By Gianna Huesch
You may have heard of the Family Law Watchlist, previously known as the Airport Watchlist, and wondered exactly what it was. The Family Law Watchlist is simply a system that’s in place to help prevent the unlawful removal of children from Australia. Maintained by the Australian Federal Police, the Watchlist alerts the police to any potential attempts to take children out of the country in contravention of court orders.
Conditions on when or how a child can travel are usually contained in parenting orders issued by the court. Under the Family Law Act 1975, it is a Commonwealth offence punishable by up to three years’ jail for a person to take or send a child out of the country contrary to a parenting order which has limited or prevented overseas travel. This includes where court proceedings for a parenting order are still pending or where there is an appeal pending against a parenting order.
The procedure to place your child on the Family Law Watchlist is very technical and obtaining legal advice is highly recommended. First, you need to have a parenting or other court order in place which not only limits the child’s overseas travel but also contains a request for the AFP to place the child on the Watchlist. Even if you do not have existing court orders you can make a fresh application to Court seeking orders that a child be placed on the Watchlist. The order needs to use very specific wording required by the police, including an explicitly defined time period (usually 2-3 years). After an order is obtained, it’s then necessary to complete a Family Law Watchlist Request Form.
Once you’ve filed an application to place your child on the Family Law Watchlist, it is in fact your responsibility to provide that application, under the seal of a court and with the appropriate forms, to the AFP. The courts do not send the application to the AFP. Once the application is filed, all parties are restricted from taking the child out of the country.
If your child is on the Family Law Watchlist, whether your child can travel overseas will depend on the orders that were made. There may be unconditional orders absolutely preventing overseas travel, and necessitating a further court order permitting travel and/or removing the child from the Watchlist. In other cases, there may be an order preventing the travel unless certain conditions are met (such as with the consent of all parties). In these cases, the AFP requires evidence that the required conditions have been met. It’s important to remember that the police do not have access to the court’s files outside business hours and can only act on the documentation in their possession. For that reason, if you have consent to travel, it’s highly recommended that you carry with you copies of all relevant documentation such as court orders and evidence that the other parent has consented.
Removing your child from the Watchlist depends on how the child was first placed on the Watchlist. For example, if the child was placed on the Watchlist by an injunction, it’s necessary to obtain a further court order removing the child from the Watchlist. In cases where the time was limited, the child is removed from the list on the expiry date of the time period. In cases where there is no such ‘sunset clause’, the order will remain in place til the child reaches the age of 18.
If you are unsure whether your child is on the Family Law Watchlist, you can complete and submit a Family Law Watchlist Enquiry Form to the AFP.
Aside from the Family Law Watchlist, there are a range of other ways the police can help in family law matters to prevent the unlawful removal of children from Australia, including issuing Recovery Orders and Arrest Warrants. For comprehensive information on what the police can do to help in relation to family law matters, please see their page: https://www.afp.gov.au/what-we-do/crime-types/family-law-kit.
Other avenues for action with regard to preventing your child travelling overseas include obtaining a Child Alert Request through the Department of Foreign Affairs & Trade (see the DFAT website for more information). A child alert provides a warning to DFAT that circumstances may exist which prevent the issue of an Australian passport to a child, but a child alert does not place the child on the Family Law Watchlist. It is highly recommended that you discuss all your options with your lawyer.
If you are worried that your child may be taken out of Australia without your permission and in contravention of a court order, please contact Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400 as soon as possible.
If you have an urgent family law matter after hours, you can contact the Courts’ after hours service on 1300 352 000 (excluding WA) or 1800 199 008 (WA only). These numbers should only be used in emergencies, such as when an urgent order is required when there is a risk of a child being removed from Australia before the next working day.
(Please note: Our blogs are not legal advice. For details about how to obtain correct legal advice please arrange a free conference with Alliance Family Law.)
