If your former partner has threatened to remove your child from the Commonwealth of Australia, it is important that you act swiftly to ensure that does not eventuate, particularly if the destination country is not a signatory to The Hague Convention on the Civil Aspects of International Child Abduction ('the Hague'), which is the main international agreement that covers international parental child abduction. The Hague provides a process through which a parent can seek an order for the return of their child to Australia.
What is a Watchlist Order?
A Watchlist Order is an order made by the Federal Circuit and Family Court of Australia for your child's name to be placed on the Australian Federal Police list ('Airport Watchlist') at all ports of departure from Australia. If your child's passport is used to travel through an Australian port (e.g. airport or sea) the child will be stopped and secured by the Australian Federal Police.
What should I do if a threat has been made?
If you have immediate concerns i.e. they are on their way to the airport, please immediately contact the Police. You can also contact the Federal Circuit and Family Court of Australia urgent after-hours application helpline on 1300 352 000. This number should only be used if your child's removal is imminent.
If a threat has been made which is not imminent, you should expeditiously file an Initiating Application with the Federal Circuit and Family Court of Australia seeking an order for your child's name to be placed on what is referred to as an 'Airport Watchlist'. Especially if your child has a current valid passport, whether that be an Australian passport or from another country.
What documents do I file?
The documents you will need to file to obtain an urgent order will include the following:
- An Initiating Application which will set out the orders that you are requesting the court to make. This will include the 'Airport Watchlist' order restraining the unlawful removal of your child from Australia but should not be the only orders sought.
- A Notice of Child abuse, Family Violence or Risk.
- An Affidavit by you. Your Affidavit will set out the threats your partner has made and provide the Court with details of the passport issued in your child's name, where it is held and the connection your former partner and child has with Australia and the destination country.
More often than not a 'Watchlist' order is sought due to an immediate concern. As such, you will need to ask the Court for an urgent listing of your application or that your application be considered by the Court without notifying the other party (ex-parte). You will also need to seek a waiver of other pre action procedure requirements - such as mediation - due to the urgency.
Once your application has been filed, you must serve a copy on the Australian Federal Police. Your child's name will temporarily be placed on the 'Watchlist' pending the outcome of the Court hearing. This is an important step not to be forgotten. The Court will not notify the Australian Federal Police for you.
Is a watchlist order final?
A 'Watchlist' Order is final if it is made as a final Order. If an interim order is made, this Order can be later discharged either by consent of the parties or by an Order of the Court on application by one of the parents.
The 'Watchlist' Order can prevent your child travelling at any time, or travelling without properly authorised documented consent of both of the child's parents.
Is it an offence to remove a child without consent?
It is a criminal offence for a person to take, or send, a child from Australia when:
- There is a final Order restraining a parent from re moving a child; OR
- There are pending Court proceeding in relation to parenting matters OR
- There is a pending Appeal against final Parenting Orders.
These offences are punishable by up to three years imprisonment.
What happens if my child has already been removed?
The avenues available to you will depend on where your child has been taken. If the destination country is a signatory (Australia is one of approximately 80 signatory countries) to 'The Hague Convention' on the Civil Aspects of International Child Abduction. Australia will work with the Central Authority in the destination Country to commence proceedings for the return of your child. For more information about the Hague, go to our blog.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.