Hetherington Family Law principal Jennifer Hetherington – recipient of the Sole Practitioner of the Year Award at both Lawyers Weekly’s 2017 Women in Law Awards and the 2017 Australian Law Awards – has commended the federal government’s passing of the Civil Law and Justice Amendment Act 2018.
For Ms Hetherington, the amendments are “significant and welcome” changes to the Family Law Act.
She said most notably, there is a child abduction amendment which extends the offences list to include if a child that is permitted to travel abroad is retained overseas and not returned home.
While Ms Hetherington concedes it has long been an offence under the Family Law Act to remove a child from Australia where there is a parenting order in place or a court application for the making of parenting orders, “these amendments now extend to providing for an offence if a child is retained overseas.”
“In practical terms,” Ms Hetherington continued, “this means if a child is taken out of Australia with consent but then not returned within the time required under orders or as agreed between the parties then that becomes a criminal offence punishable by three years imprisonment”.
Provisions are applicable to parties to court proceedings, but also to anyone acting on behalf of that person.
Ms Hetherington called this “a stark warning to people who obtained consent of a parent to have a holiday overseas with their children and then fail to return them.”
Provisions of the Hague Convention on child abduction have always been available for parents to obtain the return of children where Australia is a signatory with the country where the child is retained, but it has not always been a specific criminal offence.
“This created an anomaly where a parent removing a child from Australia without consent would commit an offence if it was in breach of an order or proceedings were pending, but a parent who had permission to remove a child but then breached the condition to return the child by a certain date would not be guilty of a criminal offence,” Ms Hetherington explained.
“This goes a long way to assisting parents whose children have been abducted from Australia or retained overseas so that when those children are returned the parent who wrongfully retained them is now subject to a criminal offence with a three-year imprisonment term,” she noted.
Ms Hetherington also highlighted the change in the law recognising potential circumstances where parents take and/or keep children overseas due to family violence fears.
“Previously that was no defence to the criminal offence of removing a child from Australia; however, these amendments provide a defence for a parent or person who has removed or retained a child from Australia in breach of a court order or where parenting orders are pending if the person believes that it was necessary to do so to prevent family violence.”
Where this has occurred, Ms Hetherington said there is an obligation on the removing party to prove they believe the conduct is “necessary and reasonable” in the circumstances, and noted that the court will be “looking at what other steps the person could have taken to protect the child before going to the very extreme step of abducting a child from Australia.”
She stressed parents in family violence situations should “always seek specialist advice from a family lawyer before taking such a drastic step because if they rely upon a family violence defence and they are unsuccessful they could face themselves of being returned to Australia and not only having their children taken off them but facing a period of imprisonment.”
“Recent decisions of the Federal Circuit Court where children were taken on the run in Australia and hidden off the grid for several years and the mother was then imprisoned when the children were discovered, as was the grandmother who had harboured the children, show that the court is not taking a lenient attitude to issues of child abduction,” she said.