Child Abduction
Child abduction is a very important, confronting and often publicised aspect of family law. It routinely is discussed by the media in cases where one parent removes a child and flees – sometimes overseas and sometimes within Australia. A notable incident recently occurred in 2018 in New South Wales when police retrieved several children who had been living with their mother in Taree. Their mother had taken them from their father who lived in Queensland. A further highly publicised incident occurred in 2016 when the television program 60 Minutes attempted to assist a mother to regain her children after they had been taken by their father to Lebanon. Both the mother and the 60 Minutes crew were arrested and detained in Lebanon. Not all “abduction” cases will involve a parent moving a child interstate or overseas. It may be better described as “withholding” the child/children rather than abduction. This chapter will discuss the current law and approach made by the Family Law Act 1975 and the Courts regarding children’s residence and what happens when one parent decides to stop contact with the other parent. This chapter will also detail what a parent might need to do in order to move away from the other parent without their consent.Children’s Residence:
In the Family Law Act 1975, there is a presumption that there should be equal shared responsibility between parents following separation. Similarly, there is a presumption that there should be equal shared time and if not, that the child should spend substantial time with the other parent who they do not reside with. This is because the Family Law Act 1975 requires that a Court make a parenting order that is in the best interests of the child. In section 60CC(2) the Family Law Act 1975 states that the primary consideration that a Court uses to find out what is in the child’s best interests is: (a) the benefit to the child of having a meaningful relationship with both of the child's parents; and (b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. What this means is that the child/children of a separated couple has the right to a relationship with both parents unless it is not safe for the child/children to do so. Therefore, the Court does not look favourably on a parent who decides to move interstate or overseas with a child without the consent of the other parent or with a court order. Unilaterally moving a child may have a negative effect on the child/children’s relationship with the other parent. The Court considers that a parent who removes a child from contact with the other parent in a situation where there is no risk to the child (and therefore no reasonable need to prevent that contact) is the parent who has acted in contrary to the welfare of the child.What if one parent stops the other parent having contact with the child?
There may be a situation where one parent takes a child/children away from the other parent. That parent could take the child interstate, overseas or remain in their residence and prevent the other parent from having access. This can occur whether or not there are any current family law orders or plans in place. If that situation occurs, the parent who is being prevented from contact with the child/children can apply to the court for a recovery order under the Family Law Act 1975. This is an urgent application. In addition to a child’s parents, section 67T of the Family Law Act 1975 permit the following people can also apply for a Recovery order: - a person with a residence order; - a person with a contact order; - a person who has a specific issues order in relation to the child that means they are responsible for the long term or day to day care of the child; - a grandparent; and - any other person who is concerned with the care, welfare and development of the child. A recovery order is made by the Court to direct that a child is returned to either: - a parent or: - a person the child lives with under a parenting order; or - a person the child spends time with under a parenting order; or - a person with whom the child is to communicate under a parenting order; or - a person who has parental responsibility for the child; This order can direct Australian police forces to do everything necessary to ensure the child is returned (such as the right to stop any vehicle or search any property as necessary). Often this kind of order can be heard by the Court quickly, especially in situations where there is a significant risk of harm to the child. In the above two scenarios, a parent should apply as soon as possible as a delay could affect their application, particularly in situations where they allege a risk to the child. If they have not applied to the Court quickly, the Court could make an inference that the risk is not as great to the child as the parent alleges.What if a parent does not know where the child is?
Sometimes, a parent does not know where the other parent is or where they have taken the child. In that case, the parent can apply under section 67J of the Family Law Act 1975 for a location order. A location order requires a person or a Commonwealth agency to provide the Court with information that can assist to locate the child. A Commonwealth information order is a type of location order which requires the Secretary of a Commonwealth Government department to provide to the Court information in its records about the location of a child. A Commonwealth information order is in force for 12 months. For more information on location orders more generally see: https://www.fcfcoa.gov.au/fl/children/recovery-orders. In addition to a child’s parents, section 67K of the Family Law Act 1975 permit the following people can also apply for a location order: - a person with a residence order; - a person with a contact order; - a person who has a specific issues order in relation to the child that means they are responsible for the long term or day to day care of the child; - a grandparent; and - any other person who is concerned with the care, welfare and development of the child. It is certainly more frequent to see these applications being made by a parent. A person who is not a parent and is unsure if they qualify in the above categories should seek legal advice before making an application to the Court.Overseas Travel
There is no law that will immediately prohibit a parent from travelling overseas with a child in the event of separation. If a parent has parental responsibility they are able to take a child overseas without being required to obtain a Court order or agreement from the other parent. There are actions that a parent can take either before or after a child has been taken overseas.Before travel
If a parent is worried about the other parent taking the child/children overseas and not returning, they may make an application to the Family and Federal Circuit Court (FCFC) to place the child/children on the Family Law Watchlist. This list is maintained by the Australian Federal Police and once a person is placed on that list, they will not be able to leave Australia without consent of both parents or the Court makes an order permitting that travel. For more information on the Family Law Watchlist see: https://www.afp.gov.au/what-we-do/crime-types/family-law-kit#25. To place a child on the Family Law Watchlist, you must first complete a Family Law Watchlist Request Form and must have either:- A Court order or Parenting order that limits or prevents the child’s overseas travel and which also requests the Australian Federal Police to place the child on the Family Law Watchlist; or
- Filed an application with the Court for a Court order or Parenting order that limits or prevents the child’s overseas travel, and which also requests the Australian Federal Police to place the child on the Family Law Watchlist; or
- 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 Australian Federal Police to place the child on the Family Law Watchlist.
After Travel – A Hague Situation
A situation becomes more complex if a parent has taken a child overseas. Australia has ratified the Hague Convention of the Civil Aspects of International Child Abduction (1980). The Family Law Act 1975 also recognises this Convention in section 111B. The Convention establishes a ‘Central Authority’ in every Hague Convention country. If a child under 16 is removed from and retained in another Convention country, then an applicant can ask the Australian Central Authority to ask the Central Authority in the other country to return the child to Australia. In Australia, the ‘Central Authority’ is the Attorney-General’s Department. Once a parent applies to the Australian Central Authority (“ACA”), a decision will be made by the ACA on whether to pursue the application. If a decision is made to pursue the application, the ACA will ask the reciprocal Central Authority to start measures to recover the child. At this stage, proceedings may seem like an international version of family law. The other parent might agree to return with the child before any Court proceedings are started. The other parent may refuse and a Court in the other country may be asked to make that decision. If the ACA decides not to request the return of the child, the applicant can ask for that decision to be reviewed.List of Hague Convention Countries
Though this list is subject to change, as of March 2022 the list of Hague Convention Countries are:
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After Travel – A Non-Hague Situation
In some cases, a parent will take a child to a country that is not party to the Hague Convention. Those cases can become more complex and difficult to resolve. Australia has two bilateral agreements with Egypt and Lebanon to assist parents with the recovery of or access to children taken to those two countries. Any other country can result in extremely prolonged and potentially unsuccessful outcomes. If a parent wishes to make an application to recover a child, whether in Australia or in a non-Hague Convention country, it will be the laws of the land which will be used to make a final determination in the parenting dispute. In Australia, the best interests of the child is the paramount consideration. In other countries, it may be different.Bilateral Agreement with Egypt
In 2002, the Australian and Egyptian government entered into an agreement to facilitate communications between the countries when a parenting dispute crosses international borders, resulting in a child abduction (the Australian-Egyptian Agreement). The Australian-Egyptian Agreement explicitly refers to Article 11 of the United Nations Convention on the Rights of the Child (1989) that required parties to that Convention to take steps to “combat the illicit transfer and non-return of children abroad”. The object of this Agreement is to ensure that a child’s best interests are of primary importance when relating to a parent’s access to that child, that the rights of a child to have a relationship with both parents is respected. A parent’s rights to a relationship to the child is also to be respected and assistance is to be given to a child to recover from any harmful effects of being relocated. The Agreement establishes a channel of communication between the countries on a diplomatic level to facilitate the progress of a parenting dispute. It can assist to monitor court proceedings and encourage solutions between parents. Unlike countries to the Hague Convention who have legislated in response to the Convention, neither country has any obligation to ensure the return of a child or to become involved in a parenting dispute. If a parent wishes to take advantage of this Agreement, they are required to make an application to the Attorney-General’s Department. The Department will decide if the application warrants involvement in the dispute by looking at the children’s age, how long they have been in Egypt, their nationality and the rights of the applicant to have access to the child. If the Attorney-General’s Department approves the application, they will request the Department of Foreign Affairs and Trade send the application through to the Egyptian equivalent by diplomatic channels. It then becomes the responsibility of the Egyptian equivalent authority to action the application. Ultimately, the Australia-Egypt Agreement has not been legislated in either country and the obligations of either country to give effect to this agreement is murky. This Agreement does not preclude a parent from starting Court proceedings on their own, either in Australia or Egypt. In that situation, the family law of the respective countries will guide the decision making. For more information on the Australia-Egypt Agreement see: https://www.ag.gov.au/families-and-marriage/publications/australia-egypt-agreement-information-parents.Bilateral Agreement with Lebanon
In 2009, Australia and Lebanon entered into an agreement Regarding Cooperation On Protecting The Welfare Of Children (Australia-Lebanon Agreement). This Agreement is similar to the Australia-Egyptian Agreement as it establishes a diplomatic channel of communication between the countries that assists to transmit documents and information, facilitate communication between the parties and to monitor the progress of the case. The objects of this Agreement is to respect and promote the rights of the children in relation to having meaningful contact with both parents, ensuring respect for a parent who has been separated from their child and to assist the child to recover from any harmful effects of that separation. If a parent wishes to use this Agreement in relation to a parenting dispute, they will need to apply to the Attorney-General’s Department. The Department will decide if the application warrants involvement in the dispute by looking at the children’s age, how long they have been in Lebanon, their nationality, the rights of the applicant to have access to the child and whether the applicant consented to the child being taken to Lebanon. If the Attorney-General’s Department approves the application, they will request the Department of Foreign Affairs and Trade send the application through to the Egyptian equivalent by diplomatic channels. It then becomes the responsibility of the Egyptian equivalent authority to action the application. Ultimately, as this Agreement has not been legislated in either Australia or Lebanon it does not create solid obligations for either country. The applicant may also wish to file a private application for parenting in either country, noting that the laws of the land will determine the merits of the application. For more information on the Australia-Lebanon Agreement see: https://www.ag.gov.au/families-and-marriage/publications/australia-lebanon-agreement-information-parents.Conclusion
This area of family law is often difficult, highly emotional and often occurs in urgent circumstances. In the event that a parent (or other person connected to a child/children) believes the child is being withheld by a parent, they should immediately seek legal advice in relation to their options.Where to Get Help
Family Law Duty Service (FLDS), Legal Aid ACT A lawyer from Legal Aid ACT works from the Federal Circuit and Family Court building from 10am until 3pm on Mondays to Fridays and provides family law advice on a drop-in basis. Anyone can use this service and does not have to apply to Legal Aid ACT. No appointments are required. Please contact Legal Aid ACT for further information. Tel: 1300 654 314 Website: https://www.legalaidact.org.au/what-we-do/lawyers-at-court Nigel Bowen Commonwealth Law Courts, Cnr University Ave & Childers St, Canberra ACT The Law Society of the ACT There are many private lawyers who provide help with Family Law. The ACT Law Society can provide contact details of lawyers who specialise in this field. Tel: (02) 6274 0300 Website: https://www.actlawsociety.asn.au/for-the-public/legal-help Level 4, 1 Farrell Place, Canberra City Federal Circuit and Family Court of Australia (Canberra) The Court has forms required to apply for parenting orders and information relating to international recovery. Tel: 1300 352 000 (urgent after hours 1300 352 000) Website: https://www.fcfcoa.gov.au Nigel Bowen Commonwealth Law Courts, Cnr University Ave & Childers St, Canberra ACT Attorney-General’s Department, International Family Law Section The Attorney-General’s Department has information on and for international child abductions. Tel: 1800 100 480 (or +61 2 6141 3100 from outside Australia) Website: https://www.ag.gov.au/FamiliesAndMarriage/Families/InternationalFamilyLaw/Pages/Inter 3-5 National Circuit, Barton ACT
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