Preventing unlawful removal of children from Australia

Do you have concerns that your child may be removed from Australia against your permission? Have you agreed to your child traveling overseas with the other parent but there is a genuine fear that they may not return your child to Australia?

We understand that this would be a stressful situation for any parent.

If so, it may be important that you act immediately to prevent this. You will need to obtain a Family Law Watch List from the Family Law Courts preventing or limiting your child from travelling outside Australia. A Family Law Watch List is also otherwise known as an Airport Watch List. If the situation is urgent, the Courts may make an Order on an ex parte basis.

The Family Law Watch List directs the Australian Federal Police to put your child’s name on the Watch List which in effect, operates at all international departure points including sea ports until discharged by the Courts. It is crucial to note though that the Family Law Watch List does not restrict interstate travel. The Australian Federal Police will not place your child’s name on the Family Watch List without a Court Order, unless in very limited circumstances.

If a child does not have a valid passport, Australia requires the other parent’s signature on the Passport Application form. If this is the case, and you suspect the other parent may fraudulently make an Application, you may, at first instance, consider whether a Child Alert Request will suffice. A Child Alert Request is a warning to the Department of Foreign Affairs and Trade not to issue an Australian Passport for a child without first making further enquiries (https://www.passports.gov.au/passportsexplained/childpassports/Pages/childalerts.aspx).

If the other parent has an international passport, you can make enquiries with embassies/consulates about the possibility of the other parent obtaining an international passport for your child. If there continues to be a real risk your child could travel on an international passport, you can make an application for your child’s name to be placed on the Family Law Watch List.

When facing with an application for a Family Law Watch List, or an application for the child to travel overseas, the Courts uphold its primary consideration being the child’s best interests – Will a travel abroad be in the child’s best interest? What is the time period and reason for the intended travel? Is there a real risk that the child will not be returned to Australia? Is the intended/likely travel destination a Hague Convention country? To find out whether a country is a Hague Convention country, go to https://www.ag.gov.au/FamiliesAndMarriage/Families/InternationalFamilyLaw/Pages/HagueConventionontheCivilAspectsofInternationalChildAbduction.aspx.

On the other hand, if you are a parent considering removing a child from Australia without the other parent’s consent, or relocating overseas, you should think twice as your actions may constitute an offence punishable with imprisonment up to three years. If you wish to relocate with your child, you should consult the other parent seeking an agreement in writing, or seek Court Orders allowing your child to travel or relocate.

If you have a pressing fear that your child may be removed from Australia unlawfully, or you simply wish to know more about international travel arrangements, you can contact our attentive Family Law team on 03 9614 7111 or Melbourne@nevettford.com.au.

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What is urgency for parenting cases?

Parents in the heat of family law situations will often want to know if the Court can help them with their dispute urgently. To a parent in the middle of a dispute situation – they may not have seen their child for months, or they may want to change their current arrangements – their situation may appear genuinely urgent. However, this is not the test that the Court applies in determining whether a matter should be listed urgently in front of a Judge or Registrar.

In the matter of Fowler & Glover (http://www.austlii.edu.au/au/cases/cth/FCCA/2016/2595.html), the Court considered what test is, and should be, applied to determining whether something should be heard urgently when it is delivered to the Court Registry to file.

In that case, the Father had not seen the child concerned since separation, with there being a delay of some more than six years between separation and the Father seeking Orders. The Father was trying to get orders made in time for his planned visit to the area where the child lived. The visit was scheduled for only a month after the Court documents were being filed. The Court empathised with the situation, but emphasised that the reality of the Court’s resources were that the Court was already overlisted (above capacity) with other matters. Nevertheless, the Court clarified that it continued to overlist urgent matters, which were described as typically involving ‘allegations of serious and immediate risk of harm to children.’

This reflects our experience. The Court will largely only overlist / list urgently parenting situations where there is the immediate risk of harm to a child. An immediate risk will usually be a threat to the safety of a child well above and beyond any harm that is suffered as a result of a delay in that child’s relationship with a parent.

A good family lawyer will be able to advise you on how to identify what are, and are not, good reasons to list urgently, and be able to make a compelling case to the Court for why urgency is justified. Our lawyers will advise you on this and other practical measures to take in relation to your situation, and are available to speak to you on 03 9614 7111 (tel:0396147111) or Melbourne@nevettford.com.au

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What age can my child decide which parent they live with or spend time with?

There is no specific age at which a child can decide who they live with or whether they choose to exercise contact to the other parent.  Children are minors until they reach 18 years of age. 

A child can express a view generally in the context of a family report writer’s meeting with them about who they want to live with and whether they wish to spend time with the parent. However, any decision regarding children's living arrangements must be made in the best interests of the child.

If you require expert advice regarding parenting matters, please contact our family law department on 03 9614 7111.

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Won’t somebody please think of the children? – issues to consider when wanting to relocate interstate

Parenting with a separated former partner can have its challenges, and one of the most polarising can be the decision of one parent to relocate across the country.

The guiding principle in this area of the family law is the best interests of a child, with the two competing primary considerations being the benefit to a child of having a meaningful relationship with both parents, and the need to protect a child from risk of harm in a variety of forms. The second consideration is ‘weighted’ more heavily than the first. There are a number of secondary considerations in the Family Law Act 1975 that are also taken into account.

From a practical standpoint, what this means is that there must be a compelling reason that a move would not benefit solely or simply a parent, but more importantly the child. Very clear consideration must be given to how, in the event of a move, a relationship with the other parent is maintained.

Reasons for a move might include greater cultural and educational opportunities, specialised services being available in the new region not available in the previous region, better family and emotional support for a child being in one region or another, or a parent being able to obtain much more fruitful employment in a new region, meaning that their child has a better chance at a greater quality of life.

Incidences of family violence and isolation for a parent in one region can also play a significant role in a proposed move. There may be very good reasons not to move as well, including cultural ties that would not be available in a new region, the loss of Indigenous connection to country should a move occur, and estrangement from a parent.

It is important if considering such a move that there be very clear communication with the other parent involved, and that intentions and reasoning are clearly set out for discussing.

You may not find that a parent confronted with such a proposal necessarily acts rationally or calmly at first, but it is important that a solid foundation and clear communication is established early on.

Every situation is different of course and you should obtain expert advice specific to your circumstances. The guide in this article is at a general level and should not be taken as legal advice for your specific circumstances. We are available to discuss these issues with parents considering making, or responding to someone proposing, such a move, at any time on 03 9614 7111, or by email at Melbourne@nevettford.com.au

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Can I register for Child Support when one parent lives overseas?

Either parent may be able to:

• Apply for an Australian child support assessment;
• Register a Maintenance Order, Assessment or Agreement from another country for collection in Australia if the Order, Assessment or Agreement was established in a country listed as a reciprocating jurisdiction for Australia;
• Obtain an Australian Court Order requiring the other party to pay child support. An Australian Court Order can be registered with the Child Support Agency for collection. Collection options can be limited however, where a paying parent lives overseas especially if the parent lives in a country that is not listed as a reciprocating jurisdiction for Australia.

Please contact Nevett Ford Lawyers on 03 9614 7111 for further advice in this complex area.

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Parenting post-separation – don’t become a victim to statistics

The Australian Institute of Family Studies (AIFS) recently released research which showed that only 6% of children under 17 spent equal time with both mother and father. Yet regularly family lawyers will be regularly instructed to seek an equal shared care arrangement, or what many clients refer to as ‘shared custody’. Why doesn’t this frequent desire of separated parents often materialise in reality?

There are a variety of factors that the Family Law Act (Cth) 1975 requires be considered in making Orders concerning parenting arrangements, and a good family lawyer will advise their client of these factors early on in their consultation, including the paramount consideration of the best interests of the children. It is frequently not seen to be any easy experience for children, already dealing with the difficulty of mum and dad living in separate houses, to have to live out of a suitcase on a week-on week-off arrangement. Our lawyers are experts at identifying what issues preclude an equal shared arrangement early on, so that you can ensure that your situation is appropriately managed and directed so that you improve you can get the result you are seeking. 

One more issue to come out of AIFS’ research however should be kept in mind – half of children of relationships that have broken down do not spend any overnight time at their non-resident parents’ home. By even taking the step of seeking and maintaining regular time with your children, you will be significantly shifting the odds in your favour. Call our office today to seek advice on how best to progress your situation.

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Deane & Deane 2014 FamCA 869

A couple had been married for several years and had two daughter aged 7 and 3 years at the time of the hearing.  During one year the father’s own mother died and the father did not enjoy the Christmas period as he felt that his grief had not been adequately recognised, that there was no sexual intimacy with his wife, and that he would not be missed if he left the family.  The wife subsequently made allegations about three types of incident over the holiday period: that the father had thrown one daughter against a wall, that the husband had raped the wife, and that there was sexual abuse of the children.  Criminal charges did not proceed due to lack of evidence.  The parents separated soon after, with the father maintaining contact with his children.

Allegations by both children about sexualised behaviour by the father continued.  Allegations included that the father was naked in the bedroom of one daughter, and that the father performed an unusual exercise involving movement of his groin.

The judge found that too many concerning factors had been raised.  The judge ruled that the father’s access with his children should be supervised, but that evidence from the father’s own family had been too partisan for the judge to be confident that their supervision would be objective.  The judge ruled that the risk to the children was an unacceptable risk and that indefinite or ongoing supervision was required.

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What happens if you break a Parenting Order?

If the Court finds you are guilty of breaking a Parenting Order (without reasonable excuse) the following penalties may apply:

1.    The original order may be varied.

2.    You may be ordered to attend a post separation parenting program.

3.    You may be required to enter into a bond.

4.    You may be ordered to pay the other party legal costs.

5.    You may be ordered to pay compensation for reasonable expenses lost as a result of the contravention.

6.    You may be required to participate in community service.

 

 

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What to do if you’re recently separated and there are assets in your partner’s name only.

Properties are often registered in the name of one spouse for asset protection or tax reasons. Often, properties owned by one spouse prior to the parties entering into a relationship stays in that spouse’s name and are not transferred into joint names. That spouse may even consider those properties to be theirs only.

The mere fact that a property is registered in the name of one party does not mean it is immune from being divided with the other party at separation. Properties which exist at separation are usually considered part of the common pool of assets to be divided.

If your spouse owns real estate in their sole name or jointly with someone else, it is essential that you lodge a caveat against your spouse’s interests in the property to prevent those interests from being sold or transferred to another person. The process of lodging a caveat is quick and simple.

If your spouse is about to retire, a payment flag may be registered with your spouse’s superannuation fund to prevent your spouse from withdrawing his or her superannuation benefits. A flag may be put in place with your spouse’s agreement or by order of the Court.

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