My child has been wrongfully removed from Australia without my consent: what do I do?
If your child has been wrongfully removed from Australia, an application may be possible for the return of the child, using the international treaty called “The Hague Convention on the Civil Aspects of International Child Abduction” (“the Hague Convention”). And so, the first question to be asked is: is your child in a country that is a signatory to the Convention?
The Hague Convention is administered by a central authority in each convention country. In Australia, the federal Attorney-General’s Department is the central authority that deals with such applications. The central authority will assess your application, by reference to the specific criteria of the Convention. If your application is accepted, it will be sent to the relevant authority in the country where the child is believed to be, and this may take some weeks.
The central authority in that country will then take appropriate action, depending on the circumstances of your case, either attempting to contact your ex-partner and propose mediation; or by filing an application in a local court for the return of the child. There may be a need to have a hearing, when your ex-partner may also file evidence.
If your application is successful, the foreign court will order your ex-partner to return the child into your care.
The foreign court may refuse to return your child for a number of reasons. For example, if the child is settled in that country and has been there for more than 12 (twelve) months. And so, it is vital to act quickly and seek legal advice as soon as possible, if your child has been wrongfully removed from Australia.
If your child has been taken to a non-convention country, then you may have to engage a local lawyer to commence proceedings in that country for the return of your child. This will mean that your case is subject to the laws and procedures of that country.
I fear that my child will be taken overseas without my consent: what do I do?
If you believe your child is at risk of being abducted overseas, you must act quickly and you should immediately check that you are holding the child’s passport. If not, the Australian Federal Police may be able to assist you in preventing your child from being removed from Australia, by arranging for your child’s name to be placed on the Family Law Watchlist. Once your child is on the Watchlist, he or she will be prevented from travelling overseas.
To have your child’s name placed on the Family Law Watchlist, you must first obtain a court order or else file a court application. This may need to be done urgently.
My child does not have a passport yet: is there anything else I can do?
If you do not want your child to be issued with a new passport without your consent, due to fears of your ex-partner absconding overseas, you can send a warning to the Department of Foreign Affairs and Trade that there may be circumstances that need consideration before the issuing of an Australian passport. This request can only be made if you have parental responsibility of the child. However, such a request does not guarantee that the child will be refused a passport.
If you have concerns about your child being taken abroad unilaterally, you must act quickly and contact a family lawyer. Dimocks Family Lawyers can assist you through this process. Book an initial conference today.