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child abduction

Contact Armstrong Legal:
Canberra: (02) 6288 1100
Sydney: (02) 9261 4555
Melbourne: (03) 9620 2777
Brisbane: (07) 3229 4448

Kerry White

This is where a child is taken out of Australia by a parent without permission. It can also include cases where foreign children are removed from their countries of origin to Australia.

It is usually done by stealth and before the other parent becomes aware of the intention to leave Australia.

The key element is that the child was taken out of a country where he or she was "habitually resident".

The role of international agencies

How do international agencies work together to prevent child abduction or arrange for the return of children to Australian parents?

Many countries are a signatory to the Hague Convention regarding child abduction. This is a legal treaty signed by countries in which they agree to assist one another. Australia is a signatory to the Convention, as are many Asian countries, most of Europe including the UK, and the US.

Countries that are not signatories include, for example, Lebanon.

If a child normally lives in Australia, and is abducted overseas to a Hague Convention country (say Germany), then the Central Authority; in Australia works with the Central Authority in Germany to recover the child back to the country where the child was habitually resident at the time of the abduction.

If the child was abducted to a non-Hague Convention country, say Lebanon for example, the Australian court needs to decide first if Australia is the appropriate place to determine the issues (eg, who the child should live with). Sometimes a foreign court order will be made before the Family Court of Australia can decide where the child should live. In such cases, the Family Court may recognise the foreign order and take no further action.

At other times the Australian parent left behind can get an order in Australia which prevents a foreign court making an order about the child (by getting an order that the abducting parent does not start or continue a case overseas).

How can you prevent a child being abducted?

Speed is of the essence when dealing with international child abduction and you should seek urgent legal advice (see below for when you should make an appointment to see a lawyer).

If you don't already have court orders in place, you can file an application for interim and/or final parenting orders. In those orders, you can ask for an Airport Watchlist Order. This order will put the name of the child on the airport and ports watchlists operated by the Australian Federal Police.

The watchlist will signal an alert if a child is about to leave Australia at customs and the child is likely to be prohibited from leaving Australia at the airport or at any port.

The Australian Federal Police will place the child's name on the watchlist as soon as the application is filed. You do not already need to have the orders made, the application itself will be sufficient in the short term.

You can be in breach of the Family Law Act if you take the child out of Australia without the other parent's permission or knowledge while proceedings are pending.

How to find a child who may have been abducted

What steps can you take if you want to know the location of a child who you believe has been abducted? Under the Family Law Act, certain people can apply for a location order in relation to a child. A location order is an order made by a court that requires a person to provide information about a child's location to the court.

The following people can apply for a location order:

  • a person who a child is to live with in accordance with a parenting order;
  • a person who a child is to spend time with in accordance with a parenting order;
  • a person who a child is to communicate with under a parenting order;
  • a person who has parental responsibility for a child under a parenting order;
  • a grandparent of a child;
  • any other person concerned with the care, welfare or development of a child;
  • For the purposes of the Child Protection Convention, a person (including the Commonwealth Central Authority) may apply to a court for a location order.

For detailed legal advice tailored to meet your needs and for more information about how to make an application for a location order, contact us to make an appointment to see one of our highly qualified family lawyers.

When you might need to see a lawyer urgently

  • If you think the other parent is planning a trip away from Australia with your child;
  • Your ex-spouse is coming from overseas to Australia and you are worried they plan to abduct your child;
  • Your ex-spouse wants you to co-sign your child's Australian passport without good reason;
  • Your child is a citizen of a country which allows one parent alone to apply for the child's passport and you have a fear of child abduction;
  • the other parent has a home, a family or other connections overseas and you are concerned that there is no reason for them to stay in Australia; and/or
  • the other parent has no substantial property or employment in Australia, and nothing keeping them in Australia.

In addition, you should obtain urgent legal advice if:

  • the other parent has already left Australia with your child;
  • you are not sure if they plan to return or if you believe they will not return;
  • there is a link to overseas family or property; and/or
  • there is no other significant link to Australia.

If any of the above applies to you, you should make an urgent appointment to see one of our family lawyers for further advice specific to your situation.

where to next?

Taking the next step and contacting a family lawyer can be scary. Our lawyers will make you feel comfortable so you can talk about your situation. But first, ask yourself, Do I really need a lawyer?

Why Choose Armstrong Legal?

Contact Armstrong Legal:
Canberra: (02) 6288 1100
Sydney: (02) 9261 4555
Melbourne: (03) 9620 2777
Brisbane: (07) 3229 4448

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