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The Joys of Christmas
16 December 2013
For many families, the holiday season is a time of celebration, with the focus of many festivities being on family. For separated or separating couples however, this time can be fraught with difficulty, particularly where children are involved.
Many of these difficulties revolve around coordinating arrangements for children to see and spend time with parents and their extended families. For some families, the added complexity of having family overseas means negotiating arrangements wtih their ex-spouse or partner to travel overseas with the children.
If the parties involved have started proceedings in the Federal Circuit Court, or Family Court, then overseas travel with children is restricted under the Family Law Act ("the Act") unless the parties have reached a written agreement about the overseas travel, or a court has made an order permitting the travel. Significant penalties of up to 3 years imprisonment can be imposed for breach of these provisions. Additionally, attempts to remove a child the subject of proceedings under the Act from Australia are also a breach of provisions of the Commonwealth Criminal Code, which make an offending parent liable to criminal prosecution.
If there are no proceedings, and there is no order varying or modifying parental responsibility for the child/children involved, then there are no legal restrictions that prevent that parent from travelling with the child/children outside of Australia if the child already has a passport. For children who need to apply for an Australian passport, because both parents need to sign the application, if the other party does not agree, this requirement is frequently the reason why proceedings about parenting matters are started in the first place. Some overseas jurisdictions do not require the consent of both parents to apply for a passport. For children of parents with ties to those countries, the risks of overseas abduction are greater.
For parents concerned about a child (or children) being taken from Australia without their consent, it is possible to place a child on the Australian Federal Police Watchlist, which prevents children from being taken from any point of entry or exit from Australia. Adding a child to the Watchlist can only be done by filing a Application in Court. If there is sufficient evidence that shows there is a real risk the child will be removed from Australia, then the Court will typically err on the side of caution and grant the order, even if only on a temporary basis.
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