Guide to Understanding the Divorce Process

Overseas Parenting Matters

Overseas and far away: PACE, Passports and Hague

In our practice, we often have to deal with children’s’ issues on a global scale. Here, we briefly look at:

  1. Passports for children;
  2. Going on holiday’s overseas;
  3. PACE alerts;
  4. The Hague Convention.

PASSPORTS

It is a requirement that, before a Passport is issued to a child, the written consent of all people with parental responsibility is required. If you are in a position to do so, try and speak to the other party directly first about signing an Application for a Passport. The passport Application can be located online here.

If that isn’t successful, and assuming that you have no Court Orders in place, you can then make a request in writing for ‘special circumstances’ to a Senior Officer from the Department of Foreign Affairs who will then consider it. In such cases, your application must be accompanied by:

  1. A statement in which you state why the necessary consent has not and cannot be obtained, and explain the special circumstances relevant to the application; and
  2. The child’s full birth certificate; and
  3. The originals of all Court Orders affecting parental responsibility for the child.

There are some exceptions to making this request and, in this case, you are then able to bring an Application to Court seeking that a Registrar of the Court sign the Passport application on behalf of the other party. In your Application and supporting Affidavit, you must address:

  1. What happened with the administrative process for seeking a Passport/why the administrative process was not appropriate;
  2. Address the relevant factors under Part VII of the Family Law Act.

You must also serve a copy of your application after it has been filed on the other party to prove service.

Don’t forget to think about who should hold the Passports when they aren’t being used. If you have concerns, they can always be held in a security deposit box with both parties having to jointly sign to remove them.

OVERSEAS HOLIDAYS

So, you’ve got your child’s Passport and you are ready to go? Not quite. Before you go, you need to remember:

If you have parenting proceedings on foot or a parenting Order in place, you cannot take your child from the jurisdiction unless:

  1. There is a specific Order that allows for overseas travel;
  2. You have the express written permission of the other party.

If the other party does not agree to the child travelling overseas, you can bring an Application to Court to seek overseas travel. If you do so, you must be able to show to the Court:

  1. The length of the proposed stay;
  2. The truthfulness of your Application;
  3. The effect of the child by depriving them of time with the other parent;
  4. Any threat to the welfare of the child;
  5. Any other relevant factors under Part VII of the Act.

As a matter of course, we always ask our client’s whether there is a need for an overseas travel clause so you don’t have to deal with this issue later. Make sure you advise your Solicitor even if overseas travel isn’t on the horizon at the moment.

PACE ALERTS

What do you do if the shoe is on the other foot? What do you do if you have fears that the other party will remove the children from the jurisdiction?

If you think the other party will be applying for a Passport to take the children out of the country, you can make a child alert request. This can be found here.

A Child Alert Request warns the Department of Foreign Affairs and Trade that there may be circumstances preventing the issue of an Australian Passport or other travel document to the child named on the form. It does not, however, stop a party from travelling if there is already a current Passport for the children.

If you are concerned that your child may be taken out of the jurisdiction you can:

  1. Obtain a Court Order preventing the removal of the child from Australia;
  2. You can provide a copy of this Order to the Australian Federal Police and they can put the children on the watch list on your behalf. This must be renewed every 6 months in order to remain effective.
  3. You can make an urgent application to the Court which restrains the child from leaving Australia, the child’s name placed on the Airport watch list. You will need to provide the AFP with a copy of the sealed Application and Court Order in order for them to carry out the PACE alert.

However, don’t forget that, once the child’s name is on the alert, you must apply for the alert to be lifted otherwise the children will not be able to leave the Country, irrespective of who they are travelling with. A helpful Family Court brochure in relation to this can be found here.

HAGUE PROCEEDINGS

If you think that your client has already been removed from the jurisdiction, there are a couple of steps you can take:

  1. Report the child as missing to your local police station;
  2. Contact the Australian Federal Police to request airport arrival/departure information;
  3. Contact the international child abduction line on 1800 100 480.

Australiais a party to the Hague Convention on the Civil aspects of international child abduction.The Hague Convention is an international treaty that tries to ensure children who are wrongfully retained in another Hague country can be returned quickly. You can find a list of Hague convention countries here.

If you have retained the children in Australia and an Application has been brought against you for their return, you should definitely seek legal advice. Always seek the advice of a Family Law specialist or specialist firm – defending Hague proceedings can become very complicated.