Retaining children overseas is now an offence under the Family Law Act 1975 (Cth).

Existing offences

Subdivision E of Division 6 of Part VII of the Act provides for the ‘Obligations under parenting orders relating to taking or sending children from Australia’. Sections 65Y and 65Z already provide that it is an offence to take or send a child overseas if there is a parenting order in force, or sought in a live application, unless there is written and authenticated consent of each person in whose favour the order was made or sought, or it was done in accordance with a court order. The penalty for contravention is imprisonment for three years.

As part of the Civil Law and Justice Legislation Amendment Act 2018 subdivision E has been amended, with new sections added that deal with retention of children overseas. These amendments have effect from 26 April 2019. Sections 65Y and 65Z have been renamed and re-organised in the Act, but essentially remain the same. The only addition is an exception described below.

New offences

Under the amendments, any person retaining children overseas now commits an offence pursuant to the new sections 65YA and 65ZAA, unless they are doing so in accordance with authenticated consent in writing, or a court order. This applies whether or not the person originally took or sent the child outside Australia. The penalty for contravention is imprisonment for three years.

Statutory exception

There is one legislative exception to the offences created under subsections 65Y(1), 65Z(1), 65YA(1) and 65ZAA(1). The subsections do not apply if the person who takes, sends, or retains the child outside Australia believes the conduct is necessary to prevent family violence and the conduct is reasonable in the circumstances as the person perceives them. This applies regardless of whether or not the person who takes, sends, or retains the child is or was the party to the proceedings.

Commentary updated

The Children commentary in the By Lawyers Family Law guide has been updated accordingly.