How can you prepare child relocation from or within Australia? What if your child has been relocated to Australia without your consent?
Australia is a member of the Hague Convention on Child Abduction.
We will explain what that means for your options.
Lawyer and mediators in Australia
We provide a list of lawyers and mediators in Australia who can assist you in drafting an international parenting plan, in preventing conflicts over the primary residence of the children, and in negotiating and litigating over the children in the event of relocation or child abduction.
Parental authority: Australia
Each parent ordinarily has parental responsibility for the child regardless of whether they are married, in a de facto relationship, never in a relationship or otherwise. This means that both parents can independently make decisions about the child.
The Family Law Act makes it clear that parents have responsibilities not rights and the Act focuses on each parent’s responsibility to their child and to prioritise the child’s best interests over the interests of parents.
Two key issues relating to care arrangements for a child following separation include parental responsibility and the allocation of time the child will spend with each parent. The terms ‘custody’ and ‘access’ are no longer used in the Act having been replaced with ‘live with’ arrangements and ‘spend time’ with arrangements.
Traveling with children: Australia
In many cases, a child can leave Australia with their passport and the appropriate visa. Unless there are family court issues, they don’t need anything else. Most airlines however have rules around children under the age of 15 who are travelling alone. Parents or guardians will usually need to fill out a permission form for the child’s travel. If there is no permission from the other parent with custody, the court can give substitute permission. The same applies to obtaining a passport for the child.
Child relocation: Australia
If you want to prevent child relocation, you can:
- ask the court for an urgent order for a pace alert, in order to prevent the child from leaving Australia;
- ask the court for an urgent order to restrain the parent from moving the child from one state within Australia to another;
- ask for a court order that the court will keep the children’s passports;
- ask the court for an airport watch list order, which is acourt order telling the Australian Federal Police (AFP) to put a child’s name on the Airport Watch List. The Watch List is in place at all international airports and seaports;
- contacting the Federal Police, to prevent the child from leaving Australia;
- submit a Child Alert Request with the Australia Passport Office;
- apply to be notified of any passport applications for the child;
- try to retain the existing passport of the child.
If your child has already been relocated, you can still ask for a Pace Alert, to prevent the child being relocated interstate or internationally in the future.
Child abduction: Australia
Australia is a signatory to the Hague Convention on Child Abduction. The convention itself is not binding for the Australian courts, but the matters covered by the Convention are covered in the Family Law (Child Abduction Convention) Regulation 1986. The courts are bound by this Regulation and Australian case law.
Return requests, brought to the court under the Regulations, are not subject to the principle that the best interest of the child is the primary consideration.
The State Central Authority will help parents te seek the return of their child after child abduction.
There is no defenition in the Regulation for habitual residence. Persuant to the case law, it compromises 2 elements:
1) Actual residence in a particular country for an appreciable (not necessarily long) period, and
2) A voluntantary, settled intention (i.e. an intention that is unlikely to change in the short term) to reside in that country habitualy.
Leaving the country for a long time (for instance for a year because of your jog) does not mean that you are no longer habitually resident in that country. There must be an intention that the country be the ordinary place of residence.
For the purpose of the Regulations, a person can have only one habitual residence at the time. A person who lives part of each year in one country and part of each year in another country, can have different places of habitual residence at different times of the year, but not at the same time.
Criminal law : Australia
Parental child abduction is a criminal offence under the Family Law Act, as long as there are orders in place or court proceedings in progress in relation to the child.
New laws created in 2018 ensure that these offences also extend to any persons acting on behalf of a person to whom the provisions apply and it is also a crime to attempt to commit this type of offence.
However, defences to the charge include fleeing from violence and protecting the child from harm, in addition to general defence of self defence, which includes the defence of another person.
Abducting a child can also amount to kidnapping under the Australian law.
Under the law, the Australian Federal Police can monitor telephone activity and bank account transactions, as well as work with their overseas police and agencies to locate the abducted child, if the child was taken out of Australia.
Relevant websites : Australia
Permission to travel with children
www.smarttraveller.gov.au : traveling with children
Travel consent form
www.wonder.legal.au : consent form
www.legislation.gov.au : The Family Law (Child Abduction Convention) Regulations 1986
www.ag.gov.au : Attorney General website
Subsidized legal aid
www.legalaidact.org.au : Legal Aid Act.
You may also try the Attorney General’s Department.
Blogs about Australia
In Australia, there are two ways in which a party can be reimbursed for the costs of proceedings. Where a party is unsuccessful, the other party may be awarded costs of proceedings, under the Federal Proceedings (Costs) Act 1981. Section 111B In proceedings under...
Relevant case law in Australia
Comar & Comar, Appeal Court Australia, 24 April 2020, FamCAFC 99 Grave risk In this case, the court had denied the children's return to Columbia because there was a serious risk that, if returned, the children would be exposed to a physical or mental danger, or...
Balev v. Baggott, Court of Appeal for Ontario, Canada 13 September 2016, ONCA 680 2 children wrongfully retained at ages 11 and 8 - Nationals of Canada - Married parents - Father national of Canada - Mother national of Canada - Father transferred physical custody in a...
Walpole & Secretary, Department of Communities and Justice Appellate Court of Australia, 25 March 2020, FamCAFC 65 The Appeal Court gives no return order because of grave risk and the fact that there is no evidence that safety conditions will be effective....