The recent imprisonment of Ms Faulkner and the 60 minutes news team for assisting in an abduction attempt of two children in Lebanon raises the question: what happens if your child is relocated overseas without your consent?
It is important to keep in mind that the existence of an Australian Family Court Order will not, unless they prevent your child from being removed from Australia by placing your child on the Airport Watch List, negate the possibility of your child being relocated overseas without your consent. This is evident from the circumstances of Ms Faulkner and the 60 minutes crew because whilst information concerning family law matters is not able to be published, it has been reported that Ms Faulkner was the primary carer of both children by Order of the Family Court prior to their relocation.
How can overseas relocation occur without my consent?
Jurisdiction is the Court power to examine and interpret facts, interpret and apply the law, make Orders and declare judgement. Jurisdiction can be defined to a geographical area. This means that different countries have different and, sometimes, competing laws with Australia and they also do not have jurisdiction to enforce, or recognise the Orders made by Australian Courts.
There are some countries in which you can apply to the Court to have your Australian Orders registered. The full list can be found Schedule 1A of the Family Law Regulations 1984.
Can I have my children returned?
Internationally, the impact upon a child of being removed from their home country, or retained in a foreign country was recognised by the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction. The Hague Convention seeks to combat international child abduction by providing a system of co-operation between authorities in different countries to enable the lawful and expedient return of an abducted child to their home country. The convention also facilitates contact with abducted children.
Australia enacted the multilateral treaty on 1 August 2003 under the Protection of Children (the Child Protection Convention). The Australian Central Authority is responsible for administering the convention.
An application under the Hague Convention for the return of a child can only be made to or from a country that has both signed the convention, and that which has been recognised by Australia.
The Hague Convention is in force with 84 countries. The full list can be found here.
Andorra, Gabon, Guinea, Iraq, Lesotho, Kazakhstan, Morocco, Seychelles, Russia and Zambia have all signed the Hague Convention but are yet to be recognised by Australia.
There is also a bi-lateral agreement regarding children with Lebanon and Egypt.
What if the Country is not a Hague Convention Country?
If your child has been relocated to a non-Hague convention country, you will need to rely upon the legal system in that country to assist you in locating, contacting and/or any application to have your children returned to their home country.
If you believe your child or children are at risk of being relocated overseas without your consent:
- You should ensure that you have your child’s passport.
- You can prevent the issuing of a passport by contacting the Foreign Affairs Department to place a warning on their system prior to issuing a passport for your child.
- There isn’t a similar safeguard if your client has dual citizenship and is entitled to apply for passport in a different country. You should contact the Embassy for that Country in Australia to discuss.
- You should apply to the Family Court to prevent your child from departing Australia and have your child placed on the Australian Federal Police’s Airport Watch List.
- You should seek legal advice immediately.
If you would like to speak with one of our family lawyers about international relocation or the Hague Convention please contact (02) 4929 3395.
By Kristie Lear