Parental Child Abduction and the Holiday Season

Article Kara Cook 28 November 2021

For many separated parents, the fear of their ex-partner removing a child from the country, or even relocating somewhere within Australia and 'going into hiding' is very real. This is especially problematic during the holiday season and as international travel opens around the world post-COVID, those fears may be re-surfacing.

Once a parenting application has been filed with the Court, or there are Parenting Orders in place, if a parent relocates or moves overseas without the permission of the other parent or the Court, it is known as 'child abduction', which is a criminal offence. If there are no Parenting Orders or an application in place, a relocating parent should seek consent from the other parent before moving with the child. If agreement cannot be reached then they should seek Court orders, however, this often does not occur.

What can you do to prevent child abduction?

It is very important to seek legal advice as soon as possible if your former partner is endeavouring to relocate your child without your permission, either temporarily or permanently. 

The Federal Circuit and Family Court of Australia (“the Court”) can intervene when a parent relocates with a child, as this may affect the child’s ability to have a substantial and meaningful relationship with the other parent. Both parents must sign a passport application for the children and, usually, both parents will need to give consent for a child to travel overseas if the child already has a passport.  

The Court can issue an injunction, upon application, to stop a parent from relocating or travelling overseas with a child. An order for the child/children to be placed on the Australian Federal Police Family Law Watch List may also be made. This will alert the AFP should the child be at the Airport in anticipation of leaving Australia. The AFP can assist in implementing any orders obtained by the Court.

You can apply for an injunction even if there are no parenting orders in place. Some of the things that a Court will take into consideration in issuing an injunction and determining that it is not just a normal holiday include the following: 

1. Whether the travelling party's destination is an overseas country that is not a signatory to the Hague Convention on the Abduction of Children, which will make it harder for the children to return to Australia where the travelling parent refuses to return;

2. Where was no discussion of the travel arrangements and plans between the parties;

3. Where the travelling party purchases a one-way ticket;

4. There is evidence of the travelling party's family and friends at the proposed destination who have assisted to set up a new life for them;

5. The travelling party refuse to share the details about the duration of the trip or place of residence;

6. The travelling party prior to going away, makes decisions that suggest that they will not be returning to Australia i.e. selling their furniture and personal possessions, notification to the children's school that the children are changing school, quitting their job etc. 

You may also apply to receive a Child Passport Alert from the Post Office should an application for a passport be lodged on behalf of the child.  An alert however does not mean that the application will be rejected.

If you are concerned about your child being taken overseas without your permission, you should seek legal advice immediately. 

What if my child is taken overseas?

Along with many other countries, Australia is a signatory to two important international conventions which relate to children.  The Hague Convention on the Civil Aspects of International Child Abduction and The Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children (the Child Protection Convention).

These conventions are of assistance if a child is taken (without permission from the other parent) to a country that is also a signatory to the conventions because they provide for applications for the return of the child, or orders to be made for contact with the child. 

Not all countries are signatories to the above conventions however, which means that putting measures in place to reduce the risk of the child being relocated or removed from Australia in the first place may be your best option.

In cases where Court orders are in place, and one parent takes the child overseas without the other party's consent, an interested party can seek a recovery order from the Court. 

You can apply for a recovery order if you are one of the following:

• A grandparent of the child, or

• You live and spend time with the child  or communicate with the child as stated in a parenting order; 

• If you have parental responsibility for the child in a parenting order (eg parent); and 

• If you are concerned about the care, welfare and development of the child. For example, you may be the person with who the child lives or spends time with but there is no parenting order that states this.

If you have any concerns regarding potential child abduction speak to our experienced family lawyer Kara Cook for advice as to the best course of action and how you can protect your child's rights.