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13.79Section 65Z provides for similar obligations if proceedings for the making of residence order, contact order or care order are pending.

Amendments to comply with the Hague Convention

13.80The Family Law Council recommended that, to comply with the Hague Convention on the Civil Aspects of International Child Abduction, there should be a deeming provision under which a “parenting order” would be regarded as a “custody” order for the purposes of child abductions.1353  Section 42 of the Family Law Reform Act 1995 provides that, for the purposes of the Convention, each parent is regarded as having custody of the child; and a person who has a residence order in relation to a child should be regarded as having custody of the child.  A person who, under a specific issues order, is responsible for the day-to-day care, welfare and development of a child should also be regarded as having custody of the child.  A person who has a contact order should be regarded as having a right of access to the child.

Passport

13.81Section 67ZD of the Australian Family Law  Act 1975 now provides:

“If a court having jurisdiction under this part considers that there is a possibility that a child may be removed from Australia, it may order the passport of the child and of any other person concerned to be delivered up to the court upon such conditions as the court thinks appropriate.”

Criminal law on abduction

13.82The Family Law Council have recently issued a Discussion Paper on the criminalisation of the law on parental abduction.1354  If implemented, this would make it a criminal offence to remove a child even where there was no family law order in force.  The Council note that countries which have criminal offences of child abduction can make use of Interpol and extradition laws to secure the return of the child.  They also note that in cases of domestic abduction “the police are understandably reluctant to assist in circumstances where the events do not constitute a criminal offence.”1355

13.83On the other hand, making parental child abduction a criminal offence could be seen as an undue intrusion into the domain of the family, and the consequences of a criminal conviction can be severe.1356  Exceptions and defences would have to be provided for, for example, where the parent taking the child is fleeing the other parent because of violence.

Conclusion

1353 The UK Children Act 1989 (1994).

1354 Parental Child Abduction, (February 1997).

1355 Paragraph 1.12.

1356 At paragraph 4.06.

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