Last updated 1 April 2022
When a person has allegedly abducted a child, full details of the alleged abductor and the child should be sent immediately to the nearest office of the Australian Federal Police (AFP). As soon as possible, a certified copy of the relevant ‘live with’ order, recovery order or court application should also be sent to the AFP. Details of the child and parent are then maintained on a warning list for a period of three months, unless a further request is received by the AFP. If there is a parenting order that provides for a child to live with or spend time with a parent/other person, or there are proceedings pending, and there is a fear of abduction overseas, the child can be placed on an airport alert list by contacting the AFP.
A temporary customs watch (known as a PACE Alert) can be requested following the filing of an application seeking orders restraining the removal of a child. That order will remain in place until seven days after the scheduled interim hearing date, unless a specific order is made and forwarded to the AFP and Customs (contact the AFP for the required information to make such an application).
The Family Law Act 1975 (Cth) (Family Law Act) imposes penalties on transport authorities involved in the removal of children when they have been served with copies of the court orders (s 65ZA Family Law Act).
Under the Australian Passports Act 2005 (Cth) (Australian Passports Act), an Australian passport will not be issued to an unmarried person under 18 years of age (the child), unless each person who has parental responsibility for the child consents to the child having an Australian travel document, or an Australian court order permits the child to have an Australian travel document, travel internationally, or live or spend time with another person who is outside Australia (s 11 Australian Passports Act). A person has parental responsibility for a child if, and only if:
- the person is the child’s parent (including a person who is presumed to be the child’s parent) and has not ceased to have parental responsibility for the child because of an order made
- under a parenting order, the child is to live with the person, the person has parental responsibility for the child or the person has guardianship or custody of, or has parental responsibility for, the child under a law of the Commonwealth, a state or a territory.
Where a father is not named on a child’s birth certificate but has formally acknowledged paternity by signing a document to this effect, he has parental responsibility for the purposes of the Australian Passports Act.
Institutions, such as a government welfare agency, may also have parental responsibility under an Australian court order.
Where persons with parental responsibility are in separate locations, the non-lodging parent may provide consent through their closest passport office or Australian diplomatic or consular post.
Where one parent refuses to cooperate in making an application for a passport to be issued to a child, the other parent can make an application to the court (an Initiating Application (Family Law) seeking both final and interim orders with a supporting affidavit) seeking that the court authorise the child to leave Australia and for a passport to be issued. If necessary, orders should be sought pursuant to s 106A of the Family Law Act authorising a registrar of the court to sign documents on behalf of a party who is refusing to do so.
If the consent of anyone with parental responsibility for the child cannot be obtained after all avenues have been exhausted, and there is no court order permitting the child to be issued with Australian travel documents, a written request for special circumstances under s 11(2) of the Australian Passports Act may be made. An officer delegated by the Minister for Foreign Affairs will consider the statement in support of the request to determine if a passport may be issued without the other person’s consent.
It is important to consult with the Department of Foreign Affairs and Trade before filing such an application to ensure the orders sought are sufficient to meet the department’s requirements. Except in exceptional circumstances, the party who has not cooperated should be given notice of the application.
When a parent suspects that the other parent might apply for a passport for a child in order to remove the child from Australia, the parent should:
- lodge a child alert request with the Department of Foreign Affairs and Trade to warn the department that there may be circumstances preventing the issue of a passport for the child. However, there is no guarantee that the placing of a child alert will prevent a passport or other travel document being issued to the child
- seek injunctive relief in the Family Court to restrain the removal of the child.
For further information visit the Department of Foreign Affairs and Trade passports website.
International child abduction
If a person has wrongfully taken a child from or to Australia, the Family Law (Child Abduction Convention) Regulations 1986 (Cth) may facilitate the return of that child to their home.
These Regulations, which incorporate the Hague Convention on the Civil Aspects of International Child Abduction into Australian law, establish a reciprocal system whereby countries agree to assist each other in returning abducted children to their homes.
In Australia, all incoming and outgoing applications for return of a child are assessed by the Commonwealth central authority, which is part of the Commonwealth Attorney-General’s Department.
The central authority has clear and significant powers to apply for location orders where it is unknown to which country a child has been abducted (s 67K(2) Family Law Act).
An application for return of a child from a non-convention country should be made in accordance with the laws that apply there, and it may be necessary to employ a lawyer in that country to take legal proceedings to recover the child. The consular section of the Department of Foreign Affairs and Trade may be able to provide a list of lawyers in that country. Unfortunately, this process can be more complicated, time consuming and expensive than the process under the convention. Further information is available from the Commonwealth Attorney-General’s Department website.
Support services for parents whose children have been abducted are available through the International Parent Child Abduction Service provided by International Social Service Australia.
In certain circumstances, overseas child abduction will attract criminal penalties on the abducting party (ss 65Y, 65YA, 65ZAA Family Law Act)