Police and Family Law
Recovery of Children: The role of police in family law matters is primarily to act on orders issued by a Court, and to prevent the unlawful removal of children from Australia. This may include Recovery Orders, Arrest Warrants and the Family Law Watchlist (previously known as the Airport Watchlist). We understand that family law matters are sensitive and an emotional time for all involved. The AFP will try to assist you where we can and act as quickly as possible in the execution of orders.
Parenting orders:
A Parenting Order is an order of a Court issued pursuant to section 65D of the Family Law Act 1975 (Cth). A parenting order may deal with, but is not limited to, one or more of the following:
- When or how a child may travel;
- the person or persons with whom a child is to live;
- the time a child is to spend with another person or other persons;
- the allocation of parental responsibility for a child;
- the communication a child is to have with another person or other persons; or maintenance of a child.
It is the responsibility of the persons that are party to the parenting order to ensure that the conditions imposed by such an order are complied with.
If you are concerned that a party may have breached a parenting order, you should consider seeking legal advice.
Police cannot provide legal advice. If you would like more information about family law procedures and forms, please contact Matthews Lawyers – 0401 269 091.
Offences
Generally under sections 65Y or 65Z of the Family Law Act 1975 (Cth), it is a Commonwealth offence for a person to take or send a child from Australia;contrary to an order limiting or preventing the child’s overseas travel,where court proceedings for a parenting order are pending, or where an appeal against a parenting order is pending. These offences are punishable by up to three (3) years imprisonment.
Additionally, taking or sending a child from Australia contrary to an order of the court may result in contempt of court.
The above offences may be subject to certain exceptions, discussed below at ‘Travelling overseas’.
If you are concerned that a child may be improperly taken out of Australia, you should seek legal advice, or contact police if the matter is urgent.
The Family Law Watchlist
The AFP maintains the Family Law Watchlist for family law matters. This system is designed to alert police to the movement of children. It identifies whether children are leaving Australia, and may be in place in circumstances where:
- the Court has issued a parenting order limiting or preventing the child’s overseas travel;
- the Court has issued an injunction limiting or preventing the child’s overseas travel;
- the child is the subject of a parenting order application currently before the Court that may limit or prevent overseas travel;
- the child is the subject of an application for an order to place the child on the Family Law Watchlist; or
- the child is the subject of a parenting order or injunction under appeal.
Placing my child on the Family Law Watchlist.
To place a child on the Family Law Watchlist, you must first complete a Family Law Watchlist Request Form (PDF, 630KB).
In addition, you will need to have:
- a Court order (made under s34 or s68B) or a parenting order that limits or prevents the child’s overseas travel and which also requests the AFP to place the child on the Family Law Watchlist;
- or filed an application with the Court for a Court order (to be made under s34 or s68B) or a parenting order that limits or prevents the child’s overseas travel, and which also requests the AFP to place the child on the Family Law Watchlist;
- or filed an appeal with the Court against an order of the Court relating to the child that limits or prevents the child’s overseas travel, that had requested the AFP to place the child on the Family Law Watchlist.
Applications for court orders relating to a child’s travel and the Family Law Watchlist.
An order placing the child on the Family Law Watchlist must be specific and not implied. The AFP prefers that orders include a defined period of 2 to 3 years for any restrictions on a child’s travel.
For an absolute prohibition on travel (unless a further order is made), the AFP prefers the following wording in an application for a court order:
- “That until further order each party, (given names, second name, surname and date of birth of each party) their servants and/or agents be and are hereby restrained by injunction, and irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975, from removing or attempting to remove or causing or permitting the removal of the said child/children (given names, surname and date of birth of each party) from the Commonwealth of Australia for a period of (x) months/years;
- 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 Watchlist for the said period, or until the Court orders its removal.”
For conditional prohibition on travel with consent of the parties involved, the AFP prefers the following wording in an application for a court order:
- “That until further order, or else subject to the authenticated consent of all parties required to provide consent by Part VII of the Family Law Act 1975, each party, (given names, 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 (given names, surname and date of birth of each party) from the Commonwealth of Australia for a period of (x) months/years;
- 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 Watchlist for the said period, until the Court orders its removal, or with consent of all parties”.
You should seek legal advice before seeking court orders. Matthews Lawyers can assist.
I have filed an application to place my child on the Family Law Watchlist. What happens now?
If you have filed an application to place your child on the Family Law Watchlist, it is your responsibility to provide that application (under the seal of a court) to the AFP. The Courts will not send this application to the AFP.
Your application must be emailed or faxed to the AFP along with the Family Law Watchlist Request Form (PDF, 630KB) (see AFP contacts). Please ensure that you provide a 24 hour contact telephone number and email address.
It is important to note that regardless of the specific orders you are seeking in your application, once the application to place a child on the Family Law Watchlist is filed with the Court, the Family Law Act 1975 (Cth) restrains all parties from taking the child concerned out of Australia.
This is subject to the exceptions listed at section 65Z(2) of the Family Law Act 1975 (Cth), or until a court order is made.
To confirm that your child is on the Family Law Watchlist, see Confirming if my child is on the Family Law Watchlist.
The Court has just issued an order placing my child on the Family Law Watchlist. What happens now?
If the Court has issued an order placing your child on the Family Law Watchlist, the Court will usually send that order to the AFP on the same day that the order is made.
If you have concerns about the imminent removal of a child, it is suggested that you phone Matthews Lawyers so that an urgent Recovery Application can be filed with the Family Court.To confirm that your child is on the Family Law Watchlist, see .
Travelling overseas
Generally under sections 65Y or 65Z of the Family Law Act 1975 (Cth), it is a Commonwealth offence for a person to take or send a child from Australia;
- contrary to an order limiting or preventing the child’s overseas travel;
- where court proceedings for a parenting order are pending; or
- where an appeal against a parenting order is pending.
Additionally, taking or sending a child from Australia contrary to an order of the court may result in contempt of court.
It is highly recommended that you discuss your intentions to travel with your lawyer, well before you intend to travel, to ensure travel is permitted.
If your child is on the Family Law Watchlist, whether your child can travel or not will depend on what orders were made by the Court. For example:
- If there is a Court order (such as a parenting order or injunction) unconditionally preventing the child’s overseas travel, you must obtain a further Court order permitting your child to travel, which may also remove the child from the Family Law Watchlist;
- If there is a Court order (such as a parenting order or injunction) preventing the child’s overseas travel, but giving permission if certain conditions are met (such as with the consent of all parties to the Order authenticated in accordance with regulation 13 of the Family Law Regulations 1984 (Cth)), you must provide evidence to the AFP that all of the required conditions have been met before the child travels.
Non-compliance with court orders relating to travel may result in offences against the Family Law Act 1975, or contempt of court.
What if proceedings in my matter are pending?
If an application for a parenting order or other order is pending (i.e. has not yet been resolved), or where an appeal against a parenting order is outstanding, the child will remain on the Family Law Watchlist until the application or appeal is heard and decided by the Court. these circumstances, this means the child will be prevented from travelling unless the Court proceedings are finalised, the Court has granted a separate order allowing travel, or travel is in accordance with section 65Z(2) of the Family Law Act 1975 (Cth).
It is important that you give the AFP as much notice as possible of your child’s intention to travel. Failure to do so may result in an unnecessary delay at the point of departure or may even result in your child from being prevented from travelling.
The AFP does not have access to the Court’s files outside of normal business hours. If the AFP has not been provided with the relevant documentation, by you or the Court, the AFP can only act upon the documentation in our possession at that time. For this reason, the AFP strongly suggests that when travelling, you carry a copy of all relevant documentation, including court orders and statutory declarations.
Confirming if my 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. The results of your enquiry will be subject to section 121 of the Family Law Act 1975 (Cth), which creates obligations regarding non-distribution or publication of information related to family law proceedings (see Confidentiality and Privacy).
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 or faxed to the AFP (see AFP contacts).
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.
My child is on the Family Law Watchlist. What are my obligations?
It is your responsibility to:
- provide the AFP with your child’s passport details, possible aliases and your 24 hour contact number.
- notify the AFP of any changes to your personal details and circumstances.
- notify the AFP of any new orders that may affect your child’s status on the Family Law Watchlist;
- inform the AFP of your intent to travel (where travel is permitted by a court or consent for example) no less than 10 working days before your departure.
Removing my child from the Family Law Watchlist.
If you wish to remove your child from the Family Law Watchlist, it is recommended that you seek legal advice.
How a child is removed from the Family Law Watchlist will depend on how the child was first placed on the Watchlist. Generally, if the child is placed on the Family Law Watchlist by injunction, a further Court order removing the child from the Watchlist may be required.
If the order requesting the AFP to place the child on the Family Law Watchlist is time-limited, then the child will be removed from the Family Law Watchlist on this date (subject to any subsequent orders).
The AFP suggests that you also provide a copy of your order by email or fax (see AFP contacts).
To confirm that your child is on the Family Law Watchlist, see Confirming if my child is on the Family Law Watchlist.
Recovery of children
A Recovery Order is an order of a Court issued pursuant to section 67U of the Family Law Act 1975 (Cth).
A Recovery Order can direct The Marshal, officers of the AFP or officers of State and Territory Police forces to locate and deliver the subject child to a person nominated on the Recovery Order (usually the Applicant).
How do I obtain a Recovery Order?
If you wish to apply for a Recovery Order, it is recommended that you seek legal advice.
I have a Recovery Order for my child. What happens now?
The AFP will only accept and act upon a Recovery Order issued in accordance with section 67U of the Family Law Act 1975 (Cth) from the issuing Court.
The AFP receives all Recovery Orders issued by all Courts across Australia, with the exception of Western Australia. The Family Court of Western Australia will refer all Recovery Orders issued in WA to the Western Australia Police. If your Recovery Order was issued in WA, please contact the WA Police.
It should be remembered that the AFP and State and Territory police are coordinating many Australian family law matters (including Recovery Orders) at any one time. This means that State or Territory police may have carriage of a Recovery Order related to your child.
Recovery Orders are valid for 12 months from the date of issue unless otherwise stated. A recovery order does not cease to be in force once the order is executed (Note 2 of section 67Q and section 67W(3)), and it may lawfully be re-executed.
However, following the execution of a recovery order your matter is generally mentioned before the Court that issued the Recovery Order and orders may or may not be made by the Court that affect the validity of the Recovery Order.
Matthews Lawyers are experienced in Recovery Orders. Telephone 0401 269 091 if you need assistance.
