You can take the child out of Australia if you get the written consent of your child’s other parent prior to travelling. If the other parent does not consent, and an agreement cannot be reached in respect to your child travelling overseas, an application should be filed with the court. The court can permit overseas travel provided it is in the best interests of your child.
Strictly speaking, you do not need to get the written consent of your child’s other parent to travel overseas with your child if:
- Your child has a valid passport;
- There are no proceedings pending in relation to parenting matters; and
- There is no Australian court order in relation to parenting arrangements for your child.
If there are proceedings pending in relation to parenting matters, or there is an Australian court order in relation to the parenting arrangements for time with your child, it is an offence to take the child out of Australia. The maximum penalty for child abduction is three years imprisonment.
So that the court can consider what is in the child’s best interest, the party looking to travel is required to draft an affidavit to provide as much information to the court as possible. This can include:
- Details and length of the proposed overseas trip;
- Any travel alerts for the proposed destination, and whether or not it is a signatory to the Hague Child Abduction Convention;
- Financial and personal stability of the removing parent’s life in Australia;
- Details of any personal connections they have with the proposed destination, in particular family members;
- Proposals for communication between the other parent and child while the child is overseas.
- Age of the child;
- Level of conflict between the parents and their history of compliance with orders;
- The effect on the child if the order is denied; and
- The risk that the child may not be returned to Australia.
If the court is concerned that the travelling parent will not return, they can order for a bond to be paid that effectively places a ‘security’ over the return of the child. For example, the travelling parent pays $50,000 to the Court to be held on trust, and that $50,000 is returned once the child is returned to Australia.
To avoid issues in the future in respect to travel (particularly where either parent travels frequently or lives overseas), it is possible to enter into a parenting consent order [link] that stipulates specific arrangements to occur when the child is traveling overseas.
If you would like assistance, please contact our family law department.
“Child abduction” is a Commonwealth offence punishable by up to three years’ imprisonment, where a child is taken from Australia in the following circumstances:
- It is contrary to a parenting order made which limits or prevents the child from travelling overseas; or
- Court proceedings are incomplete.
If you have immediate concerns for the welfare of a child, contact the police on triple zero (000).
Australian Federal Police Watchlist
If your child remains in Australia, but there is a risk that they will be abducted, we recommend you instruct us to contact the Australian Federal Police (‘AFP’) to place your child’s name on the Family Law Watchlist (‘the Watchlist’). By being placed on the Watchlist, the AFP can stop the child from being removed from Australia at the border.
Your child will remain on the Watchlist until they are removed.
To place your child on the Watchlist, you must:
Complete the appropriate request form; and
Either have a court order or file an application with the court for parenting orders.
Normally, prior to filing an application with the court for parenting orders, the parties are required to attend Family Dispute Resolution (‘FDR’) to attempt to resolve the matters. In circumstances where there is child abduction, or a risk of child abduction, attendance at FDR is not required. All that is required is an affidavit accompanying the application refers to the urgency of the matter sufficiently.
If your child has been abducted from Australia, it is possible to make an application that they be returned.
Australia is a party to the Hague Convention. This provides (among other things) international co-operation between affiliated countries to recognise and implement protective measures for children.
If your child has been removed from Australia, they are in a country who is a party to the Hague Convention and the other parent is denying you access, you can make an application under the Hague Convention to obtain access to your child.
For more information on this process, or if the country your child has been abducted to is not a part of the Hague Convention, please contact our family law department immediately and we can advise you accordingly.
Mitigating your child’s risk of abduction
If you suspect that there is a risk of child abduction, there are particular steps you can take to mitigate the risk and/or prepare you for the chance that it may happen. These include:
- Ensuring that your child’s official documents (particularly their passport and birth certificate) are in your possession;
- Keeping recent photos of your child and the other parent;
- Keeping detailed notes of the other parent’s possible contacts overseas (particularly family members);
- Keeping detailed notes of any ‘hints’ that the other parent might be looking to relocate overseas;
- If your child does not have a current/valid passport, submitting a Child Alert Request to the Department of Foreign Affairs and Trade (to ensure that they do not issue an Australian passport or other travel documents without alerting you first); and
- If relevant, contact the foreign embassy, high commission or consulate of any country outside of Australia to see if they have an equivalent to a ‘Child Alert Request’ so you can be alerted if a foreign passport is applied for.
We can also assist if you have been served with international court documents naming you as the respondent (or equivalent) and advise of any adverse consequences of not returning your child.
Importantly, there may be grounds for you and your child to remain in Australia, despite being served with court documents. Grounds for non-return include, for example, if the other parent was not partaking in the parenting of your child until the relocation overseas or if they consented to your relocation.
We also recommend you seek legal advice from the overseas jurisdiction at the earliest opportunity. We can also assist you in this regard.
If you require any assistance in respect to child abduction, our family law practitioners can assist or otherwise provide you the appropriate referral.