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Child abduction, relocation and passport consents

Commonly asked questions about relocation, passport application and child abduction

Sometimes parents have to relocate for work or other personal reasons. The physical distance between the parents can have implications for how often a child is able to live with or visit the other parent. This can impact on existing child custody arrangements.

You should promptly seek legal advice when you or the other parent decide to relocate, where this relocation compromises the other parent spending time with the child on a regular basis. The court can get involved in relocation disputes, to prevent custody arrangements being changed without both parties’ permission, and to ensure the child continues to have a substantial relationship with the other parent.

If you wish to relocate and cannot come to an agreement with your former spouse about the arrangements, you can apply to the court for an order to allow you to relocate.

Similarly, you can apply to the court for an order to stop the relocation of your children, if your former spouse wants to relocate with your children, and you do not agree.

For such orders, the court makes its decision based on the best interests of the children. However, it may also take into account other factors that affect the welfare of each of the parents, including extended family support, employment and affordability of living in that location, as these factors may impact what is in the best interests of the child.

Children may not be taken overseas without the consent of both of the parents or a court order. Both parents must sign a passport application for children, or give consent for a child to travel overseas if the child already has a passport.

If you wish to travel overseas with your child, it is a fairly simple procedure to apply to the Family Law Court seeking orders to allow the passport to be issued and permission to be granted to travel. Your former partner cannot unreasonably deny their permission. In fact, you or your former partner can do significant damage to your case by unreasonably denying consent, if there are ongoing child custody proceedings.

However, if you or your former partner feel that there is significant risk in granting permission for the child to be taken overseas, or a real risk the parent may abscond with the child, legal advice should be sought immediately.

International child abduction is when a child is removed from Australia, or when a foreign child is removed from their country of origin to Australia, without the permission of both of the child’s parents. Child abduction can occur before the other parent is even aware of their former partner’s intention to leave Australia. The key element of international child abduction is when the child is taken out of the country in which he or she was “habitually resident”.

The main aim of the Hague Convention is to return children who have been wrongly removed from one Convention Country to another Convention Country promptly. Not all countries have signed the Hague Convention – a complete list of Convention Countries can be found in Schedule 2 of the Family Law (Child Abduction Convention) Regulations 1986.

This means that if a child who normally lives in Australia is abducted overseas to a country that is a signatory to the Hague Convention, then the “Central Authority” in Australia will work with its counterpart in the respective country to recover the child and bring him or her back to the country in which they were habitually resident when they were taken.

It is imperative that you seek legal advice urgently in all child abduction cases.

You should seek legal assistance urgently if you have any concerns about your children being removed from the country. You can file an application with the court for parenting orders, if they are not already in place, or seek to have them amended and request an Airport Watchlist Order.

Upon filing your application seeking an Airport Watchlist Order, you can provide a copy of the sealed court application to the Australian Federal Police, who will immediately place the children’s names on the Airport Watchlist. This can occur prior to your first court date. This will prevent your children being able to leave Australia without a further order of the court. Stacks can assist you with this process.

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