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This document summarises some of the more commonly asked questions regarding international family law. Refer to the useful links section of our website for more general information on international family law. If your question is not answered here or you need further advice, please phone us on 02 6651 8440 or email info@bryantmckinnon.com.au.
The Hague Convention on the Civil Aspects of International Child Abduction (referred to in this document as simply the Hague Convention) is a multi-country agreement that sets out a legal procedure for seeking to return abducted children to their home country. The Convention also provides guidelines for international child access, when parents or guardians live in different countries. Click the link to access a full list of countries in the Hague Convention.
The first step is to report the matter to your local police immediately. Once you have done this, here are some additional steps you can take:
The Australian Federal Police maintain a Family Law Watchlist. If your child has not yet left the country, the watchlist will alert police when an attempt is made to take your child out of the country. You will need to complete the Family Law Watchlist Request Form and you may also require a Court Order.
The federal government may be able to assist. If your child has been taken to a country that is a signatory to the Hague Convention then the Australian Central Authority Overseas Child Abduction Scheme in the Attorney-General’s Department is responsible. If your child has been taken to a country that is not a member of the Hague Convention, you may get assistance from the Consular Branch of the Department of Foreign Affairs and Trade.
We strongly recommend that you seek legal advice to help you navigate Court Orders and provide you with ongoing counsel. Neither the police nor the federal government will be able to provide legal assistance. International Social Service (ISS) Australia provides a range of services, including free legal assistance in child abduction cases.
If you believe your child has been wrongfully abducted to a Hague Convention country you must submit an Application Form to the Australian Central Authority (ACA). The ACA will only accept cases that meet their guidelines. Check this Guide for Applicants before submitting your application. If the ACA agrees to accept your application, then the process that follows is likely to be lengthy and may include mediation as well as multiple court hearings. Your child will return only once there is a voluntary agreement or a Court Order.
Some of the reasons why the court may decide not to return the child are:
Australia has bilateral agreements on international parental child abduction with Egypt and Lebanon. The ACA is also responsible for assessing applications related to these agreements. For all other non-Hague Convention countries limited consular support is available through the Department of Foreign Affairs and Trade. The type of help provided will depend on the relevant country’s legal framework, but it may include providing a list of local lawyers, and helping you to communicate with local authorities and child welfare agencies. The 24-hour consular service telephone number is 1300 555 135.
Australia has arrangements with certain prescribed overseas jurisdictions that allow parenting orders made in those jurisdictions to be registered and enforced in Australia. If you have a court order from one of these jurisdictions, you can apply to the International Family Law Section of the Attorney-General’s Department to have the order registered in Australia. You will generally need to provide certified copies of the order and a certificate from the originating court confirming that the order is enforceable in that jurisdiction. Parenting orders made in other Hague Convention countries may also be registered in Australia through the Hague Convention process via the Australian Central Authority. If your order cannot be registered, you may need to apply for a new parenting order in Australia, either by obtaining consent orders signed by both parties or by filing an application in the Federal Circuit and Family Court of Australia.
If you have been served with court documents naming you as a person who has abducted a child you should seek legal assistance immediately. International Social Service (ISS) Australia offers a range of services, including legal aid, mediation and negotiation services. The information for responding parents page of the Attorney-General’s website offers further information, including a summary of grounds for non-return.
Both the Australian Central Authority (ACA) and the International Social Service (ISS) offer services free of charge. However, the cost to manage your case in the country to which you are applying may not be covered by the central authority of that country. In this case, you may be able to apply for legal aid in that country, or assistance under the Attorney-General’s Department’s Overseas Child Abduction Scheme.
If you are unable to pay for airfares, the Attorney-General’s Department may ask the person seeking the return to pay the airfares. If this is not possible, you may be able to apply for Australian government financial assistance under the Overseas Child Abduction Scheme.
If you fear that your children may be abducted, it may be possible to have their names placed on the Australian Federal Police Family Law Watchlist, which alerts police to the movement of children and enables the absolute or conditional prohibition of travel. We recommend that you seek legal advice, as a Court Order may be required to have your child’s name(s) added to the Family Law Watchlist.
Yes, unless you have a Court Order or Parenting Plan that specifically states otherwise. We recommend that, in addition to finding out what permission is required when leaving Australia with children, you find out what permission is required when entering another country with children.
The Australian Department of Foreign Affairs and Trade requires consent of both parents before issuing a passport, except where allowed by an Australian Court Order or in special circumstances. If your children do not already have passports and you are concerned that your ex-partner is going to apply for them without your consent, you can request a Child Alert with the Australian Passport Office.
The Hague Convention has a process to allow parents to seek access orders in the child’s home country, allowing them to have access. Access arrangements could include visits, email, phone or video calls. The Australian Central Authority may be able to assist you in gaining access to a child in a Hague Convention country, or in Egypt or Lebanon, where Australia has separate bilateral arrangements. If your child is in another country, you should consider getting private legal advice in the child’s home country. You may be able to get consular support from the Department of Foreign Affairs and Trade, or legal advice from International Social Service (ISS).
If you live in a reciprocating jurisdiction and the other parent lives in Australia, you can apply to get child support through the maintenance authority in your country using the international application for an Australian child support assessment form available from Services Australia. If you live in a non-reciprocating jurisdiction, contact Services Australia to obtain and complete the international application for an Australian child support assessment form. Once completed, you can fax, post or email the form and any relevant information to Services Australia.
This information is general in nature and does not constitute legal advice. Laws and procedures may change after publication, and some information may not apply to your particular circumstances. Please contact our office if you would like to arrange an appointment to obtain advice specific to your situation.