Has your child been taken overseas by your ex-partner without your permission?
Overseas travel can be terrifying for some separated parents who are worried that once the other parent has the child overseas, they won’t be returned to you.
If you find yourself concerned about the concept of your ex-partner travelling with the child, it is possible you are in one of two situations:
- Your child is still in Australia but is at risk of being taken overseas; or
- Your ex-partner has already taken the child overseas.
When… your child is still in Australia but is at risk of being taken overseas
If you are concerned that your child is going to be taken from Australia by your ex-partner, you may consider taking the following steps:
If the child already has a valid passport, make sure it is in your possession and stored in a safe location.
If the child does not have a valid passport, you can make a Child Alert Request, for more information visit Passports.gov.au Info Site. This Request is a warning to the Department of Foreign Affairs and Trade to ensure that if a passport application is made for the child, further consideration and exploring will occur before a passport is issued.
Consider placing the child on the Family Law Watchlist. This is an Australian Federal Police (AFP) service that places the child in a database to prevent the child from being removed from Australia. To place the child’s name on the Family Law Watchlist, you must obtain a Court Order or a filed Application to immediately prevent the child from travelling overseas and this must be provided to the AFP along with the Family Law Watchlist application form which can be found on the AFP website.
When… your child has already been taken to another country
In the event that the situation has gone one step further and the other parent has already taken the child to another country without your permission, the remedy may lie with The Hague Convention on the Civil Aspects of International Child Abduction 1980.
The Hague Convention is a treaty between Australia and a number of other countries which aims to secure the prompt return of children wrongfully taken to a signatory country and to ensure that rights of custody and access under the law of a signatory country are respected and meaningful in other signatory countries. For a complete list of the countries that are signatories to the Hague Convention, click here.
To submit an application under the Hague Convention your situation must satisfy the following criteria:
- Your child must be under 16 years old;
- You must have “rights of custody” in relation to the child;
- You must have been exercising your rights of custody at the time your child was wrongfully removed from Australia;
- Your child must have been a habitual resident in Australia immediately before your child was wrongfully removed from Australia;
- Your child must have been taken to a country which is a signatory to the Hague Convention; and
- Your child must have been taken from Australia without your consent, or without a Court Order.
Are there cases where the other country may not return the child?
Even though the Hague Convention aims to return children to the country from which they were taken, a Court is not bound to order the return of a child if it is established that any of the following scenarios exist:
- The parent alleging the abduction had consented to the removal of the child;
- The parent alleging the abduction was not exercising the custody rights at the time of the removal;
- There is a grave risk that the child’s return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.
Further, if you have not established the key criteria under the Hague Convention, your application will likely be dismissed.
If you think your circumstances require legal advice on the above and how family law applies, please contact us to arrange to speak to a family lawyer.
This article is information only and does not purport to be legal advice and should not be relied as legal advice.