Australian Family Law Courts can take action to prevent children from leaving Australia without the consent of both parents. A parent can obtain a court order that allows the Australian Federal Police to place a child on the Airport Watch List. Airlines are prohibited from allowing a child on that list to travel as an air passenger without court approval.
But what if a party in a family law proceeding wants to prevent an adult from leaving? A parent might be concerned that if the other parent leaves Australia, the parent will find a way to take the child, even if the child has been placed on the Watch List.
In the case of Gilles & Irby, a father persuaded a judge on the Family Court to place his child on the Watch List. He also obtained a restraining order that prevented the mother from leaving Australia until his application for a parenting order was decided.
Neither parent was from Australia. The father has been the child’s primary caregiver for several years. The mother wanted to take the child to her country for six months while she cared for her sick mother. The father, noting that the mother had been seeking to remove the child from Australia for many years, was concerned that the mother would not return the child to Australia. The mother’s home country is not a party to the Hague Convention and the father feared that its courts would side with the mother if she applied for custody in her own country.
The lower court agreed that the child should not be removed. The judge placed the child on the Watch List and entered an order restraining the mother, but not the child, from leaving Australia. The court was apparently persuaded by the argument that the mother would be to travel with the child on her own passport, even though the child had no Australian passport.
On appeal, the question before the Australian Family Court was whether the lower court was authorized to enter a restraining order that prevents an adult from leaving Australia. The court concluded that judges are authorized to enter restraining orders that limit a party’s freedom to leave Australia.
At the same time, the Family Court noted that the power to prevent a party from leaving Australia should rarely be exercised. Restraining freedom of movement is a serious act that should only be undertaken in extreme circumstances.
The Family Court was not sure whether those circumstances were present. The mother’s English was limited and she was not represented by a lawyer. The lower court did not clearly explain that it was considering the entry of a restraining order against her, and she therefore had no reason to present evidence about her ability to remove the child on her own passport. Under those circumstances, the court returned the case to the lower court so that the mother could have a fair hearing on the issue of entering a restraining order against her.