Parental child abduction is a serious matter in Australia. Regulated by The Family Court, a parent may be charged if they unlawfully take their child from its habitual residence or from the other parent/guardian in charge of its custody. If you believe there’s a chance your ex-partner might ‘abduct’ your child or children, there are steps to take to prevent this from happening.
Does a Parent Have a Right to Relocate Their Child?
Any parent has a right to relocate after separation. However, whether or not they can relocate with their child is another issue. When a parent decides to move to another city, state or country with their child, permission must first be obtained from the other parent. If permission cannot be obtained from that parent, then the other parent must seek permission from the Family Court. The court may choose to not grant permission if the move is going to significantly impact the time spent with the other parent. The court will always focus on the best interests of the child before making a decision on relocating a child. If a parent chooses to relocate their child without permission, this is classed as parental child abduction in Australia.
What Happens if My Child Has Been Relocated Internationally Without Permission?
If a parent has chosen to relocate their child internationally without permission from the other parent, this is referred to as international parental child abduction. Once a parent has taken their children out of Australia without permission, it can be difficult to safely return the children back to Australia. Ultimately, it depends on which country the child has been taken to, and whether or not that country is a signatory to the Hague Convention. The Hague Convention is an international agreement between 93 countries (Australia included) that covers international parental abduction, including the process of returning the child to their home country.
A parent can apply for their children’s return under the Hague Convention, however, there are some specific conditions that must be proved before children are returned to their home. Some of these conditions include:
- The child/ren must be under 16;
- The parent applying must have ‘rights to custody’;
- The child/ren must have been taken to a country that is part of the Hague Convention;
- The child/ren must have been taken to one of these countries without consent or a court order.
If your child has been relocated to a country that is not a signatory to the Hague Convention, then we highly recommend you seek legal assistance in that country. The Department of Foreign Affairs and Trade (DFAT) Consular office may be able to assist with finding a lawyer in another country. With the Family Court or an Australian lawyer unable to assist in this particular situation, preventing parental child abduction in Australia is key.
What Can I Do to Prevent Parental Child Abduction From Occurring?
First of all, a parent is entitled to seek an injunction from the Family Court to stop the other parent or guardian from relocating their child interstate or overseas. You will often need evidence to prove that the other parent is highly likely to take your child away and not return. Evidence could include purchasing one-way travel tickets, making decisions that suggest they won’t be returning (selling property or moving belongings to storage etc), relocating to a country that is not part of the Hague Convention, or informing the other parent that they are going on holiday but refusing to disclose other details. The court will assess the risk based on the evidence provided before issuing an injunction.
If the court believes there is a risk that the other parent will relocate with their child and not return, they can make orders to:
- Prevent or stop a parent from taking the child out of Australia or interstate;
- Require the parent to pay the court a bond as security for the children to be brought back after travelling;
- Direct the parent to provide contact details and where the child will be staying (if the plan is just to travel);
- To have the child added to the Family Law Watchlist to prevent the other parent from leaving with the child.
When applying for your child’s passport, consent must be given by both parents (unless the parent has sole parental responsibility). A parent can refuse to sign an application for the child to be given an Australian passport. However, if you believe that your ex spouse might try to apply for a passport without your consent, a parent can make a child alert request that prevents new passport applications.
If you are concerned about parental child abduction in Australia, we recommend seeking urgent legal advice from our family lawyers. We will work to put these prevention measures in place as swiftly as possible.
What If the Other Parent has Already Taken My Child Interstate or Overseas?
If your child has already been relocated and you do not think you will be able to prevent that child from moving before the actual relocation, you can apply for a recovery order. If the child has been relocated overseas to a Hague Convention country, then the parent may file an urgent application to the Hague Convention seeking the child’s return to Australia. We understand that this can be an extremely stressful and emotional situation, so please feel free to reach out to our team for legal advice and representation.
Speak to Our Lawyers About Preventing Parental Child Abduction in Australia
The emotional and psychological effects on children who become victims to parental child abduction in Australia are serious and potentially long-lasting. Which is why preventing this situation from happening is of the utmost importance. If you believe there’s a chance your child could be relocated to another state or country without your permission and against any existing court orders, we highly recommend reaching out to our team of family lawyers as soon as possible.