Risk of child being taken overseas
Child abduction is a serious matter. If you think there is a risk that children are going to move or travel, and not return, you should get urgent legal advice as soon as possible.
If you are worried that someone is thinking of taking your children and moving somewhere else in Australia (or overseas) without your agreement, or without permission from the Family Court, you may be able to get a temporary court order to stop the children going. This might also apply if you are a grandparent or other relative who is important in the children's lives.
Quick Answers Video: If you are worried your child will be taken overseas
|Download the fact sheet for this video|
This page has information to help you understand what you can do before children move, travel or are taken away. Find out:
- what orders the Family Court can make to stop children travelling or moving,
- how you can find out if someone is trying to get a passport for your child.
What can I do if someone is planning to relocate the children without my permission?
The Family Court can issue an injunction to stop someone taking the children when they relocate or travel. You can apply for an injunction even if there are no parenting orders in place.
The court will not make an injunction lightly. You will need to show that it is likely the other parent is going to take the children away from where they normally live (usually interstate or overseas) and not return. That is, it is not just a normal holiday. This can include evidence that they:
- did not discuss the travel arrangements with you or tell you about their plans
- have purchased one-way travel tickets (and not return tickets)
- have told you they are going on a holiday, but refuse to give details about how long the trip will last, what they are doing or where the children will be staying
- have made decisions that suggest they will not be coming back (for example, selling their house or giving up a lease, selling or moving their belongings into storage, closing bank accounts, telling schools that the children will be changing schools)
- have family and friends at the proposed destination to help them set up a new life
- have the financial means to support themselves and the children, or has employment offers or prospects at the proposed destination, or
- are travelling overseas to a country that is not a signatory to the Hague Convention on the Abduction of Children, which will make it harder to have the children brought back to Australia without the other parent's help.
In some situations, you can ask the court to make an injunction without having to tell the other person about the application. This could be because:
- the matter is urgent, and there is not enough time serve the application before the children will move, or
- you have good reasons to think the other person will leave straight away, or try and hide the children, if they are told about the application.
You should get legal advice before making any application for an injunction.
What orders can the Family Court make?
If the court decides there is a real risk the other parent will move away with the children and not return, it can make orders:
- making the other parent give details about their travel plans, including an itinerary and contact details of the places and people where the child will be staying
- for the other parent to pay the court a bond as security for the children to be brought back after travelling away
- stopping or preventing the children from being taken interstate or overseas, until the court says otherwise
- issuing a recovery order, for the children to be returned into a person's care
- for any passports or travel documents issued to the children or other people to be given to the Family Court, or
- to have the children's names added to the Australian Federal Police Family Law Watch List, to stop international departures by air or sea.
Once the injunction has been served on the other person, it can be enforced like other parenting orders. There can be serious consequences for breaching court orders.
How can I stop someone getting passports for the children?
Both parents need to sign an application for an Australian child passport. You can refuse to sign an application for the children to be given Australian passports.
If you believe someone might try to apply for an Australian child passport without your consent, you can ask the Australian Passports Office to put the children’s names on a child alert list for a period of 12 months. Once on the alert list, you will be told if an application for a child passport is made, but there is no guarantee that the passport will not be issued.
If the children are entitled to a passport from another country, you should contact the country's nearest embassy or consulate to find out how you can stop a passport being issued.
What if the children have already left, or I don't know where they are?
If the children have already been moved, or you do not think you will be able to serve the injunction on the other parent before they relocate, you may need to apply for a recovery order to have the children returned.
If you do not know where the children currently are, you may be able to get a location order from the Family Court to be given information to help find them.
Reviewed: 22 October 2021