Family Law Watchlist Orders

Family Law Watchlist Orders (also known colloquially as ‘airport watchlist orders’) are a critical tool within Australia’s family law framework. They are designed to protect children from the risk of being unlawfully removed from Australia, often in situations of parental conflict or abduction concerns. With the increasing globalization of families and the complexities of cross-border parenting disputes, these orders play a pivotal role in safeguarding the interest of children. This article delves into the concept of Family Law Watchlist Orders, their legal basis, the application process, and practical implications.

What is a Family Law Watchlist Order?

A Family Law Watchlist Order is a directive that prevents a child from being taken out of Australia without a court order or the consent of both parents. These orders are typically sought when there is a real risk that one parent (or another individual) may unlawfully remove the child from the country, to withhold access to the child or avoid an unfavourable court outcome.

The Australian Federal Police (AFP) operates the Family Law Watchlist at international departure points. A child’s name can be added to the Watchlist if:

• the court issues a parenting order that limits or prevents overseas travel
• the court issues an injunction that limits or prevents overseas travel
• there is a parenting order application currently before the Federal Circuit and Family Court of Australia or the Family Court of Western Australia to limit or prevent overseas travel, or
• a parenting order or injunction is currently under appeal.

When a child’s name is on the Watchlist, the AFP is alerted if the child attempts to depart the country. What happens then depends on the terms of the order. An absolute prohibition prevents the child’s departure from Australia under any circumstances. Not even the consent of both parents is sufficient to override the order. A conditional injunction, by contrast, allow a child to travel overseas so long as the person accompanying the child has consent for the child to travel from the relevant parties.

Legal framework for Watchlist Orders

Family Law Watchlist Orders derive their authority from the Family Law Act 1975 and are part of broader measures designed to protect children from harm. Key provisions relevant to watchlist orders include:

• Section 67ZC
  • this section grants the FCFCOA broad powers to make orders regarding the welfare of children, including restricting international travel
• Section 65DAA
  • this section relates to parenting orders and includes provisions for conditions that ensure compliance with travel restrictions.

In addition to these legislation provision, the terms of the Hague Convention on the Civil Aspects of International Child Abduction are also relevant. While not directly related to watchlist orders, this treaty underscores the importance of preventing child abduction and ensuring that children are returned to their habitual residence.

When is a family law Watchlist Order necessary?

A Family Law Watchlist Order may be warranted in various circumstances, including:

• when one parent expresses an intention to take the child overseas without the other parent’s consent, especially if the destination country is not a signatory to the Hague Convention
• high-conflict separations or unresolved custody disputes where there is a high risk of one parent attempting to circumvent court orders
• where one parent has strong connections to another country, such as dual citizenship, which increases the ease with which the parent could relocate the child, and
• if a parent has previously failed to comply with parenting orders or has attempted to remove the child unlawfully.

Protecting the child is the court’s paramount concern, but that does not mean that a child will be restricted from travel without substantial reason. The parent opposing the order may argue that it unfairly restricts their ability to travel overseas or maintain cultural and familial ties. The court will evaluate these concerns in light of an overall consideration of the child’s best interests.

Application Process for Watchlist Order

There are four steps in the application process for a Watchlist Order.

1. File an application

To seek a Family Law Watchlist Order, the concerned parent or guardian must file an application with the FCFCOA. This application may be part of broader parenting proceedings or filed as an urgent standalone request if there is immediate concern.

2. Provide supporting evidence

Applicants must provide evidence substantiating the risk of international abduction or unlawful removal. This may include:

• evidence of threats or statements indicating an intention to leave the country
• documentation of the other parent’s ties to a foreign jurisdiction (such as passports or citizenship documents), or
• history of non-compliance with parenting orders or prior attempts to remove the child.

The applicant must provide substantial evidence to obtain the order, which can be challenging in many cases.

3. Interim Orders

In urgent cases, the court may grant an interim watchlist order ex parte (without the other party being present) to prevent imminent removal. These interim orders remain in place until the matter can be fully heard.

4. Service and Notification

Once the order is granted, it must be served on the AFP. The AFP will then implement the watchlist restrictions. The other parent is typically notified, except in cases where this could escalate the risk.

Role of the Australian Federal Police

The AFP is responsible for enforcing Family Law Watchlist Orders. Once a child’s name is added to the watchlist, the AFP monitors international departure points, including airports and seaports. If an attempt is made to remove the child from Australia, authorities are empowered to intervene and prevent the departure.

Parents should be aware that the AFP cannot add a child to the watchlist without a court order (or a pending application), and the scope of their enforcement is limited to the terms specified in the order.

Parents concerned about the risk of abduction should act promptly to seek a watchlist order, especially if there are indications of imminent travel plans. Go To Court Lawyers can provide advice and help prepare an application for an order. Please get in touch on 1300 636 846 for any legal assistance.