Its the stuff of nightmares your partner stealing your kids and disappearing overseas. Statistically it happens 2 or 3 times a week in Australia.
Under current law, parental international child abduction (PICA) isnt necessarily considered a crime. It depends on the circumstances. So while there may be avenues for pursuing the return of your kids, (eg. via the Hague Convention) the parent who took them may never face charges.
Under the Family Law Act, its an offence to violate a Parenting Order made by the Court. That might include orders about the childs living arrangements, and the time they spend with and communicate with the other parent. A parent who takes their child overseas without the other parents consent is clearly violating those orders. In that case, the abducting parent could face 3 years jail upon their return. Its the same penalty if matters were in the process of being determined by the Court.
But if a parent consents to the other parent taking the child overseas for a trip, and the child never returns, theres no such penalty. In other words, its an offence to remove a child overseas without consent, but not to detain them there without consent.
And if no parenting orders are in place (or pending) then theres no penalty for the abducting parent.
But the Gillard Government is proposing to toughen up PICA laws. One proposal would make it a criminal offence with 3 years jail time for detaining a child overseas, even if consent for the trip was given. (But only where parenting orders had been in force or pending. There still wouldnt be a general criminal offence for parents who abduct their kids.)
Other proposed changes include giving the Family Court more power to gather information to help locate kids overseas, such as through text messages and stored telecommunications data, via the Australian Federal Police. Another would allow the Family Court to suspend child maintenance payments to abducting parents.
New defences would also be created, such as for the situation where an abducting parent was fleeing violence. And the Director of Public Prosecutions would be able to give overseas courts an undertaking that the abducting parent wouldnt face charges if they returned the child. (Countries may be loath to cooperate if prosecuting the parent isnt seen to be in the childs best interests).
But some argue that these changes dont go far enough, and that a general criminal offence should be established, with jail time. That would be detrimental to kids, argue others.
Theres also a concern that the tougher approach may send abducting parents underground, making it harder to find them.
Draft legislation will be introduced early next year.
