Are you concerned your ex-partner may flee overseas with your child?

child in airportIn Family Law matters involving children, there may be a risk that your ex-partner or spouse could take your child overseas (either temporarily or permanently) without your knowledge or consent.

In our experience, this risk is often heightened in circumstances where the other party is a dual citizen of another country, or has strong ties to another country for some other reason such as family or business relations.

Many countries have signed the Hague Convention (1980), which is a multilateral International Treaty relating to the protection of children and international parental child abduction, amongst other things.

The Hague Convention provides a lawful procedure for seeking the return of an abducted child to their home country. This means that if your child is taken to a country which is a member of the Hague Convention (meaning that country has co-signed the Treaty and The Hague Convention is in force between Australia and that country), it is generally easier to seek the return of your child with the assistance of the International Family Law Section of the Attorney-General’s Department.

A comprehensive list of countries that are a member of the Hague Convention can be found on the Australian Government website:

If the country your child has been taken to is not a Hague Convention country (such as China or India), it becomes much harder to seek the return of your child.

In this situation, unless you are successful in reasoning with the other party to have them return the child to you voluntarily, you would be required to seek legal advice about your rights from a solicitor specialising in that jurisdiction.

On this basis, we advise our clients that if they are concerned that there is a risk their child may be removed from the Commonwealth of Australia by their ex-partner or spouse, to put precautions in place to mitigate such risk. Depending on the circumstances of the matter, these precautions may include:

  1. If the child has a current Australian and/or foreign passport, taking possession of the passport(s) and keeping it in a safe place;
  2. If the child does not have an existing passport, making an application to put a Child Passport Alert in place;
  3. Contacting the embassy of any other country your child is eligible to obtain a passport from, to see what you can do to prevent a foreign passport being issued for your child;
  4. Making an application in the Federal Circuit and Family Court of Australia seeking the following Orders:
    • a Recovery Order which seeks the forceful return of your child prior to them being taken overseas;
    • an Order that your ex-partner or spouse be injuncted and restrained from removing the child from the Commonwealth of Australia in the future; and
    • an Order that your child be placed on the Family Law Watchlist (also referred to as the Airport Watchlist) which alerts the Australian Federal Police (AFP) if your ex-partner or spouse attempts to leave with your child from any international sea port or airport within Australia.

Should you be in the position of being concerned that your child may be removed from the Commonwealth of Australia, we strongly urge you to make contact with our family law team to seek tailored legal advice in relation to the protection of your child.

It is also important to note that the wrongful removal of a child from the Commonwealth of Australia constitutes a criminal offence under section 40(1) of the Criminal Law Consolidation Act 1935 (SA). Under this Act, the removal of a child is considered ‘wrongful’ if a person removes the child from the Commonwealth of Australia despite their knowledge that a person with sole or joint custody of the child does not consent to the child being taken or sent out of the jurisdiction. The maximum penalty for such an offence is 15 years for a basic offence, and 19 years for an aggravated offence. As such, if your child is removed from the Commonwealth of Australia by your ex-partner or spouse, we would encourage you to seek concurrent legal advice from our criminal law team.

Get in touch!

If you require any assistance or guidance on any matter relating to separation, divorce, property settlement or children’s issues, please get in touch with our caring and experienced Family Law Team or call 1800 730 842 to speak with one of our family lawyers.