Can My Ex Take My Child Overseas?

Can My Ex Take My Child Overseas?

Can My Ex Take My Child Overseas

Find out more about travelling with your children after divorce and what parental abduction is , NS  you can do to reduce the risk to your children.

If you plan on travelling overseas with your children, it is advisable to obtain permission from the other parent first. Particularly if you are involved in a parental dispute or have parenting orders in place, travelling with your child without your ex partner’s consent can be considered parental abduction. Let’s take a closer look.

What is Parental Abduction?

When couples separate, conflicts can occur, particularly regarding matters relating to custody and care of their children. 

It is every parent’s worst nightmare “your ex partner takes your children overseas and does not return”.  

Parental abduction occurs when one parent takes, conceals or detains their child from the other parent. It may not always be intentional, but it is a crime and can attract imprisonment of up to 3 years.

When people are in the middle of a bitter divorce and custody battle, they sometimes behave irrationally. In Australia, it is estimated that at least 3-4 children are abducted by a parent each week.

Under the Family Law Act, travelling with your children overseas is an offence when there is an active parenting order unless you have written consent from everyone covered by the order.

Your Child’s Passport

Both parents need to sign the child passport application form if your child does not already have one. A parent can refuse to sign the application if they do not wish for their child to travel overseas without them.

Penalties exist for forging a signature or for providing misleading information on your child’s passport application form.

If you fear that your ex partner will proceed with a passport application without your consent, you can alert the Australian passport office so that your child can be put onto the child alert request list. This means that the office will contact you should an application be lodged. The child alert request will expire after 12 months and is only available for Australian passport holders.

Your child may travel on a foreign passport if they are eligible for dual citizenship. You should contact the relevant embassy and express your concerns, and consult your lawyer for relevant legal advice.

Refer to the Australian Passport Information Service for more information, specifically the fact sheet on international travel for children after divorce.

Delivery Of The Passport To Court

If you fear that your ex partner may take your children overseas without your permission, you can apply to the court for an order to keep your child’s passport for a specified period. The only way to release the passport is to provide a further court order to change the request.  

What If Parents Disagree About Overseas Travel?

When couples separate, sometimes they need to go to family court to help resolve disputes. Obtaining parenting or court orders can help ensure that individuals abide by decisions.

If the other parent is withholding permission for your child to travel overseas and you believe that it is unreasonable, then you can seek approval from the Family Law Court. You will need to provide the court with all relevant travel information, including itinerary, emergency contact information at your travel destination, reasons for travelling, and with whom the child will travel. The court will focus on your child’s best interest considering the long and short term effects and the physical and emotional well being. If the court approves your travel request, then you can travel without the other parent’s consent. 

Payment of a security deposit to the court may be required, which will be refunded when the child returns home. 

If you are concerned about your children moving overseas, you should immediately contact the Federal Police,  the family law courts and seek urgent legal advice from a lawyer who specialises in family law.

Airport Watch List

If you are genuinely worried that your children will be taken overseas without your consent, the children can be put on the Family Law Watchlist. This is also known as the airport watch list and is enforced by the federal police. There must be a court order or parenting order that specifies that the children can not travel overseas for this to occur. Your lawyer can give you relevant legal advice. Depending on your circumstances, you may want more flexibility within the order regarding future travel; you can add a clause that the children can travel only if both parents agree. The ruling could also specify which countries are acceptable destinations. A form needs to be submitted to the Australian federal police along with a copy of the order. If the other parent attempts to leave the country with the children, the Australian Federal police will be alerted and will stop them at the airport. An airport watch list order prevents the children from travelling overseas with either parent. As well as airports, it also includes seaports. The children’s names will remain on the family law watchlist for at least two years. The restriction is placed on the children, which means that no matter who tries to take them out of the country, it will prevent the children from leaving Australia.

The Hague Convention

During bitter separation and divorce proceedings, circumstance may arise where one parent takes their children out of Australia without the other parent’s permission.

Parental abduction of their children happens regularly. In 1980 the Hague Convention on the Civil Aspects of International Child Abduction was established. It is an international agreement where countries agree to work together with local law enforcement authorities to return the child to their home country to resolve residency and custody issues. There are over 80 countries that have an agreement with Australia. The purpose of the Hague convention is to help parents whose children have been abducted by their ex partner and return them to their home country safely. If your child has travelled to a country that is a signatory to the Hague convention, then the Australian authorities will get an urgent court order which will force the return of your child. It does not determine parental custody but offers assistance to return the child home.

Unfortunately, not all countries are signatories to this agreement, and retrieving your child from one of these locations may be more challenging.

The Hague convention is administered in Australia by Attorney General’s Department. To make an application to have your child returned, you must complete an application.

What are the Requirements for the Application?

  • The child must be less than 16 years old
  • The parent applying has custody rights
  • The parent was exercising their custody rights when the children were removed from the country
  • The child resides in Australia
  • The child is in a country that is a party to the Hague convention
  • The child was taken without consent
  • There was no further order granting travel permission

You Also Need to Include:

  • Your child’s details
  • Birth certificate
  • Marriage or divorce certificate
  • Family court orders
  • Summary of individual circumstances
  • Child’s photo
  • Affidavit of fact

If your children have been taken out of Australia without your permission, contact the police immediately and get urgent legal advice from a lawyer specialising in family law matters. An urgent court application can be made.

Relocation

For many families, it is common to travel or relocate outside of Australia. Child relocation can be complicated after a divorce because it affects the current parenting arrangements and the child’s time with both parents. If you are relocating overseas and wish to take your children with you, it is your parental responsibility to talk to the other party beforehand. Reaching an agreement is crucial to maintain relations with your ex. Negotiating terms independently can save a lot of time, money and stress. Family dispute resolution (FDR) counselling can help couples reach an agreement. Seek legal advice to ensure that you are acting within your rights.

What is a Location Order?

If your child has moved to another location without your consent and you are unaware of where they are, you can apply to the family law court for a recovery or location order. Preventing children from spending time with the other parent is an offence. This order gives the police authorisation to take the children from the other parent. Digital photographs and an information sheet can assist the police as they require as much background information as possible. You should also seek urgent legal advice from a lawyer specialising in family law matters.

Court Orders

The Australian Federal Police will act on orders issued by the court. In family law matters, they will help to prevent the unlawful removal of children from the country. Your lawyer can provide legal advice about preparing a parenting order that stipulates when and how a child will travel. Police can act as if the order is beached as it is a Commonwealth offence to take a child from Australia if it is contrary to an existing order. The punishment for this offence can be up to 3 years in prison. 

Legal Resources

You should obtain legal advice if you plan to leave Australia with your children, or if you fear that your ex partner may remove them without your consent.

If you can not afford a lawyer in some states in Australia, government-funded independent agencies can offer free legal representation. For example, in New South Wales, Legal Aid provides free advice to parents dealing with family matters. They provide a resource kit containing helpful legal information like applying for orders, serving a document, the family law court process, and dispute resolution. Legal Aid can provide a lawyer to people who can’t afford a private lawyer.

There are other community legal centre and agencies available, and some that specialise in indigenous legal services, some that cater specifically for women and the hearing impaired.

As well as legal resources, there are also several mediation and counselling centres available to assist with family dispute resolution (FDR). Relationships Australia, for example, is a service that is available in every state that specialises in family relationship support. Before attending family court and applying for parenting orders, it is now compulsory for the parents to attend a FDR session to make a genuine attempt to resolve issues before proceeding through the court system.

There are several places where information is available free of charge. For example, the Family Law Court’s website has numerous court forms, publications and fact sheets under their publications section.

International Social Service Australia can help with international child abduction and can assist in preparing applications for their return.

Summary

Parental child abduction occurs when one parent takes, conceals or detains their child from the other parent. It may not always be intentional, but it is a crime and can attract an imprisonment of up to 3 years. When people are in the middle of a bitter divorce and custody battle, they sometimes behave irrationally. In Australia, it is estimated that at least 3-4 children are abducted by a parent each week.

A parent can refuse to sign a child’s passport application if they do not wish their child to travel overseas without them. If you fear that your ex will proceed with a passport application without your consent, you can alert the passport office so that your child can be put onto the passport child alert request list.

If a parent fears that their child will be taken overseas without their consent, then the child can be put on the airport watch list. If the other parent attempts to leave the country with the child, police will be alerted and will prevent the child from leaving the airport.

If your child has travelled to a country that is a signatory of the Hague convention, then the Australian authorities will get an urgent court order which will force the return of your child. 

If you can not afford a lawyer in some states in Australia, government-funded independent agencies can offer free legal representation.

Reaching an agreement is crucial to maintain relations with your ex. Negotiating terms independently can save a lot of time, money and stress. Family dispute resolution (FDR) counselling can help couples reach an agreement.

If you are concerned about your children moving overseas, you should immediately contact the Federal Police, family law courts and seek legal advice.

FAQs

1. Can I Stop My Ex From Taking My Child Abroad?

Answer: A parent is permitted to refuse to sign their child’s passport application form if they do not wish for their child to travel overseas without them. A parenting order can be made which will stipulate when and how a child will travel. If a parent fears that their child will be taken overseas without their consent, then the child can be put on the Family Law Watch List. If the other parent attempts to leave the country with the child, the Australian Federal police will be alerted and will stop them at the airport.

2. Can a Child Overseas Without The Father’s Permission?

Answer: If you are relocating overseas and wish to take your children with you, you should first talk to the other party and get legal advice. There are laws about taking your children overseas. Negotiating terms independently can save a lot of time, money and stress. Family dispute resolution (FDR) counselling can help couples reach an agreement.

If a parent is withholding permission for your child to travel overseas and you believe it is unreasonable, you can apply to the court for travel approval. The court will always consider what is in the best interests of the child. They will consider the long and short term effects as well as the physical and emotional well being of the child. If the family court approves your request, you can travel without the other parent’s consent.

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