A child in Australia is unable to depart Australia without having the consent of both parents or those who have parental responsibility.
To prevent the unauthorised removal of a child from Australia, a parent can apply to the Court for an order to place the child’s name on the airport watchlist.
What is the Airport Watchlist:
The airport watch list is a system wherein the child’s name will be placed on the airport watch list of the Australian Federal Police (“AFP”). A departing parent or party who attempts the unauthorised removal of a child from Australia will be stopped at the airport and unable to leave.
A child’s name may be placed on the Family Law Watchlist in the following circumstances:
- A Court has issued an Order limiting or preventing the child’s travel;
- A Court has issued an Injunction limiting or preventing the child’s travel;
- There is an Application before the Court seeking to limit or prevent overseas travel of the child;
- There is an Application before the Court seeking an Order to place the child on the Family Law Watchlist; and/or
- There is an Order or Injunction limiting or restricting the child’s travel overseas which is under an appeal.
To place your child on the Family Law Watchlist, you must:
- Complete a Family Law Watchlist request form; and
- File an Application with a Court seeking to limit or prevent the child travelling overseas and includes a request that the AFP place the child’s name on the Family Law Watchlist; or
- Obtain a Court Order that limits or prevents overseas travel of the child and includes a request that the AFP place the child’s name on the Family Law Watchlist.
A Watchlist Order may be absolute or conditional. For instance:
- An absolute Order will prevent the child travelling altogether.
- A conditional Order will allow for the parents to provide authenticated consent which will remove the child from the Watchlist for a defined period of time. This consent is a statutory declaration signed by both parties which can be provided to the Federal Police proving that both parents consent to the child leaving Australia for a particular period of time.
Once an Application has been made to the Court that is seeking a child’s name to be placed on the Family Law Watchlist, the Family Law Act restrains all parties concerned from taking the child out of Australia.
In accordance with the Family Law Act, it is a Commonwealth offence for a person to take or send a child from Australia in the following circumstances:
- There are Court proceedings for parenting Orders;
- There is an appeal in the Court in relation to parenting Orders; or
- It is contrary to Court Orders whereby a child has been limited or prevented from travelling overseas.
Should a parent disregard Court Orders which limit or prevent a child from travelling overseas and take a child or send a child out of Australia, then their conduct may result in contempt of Court.
How to check the Airport Watchlist:
To establish whether a child is on the Family Law Watchlist, you or your lawyer will need to complete a Family Law Watchlist Enquiry Form. The results of your enquiry will be subject to non-distribution or publication of information related to family law proceedings.
You must provide a certified copy of a Government issued identification, such as a Drivers Licence or Passport. If possible, and to assist your enquiry, it is recommended that you also provide a copy of the Application or Order that places your child or children on the Family Law Watchlist.
Completed forms must be emailed or faxed to the AFP.
Considering Overseas Travel:
Should you be considering overseas travel with your child, it is strongly recommended that you obtain legal advice well before the intended travel period. It is also important that you are aware of your obligations if your child is on the Family Law Watchlist. For instance:
- Providing the Australian Federal Police with the child’s passport details, any aliases and your 24 hour contact number and details;
- Notifying the Australian Federal Police of any changes to your personal details;
- Notifying the Australian Federal Police of any new Orders that may affect your child’s status in the Family Law Watchlist; and
- Informing the Australian Federal Police of your intention to travel (where travel is permitted by a Court or Consent) no less than 10 working days before your departure.
If you wish to remove your child’s name from the Family Law Watchlist, it is generally required that you obtain a further COURT Order removing that child’s name from the Watchlist.
you are concerned that your child is about to be taken overseas without your
permission and in contravention of a Court Order and the Courts are closed, you
should immediately seek legal advice. If you have an urgent Family Law matter
after hours, you can contact the Family Law Courts’ after hour’s service or
your local Police.
What is a Hague Convention case?
The Hague Convention on the Civil Aspects of International Child Abduction is an international treaty under which arrangements are made for the return of children who have been wrongfully removed from or retained outside their country of residence.
The Convention sets up a central authority in each signature country to deal with applications for the return of children taken to or from each country. The Australian Government Attorney-General’s Department is the central authority for Australia.
Guiding principles and objectives
The Hague Convention operates on the guiding principles that:
- the child’s welfare is best protected by a rapid response to a parent having removed a child from their country of habitual residence, and
- child abduction in general must be prevented.
The Convention aims to:
- Secure the prompt return of a child wrongfully removed to or retained in a country which is party to the Convention (‘contracting state’) to the country (‘state’) of habitual residence;
- Ensure that rights of custody and/or access of the state of origin are respected, with judgement on the custody to be rendered in that country, on the assumption that the court in the country of habitual residence is best able to make decisions for the child, and
- Ensure the relevant court in the country of habitual residence is best able to make decisions for the children.
The Convention operates under the following specific conditions:
- It applies only between contracting states, and so only has force where both countries are signatories to the Convention;
- It applies only to matters where the subject child is under the age of 16. Proceedings under the Convention cease on the day a child turns 16; and
- The child must have habitually resided in a contracting state directly before rights of custody or access were breached.
A judicial officer hearing a Hague matter may indicate early in the process that dispute resolution may be of assistance to parties, not just in relation to the matter of return but in relation to parenting matters generally. The judicial officer would encourage the parties to agree on a dispute resolution process. Due to the timeliness of any Hague intervention, there are occasions where it is more suitable for a family consultant (who has undertaken specific training in dispute resolution) located within Child Dispute Services, to undertake the work. Other services in the community are well placed to provide such services but may not be well placed to provide the service in a timeframe that aligns with judicial timeframes and expectations.
If the matter is suitable for referral to Child Dispute Services, a notation is made in the Orders that the parties agree to the process.