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Abduction overseas
If a parenting order exists it is against the law to move the children away from Australia without the written agreement of everyone covered by the order or by a further court order. This offence is punishable by jail. Get legal advice about what kind of written agreement the court will accept.
What you can do to prevent children from being taken overseas depends on the particular circumstances and how much time you have.
If your children are removed it is important to act quickly and get legal advice.
Passports
You can refuse to sign the children’s passport application: the signature of both parents is needed, unless there are exceptional circumstances.
If you think there will be a passport application without your consent you can ask the Passports Office (link below) for advice about putting the children's names on a ‘child alert’ list, which is valid for up to 12 months. The Passports Office will contact you if the other parent puts in a passport application without your agreement.
An alert means there is special scrutiny of an application. It does not guarantee that a passport will not be issued or prevent a foreign passport being issued if the children are eligible.
Other countries have different requirements for issuing passports. Contact the embassy of that country if you are concerned about the children travelling on a passport from another country.
Preventing children being taken overseas
If the children have passports, you can apply to the court for an urgent order to prevent your ex-partner (or other person) taking the children overseas. You can also apply for the children’s passports to be handed in to the court.
In urgent circumstances you can ask that the names of your children be put on a ‘watch’ list by the Australian Federal Police (link below). This will prevent the children from being taken through any air or sea port. You need to have a court order in place or be currently applying for an order for your child’s name to be put on the watch list.
Contact the Australian Federal Police and the Family Law Courts (link below). In emergencies, there is quick access to court services and the police.
International agreements
Australia has an agreement (known as the Hague Convention) with many other countries to stop the removal (without court order) or abduction of children from the country where they usually live.
The convention allows a parent to apply for the children to be returned to Australia if the children are taken to another convention country without agreement or kept in a convention country longer than agreed. It does not apply to children over the age of 16.
The Commonwealth Attorney-General’s Department (link below) has a list of countries that participate in the convention. You can contact the department for information on how to put in an application to have your children returned to Australia or to receive assistance if you are eligible. This is not something you should do without proper legal advice and representation.
Court orders for the return of children
The general rule is that if children are removed without agreement, or kept in a participating country, they must be returned. However, if you are applying for the children to be returned, you must show that:
- the children are aged 16 or younger
- you have ‘rights of custody’ over the children (parents of children are both usually regarded as having ‘rights of custody’)
- you are exercising those rights (or you would exercise them if the children were not removed)
- the children usually live in Australia
- you did not agree to the children being taken or kept overseas.
The other person may be allowed to keep the children overseas if:
- more than a year has passed since the children were taken, and an application filed by the other parent for their return, and the children are now settled in their new place
- you did not have ‘rights of custody’ or did not exercise them
- to return the children to where they used to live would put them at serious risk of physical or psychological harm
- the children do not want to be returned and have reached an age and level of maturity that requires the court to consider their views
- there would be a denial of the children’s fundamental human rights.
The process to have children returned from another country can be difficult. Some applications are not successful. You should get legal advice and support.
Abducted children brought to Australia
If the other country is a convention participant, the procedures are essentially the same, except that the central authority of that country will start proceedings, which are then heard in Australia.
Australian authorities pay the reasonable costs of the application. The applicant is responsible for costs in the home country and may be able to receive financial help there.
More information
Related publications
You and family law: a short guide
Related websites
Commonwealth Attorney-General – international child abduction
Passport Office – children’s passports
How we can help
Call Legal Help for free information over the phone about the law and how we can help you with your legal problem. You can speak to a legal information officer in English or ask for an interpreter. Phone (03) 9269 0120 or 1800 677 402 (country callers), Monday to Friday from 8.45 am to 5.15 pm.
Our other free legal services include:
- free contravention workshops about how to prepare a contravention application and represent yourself if your former partner breaching (disobeying) court orders
- legal advice at our offices and other locations across Victoria
- lawyers who are on ‘duty’ to help at many courts and tribunals.
For some matters we can provide you with a lawyer to help you run your case.
To find out more about any of our legal services see What we do.