New Child Abduction Offences In Australia
By Amanda Humphreys, Special Counsel, MST Lawyers
International parental abduction of children from Australia will now attract a penalty of three years of imprisonment following recent amendments to the Australian Family Law Act.
The Civil Law and Justice Legislation Amendment Act 2018 received a royal assent on 25 October 2018 (“the Amendment Act”) and sees the creation of new offences under the Family Law Act.
The offences apply where a person takes, sends or retains a child overseas where parenting orders have been made or court proceedings for parenting orders are pending, without the required parental or other consent or a court order allowing the travel. The offences also extend to persons acting on behalf of a person to whom the provisions apply. A penalty of imprisonment for three (3) years applies. (See sections 65Y, 65YA, 65Z and 65ZAA of the Family Law Act.)
The amendments specifically provide that provisions of the Criminal Code apply to the offences, also making it a crime to attempt commit one of these offences.
Importantly, the provisions do not apply where a person takes, sends or retains a child from Australia because of a belief the conduct is necessary to prevent family violence and the conduct is reasonable in the circumstances as the person perceives them.
Existing provisions in the Family Law Act imposing obligations upon the owners of aircraft and vessels are also amended. A carer of a child may serve a statutory declaration upon a person who is a captain, owner or charterer of an aircraft or vessel, advising of pending parenting proceedings or a court order. If such a notice has been served, it is an offence for that person to permit a child to depart for a destination outside of Australia other than in the company of the carer, with the carer’s authenticated consent in writing or a court order. (See sections 65ZA and 65ZB of the Family Law Act.)
These offences are to complement existing provisions in the Australian Family Law Act. The purpose of the amendments as explained in the revised explanatory memorandum is to strengthen Australia’s response to international parental child abduction.
The powers of arrest for these offences (exercisable by police officers, marshals of the Family Court and Australian border force officers), will provide greater search powers, including a power to stop, detain and search conveyances, and the ability to disrupt an attempted international parental child abduction.
Section 67K of the Family Law Act is also amended to allow a person to request a location order for the purposes of the operation of the 1980 Hague Convention on the Civil aspects of International Child Abduction, including the Commonwealth or State Central Authorities.
The provisions come in to force on the earlier of the date proclaimed or 26 April 2019.
For further information about travelling overseas with children, see our online news articles:
- Parenting orders and court proceedings. Can you legally travel overseas with your children? (December 2016)
- International travel for separated parents – recent changes to passport legislation (December 2015)
- Protecting children from unlawful removal from Australia (September 2015)
If you require information about the law in Australia relating to children travelling overseas, international child abduction or any other aspect of international family law, please email our Family Law team or call us on +61 3 8540 0200.