In this article we explain your options to restrain your ex partner from relocating your child overseas and how to obtain Airport Watch List Orders / a Pace Alert.
Restraining removal of child from Australia
If a parent wants to relocate with a child overseas, they should obtain the other parent’s consent before doing so.
Are you worried that the other parent will relocate with your child overseas to another country without your consent?
It is important you take urgent action if you are worried the other parent will attempt to remove your child from Australia without your consent, so that swift measures can be put in place to prevent this from occurring.
Read on to find out how you can prevent the other parent from relocating unilaterally with your child.
What can I do to prevent my child from leaving the country?
There are various measures that can be put in place in order to prevent the removal of your child from Australia.
The most common measure, if the child already has a passport, is to apply to the family law courts to restrain the other parent from removing the child from the country and by also applying for a Pace Alert, which is sent to the Australian Federal Police. If a pace alert order is made, the child is placed on an airport watchlist and if the child attempts to leave Australia the police will be notified and the child will be prevented from leaving the country.
The Court has the power to make an order restraining a party from removing a child from Australia under s. 65D of the Family Law Act 1975 or an injunctive order under s.68B. When applying for such an order, you can at the same time apply for a PACE Alert so that the child’s name be placed on the Family Law Watch List maintained by the Australian Federal Police.
You can also apply for an order under s65ZD of the Family Law Act 1975 for delivery up of the child’s passport to the court and of any other relevant person.
How do I apply for a Pace Alert?
You apply for a PACE Alert by an application to the Federal Circuit/Family Court of Australia for an order that the child be restrained from leaving the country and that the child be placed on the Airport watchlist.
You should file an Affidavit with your application detailing the reasons you are concerned that the other parent may remove the child from the country without your consent.
You can ask the Court to deal with your application urgently if the risk of removal is immediate. You should provide a cover letter to the court explaining why your application is urgent. The Court may in particular circumstances deal with the application urgently, without notice to the other parent.
What should I include in my Affidavit?
- why you believe the child is going to be taken overseas without your consent
- When the child is likely to be taken overseas without your consent;
- whether it is believed that the removal of the child from the country would be permanent or temporary and the reasons for that belief;
- If the other parent has advised that they intend to return the child to Australia, the risk that the child may not be returned, including:
- the ties the other parent has to the country they are travelling;
- their ties, or lack thereof to Australia
- Whether the country the other parent is traveling to is a Hague Convention Country
- What long term decisions the travelling parent has previously made without your involvement.
- The care arrangements for the child including what ongoing time they are spending with you at present and the history of care of the child including whether the other party has previously failed to facilitate your relationship with the child;
- Your current relationship with the child and the impact that the child’s removal from the country will have on your relationship with the child.
- What the child’s views are e.g. does the child want to leave the country or to remain in Australia?
- Whether you are prepared to offer an undertaking that you will pay damages if an order is granted preventing the child from leaving the country.
- Any other relevant matter under s60CC of the Family Law Act.
What happens when a Pace Alert / Airport Watch List Order is made?
Once you have obtained a parenting order which includes a Pace Alert, the Australian Federal Police will place the child’s name and date of birth on the Family Law Watch List. Generally, the court will fax a sealed copy of the Order directly to the AFP.
Out of the abundance of caution, it is always advisable for your solicitor to send a copy of the order to the AFP as well, to ensure the child is added to the Airport Watch List.
What happens if the parent attempts to remove my child from the country after I have filed my application to stop them?
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: s65Y & s65Z of the Family Law Act 1975.
It is not an offence if the child is taken out of the country with the consent of both parents.
There is a further exception referred to under s65Y(2), which states that it is not an offence to take a child out of the country without the consent of the other parent, even if court proceedings are pending/orders made, if:
a. the person takes the child out of the country because the person believes the conduct is necessary to prevent family violence; or
b. the conduct of the person is reasonable in the circumstances as the person perceives them.
How long does an Airport Watchlist/Pace Alert order last?
Watchlist orders without a sunset clause (expiration period) remain on the AFP system until the child turns 18.
However, generally speaking an airport watchlist order should generally only last for a period of 2 – 3 years, with limited exceptions.
In most cases, the parents will not want the order to remain in force when the child reaches a certain age.
Unfortunately, there are circumstances where outdated, long forgotten PACE Alerts, without expiration periods, have caused distress and inconvenience to children when years later they have attempted to travel overseas, e.g. for a school trip or a holiday with family.
To avoid this, the Family Court and FCC prefer specific wording to be attached to a PACE alert order to ensure it is not outdated in terms of its usefulness and such wording includes a ‘sunset clause’ such that the Pace Alert expires after the expiration of a period referred to in the order, after which the AFP will remove the child’s name from the airport watchlist.
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