In modern times family dynamics have become increasingly more complex. While many parents face the difficult task of managing child custody arrangements within their own country, the issue becomes even more complex when a child is relocated overseas without the consent of one parent.
Australia has one of the highest per capita rates of reported international parental child abduction (IPCA) in the world. Startling statistics reveal that more than 250 children are abducted into or out of Australia by a parent every year, making it imperative to shed light on the legal aspects surrounding this sensitive issue.
Child Recovery Australia, an organization devoted to reuniting families, has been on the front lines of this crisis, working tirelessly to bring abducted children back to their rightful homes. The legal recourse available for parents who have had their children taken unlawfully overseas is through an application under The Hague Convention on the Civil Aspects of International Child Abduction. This international treaty aims to facilitate the prompt return of abducted children to their country of habitual residence and ensures that custody matters are resolved through the appropriate legal channels.
Section 111B of the Family Law Act 1975 (Cth) provides for regulations to be made that:
…make such provision as is necessary or convenient to enable the performance of the obligations of Australia, or to obtain for Australia any advantage or benefit under the Convention on the Civil Aspects of International Child Abduction signed at the Hague on 25 October 1980.1
Such regulations have been enacted in the form of the Family Law (Child Abduction Convention) Regulations 1986 (Cth).
However, the effectiveness of The Hague Convention relies heavily on the cooperation of the country to which the child has been taken. As of March 2016, 94 nation-states are parties to The Hague Convention, including Australia. In some circumstances, countries may have bilateral treaties separate from the Hague Convention that facilitate cooperation on international parental child abduction. Countries such as Egypt and Lebanon have bilateral treaties with Australia on these matters.
In this article, we delve into the legal intricacies and ramifications of child relocation without consent overseas, particularly focusing on the context of Western Australia. By understanding the complexities of international child abduction cases and the legal safeguards in place, parents can better navigate this emotionally charged terrain while safeguarding the well-being of their children.
The heart of child safeguards in Australia is the Family Law Act 1975 (Cth), ("the Act") of particular importance in regard to the relocation of a child are parenting orders as found in section 65D of the Act. A parenting order might address critical aspects such as determining where the child lives, the amount of time the child spends with each parent, the allocation of parental responsibilities, communication arrangements, and even financial maintenance.
Sections 65Y and 65Z of the Act establish offenses for contravening a parenting order. These offenses encompass situations where a child is taken or sent from Australia in violation of an order restricting overseas travel, during ongoing court proceedings for a parenting order, or while an appeal against a parenting order is pending. These offences are typically punishable by up to three years imprisonment.
In circumstances a child is wrongfully removed from their designated custodial arrangement, the legal system provides recourse through a recovery order through section 67U of the Act. Defined in section 67Q of the Act, a recovery order empowers individuals – including police officers – to take action to locate, recover, and return the child to their designated parent or guardian. Additionally, there exists a ‘location order’ which is an order under section 67J(1) of the Act requiring a person to provide the registrar of the court with information that the person has or obtains about a child's location or requiring the secretary of a Commonwealth department or authority to provide the registrar with information about a child's location that is contained in or comes into the records of the department or authority.
When considering parenting orders, the best interests of the child are the paramount. The Act stipulates at s 60CA that there are two primary considerations and additional considerations which the court must consider when determining what is in the child’s best interests, which are:
1. The benefit to the child of having a meaningful relationship with both of the child’s parents; and
2. The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In jurisdictions such as New South Wales, the law is much clearer and provides definitive penalties for child abduction. According to section 87 of the Crimes Act 1900 (NSW) A person who takes or detains a child with the intention of removing or keeping the child from the lawful control of any person having parental responsibility for the child, without the consent of that person, is liable to imprisonment for 10 years. There are no corresponding criminal laws in Western Australia.
In summary, A parent or an individual vested with parental responsibility, from whom a child has been wrongfully taken, has the option to initiate legal action for the purpose of locating or reclaiming the child. This is achieved through the submission of an application for either a location order or a recovery order, as outlined in sections 67J–67V of the Act.
In cases where a child is abducted from Australia to a nation that is a signatory to the Hague Child Abduction Convention, a potential recourse may also exist under the Family Law (Child Abduction Convention) Regulations 1986, as part of the Commonwealth law.
A Soysa v Commissioner – ‘Exceptional Circumstances’
In the case of Soysa v Commissioner, Western Australia (2012) 46 Fam LR 648, the mother (M) applied for the discharge of an order for the return of her five year old son to Sri Lanka, where the father (f) resided. In her submission to the Family Court of Western Australia seeking the annulment of the directive, (M) contended that there existed "extraordinary circumstances" warranting the revocation of the order. Additionally, she argued that executing the order was "impractical," as stipulated by the provisions under regulations 19A(2)(b) and (c). These assertions were presented against the backdrop of (M) holding the role of the child's primary caregiver, the child's father (F) having become a person unfamiliar to the child, and M revealing (after the order had been issued) her intention to remain in Australia and not return to Sri Lanka, even if the child were to be sent back.
The Court dismissed M’s application for the discharge of the return order, essentially stating that it was not impracticable for return orders to be carried out. The Court determined that it had not been established that the best interests of the child should be taken into account in determining whether it is “impracticable” for an order to be carried out, or in finding whether “exceptional circumstances” exist.
B Arthur v Secretary – ‘Conditions to Return’
In the case of Arthur and Secretary, Dept of Family and Community Services  FamCAFC 111, the mother (M) and the father (F) were in a de facto relationship at the time of the birth of their daughter in New Zealand. A court in New Zealand made parenting orders pursuant to which the mother was to provide “day-to-day care” and the father was to have “supervised contact” with the child. The relationship between M and F eventually fell apart and in May 2016, the mother took the child to Australia, where mother and child have since lived with the mother’s father. The mother advised that she would return to New Zealand in June 2016. When she failed to do so, the father invoked the Convention. The mother made an appeal against the return order, arguing seven grounds of appeal, but advances two main complaints. The first relates to “rights of custody” and the second to a “grave risk of harm”.
The court reached a verdict wherein it was concluded that there was no conclusive evidence of a grave risk of either physical or psychological harm, nor the presence of an intolerable situation. Moreover, it was established that the child's return would not contradict Australia's fundamental principles concerning the safeguarding of human rights and essential freedoms. Consequently, the application seeking the child's return was granted in this case.
Family Law Watchlist
The Australian Federal Police maintains the Family Law Watchlist. The Family Law Watchlist serves as a tracking system for family law cases, designed to alert law enforcement agencies about child movements. This system is primarily aimed at identifying instances where children are departing Australia. A child's presence on the Watchlist can occur under various circumstances:
Parenting Order or Injunction: When the Court has issued a parenting order that restricts or prohibits the child's travel outside the country, or when an injunction to the same effect has been issued.
Pending Parenting Order Application: If there is an ongoing application before the Court for a parenting order that might limit or prevent the child's overseas travel.
Application for Watchlist: When there's a request made to place the child on the Family Law Watchlist through a court application.
Appeal: In cases where a parenting order or injunction regarding the child's overseas travel has been appealed in court, leading to the request to place the child on the Watchlist.
If you intend to have your child placed on the Family Law Watchlist, the initial step is to complete a Family Law Watchlist Request Form. Additionally, you'll need to satisfy one of the following conditions:
Existing Court Order: Have a Court order (established under s34 or s68B of the Act) or a parenting order that not only limits or prevents the child's travel but also explicitly asks the Australian Federal Police (AFP) to include the child on the Family Law Watchlist.
Court Order Application: File an application with the Court for a future Court order (to be established under s34 or s68B of the Act or a parenting order that aims to restrict or prevent the child's overseas travel. The application must also include a request for the AFP to place the child on the Family Law Watchlist.
Appeal of Order: Submit an appeal with the Court against an existing order that relates to the child and enforces limitations or restrictions on the child's overseas travel. This order should have previously instructed the AFP to include the child on the Family Law Watchlist.
The Family Law Watchlist serves as a crucial tool in maintaining oversight over child movement in family law cases and ensuring that court-ordered travel limitations are effectively monitored. If a child is on the watchlist, they will not be permitted to pass through an international airport or any other international migration checkpoints.
The Family Court may issue an injunction to stop a parent from taking a child when they are relocating or travelling if the Family Court deems it likely the other parent is going to take the children away from where they normally live and not return. This injunction can be granted even if there are no existing parenting orders in place. This will inform the parent intending to travel that they risk penalty under the Act and will place the child's name on the Airport Watchlist.
Disclaimer: The information provided here is for educational purposes only and should not be considered legal advice. If you need legal assistance, we recommend contacting Carter Dickens Lawyers or consulting a qualified attorney. Legal matters can vary based on laws and regulations, and it's important to seek professional advice for your specific situation.
Counselling and support services
· 1800 Respect, National counselling helpline: 1800 737 732
· Bravehearts, counselling and support for survivors of child sexual abuse: 1800 272 831
· Child Wise, counselling provider: 1800 991 099
· Lifeline, 24-hour crisis support and suicide prevention: 13 11 14
· Care Leavers Australia Network: 1800 008 774
· Partner SPEAK, peer support for non-offending partners: (03) 9018 7872