Stronger Laws to Deal with International Parental Child Abduction
International parental child abductions often coincide with an acrimonious separation or divorce. Abductions may occur when parents are having difficulty negotiating parenting arrangements and child support. By some estimates, approximately 125 children are taken from Australia every year.
At present, where one parent has sought or obtained a parenting order from the courts, it is unlawful for a parent to take a child overseas without the consent of the other parent. However, it is not illegal for one parent to retain a child overseas where the child has left Australia with the permission of the other parent (for example, for a holiday). However, the new measures announced by the Commonwealth Government will remove this loophole and strengthen Australia’s laws dealing with international parental child abduction.
The proposed changes will include a range of measures.
- The Commonwealth Government will introduce new criminal offences under the Family Law Act to include the wrongful retention of a child overseas. The maximum penalty for this offence will be three years imprisonment.
- In order to address concerns regarding family violence, the Commonwealth Government will also create defences to the offences. This will protect parents who have fled overseas as a result of family violence or to protect a child from imminent harm.
- The Family Court of Australia will be able to suspend the payment of maintenance or child support by the parent left behind in Australia where the child has been taken to a particular country.
- The Commonwealth Government will remove potential barriers for foreign courts to order the return of children to Australia.
- The Family Court of Australia will have greater powers requiring individuals or entities to provide information to the Commonwealth Central Authority to assist in the locating of children who have been wrongfully removed from or retained outside Australia.
The Commonwealth Government is in the process of drafting legislation to implement these changes. It is expected that the new legislation will be introduced to Parliament in the first half of 2012.
If you are in the process of an acrimonious divorce or separation, it is important to obtain legal advice. In most situations, issues can be resolved and arrangements can be made for the welfare of a child through a parenting order. Parenting orders deal with issues such as where the child will live, how much time the child will spend with each parent, how the child will communicate with the parent they do not live with, and how each parent will be responsible for the child’s welfare. Parenting orders can be based on an agreement between the parties, or they can be imposed by the Court. The Court will always base their decision in regards to the best interests of the child.
In some situations, parental abduction may be borne from a genuine concern and it is critical to obtain urgent legal advice. At present, if the Court is convinced that there is a real risk one parent will go overseas with the child and not return, it can make all, or some of the following orders:
- restrain or prevent the parent from taking the child out of Australia;
- order the parent to pay an amount of money to the Court as security for the return of the child; and/or
- order the person to give information about a prospective trip such as contact details, phone numbers, an itinerary, addresses where the children will be staying etc.
If you believe that international parental child abduction is a genuine concern in your particular situation, seek immediate legal advice.