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News

Australian Federal Police uncover child stealing ring in Australia

November 29th, 2018

Child abduction has recently been in the spotlight after the Australian Federal Police made a number of arrests in relation to the involvement by individuals in a child stealing ring that has been operating in Australia.

The individuals involved have been charged with criminal offences of conspiracy to defeat justice and child stealing, for their assistance in continually moving mothers and their children within Australia to avoid detection by authorities and prevent the return of the children to their extended family, in breach of court orders.

A recent decision of the Federal Circuit Court of Australia where a mother who went on the run in Australia with her children was imprisoned, as was the grandmother who assisted, shows that the courts are also cracking down on parental child abduction.

The Federal Government have recently amended the Family Law Act in relation to international parental abduction.

In light of the recent media attention, court decisions and upcoming legislative changes, it is timely to reflect upon how the law restricts travel with children after separation.

So what is child abduction? 

Child abduction occurs, broadly speaking, when one parent travels or relocates with their child:

  1. domestically in breach of court orders, or outside of their time with the child; or
  2. internationally in breach of court orders, or without the prior written consent of the other parent.

There are a variety of potentially serious consequences for making a mistake when travelling with your child after separation, including:

  1. If orders have been breached, the non-breaching parent may commence contravention proceedings seeking that the child be returned to them and then also seek an amendment to the orders in relation to the care arrangements for your child. The party in breach may also be found to be in contempt of court.  The court has a variety of powers to punish a person found in contempt, including order the payment of a fine or imprisonment.
  2. If there are no orders in place, court proceedings may be commenced for the return of the child and also seeking orders about the care arrangements for the child in favour of the non‑abducting parent.
  3. The Family Law Act makes it a criminal offence to travel with a child overseas in breach of a court order, or while there are current proceedings in relation to the child before the court or an appeal. If found guilty, a person faces up to three years imprisonment.  The new amendments to the Family Law Act that will come into effect from a date proclaimed or 26 April 2019 will also make it a criminal offence where a parent travels overseas with a child with the consent of the other parent, but fails to return the child to Australia as agreed or in accordance with orders.  These amendments also introduce a defence, where a parent abducts a child because they believe it to be necessary to escape family or domestic violence.
  4. There are also different state based criminal offences for ‘stealing’ and ‘abducting’ a child which not only the abducting parent faces, but also any other person who knowingly assists that parent.

The key lesson to be learnt is that the law on travelling with children after separation is complex and there are very serious consequences for getting it wrong.  You should obtain legal advice from an experienced family lawyer about your situation.  As a golden rule, written consent (by statutory declaration) from the other parent should be sought, unless there is a court order which allows the travel.

To understand what you should do if your child is not returned to you, ways in which you can prevent your child from being abducted and what to do if the other parent will not consent to travel, we have provided further information below.

What should you do if your child is not returned?

If your child is not returned to you, you should seek immediate legal advice about filing an urgent application in the court for the recovery of your child.

A recovery order permits the Australian Federal Police to recover your child and return them to you.

If the location of your child is not known, then there are other orders such as a location order, a Commonwealth information order and a publication order which can assist with locating your child.

If your child has been relocated outside of Australia, then you should contact a lawyer immediately.  Australia is a party to an agreement called the Convention on the Civil Aspects of International Child Abduction (the Hague Convention), which permits the Attorney-General’s department to commence proceedings on your behalf in other countries who are also a party to the agreement to seek an order for the recovery of your child.  Such applications can be time sensitive.

Ways you can prevent your child from being abducted

If your child does not have a passport, then it is a requirement for the issue of an Australian passport that any person with parental responsibility consent to the issue of the passport.  However, an additional measure that can be taken is to lodge an alert with the Department of Foreign Affairs and Trade if you consider there is a risk that your child may be issued with a passport without your consent.

If your child does have a passport and the passport is not secure, or you are concerned that a passport may be issued by another country, an urgent application can be made to the court to secure the passport and also to place the child on the Family Law Watch List which will authorise the Australian Federal Police to prevent your child from being removed from Australia via air or sea at all departure points.

What if the other parent does not consent to international travel?

You cannot travel internationally with your child without the other parent’s written consent.  If the other parent does not consent to your child travelling with you, then you can make an application to the court seeking an order that your child be permitted to travel with you.

For more information about this issue and all other family law matters please contact our family law solicitor Rochelle Ryan on 07 4036 9700.

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Is your ex entitled to property that you acquire after separation?

November 16th, 2018

The simple answer to this question is – yes.

Generally any property that is acquired after separation and before a final property settlement will be included as an asset in the property pool available for distribution even if the asset is held in only one party’s name.

A recent case examined this question in the context of an inheritance by the husband of $715,000.00 from his late brother’s estate after separation.

Whilst the parties had separated almost five years prior to the husband receiving the inheritance they had not applied for a divorce nor finalised their property settlement at the time the inheritance was received.

The court included the inheritance in the property pool that was available to be distributed to the parties in their property settlement.  This case serves as a warning that just because assets are acquired after separation does not mean that they are immune from the property settlement process.

It is not uncommon for clients who see us to have acquired significant assets after separation, such as purchasing a new house.

We recommend that parties seek legal advice and formalise their property settlement early after separation to prevent situations like the above from arising.  Contact our Cairns family lawyers today to obtain strategic legal advice on your family law property settlement.

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What rights do grandparents have with respect to their grandchildren?

November 9th, 2018

Parenting matters under the Family Law Act focus on the principal consideration of ‘what is in the best interests of the child’.  The Act facilitates children having a meaningful relationship with both parents and other significant persons in their lives, such as grandparents.

The relationship between a grandparent and a grandchild is precious.  It is not uncommon for grandparents to experience difficulty in spending time with their grandchildren after parents separate.  This can be made more painful where the grandparents have spent significant time with the child prior to separation.

Grandparents are able institute court proceedings to seek orders that their grandchild spend time with them.  The court will focus on whether making orders for the child to spend time with their grandparents is in the best interests of the child.  In making this decision the court will consider a variety of factors including:

  1. the time the child has previously spent with their grandparents;
  2. the relationship between the child and their grandparents;
  3. the practicality of the child spending time with the grandparents;
  4. whether the parents are opposed to the child spending time with the grandparents; and
  5. whether the relationship between the parents and grandparents is such that it is likely to have a negative impact on the child if contact is ordered.

If you would like more information on your right as a grandparent to spend time with your grandchild, contact our expert Cairns family lawyers to find out how we can help you.

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New decision sheds light on international child abduction/ relocation

November 2nd, 2018

A recent decision of the Full Court of the Family Court of Australia has examined the application of the Family Law (Child Abduction Convention) Regulations 1986 (Cth), in the context of a child being abducted or unilaterally relocated from another country to Australia.

By way of background, the Family Law (Child Abduction Convention) Regulations 1986 (Cth) is the mechanism by which Australia’s obligations under the Convention on the Civil Aspects of International Child Abduction are enforced.

The case concerned a young boy who was born in the Ukraine in April 2009.  The child’s mother was a Ukraine Citizen and the father was an Australian Citizen.  The child grew up in the Ukraine with both parents until they separated in late 2015/early 2016.  The child then lived with his father in the Ukraine until September 2016 when the father relocated the child to Australia, without the mother’s consent.

There were various unsuccessful attempts by the mother, including with the assistance of police, to recover the child from the father while the child was living in the Ukraine. When the mother realised that the child had been relocated/abducted to Australia, she approached local agencies within the Ukraine seeking assistance to have the child returned.  Eventually in September 2017, the Ukraine Central Authority applied to the Commonwealth Central Authority in Australia seeking a return order be made under the Family Law (Child Abduction Convention) Regulations 1986 (Cth).  An application for the child’s return was subsequently filed by the Commonwealth Central Authority in Australia in December 2017.

The case focused centrally around the application of Regulation 16 which provides that,  if the application for the return of the child is made more than one year after the child was relocated, the court must make the relocation order, provided that the court is satisfied that the child has not settled into his or her new environment, and no other exception applies.

In these proceedings, the application was filed more than one year after the child’s abduction/relocation.  The father established that the child had settled into his environment in Australia and this was not challenged on appeal.  The Full Court of the Family Court of Australia held that in circumstances where the application is filed more than one year after the relocation/abduction and it is established that the child has settled into their new environment, the court must refuse to make the return order and that there is no discretion for the court to order the return of the child in those circumstances.

Importantly, the law is different with respect to applications filed within one year of the abduction/relocation, and the court is not required to satisfy itself that the child has not settled into his or her environment.  The outcome of this decision may have been different, had the application been filed within one year of the abduction/relocation.  This case serves as a timely reminder of the importance of filing an application with the court urgently after the unilateral relocation or abduction of a child.

If you require legal assistance with your family law matter, please do not hesitate to contact me to discuss your situation.

 

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