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International Child Abduction

14 July 2009

Allowing a child to travel overseas

A frequent problem that separated parents encounter is trying to reach an agreement on whether one of the parents can take the child overseas. In the vast majority of cases this is in the context of an overseas holiday, however from time to time there is a more sinister agenda as the parent taking the child may be intending to live overseas with the child, permanently.

It is essential that any parent in such a situation who has concerns about a possible ulterior motive, should obtain Specialist Family Law Advice. There are a number of matters that a Specialist Family Lawyer will consider in endeavouring to ensure appropriate safeguards are in place for the child’s return. The primary consideration however, is whether the country involved is a member of the Hague Convention on International Child Abduction.

If a child is taken overseas and is not returned, then swift action should be taken under the Hague Convention. These applications are technical and complicated. This article will outline the process and the important factors to be aware of.

what is ‘the hague convention’

The Hague Convention is an international treaty that was started in 1987 and is aimed at discouraging international parental child abduction. This means that if a child has been wrongfully abducted, they will be returned to their “habitual residence” so any disagreements between the parents can be dealt with in the Courts of that country.

There are more than 80 countries that are now part of the Hague Convention, Australia is one of them.

Child abduction

If a child is taken to a country that is not part of the Hague Convention there is no international mechanism available for the child’s return and as Australian law has no enforceability overseas, few legal options exist. Legal proceedings in the country that the child was abducted to are usually the only option.

If a country is a member of the Hague Convention (and a child is held over in Australia), then the Australian government (known as the “Central Authority) will initiate the application for the child’s return and determine whether the child should be returned, based on the child’s “habitual residence”.

Recent example:

In a recent case the Court had to determine whether a child’s “habitual residence” was in Australia or New Zealand. At the trial, the Judge dismissed the Application for the return of the child to New Zealand, however the Central Authority Appealed that decision.

The Facts:

  • The Father and Mother were in a defacto relationship and had 2 children, aged 8 and 4 (at the time of the Hearing).
  • When the eldest child was aged 6 the Father left Australia and went to New Zealand, to avoid drink driving charges. He took the eldest child with him.
  • Shortly after this, the Mother (and youngest child) travelled to New Zealand.
  • The eldest child lived with the Father (in New Zealand) for 2 years.
  • During that 2 year period, the Mother went as far as agreeing that the child could be in the Father’s day-to-day care and signed a letter to the “Work and Income” Office in New Zealand, stating that the Father could obtain benefits for the child.
  • When the eldest child was 8 years old, the parents agreed for the child to travel to Australia to have a holiday with the Mother. However, when the child arrived, the Mother refused to return the child to the Father in New Zealand.
  • On the instruction of the New Zealand government, the Australian “Central Authority” brought an Application for the child to be returned to New Zealand. At the trial there was a factual dispute about the place of the child’s “habitual residence”. The Mother stated the child was only temporarily residing in New Zealand. She further stated that if the child was returned to the Father that the child would be at grave risk of psychological and physical harm.
  • The Mother stated that the Father had asked her to leave the eldest child with him until the school year finished and she had agreed to this on the basis that the child return to Australia at the end of the year.
  • Furthermore, the Mother stated that after the year ended, the Father telephoned the Mother and said that he was not going to return the child to live with the Mother, in Australia. However, the Mother said that when the Father said the child could only return to the Mother for school holidays, the Mother lied to the Father and said that she would return the child.

The Issue of “Habitual Residency”

  • At the trial, the Judge found that the child’s place of “habitual residence” was Australia, as it was the habitual residence of both parents who were exercising rights of custody. Whether the “habitual residency” of the child changed from Australia to New Zealand depended on the parents’ custody of the child.
  • If the agreement allowed the Father sole custody, then the habitual residency could change to New Zealand with the Father. If the rights of custody of the child remained with both parents, the child’s place of “habitual residency” would remain in Australia.
  • The trial Judge found that the child’s “habitual residency” remained in Australia and was not changed by the Mother visiting New Zealand, nor by the child visiting Australia. Furthermore, the Judge found that the child would be at risk if she returned to her Father, as the Father provided a poor role model for the child.

Appeal:

  • The Central Authority’s Appeal was unsuccessful. The Appeal Court decided that an Order to return the child could only be made if the “habitual residence” of the child was New Zealand. The letter written by the Mother only referred to the “care” of the child, which could not be used to support the Father’s argument that the Mother agreed to the Father having the sole rights of custody of the child.

 

 

If you have any questions about this article or would like to make an appointment to discuss your personal circumstances please telephone us on 3221 4300 or email us at [email protected]

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