Separation and divorce is a difficult time for parties, particular when trying to reach an agreement involving the care and welfare of children.
It is common in family law matters, where a dispute arises in relation to one parent wanting to take the child of the relationship overseas for a holiday, and the other parent refuses to allow this. It may be the case that the travelling parent has communicated to the non-travelling parent their intention to take the child on a holiday only, when in some cases, the hidden intention is relocate with the child overseas.
One of the main questions we get asked by anxious clients who experience these events is whether there something can be done to prevent a parent from abducting their child and leaving the country.
The answer is yes. The concerned parent can make an application with the Federal Circuit and Family Court of Australia (“the Court”) for an Order to place the child’s name on the Family Law Watch List.
What is the Family Law Watchlist?
The Family Law Watchlist (“the Watchlist”), previously known as the Airport Watchlist, is a system maintained by the Australian Federal Police (“AFP”), which is designed to alert police with respect to the movement of children.
The aim of the Watchlist is to alert the AFP of children who are at risk of being abducted and taken overseas without their consent or knowledge from the other parent.
If a parent attempts by any means, to take their child overseas without the other parent’s consent or knowledge, the child’s name will be identified on the Watchlist, and the AFP will get involved.
When and how can you place your child on the Watch list?
In order to place your child on the Watchlist, you must first either have:
1. Filed an application with the Court seeking a Court order or a parenting order that limits or prevents the child’s overseas travel, and which also requests the AFP to place the child on the Watchlist and the matter is still in progress; or
2. Obtained a Court order or parenting Order that limits or prevents the child’s overseas travel and which also requests the AFP to place the child on the Watchlist; or
3. Filed an appeal with the Court against an order of the Court relating to the child that limits or prevents the child’s overseas travel, that had requested the AFP to place the child on the Watchlist.
Your child’s name can be placed on the Watchlist as soon as you have filed an Application with the Court. You do not need to wait until an Order has been made by the Court for the child’s name to be placed on the Watchlist.
Once you have filed your court documents you must then:
a) Complete the Family Law Watchlist Request Form (“Watchlist Request form”).
b) Provide the AFP via email or fax, with a copy of any orders and/or court documents that limits or prevents the child’s overseas travel, together with the Completed Watchlist Request Form.
c) Contact the AFP to ensure they have received the documents.
Once the AFP have received the Watchlist Request Form, court documents and/or orders, then your child is placed on the Watchlist by the AFP.
It is the responsibility of the parent who is seeking for the child to be placed on the Watchlist, to ensure the AFP receives the court documents and Request From.
How is an application to place a child on the Watchlist dealt with by the Court?
An application for your child’s name to be placed on the Watchlist is dealt with by the Court in the same way as any other parenting application.
That is, the Court must consider and make a decision based on what is in the best interests of the child. Section 60CC of the Family Law Act 1975 outlines the factors that the Court considers when deciding what is in the best interests of a child.
How do I remove my child’s name from the Family Law Watchlist?
If you have placed your child’s name on the Watchlist, and both parents agree for either parent to travel with the child out of the Commonwealth of Australia, the child’s name will need to be removed from the Watchlist prior to the child travelling overseas.
How your child is removed from the Watchlist (or whether it’s possible to remove your child from the Watchlist) will depend on how your child was placed on the Watchlist in the first instance.
For example, there are two Orders that can be sought by the Court to place your child’s name on the Watchlist.
These are either Absolute Orders or Conditional Orders:
(a) Absolute Orders – an ‘Absolute Order’ prohibits a child from travelling overseas indefinitely until a further Order by the Court is made. If no further Order is made by the Court removing the child’s name from the Watchlist, then the child’s name will remain on the Watchlist for the specified time period, or until the child attains the age of 18.
Where an Absolute Order is sought, the child’s name cannot be removed from the Watchlist, even by written consent from the parties. if both or either parent wish to remove their child from the watch list and an absolute Order is in place, then the child’s name can only be removed by a further Order from the Court. This will require a further application to be made to the Court. Orders will also need to include placing the child back on the Watchlist once your child returns to Australia.
(b) Conditional Orders – A ‘Conditional Order’ allows a child to travel overseas provided that both parents provide authenticated consent confirming that they agree for the child to travel overseas. Unlike an Absolute Order, a parent does not need to make a further Application to the Court to have the child’s name removed from the Watchlist, however the parents will be required to provide authenticated consent to the AFP in writing.
It is important that you give the AFP as much notice as possible of your child’s intention to travel, so that you avoid the risk of unnecessary delays, or the child being prevented from travelling.
For more information about the Family Law Watchlist, visit https://www.afp.gov.au/what-we-do/crime-types/family-law-kit
If you are concerned for the safety or welfare of a child, contact your State or Territory child welfare service, or your local police.
If you have immediate concerns that a child is in danger or at risk of abduction, contact the police in your State or Territory on Triple Zero (000).
Disclaimer
The information contained in this article is intended for general information only and is not to be relied upon as legal advice.
If you have any questions about the above, contact us on 02 8999 1800 or ask us a question via our website.