Submission Re Parental Abduction | April 1997 | Single Parent Support Australia

The problem of parental abduction where there are no Family Court Orders needs to be addressed.

There are however problems with criminalisation as a solution. One problem is that in the absence of orders, the custody, guardianship and access rights of parents, grandparents and siblings have not been established, beyond the joint guardianship and custody rights originating with the natural parents. This makes it technically possible for any family member to claim that they have been denied contact with a child and seek to bring a criminal complaint of parental abduction.

As the discussion paper notes, technically any woman who fled to a shelter with her children to escape a violent partner would have committed an offence of parental abduction. Even if �escaping violence� was accepted as a defence, women could still be threatened with prosecution if they sought to leave. Women would then have to face a further hurdle of proving that they were subjected to violence. Where there are no restraining orders, or medical evidence of assault, it is inevitable that this defence would not always succeed and that some victims of violence would be doubly victimised through being convicted of parental abduction.

Approaching the issue from the perspective of the child�s well-being and safety it is apparent that any measures adopted must:

(b) Promote children�s well-being by protecting their residence with their primary caregiver[1] until and unless there are Family Court orders specifying otherwise.

If parental abduction is to be criminalised, this law should only apply where the child is abducted from his/her established primary caregiver and the abductor cannot show that they removed the child in the interests of the child�s safety. Under this logic, it is only the primary caregiver who could make a complaint of parental abduction. Parents who are not the primary caregiver, who wish to have contact, residence, or specific issues claims with respect to the child would have to apply to the Family Court for such orders. Other family members who sought contact with the child would also have to make application to the Court in the normal way.

Where parents have already separated the identity of the primary caregiver can be established in most instances through DSS Family Payment records identifying in whose household the child is ordinarily resident. Alternatively schools, child care services, the family doctor and neighbours could provide information on this point.

Where the issue of parental abduction arises at the point of parental separation, the identity of the primary caregiver for the children in the partnership can be established through statements from neighbours, school teachers, child care workers, or the family doctor identifying the parent who was seen to be providing day to day care for the child.

In those few cases where the caregiving role is seen as genuinely shared relatively equally, the abandoned parent would be able to test their status in court as a primary caregiver, and thus as a parent with the right to make a complaint of parental abduction against the other parent.

The existence of allegations of abuse, restraining orders, Police domestic violence attendance records, or convictions for assault against the abandoned parent would preclude the right of that person to make a criminal complaint of parental abduction.

Single Parent Support Australia proposes that any criminal provisions with respect to parental abduction in the absence of Court orders should be constructed with the twin goals of protecting children�s safety and protecting children�s continuing day to day relationship with their primary caregiver. Where the principle of children�s safety is in conflict with the principle of a continuing relationship with the primary caregiver, the principle of children�s safety should take precedence.

Only primary caregivers who do not have a history of interpersonal violence should be able to make a complaint of criminal parental abduction. All other claimants with respect to the child should be advised to make application to the Family Court to seek residence, contact or specific issues orders.

Single Parent Support Australia argues for option (d) The Family Law Act, with a cross referencing in the Criminal Code is preferred, as existing criminal provisions for parental abduction are contained in the Family Law Act. In the interests of consistency it is appropriate that the situation for separated parents without orders is not radically removed from the situation of separated parents with orders.

Single Parent Support Australia argues for option (b) courts exercising jurisdiction under the Family Law Act for reasons similar to those outlined in Q.4. An additional point is that the Family Law Reform Act 1995 specifically directs the courts to refer to violence when determining the best interests of the child. A further point is that the Family Court is required to be guided by the �Child�s best interests� principle whereas courts of summary jurisdiction are not so guided.

Single Parent Support Australia regards Fleeing from violence to be a necessary inclusion as a defence. Such defence should also include a �reasonable belief� of potential future violence, such that it is not necessary to prove past incidents of violence in order to establish a reasonable belief that violence may occur in the future.

Sudden extraordinary emergency, Protecting the child from danger of imminent harm and Reasonable and Lawful Excuse would appear to be useful inclusions as defence arguments.

Consent is an acceptable defence if it is framed in positivist terms. I.e. the �reasonable belief� in consent should not apply. The defence must demonstrate that they obtained consent from persons who have rights of custody.

The Attorney-General is well placed to determine prosecution where abductions are international. Another advantage is that the Attorney-General can better monitor how the provisions are working and whether further reforms are desirable. The criminalisation of parental abduction does have the potential to be used oppressively. For these reasons Single Parent Support Australia argues for the Attorney General to provide consent for prosecution.

Single Parent Support Australia argues that aiding or abetting the commission of criminal parental abduction should logically constitute an offence.

Any such offence should be confined to persons under 18 years of age for consistency with the Family Law Act and the Model Criminal Code.

Proceeds of crime legislation should apply if the person is convicted of a criminal offence.

It should be possible to recover compensation for injury/loss suffered by a parent or child as a result of parental child abduction. This should specifically include loss of earnings, direct costs and opportunity costs incurred, particularly where schooling or study has been compromised by the abduction.

Police should have powers to intercept telephone communications and use listening devices to locate a child who has been removed or retained in breach of any such offences.

[1] The primary caregiver is defined as the person who performs a range of everyday caregiving tasks on behalf of the child. Eg. Takes child to doctor, to school, organises child-care, organises visits with child�s friends, takes child to sport and cultural involvements etc.