Do you have concerns about your children travelling overseas without your consent?
In some family law child/children custody or divorce cases, one party may reasonably believe the other party will flee the country with their child/children and not return. In these cases, you should absolutely seek urgent legal advice from an experienced family lawyer to find out the best steps you can take.
Please note, this article does not cover overseas holidays one parent may wish to take with the child which the other parent may object to.
Key points to note:
- If you have reason to believe your ex-partner may flee Australia with your child and not return you must seek urgent legal advice from an experienced family lawyer.
- Whether the destination country is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction makes a crucial difference to your chances of being able to recover your child if your ex-partner is successful in fleeing the country. You can check the list of countries who Australia has entered into this treaty with on the Attorney General’s website.
- The most urgent first steps depend on whether your child has a current passport or not. If your child does not have a current passport and if your ex-partner or child is a dual citizen, then it’s extremely important to check with the embassy in the country they may travel to to determine whether a foreign passport can be obtained for your child and if so, the circumstances how the application can be made.
- The only way to have peace of mind and prevent overseas travel is to obtain a court order for your child to be placed on the Family Law Watch List.
- The Family Law Watch List is maintained by the Australian Federal Police. If your child is placed on the List it will prevent any person from leaving Australia with your child.
- In some circumstances, a Judge may decide to allow overseas travel if they are satisfied there is a low risk the travelling party will stay overseas with the child. If that occurs, the Judge may fix a sum of money as security for the travelling parent to pay the non-travelling parent if they do not return.
- The Australian Federal Police website contains more detailed information about Family Law Watch List orders.
Do I need a Family Law Watch List Order?
Understandably, this is one of the first questions most people will ask themselves after they’ve separated and believe there is a risk of their child being taken overseas. The answer to that question is often complex and requires specialist legal advice from an experienced family lawyer.
Nonetheless, here are some useful factors you should consider which could make it more likely you would need an order preventing your child from leaving Australia. We recommended you consider these questions and have answers prepared for your lawyer when you attend an appointment:
- Is your ex-partner a dual citizen with another country? Is your child a dual citizen or eligible for dual citizenship?
- Does your child speak the language of the country they may be travelling to?
- Is the destination country a signatory to the Hague Convention on the Civil Aspects of International Child Abduction?
- Does your ex-partner own property, or have family or friends in the destination country? Do they speak the language of that country? How easy would it be fore them to establish a life there?
- Does your ex-partner have an established life in Australia? Do they have a job, own real estate or a business? Do they have family or friends in Australia?
- What is the level of conflict you have with your ex-partner in general, but particularly around child custody, parenting issues or issues about ongoing contact with your child?
- Is there any direct evidence to suggest your ex-partner may be leaving Australia and not planning on returning?
For example, have they booked a one way plane ticket, have they made a declaration to their friends or family, on social media or to you personally of their intention to leave Australia?
What are the rules around applying for a child passport?
If your child does not have a passport and you would like to apply for one, there are some rules and tips to keep in mind.
- If both you and the other parent are recorded on the birth certificate, the Australian Passport Office usually requires both parents to sign the application for a passport.
- If a Court order has been issued that gives one parent sole parental responsibility (either in general or specifically for the issue of the passport) then the parent with sole parental responsibility is the only parent who is required to sign for the passport.
- If you anticipate the other parent will apply for a passport for your child and you want to object to that application, you can lodge a Child Alert form with the Australian Passports Office.
- Child Alert forms are valid for 12 months if they are not supported by a Court order. There is no guarantee the Passport Office will refuse an application, but the Passport Office is on notice you object to the passport being issued.
What are special circumstances for passport applications?
In some circumstances the Passports Office can decide to issue a passport without the signature of both parents. This is a discretionary decision assessed by the Passport Office on a case by case basis, but the types of cases can include:
- If the non-consenting parent cannot be located to sign the passport application and unsuccessful attempts have been made by the travelling parent to contact the other parent for a reasonable period of time;
- If the non-consenting parent is missing or presumed dead, or physically or intellectually incapable of providing consent;
- If the non-consenting parent has not had contact with the child for a significant period of time before the application is made;
- There is a foreign court order dealing with the passport issue; or
- There is domestic violence and a restraining order has been issued.
If you have serious concerns your ex-partner may be intending to leave Australia with your child/children you need to urgently speak with a lawyer.
Contact Northside Lawyers now to discuss out how we can help.