Abducting Your Own Child Can Amount to a Crime in Australia

by Sonia Hickey & Ugur Nedim

In recent years, police have charged nine people in relation to a ‘parental child abduction ring’ – a sophisticated operation which enabled parents to abduct their own children, in order to stop the other parent from having access or visitation.

In the most recent case before the courts, an 84-year old Queensland man has been sentenced to an 18-month good behaviour bond in relation to payments made to a parental custody child abduction ring.

The court heard that over a six-month period, the man transferred $1,500 to the group which helped disgruntled parents to abduct their children and also facilitated the publication of private Family Court documents on the internet. This was the service the 84-year old man had paid for.

He was convicted of dealing with money that would be an instrument of crime, which is an offence under Queensland law.

Dealing with property that subsequently becomes an instrument of crime, with ‘property’ meaning money or other valuables.

Parental child abduction ring

Others allegedly involved in the enterprise, some of whom are yet to face court, have been charged with offences including conspiracy to defeat justice, child stealing and stalking.

A second man has been convicted of publishing an account of court proceedings, contrary to the Family Law Act, and one count of dealing in the proceeds of crime. The man was found to have published material relating to proceedings before the Family Court,  as well as other harassing and offensive material.

For these services, he was paid more than $28,000, and has been sentenced to two years in prison.

What is parental abduction?

Parental Child Abduction usually occurs in custody disputes when one parent takes, detains or conceals a child from the other parent, and it is not uncommon for other family members to help the abducting parent.

There are a range of reasons this can occur, but typically Family Law Disputes and Child Custody issues can be fraught with emotion for all involved and sometimes a parent makes a decision to take a child away from the other parent, believing that it will be in their own and the child’s best interests.

Parental child abduction is against the law

Parental child abduction is a criminal offence under the Family Law Act, as long as there are orders in place or court proceedings in progress in relation to the child.

New laws created in 2018 ensure that these offences also extend to any persons acting on behalf of a person to whom the provisions apply and it is also a crime to attempt to commit this type of offence. The offence carries a maximum penalty of three years in prison.

However, defences to the charge include fleeing from violence and protecting the child from harm, in addition to general defence of self defence – which includes the defence of another person.

Abducting a child can also amount to kidnapping under the law.

Under the law, the Australian Federal Police can monitor telephone activity and bank account transactions, as well as work with their overseas police and agencies to locate the abducted child if the child was taken out of Australia.

The offence of dealing with property that becomes an instrument of crime

Intentionally dealing with property that later becomes an instrument of crime is an offence under section 193D(1) of the Crimes Act 1900, which carries a maximum penalty of 15 years in prison.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

  1. You dealt with property
  2. You intended for that property to become an instrument of crime, and
  3. The property subsequently became an instrument of crime.

‘Deal with’ includes:

  1. Receiving, possessing, concealing or disposing of
  2. Bringing or causing to be brought into NSW including by electronic transfer, and
  3. Engaging directly or indirectly in a transaction, including receiving or giving a gift.

‘Property’ means money or other valuables.

‘Instrument of crime’ means property that is used in the commission of, or to facilitate the commission of, a ‘serious offence’, which is:

  1. Any offence that can be prosecuted ‘on indictment’, which means in a higher court such as the district court
  2. Supplying a restricted substance, or
  3. An offence committed outside New South Wales that would constitute an offence describe above if committed here.

Proceedings for the offence cannot be brought without the consent of the DPP.

You are not guilty of the offence if you satisfy the court that your actions were intended to assist law enforcement.

Other defences to the charge include:

  1. Duress,
  2. Necessity, and
  3. Self defence.

The offence of kidnapping in New South Wales

Kidnapping is an offence under section 86 of the Crimes Act 1900 (NSW) which carries a maximum penalty of 14 years in prison

To establish the offence, the prosecution must prove beyond reasonable doubt that:

  1. You took or detained a person,
  2. You did so without the other person’s consent
  3. You intended by doing so to hold the person to ransom, or commit a serious indictable offence, or obtain any other advantage.

A serious indictable offence is one which is punishable by at least 5 years in prison, which includes larceny (stealing).

The maximum penalty increases to 20 years in prison where:

  • You were in the company of another person or persons, or
  • You caused actual bodily harm to the complainant.

Actual bodily harm is that which is more than ‘transient or trifling’, and includes lasting cuts or bruises.

The maximum penalty increases to 25 years in prison where:

  • You were in the company of another person or persons, and
  • You caused actual bodily harm to the complainant.

Defence to the charge include:

  1. Self-defence
  2. Duress
  3. Necessity, and in cases where the act was done to obtain property,
  4. Claim of right

A claim of right defence is available where you are charged with an offence which contains an element of larceny (stealing) and you honestly believed on reasonable grounds you were entitled to the whole of the property you were attempting to obtain.

Authors

Sonia Hickey

Sonia Hickey is a freelance writer, magazine journalist and owner of 'Woman with Words'. She has a strong interest in social justice, and is a member of the Sydney Criminal Lawyers® content team.

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with over 20 years of experience as a criminal defence lawyer. He is the Principal of Sydney Criminal Lawyers®.

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