Judge S.H. Scarlett RFD - 28 November 2013 Sydney

Removing a child from Australia

  1. Quite frequently, lawyers are asked by clients to apply to the Court for an order restraining the removal of a child from Australia. In many cases, the client seeks the order as a matter of urgency. As a practitioner, you will need to consider the following issues:
    1. What is the urgency for an Order?
    2. What sort of Order is appropriate?
    3. What is the best way to obtain an Order?
    4. How long should the Order last?
  2. If a parenting order is in force, or if parenting proceedings are pending, it is an offence punishable by imprisonment to remove a child from Australia without the consent of the other party or a court order.
  3. Section 65Y of the Family Law Act 1975 provides that:

    65Y Obligations if Certain Parenting Orders have been made

    65Y(1)  If a parenting order to which this Subdivision applies is in force, a person who was a party to the proceedings in which the order was made, or a person who is acting on behalf of, or at the request of, a party, must not take or send the child concerned from Australia to a place outside Australia, except as permitted by subsection (2).

    Penalty: Imprisonment for 3 years.

    65Y(2) Subsection (1) does not prohibit taking or sending the child from Australia to a place outside Australia if:

    1. It is done with the consent in writing (authenticated as prescribed) of each person in whose favour the order referred to in subsection (1) was made; or
    2. It is done in accordance with an order of a court made, under this Part or under a law of a State or Territory, at the time of, or after, the making of the order referred to in subsection (1).
  4. Section 65Z applies to pending proceedings:

    65Z Obligations if Proceedings for the making of Certain Parenting Orders are pending

    65Z(1) If proceedings (the Part VII proceedings) for the making of a parenting order to which this Subdivision applies are pending, a person who is a party to the proceedings, or who is acting on behalf, or at the request of, a party must not take or send the child concerned from Australia to a place outside Australia, except as mentioned in subsection (2).

    Penalty: Imprisonment for 3 years.

    65Z(2) Subsection (1) does not prohibit taking or sending the child from Australia to a place outside Australia if:

    1. It is done with the consent in writing (authenticated as prescribed) of each other party to the Part VII proceedings; or
    2. It is done in accordance with an order of a court made, under this Part or under a law of a State or Territory, after the institution of the Part VII proceedings.   
  5. The fact that it is an offence to remove a child from Australia under either of the above sections may not be of much comfort to your client and you may well be asked to apply for an order to make sure that the feared removal will not happen. Thus, a wise practitioner should ask the client to provide some details of the urgency, for example:
    1. Is the child currently in the care of the other party?
    2. Has the other party threatened to take the child out of Australia?
    3. Has the other party previously removed the child from the care of the client or unilaterally withheld the child from the client?
    4. Does the other party have any ties to another country (family, friends, citizenship)?;
    5. Does the child currently have an Australian passport?
    6. Does the child have any other passport?
  6.  The Court has the power to make an order restraining a party from removing a child from Australia. Such an order can be a parenting order under s. 65D of the Family Law Act or an injunctive order under s.68B. When applying for such an order, it is advisable to combine it with an order that the child’s name and details should be placed on the Family Law Watch List maintained by the Australian Federal Police.

The Family Law Watch List

  1. This is the current name for what is usually referred to by practitioners as the “Airport” Watch List. That title is a misnomer, because it operates at places of departure from Australia by sea as well as by air, as more than one would-be cruise ship passenger has found out.
  2. The suggested form of order should be directed to a named person and it should restrain him or her from removing a particular child from Australia. The order should either include or be followed by a Watch List Order.
  3. The Australian Federal Police have a suggested from of order on their website www.afp.gov.au/policing/family-law/family-law-kit
  4.  The suggested form of order that currently appears is:
  5. That Until Further Order each party (first name, second name, surname and date of birth of each party) their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the said child/children (first name, second name, surname and date of birth of each child) from the Commonwealth of Australia AND IT IS REQUESTED THAT the Australian Federal Police give effect to this order by placing the name/names of the said child/children on the Family Law Watchlist1 in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s/children’s name/names on the Watch List until the Court orders its removal.

“Sunset Clause”

  1. The Family Court and the Federal Circuit Court have conducted discussions about incorporating a sunset clause into Family Law Watch List Orders to make sure that the orders do not outlive their usefulness. The Federal Police say that there are currently over 11,000 names on the Watch List but they estimate that only about 3,000 are current. The problems caused by out-dated Watch List orders will be discussed a little later in this paper.
  2.  The two Courts have agreed on draft orders2 which practitioners should consider:
    1. Each of (insert name(s) of party or parties to be restrained) and their servants or agents be and is/are restrained from removing or attempting to remove or causing or permitting the removal of (insert names, birth dates and sex of relevant children) from the Commonwealth of Australia.
    2. (Insert name(s) of child or children) be and is/are hereby restrained from leaving the Commonwealth of Australia. (This order is optional).
    3. It is requested that the Australian Federal Police give effect to the preceding order(s) by placing the name(s) of the said child or children on the Family Law Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child/children’s name(s) on the Watch List for a period of two years (or insert specified different period).
    4. Upon the expiration of the period referred to in the immediately preceding Order and subject to any further  order of a court of competent jurisdiction, the Australian Federal Police will cause the removal of the child or children’s name(s) from the Watch List.

Why Make an Order against a Child?

  1.  Some practitioners have been critical of making an order specifically against a child and queried the need for such an order. Clearly, it will not always be appropriate. However, members of the AFP have given instances where parties have attempted to get around a Watch List Order by travelling separately from the child so that the child travels as an unaccompanied minor. This would not apply to a very young child who could not travel unaccompanied but may be a consideration where a child is aged, say, fourteen or more.

Issues to cover when drafting an affidavit in support

  1. In a paper written for a CLE seminar in 2010, entitled “Duty List Issues – Overseas travel by children, Child Abuse and Family Violence, Independent Children’s Lawyers”, Federal Magistrate Halligan, as his Honour then was, set out a list of issues which should be addressed when drafting an affidavit in support of an order restraining of an order restraining removal of a child from Australia. With his Honour’s kind permission, I reproduce that list:
    1. The basis for the applicant’s belief that the child may be removed from Australia, including the immediacy of the risk;
    2. Whether it is believed the removal would be permanent or temporary, and the basis for the belief;
    3. Where the respondent’s stated intention is to return the child to Australia, the risk that the child may not be returned, including the respondent’s ties to Australia, the respondent’s ties to an overseas jurisdiction, whether the likely destination is a Hague Convention country, and even if it is, the risk of diverting to a non-convention country;
    4. The applicant’s previous involvement with the child;
    5. The applicant’s relationship with the child and the likely impact on that relationship if the child is removed from Australia;
    6. Any views of the child known to the applicant relevant to the application;
    7. Whether the respondent has previously made major decisions about the child without consulting the applicant;
    8. Whether the respondent has previously failed to facilitate the applicant’s involvement with the child and spending time with and communicating with the child;
    9. Whether the applicant is prepared to offer an undertaking as to damages if the order is granted; if so, the terms of that undertaking; and if not, the reasons why the court should not require an undertaking;
    10. Any other relevant matter (see, e.g., s.60CC as to the child’s best interests).3
  1. Another remedy that practitioners may wish to consider is an application under s. 67ZD for the delivery up to the court of the child’s passport and that of any other person.

Orders for delivery of passports

  1. Section 67ZD provides:

    Section 67ZD Orders for Delivery of Passports

    67ZD  If a court having jurisdiction under this Part considers that there is a possibility or threat that a child may be removed from Australia, it may order the passport of the child and of any other person concerned to be delivered up to the court upon such conditions as the court considers appropriate.

  2.  It is necessary to satisfy the court that there is a “possibility or threat that the child may be removed from Australia” so the court will be looking for specific evidence. In the recent decision of Nelson & Lowrie4the Court refused an application for an order that the father deliver up the children’s passports to the Registry Manager of the Court because of the lack of evidence to support the making of the order.

When a Watch List Order is made

  1.  The Australian Federal Police will place the child’s name and particulars on the Family Law Watch List when an order is made by a Court. The practice in the Federal Circuit Court is that the Court will fax a sealed copy of the Order directly to the AFP.
  2.  If a Watch List Order is discharged, the court will again fax a sealed copy of the order discharging the Watch List order to the AFP.

Avoiding the Pitfalls

  1.  The Australian Federal Police have reported a number of problems to the Court about Watch List Orders. For example, it is not uncommon for the AFP to receive orders where there are discrepancies in the name, date of birth or gender of the child or relevant parties.
  2. It is not recommended that orders should be too complex due to the limited capacity of the PACE Alert system to record text; the present limit is 12 lines. Where an order prohibits removal of a child but then allows permitted travel for years into the future, problems in managing the order can be experienced by police or other agencies.
  3. Difficulties also arise where an order has been amended by a further order which has not been communicated to the AFP.
  4. Difficulties can arise where Watch List Orders are duplicated. A party may apply for an order which is made on an interim basis. That order will be communicated to the AFP. It can then happen that parties enter into final consent orders including a final Watch List Order. If the earlier order is not discharged, there is a potential for there to be two separate orders in force in respect of the one child.
  5. Where an interim order has been made, it is advisable for final orders to provide specifically for a discharge of the earlier Watch List Order. A blanket provision such as “All earlier parenting orders are discharged” may not be recorded as a specific discharge of an earlier Watch List Order.

How long should a Watch List Order last?

  1.  Our suggestion is that a period of about two or three years will usually suffice, although there may be exceptions. In most cases, parents of young children will not usually want the order to remain in force until the child attains the age. Whilst the AFP periodically go through the system removing obsolete orders manually, there are still thousands of names recorded in the PACE Alert System that do not need to be there.
  2. Watch List Orders without a sunset clause will remain on the system until the child attains the age of 18. An unintended consequence of this is that long-forgotten orders can surface years later, causing inconvenience and distress to the very children they were intended to protect. There are numerous instances of teenage children being prevented from travelling to New Zealand on a school football tour, going to Bali with their friends for a schoolies’ trip or going on a cruise with their family.
  3. One instance where disaster was averted was when a child was prevented from boarding a cruise ship with his family by a long-forgotten Watch List Order, which led to a frantic drive to the Court to obtain an urgent order discharging the Watch List Order in time for the child to board the ship before it sailed.
  4. Others have not been so lucky. In the recent decision of Director General, NSW Department of Family and Community Services & Whiteley & Anor, [2013] FCCA 917, the Department applied to the Court to discharge orders made by a Local Court eleven years earlier, in February 2002.
  5. The facts were that the child’s mother had applied to the Local Court at Liverpool for parenting orders against the man believed to be the child’s father on 7 February 2002. The orders sought included a restraint on the child being removed from Australia and an order placing the child’s name on the Watch List. The Local Court made interim orders, including the Watch List Order, that day and the Application was adjourned to 27 February 2002 and then to 19 March. There was no appearance by either party on 19 March 2002 and the application was stood out of the list. However, the interim orders continued.
  6. On 21 September 2011 the Children’s Court at Campbelltown, on an application by the Department of Family and Community Services, made an order under s.79(1)(b) of the Children and Young Persons (Care and Protection) Act 1998 (NSW), allocating parental responsibility to the Minister for Family and Community Services until the child was 18 years old.
  7. The girl concerned and her elder sister were placed with an authorised foster carer in what was regarded as their permanent placement until they attained the age of 18. There were two other children living with the foster carer, who is of Pacific Islander descent (as are all of the children). It was the practice of the foster mother to take all of her foster children to Fiji each year, where they would all spend time with her extended family. These holidays were approved by the Department of Family and Community Services and by the agency that arranged the foster placements.
  8. Unfortunately, as the foster mother and her foster children were preparing to board their flight to Fiji, the Watch List Order from 2002 emerged and the child was unable to board the flight. There was no time to make an application to a court to vacate the order, so a temporary arrangement was made to place the child in the care of another family whilst the foster carer and the three other children departed for their holiday.
  9. To prevent a repetition of this unfortunate event, the Department made an urgent Application to the Court to discharge the 2002 Orders. The Court had no hesitation in discharging the orders on the first return date, but it was too late to save the child’s holiday.
  10. This is perhaps an extreme example, but it shows that Watch List Orders can outlive their usefulness and re-emerge to cause inconvenience and distress to the very children they were intended to protect.  
1 sic
2 Which I have slightly modified
3 Duty List Issues – Overseas Travel by Children, Child Abuse and Family Violence, Independent Children’s Lawyers, 3 September 2010, Judge Halligan
4 [2013] FCCA 818