Restrictions on overseas travel
It can be the case at the point of family breakdown, that one of the parents finds themselves here, living in Australia, with their support network being in an overseas country. It is understandable at such a time, that such a parent would want to return "home" to family and friends. Difficulties arise however, when the other parent wishes to remain living in Australia. This situation can cause great concern for the parent wishing to return "home" with the child, as well as for the other parent who does not want the child to go.
It is not an easy thing to convince a court to make an order which allows a parent to take the child to live overseas and it may be tempting in such circumstances, for a parent to relocate with the child without a court order and without informing the other parent. If the parent has the child and the child's passport in their possession, there may be nothing preventing the parent from leaving Australia with the child. If the child is eligible to be issued a passport by a foreign country, a parent might be able to obtain such a passport for the child, without the other parent's signature.
In circumstances where a parent is genuinely concerned that the other parent is planning to relocate with the child overseas, they can have the child placed on the Airport Watch List by the Australian Federal Police. To do this the parent must make an application to the Federal Circuit Court of Australia, seeking an order that the child be placed on the Airport Watch List. Time is of the essence in such matters and knowing what you are doing is important. Springwood Lawyers has the expertise to assist you in such circumstances.
Child Protection and Family Law
In some circumstances, children need to be protected from their own parents. This can be as a result of a number of factors, including that the parents are involved in substance abuse or there is family violence or a parent has mental health issues. In such circumstances, the Department of Child Services ("the Department") will intervene and may seek a Court Order that the child be placed in the care of the Department. The Department can then place the child with appropriate persons, such as family members, foster carers or a Departmental Care Service.
On occasions when the child's parents are living separated, the other parent may learn of the abuse or risk of abuse through the Department's investigations or the Department's Court proceedings. It may at that stage be possible for such parent to negotiate with the Department for the child to be placed in their care and if the Department is satisfied with such parent's ability to care for the child, the Department may agree to cease its involvement on the basis that the parent makes application to one of the family courts, seeking an order that the child live with them.
It is important to understand in circumstances where the Department has obtained an Order relating to the child, that the family courts will not have jurisdiction to make an order with respect to the child. Thus it is important to negotiate and liaise with the Department prior to making an application to either the Federal Circuit Court or the Family Court. You need to ensure that there is either no order in place or that the Department will withdraw from its involvement with the child upon you making an application to the Court for the child to live with you.
Removal of a child from Australia during Court proceedings
When parents are involved in Court proceedings regarding parenting matters, circumstances may arise in which a party wishes to travel overseas before the conclusion of the proceedings, such as for a family event or a holiday. This can occur, at a time when there is little trust or willingness to cooperate between the parties. The Family Law Act states that it is an offence to remove a child from Australia involved in parenting proceedings, unless you have the consent of the other parent or a Court Order.
If both parents consent to the travel and assuming the child has not been placed on the Airport Watch List, then a travelling parent is free to travel internationally with the child. It is usual in such circumstances, for the travelling parent to provide the non-travelling parent with a copy of the child's return air ticket and contact details for the child while the child is abroad. Parents will also usually negotiate some makeup time for the non-travelling parent.
If the consent of the non-travelling parent cannot be obtained, then the parent wanting to travel will need to make application to the Court, seeking an order that they be permitted to travel internationally with the child. There are a number of factors which the Court will take into account when determining whether to grant an order allowing a parent to travel including:
1. The circumstances in the country which is the destination of the travel, including whether such country is a signatory to the Hague Convention.
2. The length of time for the proposed travel and its effects on the child's time with the non-travelling parent.
3. Any threat to the child's welfare in the proposed country which is the destination of the travel.
4. The reason for the travel.
5. The risk that a parent will not return with the child to Australia.
6. The best interests of the child.
A court exercising power pursuant to its family law jurisdiction is empowered to make an order in relation to the care arrangements for a child, it must make such order which it is satisfied is in the best interests of the child. In doing so, one of the factors the Court must consider, is the nature of the child's relationship with both parents.
In some cases a court may make a finding that one parent is either deliberately or subconsciously undermining the child's relationship with the other parent. This alienating behaviour can have devastating effects on a child's emotional and psychological development, as well as the child's long term relationship with the other parent. The level of parental alienation can range for that of undermining the other parent's authority, to causing a child to become fearful of or hate the other parent.
In circumstances when a court has made a finding of parental alienation, the Court is then faced with the difficult decision of how to deal with the situation, in the best interests of the child. Depending on the level alienation, a court may order:
1. That the child live with the parent who is not engaging in the alienating behaviour.
2. That the child not spend any time with the parent who is engaging in the alienating behaviour.
3. That the child not spend time with the parent whom the child has been alienated from.
A court will only make an order which would have the effect that a child not spend time with a parent in extreme cases of alienation and then only after it has exhausted all other avenues in attempting to deal with the situation. These are difficult cases and it is important that you have experienced family law solicitors to represent you in such proceedings.
Changing final property orders
Occasionally, after final property Orders have been made, a party may seek to have such Orders changed. To have the existing property Orders set aside, the party must satisfy the Court that at least one of the circumstances as is set out in section 79A (for married couples) or section 90SM (for defacto couples) of the Family Law Act 1975 applies, being as follows:
1. There has been a miscarriage of justice by reason of fraud, duress, suppression of evidence, the giving of false evidence or any other circumstances; or
2. The Order or part of the Order is impracticable; or
3. A person has defaulted on an obligation and in the circumstances it is just and equitable to vary the Order or to set the Order aside; or
4. In the circumstances that have arisen since the making of the Order, being of an exceptional nature relating to the care, welfare and development of a child of the marriage (or the relationship), the child or where the applicant has caring responsibility for the child the Applicant, will suffer hardship if the Court does not vary the Order or set the Order aside and make another Order in substitution for the Order; or
5. A proceeds of crime order has been made.
If the Court is satisfied that one of the abovementioned circumstances applies, the Court may, in its discretion, vary or set aside or if appropriate make another Order.
In circumstances where the parties consent to having the Orders changed, do so pursuant to S79A(1A) (for married couples) or S90SN(2) for defacto couples)
Springwood Lawyers are able to advise and assist you in these regards.