By Gianna Huesch
As news has emerged that the mother of the children involved in the Lebanese failed child recovery operation is facing international child abduction charges abroad, it’s worth revisiting the issue of what legal steps can be taken to prevent a parent moving a child between countries without consent.
Most of us have heard of the Hague Abduction Convention, an international agreement with more than 90 signatory countries who agree to uphold child custody orders from other signatory countries. But what about those countries which aren’t a signatory to Hague, such as Lebanon? An article in Lawyers Weekly has outlined the remedies available to parents, including what can be done when children may be taken to such countries.
The article first reminds us of the restrictions in place under Australia’s Family Law Act 1975 (the Act), noting that breaches of the restrictions on overseas travel contained in sections 65Y and 65Z can lead to up to three years’ imprisonment in Australia.
The following steps are then recommended to prevent overseas travel:
- Consider a child alert from DFAT to prevent the issuing of an Australian passport.
- Consider obtaining a PACE (airport watch) alert. You are required to commence court proceedings and obtain a court order for this. This would be relevant if the child has already been issued with a passport and the other parent has possession of it.
- If the other parent is seeking orders to travel overseas, consider if it’s necessary to prevent them from travelling to countries that are not signatories to the Hague Abduction Convention. Your family lawyer can advise you whether the proposed travel is to a country that is a signatory to the Hague Abduction Convention and what steps you can take and what orders you can put in place to prevent the other parent travelling to a country that is not a signatory.
For some countries that have acceded to the Convention (e.g. Russia), it is not yet in force with Australia. Don’t make the mistake of thinking that just because a country has signed, the Convention is in force! Check the Attorney-General’s website or Hague website for the most up-to-date information.
What’s also important to remember is that even if the proposed travel is to a Hague Convention signatory country, people can often move between countries and travel to a non-Hague jurisdiction. It’s recommended to register an Australian order permitting travel only to certain countries to be safer. To this end, the Family Law Regulations 1984 (regulation 24) provides a process for registering Australian orders in some countries (see schedule 1A of the Regulations). And for those countries not listed in the schedule, the Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children provides a mechanism for recognition of an Australian order to be obtained in an overseas jurisdiction (currently there are 44 contracting countries to this convention).
It’s recommended that you consider also obtaining advice from a lawyer in the jurisdiction to which travel is sought about the availability of an airport watch list in that country, so that this is covered in your Australian orders before they are registered in the foreign jurisdiction. The article notes,
If registration of the Australian order is not available and/or the country is not a Hague signatory, then consider engaging a lawyer in that country to advise on their family law system. In some countries fathers have all the rights; in others it’s mothers who have the rights. Without registration or the protection of the Hague Convention, an Australian order may be worthless.
Even where there are bilateral treaties in existence (for example, Australia/Lebanon and Australia/Egypt) for any non-Hague Convention country, the parent incurs the costs and delays in attempting to retrieve their child, and must rely on local law.
So, what of the situation faced by the mother in the Lebanese case? It seems a better outcome for her and the children might have been achieved if a legal team had been funded in Lebanon to obtain orders there to attempt to work out custody arrangements with her ex-partner under the existing bilateral agreement between Australia and Lebanon.
Do you need assistance with a family law matter involving a partner wishing to take your child overseas? Please get in touch with us as early as possible so we can ensure the correct legal steps are taken to safeguard your child’s return. Please contact Cristina Huesch or one of our solicitors on (02) 6223 2400.