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20 April 2015

Children, International Travel, Relocation and the Law:- A Practical Guide

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The recent 60 Minutes documentary about the Vincenti children highlights the importance of understanding what “parental responsibility” means and your rights and obligations when you share parental responsibility with the other parent, particularly in relation to international travel and/or relocation of children.

You will recall the heartbreaking media footage of the 4 sisters being removed from their Sunshine Coast home in 2012 and forcibly returned to Italy to be with their father.

The children were born in Italy to their Italian father and Australian mother, who had moved to Italy as a teenager.  After separating in 2007, the parents shared custody of the children in Italy.  In 2010, the mother relocated with the children to Australia, which she intended to be permanent move.  The father, who believed the mother was taking the children to Australia for a holiday, did not consent to the children residing in Australia and sought to have the children returned to Italy.  Ultimately, the Family Court of Australia made an Order and the children were eventually returned to Italy in 2012, where they now reside.

Even though that case was about children who were taken from Italy to Australia, there are rules regarding the removal of children from Australia, which every parent intending on travelling or relocating overseas with their children should pay heed.

In short, if a Parenting Order is in force or there are Court proceedings pending (whether an initiating application or an appeal), it is a criminal offence to remove your child(ren) from Australia – whether permanently or for a holiday – without first obtaining the other parent’s consent or a Court Order permitting such travel.  The maximum penalty for doing so is imprisonment for 3 years.

This applies even if you are a citizen of and/or your children were born outside of Australia and you want to return to that country to live.

If you are concerned that your child may be removed from Australia without your permission:-

  1. You may apply to the Court for an Order restraining their removal from Australia and have their name placed on the Family Law Watchlist.  This will essentially result in a red flag being placed against your child’s name when trying to clear Australian Customs – meaning they will be stopped from leaving Australia.
  2. If your child has already been removed from Australia and taken to a country that is a member of the Hague Convention on the Civil Aspects of International Child Abduction the Australian Central Authority may be able to help you to facilitate their return to Australia.
  3. If your child has been removed to Egypt or Lebanon, the Australian Government has bilateral agreements with those countries regarding child abduction.  The Attorney-General’s Department is responsible for assessing applications regarding alleged child abduction in these countries.   You may also wish to engage a local lawyer to represent you.
  4. If your child has been removed to a country that is not a party to the Hague Convention on the Civil Aspects of International Child Abduction, you will need to engage a local lawyer to assist you with the necessary Court proceedings to return your child.  You can contact the Department of Foreign Affairs and Trade to obtain a list of local lawyers who may assist.

If you wish to travel or relocate with your children overseas:-

  1. Obtain the other parent’s consent in writing before you travel.
  2. If consent is not forthcoming, you will need to make an application to the Court seeking an Order allowing you to travel / relocate with your children outside of Australia.  To find out more and/or for assistance with preparing this application, contact our office to arrange an appointment with one of our solicitors.

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