children and international family law
Information for parents whose children have been removed from Australia or who brought children to Australia from a foreign country.
When parents are from different countries, parenting can be a challenge. Each parent might want to raise the child in his or her native country. Children who are born in or brought to Australia may be at risk of being removed from the country without the other parent’s permission.
A parent who is authorized to live with a child in a foreign country might inappropriately deny access to the child to an Australian parent. A parent who is subject to a child protection order in another country might disobey that order while in Australia. Fortunately, Australian law often provides help for parents when these situations arise.
Australia is a member of the Hague Convention on the Civil Aspects of International Child Abduction. The Hague Convention creates a set of rules that member nations follow when a child has been removed from a member country to another member country without the consent of both parents.
In Australia, the Hague Convention is administered by the Australian Central Authority in the Attorney-General's Department. That department provides assistance to parents whose children have been abducted from Australia, but it does not provide legal advice. Parents are encouraged to discuss their situation with a family law lawyer in order to obtain legal advice if a child has been removed, or if a parent fears that a child will be removed, from Australia.
International Child Abduction
When a child has been removed from Australia by a parent, the Hague Convention may provide a remedy. The Convention essentially requires the country to which a child has been taken to respect court orders entered in the country where the child was living, provided that those orders were in effect before the child was removed.
In other words, if you have a court order giving you custody of a child or providing that the child will live with you, a foreign court in a country that has joined the Hague Convention should respect that order. In most cases, the foreign national must cooperate with Australia in returning the child to your home.
Egypt and Lebanon are not parties to the Hague Convention, but Australia has entered into separate agreements with those countries. An Australian family law lawyer can help you understand your rights if your child has been taken to either of those countries. If your child was taken to another country that is not a member of the Hague Convention, you will probably need the assistance of a lawyer in that country. A family law lawyer in Australia can help you make contact with a foreign lawyer.
If no order from an Australian court was in place before the child was removed, it is more difficult to prove that the removal of the child by a parent was actually an abduction. In those situations, it is essential that you obtain legal advice.
If you fear that the other parent will remove your child from Australia, there are steps you can take. One is to make sure you have a court order in place stating that the child is to live in your home. Another is to place your child's name on the Family Law Watchlist. Your lawyer can help you obtain the appropriate court order that will allow your child’s name to be added to the Watchlist. Airlines are not permitted to board children if their name appears on the Watchlist.
Access to Overseas Children
If you have not been granted custody of your children but an Australian court has ordered that you can spend time with them, you may be deprived of that time if the other parent takes your children overseas. Under those circumstances, even if the other parent legally removed the children from Australia, the law provides options that will permit you to seek access to your children.
Access may include personal visits with the children. It may also include telephone calls, video conversations (using internet services like Skype), and emails.
You should try to work out access with the other parent. If those efforts are unsuccessful, you can seek assistance under the Hague Convention, provided that the children are in a country that is a party to that agreement.
You ask for access by making an application under the Hague Convention to an appropriate court in the country where your children are now living. An Australian lawyer can help you interface with a lawyer in that country if necessary. The Australian government may also provide assistance.
As is true of international child abduction, Australia has negotiated separate agreements concerning child access with Lebanon and Egypt. If your child has been taken to any other country that is not a party to the Hague Convention, you will need to seek advice from a private lawyer in that country.
Overseas Orders Concerning Child Custody or Access
If you have a court order in another country concerning child custody or access, you may be able to register that order in Australia. Once registered, the order is enforceable in Australia as if the order had been made by an Australian court.
Orders may be registered only if they were made in countries that have entered into an agreement with Australia. Your family lawyer can advise you whether the country that entered the order has entered into an agreement that will allow the order to be registered and enforced in Australia.
To register a foreign order in Australia, you must send a request to the International Family Law Section of the Australian Attorney-General’s Department. Your request must be accompanied by three certified copies of the child order and a certificate signed by an appropriate official stating that the order is currently enforceable in that country. The child or a parent who is a subject of the order must be present in Australia before the order can be registered.
If Australia has not entered into an agreement for registration of child custody or access orders with the country that entered the order, it may be possible to register the order under the Hague Convention. You should consult a private attorney to determine whether the country that entered the order is subject to those registration requirements.
Parents with Children in Australia Who Are Accused of Abduction
If you brought your child to Australia from another country and are accused of abducting that child, you should seek advice from an Australian family law lawyer. If the other parent can prove that you did not have custody of the child and if you removed the child from a country that is a party to the Hague Convention, you may be required to return the child.
You are entitled to a hearing before the child will be taken from you. You may be able to keep the child in Australia by establishing that a court order gave you custody of the child or by proving that the other parent was not exercising custodial rights granted by a court order. Proof that the other parent consented to the child’s removal to Australia is also a defence.
It is generally easier to keep the child in Australia if the child is older and wishes to remain with you, if the child has been in Australia with you for more than 12 months, or if you have strong evidence that returning the child to the other parent would place the child at risk of physical or emotional harm. Your lawyer may be able to raise additional defences.
If you bought the child to Australia and there was no custody order in effect in the country from which the child was taken, you might want to obtain a custody order from an Australian court before the other parent obtains a custody order from a foreign court. An Australian family law attorney can advise you whether you are entitled to seek an Australian custody order.
Australia is a party to the Child Protection Convention. Countries that have joined the Convention agree to cooperate in the enforcement of child protection measures that have been ordered or otherwise implemented in another country.
For example, if a foreign court has entered a child protection order that prevents a parent from having contact with a child and you are living with that child in Australia, you can ask Australia to enforce the “no contact” order.
If you want to enforce a foreign child protection order in Australia, you must first register the order in Australia. An Australian family law lawyer can help you do that. The Australian Central Authority will then decide whether the order is one that must be enforced under the Child Protection Convention.
If the Australian Central Authority agrees to register the order, it will be enforced as if it had been entered by an Australian court. An Australian family law lawyer can help you seek enforcement if the other parent violates (or threatens to violate) the order in Australia.