How to avoid an international child custody dispute
“I’m leaving on a jet plane…(dont know when the kids will be back again)…”
By Ann Northcote, Director, Farrar Gesini Dunn
There has been a lot of publicity lately about the four girls caught in the middle of a dispute between their Australian mother and Italian father. This case has been in the Family Court and will now be heard in the High Court.
It serves as a good reminder that overseas travel by your children with your ex-partner is something that should not be taken lightly. Australia is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction. Countries who sign the Convention agree that children, who are brought to their country without the consent of a parent in the other convention country, should be promptly returned to their country of residence. In broad terms, it has been a good example of international cooperation and many children sent to one country have been returned to their country of residence quickly and without their parents having to incur huge legal fees as the Central Authority (generally speaking being the relevant government department in the country) handles the matter.
Of course, not all countries have signed the Convention. Many of you may have seen the dramatic documentaries of parents hiring ex-military men to try and re-claim their children from their ex partner. You should also not be mistaken in thinking that all developed countries have signed the Convention. Japan, for example, has not signed.
However, having to resort to invoking an international treaty obligation to have your children returned should, of course, be an absolute last resort.
If there are parenting orders in force then a party is not permitted by Australian law to take or send a child from Australia unless the other party has consented in writing or unless a Court has specifically ordered.
However, it is a good idea when giving your written consent to reach an agreement as to the information you will be provided such as a copy of the full itinerary, with dates, flight numbers and times, addresses while overseas etc.;
In addition there should be some provision for contact in the event of an emergency (e.g. that the parent taking the children will activate global roaming on their phone).
Obviously one parent should not unreasonably withhold consent for their ex-partner to take the children overseas because at a certain point that parent may wish to take them overseas too. Consent, however, would depend on a number of factors e.g. if a parent was seeking to take a child for a holiday to a war torn destination.
However, if your ex-partner is wishing to take the children to an overseas destination, not by way of permanent relocation, but either for some months or perhaps a year or two then leaving things on a casual basis between the two of you is inadvisable. In those circumstances negotiating Consent Orders to be filed in the Family Court clearly specifying for how long the children are to go; the contact you will have while they are overseas (whether that be by the children returning to Australia and/or you visiting overseas); the costs of contact; how often there will be telephone, Skype or e-mail contact; the continuing provision of a residential address, telephone number, etc. while the children are overseas are all extremely important.
The important thing is if the children do not return within the timeframes that have been stipulated; do not let the “grass grow under your feet”. Go and see an experienced family lawyer.
For family law advice, contact Farrar Gesini Dunn (02) 6257 6477