Can I Stop My Ex Taking My Child Abroad
After a divorce, many parents may be thinking ‘can I stop my ex taking my child abroad’ and not returning?
As most divorced parents share custody and parental responsibility, any decision to travel with the children overseas should be unanimous.
If a parent wishes to take their children to another country – including for a short holiday – they should notify the other parent first, well before the date of departure.
However, some people may be worried about their ex-partner taking their children overseas and not returning with them.
Under s65Y of the family law act, parents can withhold consent and prevent their children from travelling overseas.
Family Law Watchlist – Preventing children from travelling abroad
If you are thinking, ‘can I stop my ex taking my child abroad?” then the answer is yes, you can.
You should look at adding the children’s names to the Family Law Watchlist.
If your children already have a passport, this is the only way to be sure of stopping them from travelling overseas.
The Family Law Watchlist is managed by the Australian Federal Police, however, a child is rarely added to the list without a valid court order.
You must apply to the court for a Passenger Analysis Clear and Evaluation (PACE) System Alert for your child to be included on the Watchlist.
In your court application, you can request an absolute prohibition on travel or a conditional prohibition on travel.
For example, one condition might that if both parents agree, the child can go overseas.
You can also request to limit the child’s travel to certain countries, such as those with which Australia has an agreement under the Hague Convention.
If you believe your child’s removal from the country is imminent, you can file your court application as an urgent matter so that the child is placed on the PACE system.
When the court grants an order that prevents or limits your child’s travel, you may then file a Family Law Watchlist request form with the Australian Federal Police.
Once their name is on the family law watchlist, the Australian Federal Police can stop your child from leaving from any international departure point in the country. This includes airports and seaports.
The child’s name will usually stay on the family law watchlist for about two or three years.
In some cases, however, they may stay on the list until they turn 18.
A PACE Alert is against the child in question, not the parent or person with whom they may be travelling.
If your child’s name is on the Family Law Watchlist, the AFP will prevent them from leaving Australia, no matter the people they are travelling with.
Can I stop my ex taking my child abroad – don’t sign a passport
One way to stop your ex from taking your child abroad is to refuse to sign the child’s passport application.
By law, both parents must sign a child’s passport application, giving consent to the travel document being issued.
If your child does not have a valid passport, you can prevent them from travelling overseas by refusing to sign the child passport application.
You can lodge a Child Alert Request with the Australian Passport Office.
A Child Alert Request will notify the Department of Foreign Affairs and Trade that you have not given consent to a passport being issued to your child and that there are circumstances to be considered before they decide to issue a passport to the child.
However, if your child is entitled to a passport under the Australian Passports Act 2005, a Child Alert is not a guarantee that they will not be able to obtain a passport.
A Child Alert remains in effect for 12 months.
Only a person with parental responsibility for the child can lodge a Child Alert Request.
You may also make an application to the court seeking an injunction that prevents the child from being issued a passport. You will need to include reasons as to why you believe your child should not have a passport.
A Child Alert Request only covers Australian passports.
The Hague Convention
If your child is taken overseas without your consent, you may be able to have them returned to Australia under the Hague Convention.
The Hague Convention is a multilateral treaty, finalised in 1980, that provides a process for parents to use when they are seeking the return of their children to their home country.
The Convention is purely about determining the jurisdiction in which issues of residence and custody of the child should be resolved.
If your ex-partner takes your children overseas without your consent, or even your knowledge, and refuses to return with them, this becomes international child abduction.
You will no longer be thinking ‘can I stop my ex taking my child abroad’- because it has already happened.
By making an application under the Hague Convention, you can secure your child’s return to Australia.
If you are concerned that your child is at immediate risk of abduction, call 000.
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Principal of Justice Family Lawyers, Hayder specialises in complex parenting and property family law matters. He is based in Sydney and holds a Bachelor of Law and Bachelor of Communications from UTS.