There have been recent changes to the Family Law Act 1975 regarding children’s overseas travel, which carry jail terms.
New offences under s65YA and 65YZ of the Act came into effect at the end of April which relate to sending a child overseas or keeping a child overseas when there are no court orders permitting travel, or there is no consent from the other parent, or when there are no pending parenting proceedings in the courts.
The new offences remedy what had been a gap in the existing legislation. The existing legislation had not permitted a child’s overseas travel if parenting orders were in force, or if court proceedings had been commenced, unless a court order had been obtained which specifically permitted the child to travel or unless a person with existing parenting orders had provided consent in writing.
A strong penalty already applied in those situations, namely up to three years of jail time. Now, the offences extend to it being an offence to retain a child overseas beyond the expiration of an order or consent from the other parent, and will include situations where parenting proceedings have not been started. This includes situations where the child was actually first removed from Australia lawfully.
These new offences extend to others who have acted on behalf of the removing/retaining parent—in effect making them an accessory to the child’s abduction. This includes unrelated professionals such as aircraft or ship owners, charterers or captains, if they have been properly notified that the child may not travel. It may also be an offence simply to attempt to send or retain a child overseas without consent.
There are some exceptions to the offence, such as if the person retaining the child overseas believes it is necessary for reasons of family violence, or if the conduct can be shown to be reasonable in the circumstances as perceived by the retaining person.
The Civil Law and Justice Legislation Amendment Act 2018 has also been amended to create the new offences.
Passports are not issued under the Family Law Act but are administered by the Australian Passports Act 2005. Under that legislation, Australian children may be issued with a passport if they meet certain requirements. This includes consent from the person with parental responsibility for the child or the issuing of a court order in relation to the travel.
Child alert request
Where there are no court orders, there are circumstances in which a child may be issued a passport by the Australian Passport Office where a parent or other person with parental responsibility has not provided consent. Parents who fear their co-parent will apply for a passport for a child without consent can place a child alert through the Australian Passport Office, which represents a warning to the Department of Foreign Affairs and Trade that there could be circumstances to consider before issuing a passport for the child. For more information on children’s passports, see the Australian Passports Office.
Seeking court orders to travel overseas and obtain a child passport
If there are no court orders permitting travel, and a person with parental responsibility for the child has not consented to the travel, it may be necessary to seek an order from the court. The appropriate orders vary depending on whether the parents have equal shared parental responsibility for the child. In situations where there is sole parental responsibility and no order for overseas travel, the person with parental responsibility must seek orders for overseas travel and orders authorising their application for a passport.
Other issues to consider
- The parent’s country of birth
If a parent is born overseas, a child might be eligible to be issued passport from the other parent’s country of birth, even if the child was born here. Some countries do issue passports to kids even if only one parent applies. If this applies to you, you should contact the relevant embassy for advice on their policy and whether they issue child alerts too.
- What to include in consent orders
Travel consent orders often include the need for the travelling party to advise the other parent of the proposed travel in advance, provide itineraries and addresses and contact numbers of where the child will be staying overseas. They may also include times the child may phone or Skype the non-travelling parent. Parents who do agree to overseas travel but are worried the child will be taken overseas with short notice can have orders included that the non-travelling party hold the passport and only release it on written request by the other party.
- Hague Convention
Some orders ensure the child can only travel to countries party to the Hague Convention on International Child Abduction. However, this does not stop the parent from taking the child to a non-Hague country after they leave Australia.
- If you have any concerns your child may be retained overseas, seriously consider refusing to provide consent.
If you still permit the travel, you should discuss with your lawyer whether the travelling parent should have orders drawn up relating to the travel, or even have the travelling parent pay a security bond (paid into a solicitor’s trust account or controlled monies account) in sums large enough to cover potential legal fees relating to instituting court proceedings in the country where the child was retained. However, this may be cold comfort if you find yourself in the situation where your child is retained. It is likely to be more prudent to prevent the travel occurring in the first place.
Source: Legal Aid NSW
If you need assistance with any potential family law issues relating to your child’s overseas travel, please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Legal Services on (02) 6223 2400.
Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Legal Services.