Recent amendments to the Family Law Act 1975 (Cth) have introduced greater consequences for parents who abduct children. The reforms extend a penalty of three years imprisonment to parents who retain a child overseas beyond their required return date in breach of an existing or pending court order or written agreement.
International child relocation from Australia to another country is primarily regulated by provisions of the Hague Convention on the Civil Aspects of International Child Abduction and the Family Law Act.
The Hague Convention provides a lawful procedure for seeking the return of abducted children to their home country. However, a return application can only be made if the child is retained in a country signatory to the Hague Convention, and the Convention is in force between that country and Australia. For a complete list of Hague Convention countries, see the Australian Government Attorney-General’s Department website.1 If the country is not a Hague Convention country, the return of a child may be regulated by a bilateral agreement between Australia and the country of relocation.
The Family Law Act deems it an offence for a parent to remove their child from Australia in breach of an existing or pending parenting order and without the written consent of the other parent. The penalty for breaching these provisions is a 3-year term of imprisonment.
There is a significant gap however in the law surrounding international child abduction from Australia. Where a parent removes their child from Australia with the permission of the other parent or court, but then breaches the condition to return their child by a certain date, they are not considered guilty of a criminal offence.
This gap has been remedied by the Civil Law and Justice Amendment Act 2018 (Cth) passed by the federal government last month. The Amendment Act repeals parts of the Family Law Act and replaces the sections with more comprehensive offence provisions. The provisions now extend the offences list to include situations where a child is permitted to travel abroad but is retained overseas beyond their agreed date of return and not returned home.
This means that if a child is taken out of Australia with consent but then not returned within the time required as agreed between the parties or under court orders, then that becomes a criminal offence punishable by three years imprisonment.
The new amendments also provide a defence for parents who remove a child overseas due to family violence fears. The extended offences list excludes parents or persons who have removed or retained a child from Australia in breach of an existing or pending parenting order where the person believes that it was necessary to do so to prevent family violence.
The amendments are a welcome reform to child abduction law and act as a deterrent for those parents considering unlawfully relocating their child.
For further information on how to make an application for international relocation, see our recent blog post, International Relocation: When does the Family Court Allow a Parent to Relocate Overseas with their Children? or contact one of our lawyers to have an obligation free discussion on your rights and responsibilities when taking a child overseas at +61 3 8393 0144.
- Australian Government Attorney General’s Department, Hague Convention on the Civil Aspects of Child Abduction https://www.ag.gov.au/FamiliesAndMarriage/Families/InternationalFamilyLaw/Pages/HagueConventionOnTheCivilAspectsOfInternationalChildAbduction.aspx.
