Note: This is a very broad and complex area and this article is in no way intended to provide a complete overview of this area of law. If you require advice in relation to this area of law you should contact one of our professional and experienced Gold Coast lawyers to seek advice tailored to your specific circumstances.
An issue which can be of concern to separated parents, particularly around school holidays and the Christmas break, is where children are scheduled to be taken on a holiday by one parent, either interstate or out of the country. There are a significant number of parents who are fearful that their children will fail to be returned by the other parent.
Whilst it almost seems outside the realm of possibility, it is a nightmare that has unfortunately come true for many parents, and is a matter that falls within the scope of a very complex area of law, particularly with regard to the extensive international reach of the Hague Convention.
Whether you are the parent left in Australia without your children, or you are the parent who has gone overseas taking your children with you, if abduction allegations arise in relation to those children it is of utmost importance that experienced and professional legal advice is obtained.
What is the Hague Convention?
The Hague Convention is essentially an international agreement between a number of countries which has been implemented in an effort to streamline and fast-track the procedures in place that facilitate having children who have been unlawfully removed from their country of residence, returned to their home country, as a matter of priority.
If a child has been removed from Australia (or conversely, has been removed from another country and brought to Australia) then both countries (i.e. both the country where the child normally resides, and the country which the child has been taken to) need to be a party to the Hague Convention in order for an application to be made for the return of the child.
In addition to this fundamental requirement, there are various other factors which are to be taken into consideration when determining whether a Hague Convention Application can be made, including (but not limited to):
The child must be 16 years or under;
The child must normally live (or be habitually resident) in the country from which it has been removed;
the parent making the request must have a right of custody (generally both parents have a custodial right unless there is a specific court order removing that right) and in addition to this, any other person (including those who are not biological parents of the child and who are not extended family members) who satisfies one of the following may also be determined as having ‘right of custody’:
Someone who lives with or spends time with the children under a parenting order;
Someone who has parental responsibility for the child in accordance with a parenting order; and/or
Someone who communicates with the child under terms of a parenting order.
Once an application has been made, the court will hear the matter to decide on what orders (if any) will be made. Even if the requirements for the application are satisfied, a court may not make an order for the return of the child, as there can be various exceptions which may prevent the making of such an order. Some examples include:
the length of time which has elapsed since the child was removed from their country of residence (if it was more than one year prior to the application being made the court may need to be satisfied that the child has not settled into their new environment);
where there is a question as to the rights of custody of the person making the application;
where the parent requesting the return of the child originally consented to the child being removed permanently;
a determination as to the risk of physical or psychological harm to the child if they were to be returned to their country of residence;
if the child is at an appropriate age, and has strongly objected to being returned to their country of residence (although this is not a determining factor, and the court will only take this view into consideration).
It is imperative that you seek legal advice as a matter of priority if your children have been removed from Australia without your consent or the other parent has indicated that they will not be returned.
If you wish to relocate overseas with your children and the other parent does not consent, you may be able to obtain an order from the court that allows you to relocate, depending on the circumstances of your matter. There are serious ramifications for removing children from Australia without consent, including the possibility of being found guilty of a criminal offence which is punishable by up to three (3) years imprisonment and we would strongly recommend that you seek legal advice pertaining to your individual circumstances.
If you require assistance with children’s matters, including parenting plans, court orders or advice regarding international travel and children, please contact one of our family lawyers on the Gold Coast on 5563 8970 to obtain specific and tailored legal advice.