During a relationship breakdown, it is not uncommon for a parent to take a child overseas, whether that is to visit family or for a holiday. But what about when a parent does this without the other parent’s consent or fails to return from an overseas trip with the child?
This article will discuss the process of having a child returned to Australia, and things to think about when you are discussing with a former partner whether you should agree to your child travelling overseas.
The Intended Travel Destination
One thing to consider when consenting to your child travelling overseas is whether the intended travel destination is a signatory to the Hague Convention on Civil Aspects of International Child Abduction (“the Hague Convention”). Australia is a signatory to the Hague Convention and if your child is taken to another country where the Hague Convention is in force, it is possible to make an application for the return of your child. If a country is not a signatory to the Hague Convention, it is much more difficult to seek the return of a child. It is important to know whether your child is travelling to a Hague Convention country or otherwise, before agreeing to their overseas travel.
The Convention is given legal effect in Australian through the Family Law (Child Abduction Convention) Regulations 1986. You can find a list of
A list of signatories to the Hague Convention can be found here
What to do if your child has been abducted from Australia
If you believe your child is at risk of being abducted from Australia, you may wish to contact the Australian Federal Police to have their name placed on the Family Law Watchlist. If a parent attempts to remove a child from Australia, by having the child’s name on the Watchlist, it may be possible to stop them from going overseas.
You should also speak to a family lawyer about obtaining an order to have your child placed on the Family Law Watchlist. The Watchlist is designed to prevent a child who is the subject of family law proceedings from being removed from Australia without a court order.
If your child has already left Australia to a country where the Hague Convention is in force, you may wish to contact the Australian Central Authority about lodging an application for the return of your child. The Australian Central Authority, which is part of the International Family Law Section at the Attorney-General’s Department, is the authority with responsibility for Hague Convention applications.
If your application is approved, it will then be lodged with the relevant Central Authority in the country where your child currently is. The Australian Central Authority will liaise with the Central Authority where the application has been lodged, to commence court proceedings in the relevant overseas jurisdiction.
The criteria for making a Hague Convention Application is as follows:
The child must be under the age of 16;
The child must have been habitually living in a country that was a signatory to the Hague Convention before they were taken;
The country in which the child now is must also be a signatory to the Hague Convention;
The person making the application to return the child must have custody rights in the country where the child was habitually living immediately prior to the child’s removal;
The child was wrongfully removed from the country in which they were habitually living.
Possible Outcomes of a Hague Convention Application
A court may either order for a child to be returned to Australia or not.
A court may refuse to return a child for one of the following reasons:
The parent who lodged the Hague Convention application did not have custody rights;
The parent consented or acquiesced to the removal;
Returning the child would expose the child to physical or psychological harm or place the child in an intolerable situation;
The child does not wish to return and is old enough for their views to be considered; or
Returning the child would be in breach of the child’s human rights and freedoms.
If you have concerns that your child may be abducted from Australia, R + M Law can provide you with urgent specialist family law advice. To arrange an appointment with one of our family lawyers, please complete the enquiry form below or call us on (02) 6225 7040 or email at info@rmfamilylaw.com.au, or get started now online.