Family Law Kit

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Disclaimer: This material is produced by the AFP and is intended to provide general information in summary form on Family Law orders relating to children. We have sought to ensure this information is accurate and current at the time of writing. The contents do not constitute legal advice and should not be relied upon as such. Formal legal advice should be sought in particular matters.

The AFP and Family Law matters

The AFP's role in the family law process is to act on specific orders of the Court. Those orders are Recovery Orders, Warrants of Arrest and Writs of Possession. The AFP cannot enforce residency, care or contact orders. The AFP Family Law Team will try to assist you where we can and act as quickly as possible in the execution of orders. We understand that Family Law matters are sensitive and an emotional time for all involved.

The AFP cannot provide legal advice. So, if you would like more information about the Family Court of Australia or the Federal Magistrates Court procedures and forms we recommend you look at their websites - www.familycourt.gov.au or www.fmc.gov.au. The contact numbers for the Family Court throughout Australia are located at the end of this kit.

Or, speak to your solicitor if you have engaged one.

Family Law Watchlist

This system is designed to prevent children whose parents are involved in Family Law proceedings being removed from Australia without the consent of the Court. Generally, the system is used for matters where there is an actual fear that the child may be removed from the Commonwealth of Australia. Sections 65Y and 65Z of the Family Law Act 1975 provide that a child who is subject to family law proceedings or a residence, care or contact specifying non-removal from Australia must not be removed from the Commonwealth of Australia. There is provision for an exception to these sections under Sections 65Y (2) and 65Z (2) which provide for a child to be removed from Australia with the consent in writing (authenticated as prescribed) of each party. Approval to remove a child from Australia may also be obtained via a new court order. A party who removes or attempts to remove a child from the Commonwealth of Australia may be sentenced up to three (3) years imprisonment.

Where an order that specifically restrains the travel of a child from Australia is in existence it will, in most instances, be necessary to obtain another court order to permit travel regardless of the consent of the parents — that is unless the order restraining travel makes specific allowance for removal of the child with parental consent. Orders restraining travel are, in most instances, made under Part XIV of the Family Law Act, which operates independent of Sections 65Y and 65Z. The Watch List is in effect at all international sea ports and airports.

The Watch List is in effect at all international sea ports and airports.

Placing a child's name on the Family Law Watchlist

To place a child's name on the watch list, you will be required to obtain a Court Order or an application for an immediate order (often referred to as a restraining or retention order) that directs the AFP to place the name of the child on the Family Law Watchlist. The direction from the Court must be specific and not implied.

A certified copy of the Court Order must be provided to the AFP.

The Court Order can be issued by the Family Court of Australia, the Family Court of Western Australia, the Federal Magistrates Court or a Local Court that exercises jurisdiction under the Family Law Act 1975. The AFP Family Law Teams prefer the following wording for the court order:

"That until further Order each party, (first name, second name, surname and date of birth of each party) their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the said child/children (first name, second name, surname and date of birth of each party) from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name/names of the said child/children on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child's/children's name/names on the Watch List until the Court orders its removal".

If either party desires to take the child/children out of the Commonwealth of Australia, they will be permitted to travel only with an Order of the Court. If there is still a genuine need to keep the child/children on the Watch List, the Court can make an Order which allows travel for a certain period of time with a certain party. It is recommended that you discuss your intentions to travel with your solicitor. Unless the Restraining Order is discharged, the Watch List Alert will still activate if an attempt is made to travel. That is why it is important to advise the Family Law Team in your State or Territory of your intentions to travel to seek a variation to the Court Order in plenty of time (where possible one week) before the intended travel to prevent lengthy delays prior to departure.

Removing a child's name from the Family Law Watchlist

A child may be removed from the Family Law Watchlist only with a Court Order. That Order must discharge the Order or specific paragraph which restrained the parties from removing the child/children from Australia and/or direct the AFP to remove the child/children from the Family Law Watchlist.

A child's name will be removed from the Family Law Watchlist when the AFP receives a Court Order to that effect. If there is no longer a fear that a child will be taken out of Australia, it is recommended that you obtain a Discharge Order to avoid future difficulties at Australian Ports.

What are my obligations?

Once you have obtained an Order from the Court, you or your solicitor should provide an original sealed copy to the AFP Family Law representative in the State or Territory office for the following as soon as practicable:

  1. All Court Orders issued by the Court which relate to the Family Law Watchlist; and
  2. All Court Orders issued by the Court while the child/children remain on the Watch List;

If the Court has allowed travel for a certain period of time, it is recommended that you or your solicitor provide a copy of the amended Court Order to the AFP Family Law representative at least seven (7) working days prior to travel dates. Where the parties' consent has been obtained for travel under section 65Y or 65Z of the Family Law Act 1985, and the parties' signatures have been witnessed by a person authorised to witness a Statutory Declaration (as required by Regulation 13 of the Family Law Regulations 1984.) it should be presented to the AFP Family Law representative at least seven (7) days prior to travel to allow authentication of consent details in order to avoid lengthy delays at airport terminals or the possibility that travel will be refused. In all other circumstances where a Care, Contact or Residence Order has been made by a Court, a Court Order authorising overseas travel by a child should be provided to the Australian Federal Police at least seven (7) working days prior to travel.

In the event that your child presents at an international port of departure and is prevented from departure by the Australian Federal Police, you will be required to attend at such place and time (to be advised by the AFP) to take delivery of the child. All costs incurred in effecting the delivery (i.e. travel, sustenance for yourself, your agent and the child/ren) WILL NOT be met by the Family Court or the Australian Federal Police. Thus it is important that you notify the AFP of any changes to your personal details as a matter of priority. Additionally, it is important that when providing your details, you nominate a 24-hour contact. This will also assist with confirmation of variations to the order.

Confirming if a child is on the Family Law Watchlist

To establish whether a child is on the Family Law Watchlist, you or your lawyer will need to complete a Family Law Watchlist - Enquiry Form (PDF, 50KB).

You must provide a certified copy of a Government issued identification, such as a Drivers Licence or Passport. If possible, and to assist your enquiry, it is recommended that you also provide a copy of the application or order that places your child or children on the Family Law Watchlist.

Completed forms must be emailed to AOCC-Alerts@afp.gov.au.

You must provide a return email address. Due to the high volume of enquiries, the AFP will only respond to your enquiry by email. Please allow up to 10 days to receive a response before contacting the AFP.

Children already taken overseas

When a parent believes a child has already been removed from the Commonwealth of Australia, an application can be made for the return of the child under the provisions of an International treaty known as the Hague Convention (Civil Aspects of Child Abduction). Proceedings can be instituted only if the country to which the child has been taken is a signatory to the Hague Convention.

To find out if a particular country is a signatory to the Hague Convention, you can call the Commonwealth Central Authority on 1800 100 480 (free call) or you can check on the website of the Hague Conference on Private International Law, the body which administers the Convention. Further information regarding the Hague Convention can be found at International Child Abduction (Attorney General's Website) or speak to your solicitor.

Recovery of Children

A Recovery Order is a court order that directs Federal, State and/or Territory police to recover and return a child mentioned in the order to the person nominated in the order (usually the applicant). A Recovery Order can be issued by the Family Court of Australia, the Federal Magistrates Court or by relevant courts within your State or Territory exercising Family Law jurisdiction, under Section 67Q of the Family Law Act 1975. A Recovery Order is valid for twelve (12) months from the date of issue unless otherwise stated. Recovery Orders also contain an order prohibiting the person (generally the respondent) from again taking or removing the child. If the person again removes the child, they may be arrested without warrant (Section 65Q of the Act).

Even though a person may have a Court Order giving the person residence, care or contact of a child, the police are unable to become involved when the child is removed or not returned to the person unless a Recovery Order has first been obtained. Breaches of a Residence, Care or Contact Order can be reported to the Court. Police will act only on a Recovery Order that is received from the Court in Form 34 format should the State or Territory police be actioning the orders.

AFP will not generally recover a child, except in extraordinary circumstances, until the person to whom the child is to be returned is in a position to receive the child and is close by. This is especially so if the child is very young or does not speak English. If the child is interstate, the applicant must still be as close as possible to receive the child. This reduces the stress on the child and the necessity for the child to remain in police care. Please speak to the AFP Officer in Charge of your Recovery Order for more detail.

The applicant will not be permitted to be present during the execution of the Recovery Order.

To assist the AFP in locating subject children, investigating police require as much information as you have regarding the children's possible whereabouts. Applicants can assist the AFP by completing a Family Law Information Sheet (PDF, 194KB) and providing a copy to the Court when making application for a Recovery Order.

If you do not know where your child/children can be located, the AFP may request that you obtain a Location or Information Order from the Court. It is highly recommended that you discuss these options with your solicitor or the Family Law representative.

Note: It should be remembered that the Family Law representative may work on many Recovery Orders simultaneously. The AFP understands these matters are difficult for all involved and will action these Orders as soon as possible. It is important that the AFP is aware of the background in the matter before an attempt is made to recover a child. The AFP may request the applicant to complete an Information Request for this purpose.

Publication Orders

Publication Orders permit a person to publish in a newspaper or periodical publication or by radio broadcast or television an account of family law proceedings. If a Recovery Order has been issued, the AFP may request that you obtain a Publication Order to permit the AFP to seek assistance from the public, especially when the location of the child is not obtained through a Location or Information Order. Please speak to your AFP Case Officer regarding a Publication Order.

Writs of Possession

Writ of Possession, also known as a Sequestration Order, is a Court Order that directs that the estate of the person against whom the decree has been made be sequestrated. This Order will direct police to remove nominated persons from the premises and to secure that premises.

Emergency Orders

There is an after hours service available through the Family Court of Australia where a judicial officer may be contacted to consider the making of an emergency order. However this is available only in cases of extreme urgency. The AFP will give priority to emergency orders on request by the Courts.

To obtain emergency orders, the judicial officer must be satisfied that there is an immediate risk of a child being removed from Australia or a need for immediate action by the police. If you have immediate concerns for the safety or welfare of a child, contact your local police.

The Family Court Emergency Line number is 1300 352 000. The judicial officer does not have immediate access to a Court file and will not be able to answer questions in relation to your particular Family Court matter.

If an Emergency Orders is made, the judicial officer will advise the AFP at the airport in your State so that immediate action can begin. If the above circumstances relate to you, you can contact the Family Court Emergency Line on 1300 352 000.

Secrecy

Section 121 of the Family Law Act 1975 creates secrecy obligations regarding disclosure of court proceedings and related information.

Further advice

The AFP cannot provide you with legal advice.

If you require further information, speak to your solicitor or visit the websites provided in this form. The list of contact numbers attached may also be useful.

View useful contacts