Separating couples can find themselves in a position where they cannot reach agreement regarding either parent travelling outside of Australia with a child of the relationship. Today there are many families with ties to overseas countries through extended family members and dual citizenships. In such situations there can be a real risk of the unilateral relocation of children to an overseas country.
This is of grave concern to parents if the child was to be taken to a country which is not a party to The Hague Convention on the Civil Aspects of International Child Abduction. The Hague Convention is an international treaty under which arrangements are made for the return of children who have been wrongfully removed from or retained outside their country of residence.
A parent or other interested party can make application to the Family Court of Australia or the Federal Circuit Court for the child’s name to be placed on the Family Law Watch List (also known as the “Airport Watch List”) . This is a List maintained by the Australian Federal Police for the purpose of preventing the unauthorised removal of children from Australia. The child’s name will be registered on the List operating at all international points of departure, both by air and sea.
In circumstances where there is a real risk that the child may be removed from the country without the other parent’s consent, the application can be made on an urgent ex-parte basis, which means it can be heard in the absence of the other party.
Upon the filing of the application with the Court, the Australian Federal Police can action the listing immediately. If a parent then attempts to remove the child from the country, the child will be stopped at the airport and not allowed to leave.
If there is a current parenting order in existence or the parents are involved in family law proceedings, pursuant to s.65Y of the Family Law Act 1975 (Cth) (‘the Act’), it is an offence punishable by imprisonment to remove a child from the Commonwealth of Australia without the other parent’s consent
Section 65Y of the Family Law Act 1975 (Cth) provides as follows:
(1) A person commits an offence if:
(a) a parenting order to which this Subdivision applies is in force in relation to a child; and
(b) the person takes or sends the child from Australia to a place outside Australia; and
(c) the child is not taken or sent from Australia to a place outside Australia:
(i) with the consent in writing (authenticated as prescribed) of each person in whose favour the parenting order was made; or
(ii) in accordance with an order of a court made, under this Part or under a law of a State or Territory, at the time of, or after, the making of the parenting order; and
(d) the person:
(i) is or was a party to the proceedings in which the parenting order was made; or
(ii) is acting on behalf of, or at the request of, a person who is or was a party to the proceedings in which the parenting order was made .
Penalty: Imprisonment for 3 years.
The Court does have the power to make an order restraining a party from removing a child from Australia. Such an order can be a parenting order (pursuant to s.65D of the Act or an injunctive order (under s.68B). For example, if the Court finds that it would not be in the child’s best interests for them to travel overseas as there is a real risk that they may not be returned, then it can order an injunction preventing the child from travelling and placing the child’s name permanently on the Australian Federal Police Family Law Watch List.
Matters concerning the removal of a child from Australia or their retention overseas without consent involve complex issues of law and as such, specialist family law advice ought be sought as a matter of urgency.
The family law team at Marino Law have extensive experience in such matters and can assist you should you find yourself in this position. Please call our office on 07 552
