Englishmum

If you have children and you don't have a rock-solid relationship with your partner/spouse, then you may wish to read this account from an Englishwoman who is now embroiled in an international child custody dispute with her former (English) partner in Australia. She is very unhappy that the implications of the 'Hague Convention' was never listed in any immigration paperwork:

http://www.reunite.org/forum_details.php?post_id=237

My best friend here in the US is an Aussie but a US Green Card holder and she divorced her Aussie husband last year. He recently returned to live in Australia and lives with his mum. Their children (aged 7 and 3) have been visiting their maternal grandparents in Sydney. The children have always lived in the US, the eldest is an Aussie citizen but the youngest was born in the US and has a US passport - although registered with the Australian Embassy.

They were taken to visit their father and paternal grandmother on the Gold Coast but he's never bothered to go to see them in NSW, even though he has relatives and friends there (he doesn't work - but is on the 'books' of the family business).

Today (Sun pm in Oz) as the granny checked herself and the young children in for flights to return to the US, they were detained by the Australian Federal Police and the Immigration service. Their father went to a magistrate in Brisbane - on a Sunday morning - to get a court order to prevent them leaving Australia as he now wants sole custody. My friend is beside herself and has to fly to Sydney on Tuesday....the court date is set for just before Christmas....she's self-employed and if she doesn't work she doesn't get paid.

What a nightmare........it is so important to be aware of all the issues involved in international child custody disputes....

JAJ

There is something "not right" here - if the children are resident in the US, I thought that under the Hague Convention, that is where any custody hearing should take place. Not Australia.

Has your friend contacted the US Embassy in Canberra for assistance? The younger child at least is a US citizen and although the US authorities have no formal right to intervene if he or she is also an Australian citizen, they may be able to assist informally.

Needless to say she needs a good family lawyer.

As for the Hague Convention in general, it was put in place to stop parents removing children to another jurisdiction simply to get a more favourable custody hearing.

There is some evidence the Convention is turning into a monster - medicine worse than the disease and all that - however even if it were to be torn up, it wouldn't resolve the issue of what happens when parents split up and want to live in different countries.



Jeremy

jad n rich

Important discussion for english women marrying aussies too, and anyone who comes here with english partner then takes OZ citizenship. Not just those without rock solid relationships either, things change rapidly in many marriages especially when faced with new lives and stressful situations.

Englishmum

Thankfully my friend managed to find a solicitor based in Brisbane whom specialises in international child abduction (listed on the 'Reunite' website) and he will be acting for her. I think the main problem was that the ex managed to persuade a local magistrate to sign a paper to detain the children in Oz until there is a court hearing....it all happened very quickly. There is enough evidence to show that the children are settled in the US so perhaps the Australian family court will decide that a custody case will have to be held there.

It's a huge expense though with all the airfares and legal fees (the latest is that the ex wants my friend to pay for *his* legal representation....

Fardell

I was also of the view that the Hague Convention was all about returning children to their normal place of residence, but I suppose the problem will be that expensive "legal assistance" will be needed to establish what that their country of residence actually is. At least Australia is a signatory to the Convention - saw this summary in exfin.com which suggest you should be very careful about letting children out of "your" country of residence:

"Expatriates should be aware that children’s issues will normally be covered in the jurisdiction in which the children are residing – you will normally be subject to the laws of your host country. Thus, if your children are with you in an overseas country and you do not wish them to leave that country and you are in possession of their passports, your partner will have little chance of removing the children from the jurisdiction. Should one partner wish to leave the country with the children (and doesn’t have access to passports) then they will need the consent of the local court to remove the children from the jurisdiction in which you are then residing. This is unless they are able to obtain replacement passports, and some countries will give new passports to their nationals without reference to the other parent, if he or she are not nationals of that country. In Australia, and some overseas jurisdictions, you can in certain circumstances lodge a notice with the departure authorities whereby parties trying to remove children from the jurisdiction without the consent of the other party can be stopped at the departure point and prevented from leaving with the children.

· Once the children are removed from the jurisdiction in which you are residing, it is most unlikely that you will secure their return to that jurisdiction without returning to Australia (if that is where they have originally come from and returned to) and litigating the matter in the Australian courts, being the jurisdiction in which the children, presumably, have normally resided during their lives.

· You should be aware of the fact that some countries are parties to the Hague Convention under which each of the Convention countries are effectively required to return children to the country which is their normal place of residence, if they are brought into the Convention country without the consent of the other parent. Exceptions are countries like Malaysia, Japan and Singapore. Hong Kong is a Convention country.

· Generally, if you want your children to remain in your host country then you should be prepared to go to court in the country in which you reside and you must ensure that they do not leave the country in the first place.

· If you want to get children in Australia to come and stay with you overseas, whether permanently or for periods of time, and the other parent does not agree, then you must be prepared to litigate in Australia.

· Before you divorce your spouse in a foreign jurisdiction you should be very careful to ensure that the divorce does not adversely affect your capacity to litigate Family Court property and other matters in another jurisdiction such as Australia. If you have property issues in Australia then, in the great majority of situations, Australia is where you are going to have to go to court to resolve the property issues."