In my previous column published 27 November 2021, we reviewed the law regarding traveling overseas with or removing a child from Australia, when the child is a subject to family law proceedings.

In summary, Section 65Y of the Family Law Act 1975, prohibits the removal of a child unless it is done with the consent of both parties, or by Court Order.

Doing so is a contravention of certain provisions the Family Law Act, and may be looked upon as a criminal offense. The penalty may be up to three years imprisonment.

With the Covid-19 pandemic, which forced a moratorium on international travel, largely ending the opportunity for a parent involved in family law proceedings to unilaterally abscond with a child to proceedings, the recent resumption of international travel has once again opened the door.

We now turn to the remedies available to prevent this situation occurring, and in contrast to the words of 1980’s rockband Starship, something can stop them now.

If a party to a family law proceeding is concerned that the other party is planning to unlawfully remove a child from the country, the Federal Circuit and Family Court of Australia informs us there are three immediate remedies which can be sought to prevent this occurring:

  1. Prevent the issuing of a passport to the child. This is done by Application to the Court for a ‘child alert order’ which warns the Department of Foreign Affairs to prevent issuing a passport. It remains in place for either 12 months, until the child turns 18, or a Court orders otherwise.
  2. Delivery of passport to the Court. In circumstances where a passport has already been issued, a party may present the child’s passport to the Court and the Court will make orders to keep it for a specified amount of time.
  3. Court Order. The Court may make orders which restrain the child from being taken overseas, request the Australian Federal Police put the child on an Airport Watch List, or request the Australian Federal Police assist in enforcing the aforementioned orders.

In certain circumstances however, the horse may have bolted and a party, whether they are an Australian citizen or an international, may have taken the child overseas before any of the above injunctive restraints could be implemented to prevent it.

Matters involving the retrieval of a child from another country are often referred to as ‘Hague Convention Cases’, named for the governing legislation (and somewhat wordy) 1980 Hague Convention on the Civil Aspects of International Child Abduction, to which Australia is a signatory. Part three of this gripping series will discuss how family law practitioners may engage with international law to bring a child to family law proceedings back to Australia.

For advice and assistance on all matters associated with Family Law disputes, contact Everingham Solomons where Helping You is Our Business.