BY A FORMER PARTNERINTERNATIONAL CHILD ABDUCTION

A guide to your rights and responsibilities

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BY A FORMER PARTNERINTERNATIONAL CHILD ABDUCTION

WHAT IS INTERNATIONAL CHILD ABDUCTION? ..................................1

WHAT IF A VAILD TRAVEL DOCUMENT IS NOT AVAILABLE YET?.... 2

HOW TO PREVENT TRAVEL WHERE A VAILD PASSPORT EXISTS? .. 3

HOW THE AUSTRALIAN COURTS VIEW INTERNATIONAL CHILD ABDUCTION? .................................................................................... 5

WHAT IF YOUR CHILD IS ALREADY OVERSEAS? ................................. 6

INTERNATIONAL CHILD ABDUCTION?WHAT IS

� It is an unfortunate reality that we sometimes hear and read about sensational stories in the media involv-ing international child abduction by a parent.

� It is not uncommon or outside the realm of possibility during a nasty separation for one parent to remove a child from Australia to a foreign country beyond the reach of the remaining parent. These stories occur frequently in countries with high rates of bi-national relationships and many mistakenly think that their occur-rences are rare in Australia.

� In recent years there has been a rise in the number of international child abduction cases in Australia by a parent of the child. This means that parents who are going through a separation need to be particularly cautious and vigilant in respect of the other parent's ability to remove the child from the country.

� If your partner is from a foreign country, holds a foreign passport, or if your child has a valid Australian passport or foreign passport then your child may be particularly at risk. You need to ensure your partner is unable to remove the child from the country without your consent.

Child abduction refers as the unauthorized removal of a minor (a child under the age of legal adulthood) from the custody of the child's natural parents or legally appointed guardians.

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A VALID TRAVEL DOCUMENT IS NOT AVAILABLE YET?

WHAT IF

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� If your child does not have a passport or their passport has expired, then preventing the other parent from obtaining or renewing a passport of the child is relatively simple.

� Thankfully, the Australian Passport O�ce requires the consent of both parents before a passport can be issued or renewed.

� If both consents are not received, the only way to get the document issued or renewed is with a Court Order.

� If you are seeking to obtain a passport and the other parent does not consent, you will have to show that the other parent is unreasonably with-holding their consent.

If the child is eligible to obtain a foreign passport, then you will need to look into the requirements of that country to be certain that the other parent may not obtain such passport without your consent thereby enabling the child to travel overseas.

PREVENT TRAVEL WHERE A VALID PASSPORT EXISTS?

HOW TO

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In cases where a valid passport is already in existence and is in possession of the other parent, the need to prevent a child from going abroad may become quite urgent. This is especially the case if you have legitimate reasons to believe that abduction by the other parent may be possible.

For such cases, we advise that having the child placed on the Airport Watch List by the Australian Federal Police to prevent the travel is the safest option. We have extensive experience in helping parents in this regard.

A child can be placed on the Airport Watch List by providing the police with either a copy of an Applica-tion seeking an order that they be placed on the Airport Watch List, or an order itself. If, for example, it is urgent and there is not enough time to wait for the Court to determine the matter, the police will place the child on the Airport Watch List with a copy of the �led

If a child's name is on the Airport Watch List, it e�ectively prevents them from leaving the country from any air or sea port pending the outcome of the proceedings. It is the most e�ective method of preventing international travel with a child who is the subject of a family law dispute.

Another option is to ask the Court to make an injunction preventing the removal of the child from the country.

Once an order for the injunction has been made, our team of lawyers can help you serve the injunc-tion on the other parent for it to take e�ect. It is an o�ence to breach an injunction preventing a child from being removed from Australia.

PREVENT TRAVEL WHERE A VALID PASSPORT EXISTS?

HOW TO

If an injunction is breached, there are a number of things the Court can do, including:

• issue a �ne• require a bond payment into Court• order that the defaulting parent provide you with make-up time with your child• order attendance to a parenting course• change any existing Court orders (that seem to be in their favour)• send them to prison

Injunctions require a lengthier process than placing a child on the Airport Watch List.

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INTERNATIONAL CHILD ABDUCTION? HOW THE AUSTRALIAN COURTS VIEW

Whenever an Australian Court becomes involved in a matter concerning overseas travel with children, its paramount consideration will always be:

What is in the best interests of the child?

When deciding whether it is in the best interests of the child to prevent or allow the child to be taken overseas, the Court will consider issues such as the following:

• the welfare of the child (where the child is going? is the destination safe? is the country a party to the Hague Convention? and the time period involved)

• the impact it may have on the child's relationship with the other parent or signi�cant people

• whether the period away will a�ect the child's educa-tion and schooling

• the reasons why the child is being taken overseas

• the likelihood of the child returning to Australia

• the age and maturity of the child.

Considering all the relevant factors, the Court will then issue an Order accordingly. It may make any of the following orders or any other order the Court sees �t:

• Allow the child to travel if it believes it to be in the child’s best interests and that it is safe to do so

• Impose conditions, such as payment of a security or limiting travel to make sure the child comes back

• Direct the person to give contact details, including phone numbers, an itinerary, addresses where the child will be staying and so on

• Disallow the travel

• Order the child’s passport be surrendered and delivered to the Court

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OVERSEAS? WHAT IF YOUR CHILD IS ALREADY

As a signatory under the Hague Convention on the Civil Aspects of International Child Abduction, Australia has an agreement with many other countries to prevent your child’s removal (without a court order) or abduc-tion from the country where they are habitually resident. The Convention allows a parent to apply for the child to be returned to Australia. They can do so if the child is taken to another Convention country with-out agreement or is kept in a Convention country longer than agreed period of time.

To apply for a child to be returned, you must show:

• the child is 16 years or younger; • you have ‘rights of custody’ over the child;• the child usually lives in Australia; and • you did not agree to the child being taken or kept overseas.

The process can be fraught with di�culties and can be challenged by the other parent on several grounds. It is also time-sensitive and many applications that seem straightforward, still fail. Problems exacerbate when the child is taken to a country not party to the Hague Convention.

International child abduction cases are a growing concern and you need to be on heightened alert especially if you share parental responsibility for a child with your former partner who is from a country not signatory to the Hague Convention.

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HOW CAN WE HELP?

At Owen Hodge Lawyers, we help parents who think their children have been abducted or will be abducted by a former partner and we also advise on the precautionary measures that can be taken to avoid or minimise unilateral relocation to a foreign country.

If you have reason to suspect that your child may be taken abroad, please call our team of Family Law professionals on 1800 770 780 or contact us via email at ohl@owenhodge.com.au.

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