The Italian 4 sisters case revolved around whether 4 sisters should return to live in Italy with their father or remain living in Australia with their mother. The most recent Lebanese case is around a mother’s failed attempt to bring her children back to Australia after they had been taken to Lebanon by their father.
This blog is not about commenting on those cases but about flagging some of the legal issues associated with international family law parenting disputes and in particular, how the Hague Convention on the Civil Aspects of International Child Abduction (‘the Convention’) applies. The Convention was established to assist in the recovery of children taken abroad to countries that have signed the Convention. Australia is a signatory to the Convention and has implemented domestic laws (Family Law Act (Child Abduction Convention) Regulations 1986 (Cth)) to facilitate the intention of the Convention. Many other countries are also signatories to the Convention. Lebanon is not.
These cases do highlight a harrowing aspect of family law, that is, when one parent takes a child overseas without the other parent’s consent or Court Order and does not return.
The basis of the Convention is that the best interests of all children for issues of their welfare should be determined by the Courts of the country in which a child habitually resides, rather than the best interests of an individual child.
The starting point is to determine whether a child has been taken to (or retained in) a country which is a signatory to the Hague Convention. If so, it then needs to be determined whether a child has been wrongfully removed or retained in the country and if the application is brought with one year of that wrongful removal or retention, the Court must Order the return of the child. However, it is not that simple as invariably, there will be disputes between parents as to whether a removal or retention of a child has been ‘wrongful’ and whether a child has been ‘habitually resident’ in a country.
The matter can be further complicated if the parent refusing to return the child argues that the return of the child under the Convention would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. There are also other circumstances which can be argued by the parent refusing the return the child.
If the country is not a Hague Convention country, a parent may be placed in the complicated position of having to commence proceedings in the country where the child has been retained in or removed to.
The matter can become even more complicated if there are existing Parenting Orders in place. If there are Parenting Orders in place under the Family Law Act, it is actually an offence to take children out of Australia unless Orders specifically provide for the travel or a parent provides a specific form of consent which is in a prescribed form.
There may be proactive steps that can be taken to reduce the risk of a child being taken overseas. There are legal processes that can be followed if a parent wishes to move away with a child, including overseas.
These are all extremely complicated legal issues and you need to obtain urgent advice from us if you are in a situation where you feel that either your child may be taken out of Australia or if you wish to take your child out of Australia.
Anna Neilan, Family Lawyer at Farrar Gesini Dunn.