International child abduction from Australia

Introduction

The taking of a child from Australia to an overseas country without permission of the other parent or court order is considered international child abduction. The removal of a child by a parent to a foreign country is complex and accompanied with emotion and the wanting to enforce your parental rights.

If you have a child who may be removed or has been removed from Australia without your consent, it is critical to know your legal options.

This article will provide a broad overview of international child abduction from Australia.

Can a parent abduct a child in the eyes of the law?

If there are court orders in place or court proceedings in progress, parental child abduction is a criminal offence under the Family Law Act. This means that if a parent removes a child from Australia without the permission of the other parent, they may be criminally charged.

This offence is not limited to the child’s parents. Parental child abduction includes any person who acts on behalf of the parent attempting to abduct the child. If found guilty of this offence, the penalty is imprisonment for up to 3 years.

Can a parent take their child out of the country?

If there are court orders in place or court proceedings in process, a parent wishing to take their child overseas must have the consent of the other parent or a court order. This is best done in the form of written and signed consent.

In most cases, both parents have to sign a passport application, unless there are significant circumstances such as a court order or the other parent is not known. If a parent is known but refuses to sign a passport application, an application to court can be made to seek an order allowing the child to travel.

What to do if your child has been taken overseas without consent: the Hague Convention & child abduction

The Hague Convention is an international treaty to ensure that children who are wrongfully removed or retained by a parent in another country are returned as quickly as possible to the country in which they reside so that the issues of parental responsibility and living arrangements can be decided in their home country.

The Family Law (Child Abduction) Convention Regulations 1986 Allow Australian Courts to order a child’s return in circumstances in which it is appropriate under the Hague Convention.

From 2022 to 2023, there were 159 international family child applications made to the Australian Central Authority.

If your child has been taken overseas without your consent, the following action can be taken:

• Apply to the Australian Central Authority for the return of your child; or
• If your child has been taken to a country where the Hague Convention is not in force for Australia and there is no separate agreement with Australia, try to get some limited consular assistance from the Consular Branch of the Department of Foreign Affairs and Trade.

For an order under the Hague Convention, three conditions must be met:

• There is an application made for a children’s return;
• The application is filed within one year of a child’s removal;
• The child’s removal or retention was wrongful.

Your child’s removal is considered wrongful if:

• They were under 16;
• They reside in a country that has signed the Hague Convention;
• You have custody and the removal breached that custody; and
• Had the child not been removed you would have exercised your right to custody.

The removal of a child is likely to be a stressful and emotional time for you, a family lawyer can assist and support you throughout the above steps.

Hague Convention member countries

Some Hague Convention countries include:

• Japan;
• United States of America;
• Singapore;
• United Kingdom;
• Thailand;
• Hong Kong;
• Turkey;
• Sri Lanka;
• New Zealand;
• Fiji;
• France; and
• Germany.

The Attorney-General’s Department has a full list of member countries.

Real life case

In the case of Director General, Department of Child Safety, Seniors and Disability Services & Hurston [2023] FedCFamC1F 711, the Court made an order for two children to be returned to New Zealand after the Father had kept them in Australia while they were on holidays.

This case is a good example of why the Hague Convention was created; to ensure the prompt return of any child that have been wrongfully removed from a convention country. It also highlights the way in which the convention is used to allow parenting disputes to be decided in the child’s country of permanent residence.

What to do if your child is at risk of being abducted

If you believe they are at risk of being taken overseas without your consent, the following action should be taken:

• Contact the Australian Federal Police to place your child’s name on the Family Law Watchlist. Your child may not have left Australia yet and it may be possible to prevent their removal from Australia; or
• Seek legal advice about obtaining orders to have your child placed on the watchlist.

A family lawyer can assist you with taking these steps.

Can a parent take their child out of an Australian State without permission?

A parent may take their children on interstate holidays within Australia. There is no restriction on travelling interstate during the time the children are in the care of the parent unless it is specifically prohibited by a court order.

If no order exists, a parent does not have to provide details where they are going or staying with the child.

However, to avoid conflict and as a common courtesy, it is beneficial to communicate with the other parent and provide details of any intended travel.

Closing

As a parent it is important to understand your options before your children travel overseas with the other parent. More importantly, if the worse happens, you should know the required steps to take to resolve the situation.

For legal advice concerning travel arrangements for your children, you can contact our office to arrange an obligation free phone call with one our lawyers for a confidential discussion prior to booking a consultation.