One of the most stressful and traumatic experiences for any parent is the thought or experience of their child being abducted when parents separate.
What is a Child Abduction?
Child abduction is a term which refers to when one parent takes, detains, or conceals a child from the other parent. Child abduction usually occurs when parents have separated and can occur both at an international or domestic level. Accordingly, there are a number of different responses depending on the circumstances of each case which we discuss in turn below.
What happens if my child has been taken from me by my ex-partner? How do I apply for a recovery order?
If you have a Court Order that the children live with you and the children have not been returned, the first thing you need to do is try to talk to the other parent and see if you can reach any agreement about the return of the children. If you cannot come to an agreement, then it may be necessary to obtain a recovery order.
A recovery order is defined in section 67Q of the Family Law Act 1975. It is an order of the Court that can require a child be returned to a:
• parent of the child
• person who has a parenting order that states the child lives with, spends time with or communicates with that person, or
• person who has parental responsibility for the child.
A recovery order can authorise persons such as police officers to locate and return a child to one of the people listed above and can also prohibit the person from again removing the child. Where such a prohibition is made, an automatic arrest without the need of a warrant can occur in circumstances where the person again removes, or attempts to remove, the child.
You should seek immediate legal advice if your child has been removed from you as you will be required to file an Application for a Recovery Order and supporting affidavit in the Family Court in order to have your child returned to you.
What happens if my ex-partner disappeared with my child?
If your child has been moved by the other party without your agreement and you are unable to locate the whereabouts of your child, you can apply to the Court for a Location Order under s 67K of the Family Law Act 1975.
This location order requires a person (friend or family member) or a Commonwealth department (Centrelink, school or ATO) which may have record of a child’s address to inform the court of this address.
If your child is still unable to be located, you can seek a publication order under s 121 which permits you to publish in a newspaper or television a broadcast and a request for the public to assist in locating your child.
What can I do if my child is a flight risk within Australia?
If you have reason to believe that the other party may intend to move interstate or out of the region without your consent, then it may be necessary to make an application to the Family Court for interim orders restraining the other party from relocating, pending final orders.
You are required to attend Family Dispute Resolution prior to applying to the court for parenting orders, however, in cases of urgency, this requirement may be waived.
What can I do if I am concerned that the other parent may try and obtain a passport for my child without my consent? How can I alert the Australian Passport Office?
If you are concerned that the other parent may attempt to obtain a passport for your child without your consent, then you can alert the Australian Passport Office.
You can do this by lodging a Child Alert Request Form (Department of Foreign Affairs & Trade) at any Australia Passport Office. This request will warn the passport office that the other party may attempt to apply for a passport for your child and any attempt will be denied for 12 months or until discharged by court order.
What happens if my child has a Passport and is a flight risk? What is a Family Watch list Order?
If your child has a passport or you suspect the other parent may have obtained one without your consent then it is important to take steps to ensure they are not taken to another country, particularly to a country that is not party to the Hague Convention.
You can place your child’s name on the Australian Federal Police (AFP) Watch List to ensure they cannot leave the country. This order will prevent your child from leaving any international airport in Australia.
You will need to make an application to the Family Court for interim and final orders. In your interim orders sought, you should include a Watch List order.
Once granted by the court, the airport alert will remain in place until discharged by a court order.
What happens if my child has already been taken to another country?
The Hague Convention is a multilateral treaty in force between Australia and a number of other countries. It provides a lawful procedure for seeking the return of abducted children to their home country. It also provides assistance to parents to obtain contact or access to children overseas.
If you believe your child has been wrongfully removed from Australia or wrongfully retained overseas in a Hague Convention country without your consent, you can apply for the return of your child through the Australian Central Authority.
The Australian Central Authority will process your application and communicate with the Central Authority of the country to which your child has been taken to coordinate their return.
If your child has been taken to a country that is not a party to the Hague convention then you should speak to the Department of Foreign Affairs and Trade (DFAT) who can provide
limited consular help to parents whose children are located overseas. DFAT can assist you to engage a lawyer in the overseas country to begin legal proceedings for the recovery of your child in that overseas jurisdiction.
Recent Case on international child abduction: Department of Family and Community Services & Tamlin (2019)
Facts: The mother, father and child in this case were Australian citizens who had relocated to Thailand for the purpose of the father’s work. The parents separated shortly after they moved to Thailand and the mother agreed to stay in Thailand so that the child would be able to be close to both parents. The father continued to support the mother financially after separation and both parties shared care of the child.
Approximately two years after separation, the mother had a conversation with the father and told him that she was intending to return with the child to Australia so that she could go back to work. The mother was unable to work in Thailand as she did not have a work visa. The father expressed concerns that she would also be unemployed in Australia and that it would be more expensive for her and the child to live in Australia.
The mother subsequently withdrew $61,726 from their joint bank account and the father communicated to the mother that he would no longer provide financial support until the matters were resolved. The father restricted the mother’s access to the child in response to the mother’s refusal to provide the child’s passport as he was concerned that she would abduct him.
The mother commenced proceedings with the Family Court of Australia seeking final parenting and property orders and subsequently removed the child from his school in Thailand and brought the child to Australia without the consent of the father.
The father applied to the Central Authority of Thailand and the Department of Family and Community Services filed an application to commence proceedings for the return of the child to Thailand.
Court’s decision:
The mother attempted to raise a defence that the child objected to returning to Thailand, however the court held that the child did not have a strong objection to returning and also did not have the requisite maturity to understand the implications of making such a decision.
The court held that the child had been wrongfully removed from Thailand. The child was a resident of Thailand and the father had rights of custody of the child under Thai law and was exercising those rights prior to the child’s removal from Thailand. The removal of the child from Thailand was in breach of the father’s rights of custody.