Viewing entries tagged
family law watch list

File an application immediately if your child is relocated away from you

Often, parents are so shocked or devastated when their former partner takes some sort of unilateral action with their child(ren) that they do not do anything for some months. Recently, an application to list a mother’s application urgently was declined even though her 12-year-old child was unilaterally moved more than 600km away from her by the father in January 2017. This was the matter of Quong & Bush [2017]FCCA1765.

The mother was not granted permission by the Court to have an urgent because the child was not at risk of harm in the current arrangement. These types of decisions are made in the first instance by a Registrar of the Court.

The mother decided to seek a review of this decision by a Judge. Judge Terry concluded that the child was not at risk of harm in the current arrangement and the Court has to prioritise cases involving those children who are at risk of harm. These might include babies who have been take from their primary carer, cases involving severe family violence, cases in which one and sometimes both parents are using ice, cases in which there are serious alcohol abuse issues and cases in which one and sometimes both parents have serious mental health issues.  Limited Court resources do not allow a case in which there are no risks of harm issues to be prioritised over other cases competing for judicial time. This emphasises why you should take action quickly, as it emphasises any perceived risk, and worst case, ensures you are listed for hearing sooner.

The Courts are however generally disapproving of a parent unilaterally relocating a child far away from the other parent concerned, unless the relocation can be justified by the existence of some form of emergency or threat to the child or the parent.  Each case is decided based on the individual facts of the case, and there is limited guidance from the Family Law Act as to how these cases should be determined. The discretionary nature of the child’s ‘best interests’ means that it is difficult for parties undertaking relocation to navigate the process on their own.

If you have separated and are thinking about relocating with your children, or you are aware that the other parent is, you should seek advice about the best way to go about it from our experienced Family Law Team by calling 03 9614 7111.

Preventing unlawful removal of children from Australia

Do you have concerns that your child may be removed from Australia against your permission? Have you agreed to your child traveling overseas with the other parent but there is a genuine fear that they may not return your child to Australia?

We understand that this would be a stressful situation for any parent.

If so, it may be important that you act immediately to prevent this. You will need to obtain a Family Law Watch List from the Family Law Courts preventing or limiting your child from travelling outside Australia. A Family Law Watch List is also otherwise known as an Airport Watch List. If the situation is urgent, the Courts may make an Order on an ex parte basis.

The Family Law Watch List directs the Australian Federal Police to put your child’s name on the Watch List which in effect, operates at all international departure points including sea ports until discharged by the Courts. It is crucial to note though that the Family Law Watch List does not restrict interstate travel. The Australian Federal Police will not place your child’s name on the Family Watch List without a Court Order, unless in very limited circumstances.

If a child does not have a valid passport, Australia requires the other parent’s signature on the Passport Application form. If this is the case, and you suspect the other parent may fraudulently make an Application, you may, at first instance, consider whether a Child Alert Request will suffice. A Child Alert Request is a warning to the Department of Foreign Affairs and Trade not to issue an Australian Passport for a child without first making further enquiries (https://www.passports.gov.au/passportsexplained/childpassports/Pages/childalerts.aspx).

If the other parent has an international passport, you can make enquiries with embassies/consulates about the possibility of the other parent obtaining an international passport for your child. If there continues to be a real risk your child could travel on an international passport, you can make an application for your child’s name to be placed on the Family Law Watch List.

When facing with an application for a Family Law Watch List, or an application for the child to travel overseas, the Courts uphold its primary consideration being the child’s best interests – Will a travel abroad be in the child’s best interest? What is the time period and reason for the intended travel? Is there a real risk that the child will not be returned to Australia? Is the intended/likely travel destination a Hague Convention country? To find out whether a country is a Hague Convention country, go to https://www.ag.gov.au/FamiliesAndMarriage/Families/InternationalFamilyLaw/Pages/HagueConventionontheCivilAspectsofInternationalChildAbduction.aspx.

On the other hand, if you are a parent considering removing a child from Australia without the other parent’s consent, or relocating overseas, you should think twice as your actions may constitute an offence punishable with imprisonment up to three years. If you wish to relocate with your child, you should consult the other parent seeking an agreement in writing, or seek Court Orders allowing your child to travel or relocate.

If you have a pressing fear that your child may be removed from Australia unlawfully, or you simply wish to know more about international travel arrangements, you can contact our attentive Family Law team on 03 9614 7111 or Melbourne@nevettford.com.au.