International relocation and child abduction
After separation, a parent or guardian may decide to move the children of the relationship overseas. However, this can only be done with the fully informed consent of the other parent, guardian or a court order. International child abduction occurs when a parent or guardian takes their children from their home country without this permission.
The Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention) provides a process for seeking the return of children who have been abducted either from or to Australia. The information below provides a guide on this process, however we strongly recommend you seek legal advice immediately as this area of law can be complex.
International Relocation
If you are separated from your partner and want to relocate overseas with your children, you must have the consent from your ex-partner or a court order, otherwise your ex-partner can request the Australian Central Authority to make an application to have your children returned to Australia. This is the Department responsible for administering the Hague Convention.
If your ex-partner does not consent to an overseas relocation, you can apply to the court for an order allowing you to relocate. When the court decides an Application for International Relocation, they are deciding on a parenting matter and like all other parenting matters, the most important concern for the court is determining the child’s “best interests”. For example, if the parent who is the main caregiver wishes to relocate overseas with the children, one of the main concerns for the court is to ensure the children maintain a meaningful relationship with the other parent whilst they are living overseas. The court’s decision can also be affected by circumstances such as family violence, substance abuse, the child’s views and specific needs.
In preparing your Application for international relocation, you need to demonstrate to the court what life will be like when living overseas, for example, where you will be living, working, your potential income and the type of school your children will attend. You should also demonstrate what the children’s social lives would look like and what type of support will be available for the children and more importantly, how the children will maintain and develop a relationship with the other parent.
As mentioned above, international relocation cases are a complex area of law so we strongly recommend you seek legal advice.
The Hague Convention and abducted children
The Hague Convention is the main international agreement that covers international parental child abduction and provides a process through which a parent or guardian can seek to have their child returned to Australia, (if that country is also party to the Hague Convention).
What can I do if my child has been abducted from Australia?
You should carry out the following steps immediately:
- Contact the Australian Federal Police for advice on placing your child’s name on the “Family Law Watchlist.” You will need to apply for a court order for this to happen. Your child might still be in Australia so their abduction may still be prevented.
- Seek legal advice from an experienced lawyer who can assist with obtaining recovery orders and provide you with legal guidance.
- If your child has been taken to a country that is a member of the Hague Convention, contact the Australian Central Authority. For a list of countries who are party to the Hague Convention, visit the Hague Convention webpage.
- If you believe your child has been taken to a country not a member of the Hague Convention, contact the Consular Branch of the Department of Foreign Affairs and Trade who will be able to assist you.
Time is of the essence in international abduction cases. As this area of law is complex, we strongly recommend you seek legal advice from an experienced lawyer immediately.
Conclusion
The law regarding international relocation of children is complex, and the outcome of any dispute is dependent on each family’s own set of unique circumstances. Relocating children overseas can only be done with the fully informed consent of the other parent, guardian or a court order.
When children are taken overseas without the consent of the other parent or the court, the Hague Convention provides a process through which a parent can seek to have their child returned to Australia. If the country that the child has been abducted to is a not a member of the Hague Convention, the Consular Branch of the Department of Foreign Affairs and Trade will assist in attempting to bring the abducted children back home.
If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.
