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Separated? Should you allow the kids to go overseas?

With the school holidays upon us, many parents are faced with the difficult decision of whether to allow their children to travel overseas on holiday with their former partner.  Senior Family Lawyer and Senior Associate Hayley Condon discusses these issues.

This issue raises many considerations – but most of all the daunting question “will my children be returned to Australia after their holiday?”.

This is a question that no doubt haunts Australian Sally Faulkner after she allowed her former partner Ali Elamine to take their 2 children aged only 5 years and 3 years respectively to Lebanon for a ‘holiday’ in 2015.

You may recall Sally’s heartbreaking story which involved her attempting to recover her two children from Mr Elamine in Lebanon last year with the assistance of a child recovery team and reported by 60 minutes after Mr Elamine refused to return the children to Australia following their scheduled holiday.  The recovery attempt was entirely unsuccessful and left Sally in a situation where she was forced to give up custody of her two children to Mr Elamine to avoid being jailed in Beirut (as reported in the media). Sally’s story is not unique and is a predicament that ordinary parents could easily find themselves in if they are not familiar with the law.

So why was Sally driven to such a desperate and risky act? – What protections are afforded to parents and children in these situations by the law?

The Hague Convention on the Civil Aspects of International Child Abduction is the main international agreement that addresses international parental abduction.  The convention is a multilateral treaty in force between Australia and a number of other countries.  While it sets out a lawful procedure to return children to their home country (whether that be Australia or another country) where a parent has wrongfully removed a child from their home country or wrongfully retained a child overseas without the consent of the other parent; this convention will only provide a parent with assistance if the children are situate in a Hague Convention Country and if the convention is in force between Australia and the country where the children are being held.

If your children are not in a Hague Convention Country, then you cannot apply for your children to be returned to Australia under this convention.  In this case, the international law may not assist you and you may be forced to seek legal advice as to your parental rights in the country in question (which may not reflect the law in Australia) or take more drastic steps such as those taken by Sally, which are certainly not recommended.

So what countries fall within the term “Hague Convention Country”?  There are currently 83 countries where the convention is in force with Australia.  This includes larger countries such as Canada, France, Germany, Japan, New Zealand, United Kingdom and the USA as well as smaller countries such as Cyprus, Ecuador, Fiji, Thailand and Ukraine.

For a full list of Hague Convention Countries, please consult the Attorney-General’s Department website click here.

Even if your children are situated in a Hague Convention Country, this does not necessarily mean that the convention will apply to you in terms of you seeking the return of your children to Australia.  Any application to be made under the convention must also meet the following requirements:

  • The children in question must be under 16 years of age;
  • You must have “rights of custody” in relation to the children;
  • You must have been exercising rights of custody at the time the children were wrongfully removed from, or retained outside, Australia;
  • Your children must have been habitually resident in Australia immediately before they were wrongfully removed from, or retained outside, Australia; and
  • Your children must have been taken from Australia or kept in another Hague Convention country without your consent or without a court order.

If you meet the above-mentioned requirements, then you are eligible to submit an application under the Hague Convention to the Australian Central Authority.  The Australian Central Authority is the body that acts on behalf of the applying parent in terms of their application for the return of their children to Australia.  Whilst the convention does offer parents an avenue to seek the return of their children to Australia where a former partner fails to return them after a scheduled holiday, the process can take time and the applying parent may be required to contribute towards the costs of the process depending upon which country the children are located in.

In Sally’s case, the convention was not available to her as Lebanon is not a Hague Convention Country.  Based on the recovery mission that transpired thereafter, it can only be assumed that Sally received legal advice that the international law and/or the law of Lebanon would not be able to assist her.  It is beyond the scope of this article to consider such matters.

Therefore, how can parents avoid being caught in a situation similar to that of Sally when faced with a request from a former partner to take their children on an overseas holiday?

Before agreeing to such a request it is recommended that a parent:

  • Obtain a travel itinerary for the children including the countries, specific addresses and contact details for the places where the children will stay and a copy of return air tickets;
  • Verify that the country the children will be travelling to is a Hague Convention Country;
  • Consider whether the former partner has previously resided in the country and/or has close family residing in the country being travelled to; and
  • If a parent has genuine concerns that a former partner may not return the children to Australia after the scheduled holiday, to immediately obtain independent legal advice regarding the issue.

The protection offered to parents and children under the international law where a child is being held in a non-Hague Convention Country is limited.

To avoid ending up in a situation similar to that faced by Sally Faulkner, a parent should give very careful consideration to allowing a former partner to travel overseas with their children to a non-Hague Convention country as this could result in the tragic outcome that the child or children may not be returned to Australia again.

We welcome any enquiries or comments in relation to these issues.  Please contact our Family Law and Wills and Estates Department Manager, Donna Tolley on direct line 07 5506 8241, email dtolley@attwoodmarshall.com.au or free call 1800 621 071. We have a dedicated specialist family law team that practices exclusively in this complicated area. Please click here to access our team brochure with details of our professional staff.

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Hayley Condon

Hayley Condon

  • Senior Associate
  • Family Law
  • Direct line: (07) 5553 5805
  • Mobile: 0413 486 402