Taking or sending children from Australia will always require parenting orders. Why? It’s a crime to illegally relocate or abduct a child without the other parent’s consent. So, what are parenting orders relating to taking or sending children from Australia? According to Section 65X of the Family Law Act 1975, these parenting orders can include:
- A child living with a person
- A child spending time with a person
- A child communicating with a person
- A person having parental responsibility for a child. A person with parental responsibility can make decisions on a child’s long-term issues. Courts will assume equal shared parental responsibility for separating couples.
Divorce often results in bitter relationships especially if the couple did not have an amicable separation. During divorce proceedings, courts may either allocate sole parental responsibility or equal shared parental responsibility for divorced couples. However, they will consider many factors before deciding which type of parental responsibility is needed.
Section 65Y: Obligations in Parenting Orders in Relation To Taking or Sending Children From Australia
Parenting orders are legally binding court orders that concerned parties must comply with. A party breaches a court order if they fail to follow the order’s terms and conditions. According to Section 65Y of the Act, a person commits an offence if:
- There is a parenting order related to taking or sending children from Australia
- The person takes or sends the child from Australia to a place outside of Australia
- The child is not taken or sent from Australia to a place outside Australia without the other parent’s consent. In this case, some people actually require a child to move or return to Australia.
- The person is or was a party to the proceedings
- The person is acting on behalf of a person who was a party to the proceedings
Section 65Y also mentions that the penalty for not following these conditions is imprisonment for 3 years. However, a person may have reasonable grounds for not complying with these conditions. For instance, the person believes that taking or sending a child from Australia prevents family violence or abuse.
Section 65YA: Retaining a Child Outside Australia
According to Section 65YA of the Act, there are certain obligations if there are parenting orders that retain a child outside Australia. Retaining a child outside Australia refers to keeping a child overseas. A person commits an offence if:
- There is a parenting order related to taking or sending a child from Australia
- A party acting on behalf of a party to the proceedings takes or sends a child from Australia to a place outside Australia.
- The person retains the child outside of Australia
- The person is or was a party to the proceedings
- The person is retaining the child on behalf of a person who was a party to the proceedings
Again, the penalty for these offences is imprisonment for 3 years. Moreover, a person may also have reasonable grounds for committing these offences such as preventing family violence or abuse.
Section 65Z: Pending Parenting Orders for Taking or Sending Children From Australia
Section 65Z of the Act outlines the making of pending parenting orders in relation to taking or sending children from Australia. A person commits an offence if:
- There is a parenting order related to taking or sending a child from Australia
- The person takes or sends the child from Australia to a place outside of Australia
- The child is not taken or sent from Australia to a place outside Australia without the other parent’s consent.
- A party acting on behalf of a party to the proceedings takes or sends a child from Australia to a place outside Australia.
Just like the two previous sections, the punishment for these offences is imprisonment for 3 years. People may also have reasonable grounds for committing these offences such as preventing family violence or abuse.
Section 65ZAA: Pending Parenting Orders For Retaining a Child From Australia
Section 65ZAA of the Act outlines the making of pending parenting orders in relation to taking or sending children from Australia. The same penalty and exemptions for committing the offence also apply in this section. A person commits an offence if:
- There is a parenting order related to retaining a child from Australia
- The person takes or sends the child from Australia to a place outside of Australia
- The person retains the child outside Australia in accordance with a consent order
- A party acting on behalf of a party to the proceedings retains a child from Australia
Section 65ZA: Obligations of Aircraft and Vessel Owners
Section 65ZA outlines the obligations of aircraft and vessel owners if certain parenting orders are made. A person commits an offence if:
- There is a parenting order in force in relation to taking or sending children from Australia
- The first person is a captain, owner, or charterer of an aircraft or vessel
- The primary carer in whose favour the parenting order was obtained has delivered a sworn statement to the first party. This sworn statement can either relate to the parenting order, details of the child and the full names of parties to the proceedings, terms of the order,
- The primary carer made a sworn statement not earlier than 7 days before the date of service of the parenting order.
- The first person permits the child to leave a place in Australia in the aircraft or vessel
- The aircraft or vessel’s destination is outside Australia
- The child does not leave.
The penalty for these offences is 60 penalty units. Here are the penalty units for each state in Australia as of November 2022:
- New South Wales – $110
- Victoria – $184.92
- Queensland – $143.75
- South Australia (SA) – Fines in SA are still set in the legislation in dollar terms rather than penalty units
- Tasmania – $181
- Western Australia – $163
- Northern Territory – $157
- Australian Capital Territory – $160
- Commonwealth – $222
Importance of Seeking Legal Advice
Taking or sending children from Australia will pose a lot of problems especially if there are parenting orders in force. Divorced couples need to adhere to parenting orders that either require the return or sending of a child to Australia from another country.
JB Solicitors can aid people who value their children’s best interests with making parenting orders. Our family lawyers are knowledgeable and experienced in family law matters such as parenting orders. We also value both parties’ opinions and suggestions in our mediation and arbitration services.
Contact a family lawyer today.
