International child abduction occurs when a child is taken out of Australia by a parent without permission. It can also occur in cases where foreign children are removed from their countries of origin to Australia. Child abduction is usually done by stealth and before the other parent becomes aware of the intention to leave Australia. The key element is that the child was taken out of a country where he or she was ‘habitually resident’.
Child abduction and international agencies
Many countries are a signatories to the Hague Convention regarding child abduction. This is a treaty in which signatories agree agree to assist one another. Australia is a signatory to the Convention, as are many Asian countries, most of Europe including the UK, and the US. Some countries are not signatories to the Hague Convention – for example, Lebanon.
If a child normally lives in Australia and is abducted overseas to a Hague Convention country, then the ‘Central Authority’ in Australia works with the ‘Central Authority’ in Germany to recover the child back to the country where the child was ‘habitually resident’ at the time of the abduction.
If a child is abducted to a non-Hague Convention country, the Australian court needs to decide first if Australia is the appropriate place to determine the issues (eg, who the child should live with). Sometimes a foreign court order will be made before the Federal Circuit and Family Court of Australia can decide where the child should live. In such cases, the Federal Circuit and Family Court of Australia may recognise the foreign order and take no further action.
At other times the Australian parent left behind can get an order in Australia which prevents a foreign court making an order about the child (by getting an order that the abducting parent does not start or continue a case overseas).
How Can You Prevent A Child Being Abducted?
Speed is of the essence when dealing with international child abduction and you should seek urgent legal advice if you are in this situation. If you don’t already have court orders in place, you can file an application for interim and/or final parenting orders. In those orders, you can ask for an ‘Airport Watchlist Order.’ This order will put the name of the child on the airport and ports watchlists operated by the Australian Federal Police.
The watchlist will signal an alert if a child is about to leave Australia at customs and the child is likely to be prohibited from leaving Australia at the airport or at any port.
The Australian Federal Police will place the child’s name on the watchlist as soon as the application is filed. You do not already need to have the orders made, the application itself will be sufficient in the short term.
You can be in breach of the Family Law Act if you take the child out of Australia without the other parent’s permission or knowledge while proceedings are pending.
Location orders and child abduction
Under the Family Law Act, certain people can apply for a location order in relation to a child. A location order is an order made by a court that requires a person to provide information about a child’s location to the court.
The following people can apply for a location order:
- a person who a child is to live with in accordance with a parenting order;
- a person who a child is to spend time with in accordance with a parenting order;
- a person who a child is to communicate with under a parenting order;
- a person who has parental responsibility for a child under a parenting order;
- a grandparent of a child;
- any other person concerned with the care, welfare or development of a child;
- For the purposes of the Child Protection Convention, a person (including the Commonwealth Central Authority) may apply to a court for a location order.
For detailed legal advice tailored to meet your needs and for more information about how to make an application for a location order, contact us to make an appointment to see one of our highly qualified family lawyers.
See A Lawyer Urgently If…
If you are in any of the below situations, you should seek legal advice immediately.
- If you think the other parent is planning a trip away from Australia with your child;
- If the other parent is coming here from overseas to Australia and you are worried they plan to abduct your child;
- If the other parent wants you to co-sign your child’s Australian passport without good reason;
- If your child is a citizen of a country which allows one parent alone to apply for the child’s passport and you have a fear of child abduction;
- If the other parent has a home, a family or other connections overseas and you are concerned that there is no reason for them to stay in Australia; and/or
- If the other parent has no substantial property or employment in Australia, and nothing keeping them in Australia.
In addition, you should obtain urgent legal advice if:
- the other parent has already left Australia with your child;
- you are not sure if they plan to return or if you believe they will not return;
- there is a link to overseas family or property; and/or
- there is no other significant link to Australia.
Time frames for disputed cases
If the matter is litigated and requires an interim hearing on any particular issue, the current period of delay to obtain an interim hearing date is approximately four to six weeks.
From the time of filing an application for the court to litigate your dispute, the average delay by the court is currently 2-2½ years. Matters requiring urgent attention can be expedited but must be considered exceptional in nature.
If you require legal advice or representation in any legal matter, please contact Armstrong Legal.