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Abduction of children

 

I am worried my ex is going to take my child overseas on holiday and not come back, what can I do?

If your ex wants to take your child overseas, he or she will need a passport for the child. In order to get a passport, your ex will either need your consent and signature or an order from the Family Court. There are some exceptions to this and the passports office can issue a passport with only one signature. For further information on the exceptions, visit the Australian Government Passport Service.

If your child DOES NOT have a passport, but you think there is a risk that your ex could get a fake passport you can apply for a child stop alert. A child stop alert will ensure that you are notified if someone tries to get a passport for your child. Further information on child stop alerts and application forms are available at the Australian Government Passport Service. If you receive notification that someone has tried to get a passport for your child, you should seek immediate legal advice about your options.

If your child DOES have a passport you need to get urgent legal advice as you may need to apply to a court for orders. To make orders, a court will need to be convinced that there are good reasons to be concerned. 'Good reasons' might include that:

  • the other parent won't give you any details of the travel arrangements including how long the holiday will be, where the children will be staying etc.
  • the other parent has been acting like they won't be coming back and are for example, selling their house, moving all their belongings into storage, closed all their bank accounts etc.
  • the other parent has family and friends at the holiday destination who will be able to support him/her.
  • the other person has the financial means to stay away or has taken a job at the holiday destination.
  • the other person is travelling to a country that is not a signatory to the Hague Convention on the Abduction of Children so you will not be able to get them back from that country with the help of the Australian Government.

If the court is convinced that there is a real risk the other party will go overseas with your child and not return, it can make all or some of the following orders:

  • restrain or prevent the parent from taking the children out of Australia
  • order the parent to pay an amount of money to the court as security for the return of the children
  • order the person to give contact details, including phone numbers, an itinerary, addresses where the children will be staying etc.

If a child does not return from overseas after a holiday, or is taken away overseas and the country the child is taken to is a 'Hague Convention' country, the Australian government has procedures in place to search for and commence legal proceedings in that country to bring the children back. These types of proceedings are called 'Hague Convention matters' and are named after the Convention on the Civil Aspects of International Child Abduction signed at The Hague on 15 October 1980.

To determine whether your child is in a Hague Convention country (that is a country that signed the Convention), you can go to the Australian Government Attorney-General’s Department. After you have determined that your child is in a Hague Convention country, you will need to contact the central authority in your state (in WA it is the Commissioner of Police, Perth).

What do I have to do to get a passport for my child?

Both parents must agree to and sign the application form for a passport.

If a child is in the care of the Department for Child Protection, the CEO of the Department can consent to a passport being issued for the child.

There are exceptions to this and the Passports Office can decide to issue a passport with one signature only. Visit the Australian Governments Passport Service website for more information. If you cannot agree and do not fall under an exemption you can ask the court to make an order allowing you to get a passport for the child.

How can I get my child back?

In some cases, unfortunately, parents move away with your child without your consent. You may also find yourself in a situation where your child is not returned after an agreed period of time with the other person or parent.

In these situations you may be able to ask the Family Court to give you a Recovery Order. A Recovery Order allows the police to take your child from the person they are with and return them to the place where they used to live. This may be stressful for the child so you should think about whether there are other ways you can try and bring your child back, see Family Dispute Resolution and Other ways to resolve a Family Law Dispute.

Before making any orders the court will consider what is in the Best interests of the child. You should seek legal advice before making such an application.

I do not know where my child is, is there anything I can do?

If the other parent has moved away with your child and you do not know where they have gone you can apply for a location order. A location order allows a person or government department to give the court information about where the child or other person lives.

You can apply for a location order if:

  • You are a parent
  • You have parenting orders that say the child is to live or spend time or communicate with you or that give you parental responsibility
  • You are a grandparent
  • You are any other person concerned with the care, welfare and development of the child.

The court will consider the best interests of the child when deciding whether or not to make a location order. The court must also decide that the person or government department is likely to have information on the child when deciding whether to make the order. The court cannot make a location order against a government department unless that Department is given at least 7 days notice in writing of the fact that an application has been made. You can usually only get a location order against one government department at a time, unless you have exceptional circumstances.

A location order is only relevant if a child is in Australia. For overseas you will have to contact the Australian Government Attorney-General’s Department.

Forms and information about location orders and recovery orders can be found at the Family Court of WA website. You should seek legal advice before applying for such an order.

Can I use an injunction to stop my ex-partner taking the children out of the state?

If you have reason to believe this will occur you should send a copy of the injunction order to the Federal Police and ask that your child's name be placed on the airport watch list.

Although the Federal Police may not be able to prevent a child going interstate, they can prevent a child on the watch list going overseas and leaving Australia.

If you have made an application to the court but orders have not yet been made you can still send your application and the Federal Police may be able to notify you if they see the children at the airport.

More information can be obtained at the Australian Federal Police Family Law Kit website.

 

Last reviewed: 01/09/2010

Last Modified: 08/09/2010

Disclaimer

The material displayed on this page is intended for information only. If you have a legal problem, you should see a lawyer. Legal Aid Western Australia believes that the information provided is accurate, however does not accept responsibility for any errors or omissions.