This article will discuss parenting orders and obligations of aircraft and vessel owners. It can be illegal to take or send children away from Australia without proper legal permission. The laws that govern international child abduction are:
- The Family Law Act 1975; and
- The Hague Convention on the Civil Aspects of International Child Abduction
If a parent takes or sends a child overseas without the consent of the other parent or court order, it could be parental child abduction. This serious offence can have significant legal and emotional consequences for all involved. In fact, aircraft and vessel owners have obligations under parenting orders according to Section 65ZA. We have highlighted this section in one of our articles.
Aircraft and vessel owners have an obligation under the Act to ensure that they do not transport a child overseas in contravention of a parenting order or without the necessary consent or court order. They may be liable and receive a charge of a criminal offence. Moreover, they may need to return the child to Australia if they transport a child under these circumstances. Read on to know more.
Section 65ZB: Pending Parenting Orders and Obligation of Aircraft and Vessel Owners
According to Section 65ZB of parenting orders and obligations of aircraft and vessel owners, a person commits an offence if the following applies:
- There is a parenting order in relation to taking or sending children from Australia
- The person concerned is a captain, owner, or charterer of an aircraft or vessel
- A primary carer to proceedings regarding children has served a statutory declaration to the captain, owner or charterer that relates to the proceedings. The carer must have made the declaration not earlier than 7 days before the date of service. This declaration also includes the following:
- Full name and date of birth of the concerned child
- Full names of the parties in the proceedings
- Name of the court, nature of the proceedings, and the date of the institution of the proceeding. This should still be included if there is an appeal that has been instituted in the proceedings.
- A statement that the child-related proceedings are pending at the date of the declaration
- Any other relevant matters
- The captain, owner, or charterer of an aircraft or vessel permits the child to leave a place in Australia
- The destination of the aircraft or vessel is outside Australia
- The child does not leave:
- In the company or with the written consent of the primary carer
- In accordance with a court order related to children, or under a law of a state or Territory after the institution of proceedings related to children.
The penalty for breaching these conditions is 60 penalty units. However, the penalty won’t apply if the person has a reasonable excuse.
Section 65ZC: Provisions Applicable to Sections 65ZA and 65ZB
Section 65ZC of parenting orders and obligations of aircraft and vessel owners state provisions applicable for Sections 65ZA and 65ZB. Declarations made under these sections may be served on aircraft (or their agents) by sending the declaration to their registered postal address.
They are also not liable for any civil or criminal proceedings if they complied with Sections 65ZA and 65ZB in good faith. What if captains, owners, or charterers commit an offence under subsections 65ZA(1) or 65ZB(1)? This may result in the person getting prosecution and conviction. However, a person is not liable for a second punishment for the same act or omission.
Section 65ZD: State and Territory Laws
According to Section 65ZD of parenting orders and obligations of aircraft and vessel owners, nothing in Part VII, Subdivision E restricts or prevents the operation of any state or territory laws under which:
- Action may be taken to prevent a child from leaving Australia or being taken, sent, or retained outside Australia; or
- A person may be punished in respect of taking, sending, or retaining a child outside Australia.
Section 65ZE: Extended Geographical Jurisdiction
According to Section 65ZE of parenting orders and obligations of aircraft and vessel owners, Section 15.4 of the Criminal Code Act 1995 (Category D) applies to an offence against Sections 65Y to 65ZB. Section 15.4 of the Act states that if a Commonwealth law states that this section applies to a specific offence, the offence is as follows:
- Whether or not the alleged offending conduct occurs in Australia; and
- Whether or not the alleged offence occurs in Australia as a result of the conduct constituting the alleged offence
Preventing the Illegal Taking or Sending of Children From Australia
Here are some tips to keep in mind when discussing parenting orders and obligations of aircraft and vessel owners:
1. Obtain appropriate legal documentation: If you are planning to travel with a child or children, it is important to obtain the appropriate legal documentation. This may include passports, visas, and permission to travel from any other parent or legal guardian who has custody or access rights to the child.
2. Be cautious of international travel: If a person is concerned that their child may be taken out of Australia illegally, they may wish to consider restricting international travel. They may also seek a court order that prevents the child’s removal from the country.
3. Be aware of signs of potential abduction: Some warning signs that a child may be at risk of abduction include:
- Sudden changes in the child or carer/other parent’s behaviour or attitude
- The other parent or caregiver expressing a desire to take the child out of the country; or
- The other parent or caregiver attempting to limit or control access to the child.
4. Report any suspected abductions: If you suspect that a child has been abducted or taken out of the country without proper legal authorisation, it is important to report this immediately to the Australian Federal Police and/or the Department of Home Affairs.
Importance of Seeking Legal Advice
We hope this article has helped you understand the parenting orders and obligations of aircraft and vessel owners. If you have concerns about the potential for your child to be taken out of Australia illegally, you can seek legal advice from JB Solicitors.
We can provide guidance on your legal rights and options for preventing parental child abduction. Contact us today for more information about the parenting orders and obligations of aircraft and vessel owners and other family law matters.