If your child is removed from Australia without your consent, your remedy depends upon the country to which the child was taken. When one parent takes a child from a parent who is living in another country and brings that child to Australia, the foreign parent can pursue remedies in Australia.
Parents who fear that their child is about to be removed from Australia without their consent also have legal options. In any of these situations, it is wise to consult with a lawyer as soon as possible.
Australia is a party to the 1980 Hague Convention on the Civil Aspects of International Child Abduction. The Hague Convention is a treaty that many nations have signed. It creates procedures that those nations have agreed to follow when children are abducted from one country and taken to another.
The Hague Convention applies only when the other country has agreed to be bound by it. There are 93 countries currently participating in the Hague Convention.
To implement the Hague Convention, Australia enacted the Family Law (Child Abduction Convention) Regulations 1986. Those regulations create procedures for parents to follow when they seek the return of an abducted child.
Australia has also entered into agreements with two countries that have not signed the Hague Convention: Lebanon and Egypt. The Attorney-General’s Department may be able to assist parents who want their children to be returned from those countries.
If a child has been taken to a country (other than Lebanon or Egypt) that has not joined the Hague Convention, an Australian parent will probably need to obtain legal advice from a lawyer practising in that country. The local office of the Department of Foreign Affairs and Trade may be able to help you find the lawyer.
If your child usually lives in Australia, you can seek help under the Hague Convention if:
“Rights of custody” means:
In most cases, “rights of custody” in Australia are determined by a parenting order entered by a Family Law Court.
The Hague Convention requires a parent with rights of custody to apply to the “central authority” in the country where the child ordinarily resides after a child is abducted. In Australia, the central authority is the Attorney-General’s Department.
You request assistance by filing an application (called “Form 1”) with the Attorney-General’s Department. You can download a copy of the application from the Attorney-General’s Department website.
Before applying for help, you should attempt to contact the other parent and request access to the child. If the other parent denies your request or refuses to communicate with you, that information should be included in your application. You will also need to attach legal documents that give you rights of custody.
If your parenting order gives you access to the child but does not give you the right to determine where the child will live, you might still be able to obtain assistance under the Hague Convention. As a general rule, neither parent should remove a child from Australia without the other parent’s consent or the permission of a Family Law Court.
You might want to have a lawyer help you prepare Form 1 if you want to apply for assistance under the Hague Convention. A lawyer can tell you whether you should first seek a new or modified parenting order from a Family Law Court or follow other procedures under the Family Law Act to seek the return of an abducted child.
It is important to respond quickly if your child is removed from Australia. For example, you might want to obtain an order from an Australian Family Law Court that prohibits the abducting parent from seeking a different custody order overseas. An overseas court in the country to which your child is removed will be less likely to act if it is notified that such an order exists. You need to act, however, before the other parent has a chance to go to court overseas.
If your child habitually lives outside of Australia and has been taken to Australia after being abducted, you can follow the child abduction procedures described above. In that case, you would file the Hague Convention application (Form 1) with the central authority in the country where you live.
The central authority in your country will contact the central authority in Australia. The two agencies will then work together to determine whether your child should be returned to you.
If the other parent had the right to bring your child to Australia but you have an order from a court in another country that allows you to have access to the child, you can enforce that order in Australia after you register it with the International Family Law Section of the Attorney-General’s Department. An overseas order can be registered if these conditions are met:
Three certified copies of the order must be provided, together with a certificate from an officer of the court that made the order attesting that the order is currently enforceable in the country in which it was made. An Australian lawyer can assist you with that process.
It is difficult to make use of the Hague Convention if you do not know the current location of your child. You can apply to an Australian Family Law Court for a child location order. That order requires other people or organisations to disclose any information they have about the present location of your child.
If you know the country to which your child was taken but not the child’s location within that country, you may be able to obtain assistance from law enforcement authorities in that country. Your lawyer and/or the Attorney-General’s Department can help you contact appropriate authorities.
In most cases, an Australian passport will not be issued for a minor child without the consent of both parents or a court order. If you are worried that your child will be removed from Australia without your consent, do not sign a passport application for the child.
The Passport Office can issue a passport without the consent of both parents under certain special circumstances. If you have reason to believe that the other parent will apply for a passport for your child, you can lodge a child alert request at any Australian Passport Office or you can apply to the court for a child alert order. Those actions may prevent a passport from being issued without your knowledge.
If your child has a passport and you fear that your child is in imminent danger of being removed from Australia without your consent, contact a lawyer or the Family Court immediately. You may be able to obtain an emergency order that prevents your child from being removed from Australia. The order can be sent to airports and other ports of exit from Australia. You can also ask the court to issue an order that requires the other parent to surrender your child’s passport.
Time is of the essence if you think that your child is about to be removed from Australia. You should contact a lawyer immediately. The lawyer will know how to reach the court outside of its regular business hours.