With the reopening of Australia’s international travel borders comes an increased risk that one parent will take their children overseas without the other parent’s consent.

Warring parents with links to, or extended families in other countries might be tempted to take their children out of Australia away from their former partner.  But, as the Family Court has noted ‘Child abduction, as between separate and conflicted parents, particularly in its international form, has long been recognised as abhorrent and, in itself, not in the children’s best interests’

The ‘Hague Convention’ (on the Civil Aspects of International Child Abduction) is an international treaty long enacted into Australian law, which allows for the return of children wrongfully taken to or retained in another country.  These laws provide that the corresponding dispute about where and with whom those children should live must be decided in their home country.

An application under the Hague Convention can be made to the Federal Circuit and Family Court of Australia.  Before making an Order the Court will consider the following:

  • The application must be made for the child’s return;
  • The application must be filed within one year of the child’s removal; and
  • The child’s removal or retention must be wrongful (it usually is where the applicant had some care of and involvement in the child’s life);
  • Whether the applicant consented to the child’s relocation;
  • Whether there is a significant risk in returning the child as it would expose the child to psychological or physical harm;
  • If the child objects to being returned (after considering the degree of maturity and age to have such a view); or
  • If the return of the child would not be permitted by the fundamental principles of Australia, relating to the protection of human rights or the fundamental freedoms.

International child abduction and the return of a child to their resident country falls in a complex area of law as various factors and third parties can come into play.  The Hague Convention acts as a safety net for parents in signatory countries for the return of a child to their usual home while any further argument about where they live is decided. These should be a deterrent to any parent making a unilateral decision for the relocation of a child to another country.

Situations regarding children being held overseas should always be discussed with a specialist family lawyer so you can seek appropriate guidance to remedy your personal situation.

Importantly, parents should be aware that if they are concerned about children being taken overseas without their consent, we can assist to quickly prevent that with an application to the Court for them to be placed on Australian Federal Police’s Family Law Watch List.

For more information contact one of our accredited family law specialists Lisa O’Leary on 9525 8688 or email wmd@wmdlaw.com.au.  You may also find our free family law eGuide helpful.