply to the Court for a Recovery Order instead.
Child Alert Requests
If your children do not yet have passports, you may want to submit a Child Alert Request with the Australian Passport Office. This will warn the Department of Foreign Affairs & Trade that there are circumstances that need to be considered before issuing an Australian passport or other travel document to a child. If your children is eligible for a passport from another country, you should contact that country’s relevant authority to see if you can prevent one from being issued.
When Can An Application For Children To Be Returned Be Made?
Regardless of whether there is an order in place or proceedings afoot, if your children have been taken or sent to a country that is a member of the Hague Convention, then you can make an application for their return. Please be mindful that there are a number of requirements your application will have to meet.
If your children have been taken or sent to a country that is not a member of the Hague Convention, and there is not a bilateral agreement between Australia and that country, then the Consular Branch of the Department of Foreign Affairs and Trade might be able to help you.
If you have any questions or concerns about international parental child abduction please contact our Family Law team on 08 8410 9494.