What can I do if the other parent plans to take our child out of the State and not return?
If the other parent is planning to take the child out of the State without your consent, you can seek an injunction from the Family Court to prevent them from doing so. (See further below under What is an injunction and can it help me?)
A child can travel interstate without a passport.
The Court will not make an injunction lightly. You will need to show that it is likely the other parent will take the child out of the State and not return. Things that might show that the other parent plans to move interstate might include:
- the other parent has purchased tickets for travel to another State (and not return tickets)
- the other parent has told you they are going on a holiday but refuses to give you any details of the travel arrangements including how long the holiday will be and where the child will be staying
- the other parent is acting as if they will not be coming back (for example, selling their house, giving up a lease, moving all their belongings into storage etc)
- the other parent has family and friends at the destination, has taken a job or inquired about jobs at the destination.
Once an order for the injunction has been made, you must serve the injunction on the other parent for it to take effect. Serve means to give a copy of the order and any other documents you filed at the Court to the other parent (or persons) involved. For more information on how to serve papers see the Family Court of WA’s Service Kit.
What can I do if the other parent has taken our child out of the State and refuses to return?
If the other parent has already taken the child out of the State without your consent, you may be able to seek a recovery order for their return. For more information, see Recovery orders.
I am worried the other parent is going to take our child overseas and not come back. What can I do?
If the other parent wants to take the child overseas, they will need a passport for the child. For more information on how a person may obtain a passport for a child and what you can do if you think the other parent may apply for a passport without your consent, see Children's passports.
If there is a possibility that the other parent may obtain a passport for the child from another country, seek immediate advice from the embassy or consulate for that country.
If the child DOES have a passport you need to get urgent legal advice as you may need to apply to the Family Court for orders to prevent the child from being taken out of the country. To make orders, the Court will need to be convinced that there are good reasons to be concerned. “Good reasons” might include that:
- you have found out that the other parent has made arrangements to take the child overseas and has not informed you of their plans
- the other parent refuses to give you any details of holiday travel arrangements including how long the holiday will be and where the child will be staying
- the other parent has been acting like they will not be coming back (for example, selling their house, moving all their belongings into storage, closing all their bank accounts etc)
- the other parent has family and friends at the place they are travelling to who will be able to support them
- the other parent has the financial means to stay away or has taken a job at the destination
- the other parent 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 parent will go overseas with the child and not return, it can make orders that (for example):
- restrain or prevent the parent from taking the child out of Australia (an injunction)
- require the parent to pay an amount of money to the Court as security for the return of the child
- direct the person to give contact details, including phone numbers, an itinerary, addresses where the child will be staying and so on
- place the child's name on the airport watch list so that the other parent will be prevented from leaving the country with the child. (For more information on the airport watch list, see the Australian Federal Police Family Law Kit).
The other parent has taken our child out of the country and is refusing to return them. What can I do?
If a child does not return from overseas after a holiday, or is taken away overseas,the Australian government has procedures in place to assist parents who are concerned about the safety and whereabouts of the child.
The Australian Government has signed an international agreement with other countries called the Hague Convention on Civil Aspects of International Child Abduction 1980.
To find out 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 website.
For more information on what to do if your child has been taken to a Hague Convention country, see the International parental child abduction and child access page on the Attorney-General’s Department website.
If your child has been taken to a country that is not part of the Hague Convention (or does not have a special agreement with Australia for the return of children), go to the Australian Government Attorney-General’s Department website for more information.
International Social Service Australia can assist you with having your child returned to Australia if they were taken to a Hague Convention country. They do not charge for this service. They may also be able to assist with other arrangements and referrals if your child was taken to a country that is not a party to the Hague Convention. They can be contacted on 1300 657 843 or by email at email@example.com.
What is an injunction and can it help me?
An injunction is an order that a person not do something, such as take the child out of the State or country. To grant an injunction, the Family Court will need to be satisfied that it is in the Best interests of the child to do so.
If the situation is urgent, or you think the other parent may leave sooner if they find out you are trying to get an injunction to prevent the child from leaving, you may be able to get an "ex parte" hearing. This means a hearing in Court without the other parent being present or knowing about the application you have made.
Once the other parent has been served with an injunction order, if they then take the child out of the State or country against the terms of the order, they will be in breach. You would then seek a recovery order from the Family Court to have the child returned. Sometimes it may be appropriate to seek a recovery order from the Court at the same time as you make your application for an injunction – for example, if you are not sure you will be able to serve the injunction on the other parent before they leave with the child.
It is an offence to breach an injunction preventing a child from being removed from Australia. If a parent breaches any type of injunction, there are a number of things the Court can do, including:
- make them pay a fine
- make them pay a bond (money) into Court
- order that they provide you with make up time with your child
- order them to attend a parenting course
- change any existing Court orders
- send them to prison.
Injunctions can also be made against other people (known as “third parties”), such as grandparents, other relatives or new partners.
You should get urgent legal advice on your particular situation before making an application. If their departure is about to happen, you can go straight to the Family Court of WA in Perth where there is a Legal Aid WA Duty Lawyer service that may be able to assist you with an urgent application. See Family Court Services (duty lawyer).
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 to the Family Court 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, or
- 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 seven 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.
Forms and further 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.
I have taken my child out of the State/Country without the other parent's permission. What should I do?
If you have taken the child out of the State or Country without obtaining the other parent's permission, you should seek legal advice about your situation as soon as possible.
Where can I get more information or assistance?
Last reviewed: 23/10/2012