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International Family Law – Where does Australia sit?

Parents fighting over child

Every year Australia welcomes many new residents and citizens who have decided to make our beautiful country their home. Australians being adventurous people also decide to broaden their horizons and travel the world with some discovering their sole mate overseas. Unfortunately, with globalisation, there are more frequent occurrences of breakdown in relationships between two people from different countries of birth and as a consequence international family law disputes are becoming frequently more common. Both parties will often argue that their country of birth is the appropriate forum to hear the dispute, believing that their own laws should determine the dispute due to cultural, religious and moral principles.

So how does Australia fair on the international stage?

To answer this question, I am going to discuss two of the most high profile cases that have been decided by the Family Court of Australia in recent years.

Sally Faulkner v Ali Elamine

This case involved a bungled child recovery of two young Australian children from Lebanon. Sally Faulkner was an Australian flight attendant who married a Lebanese man to whom she had two children, a son Noah (3) and a daughter Lahela (5).  The parties were living in Lebanon and the mother who did not get along with her mother-in-law, decided to relocate to Australia refusing to return with the children to live in Lebanon. The father initially wanted the mother to return the children to Lebanon but then eventually came to accept the children residing in Australia. The father would periodically visit the children in Australia when he was not working. Given there appeared to be no conflict between the mother and father, the mother agreed to allow the children to fly back to Lebanon with the father for a holiday.  The father then refused to return the children back to Australia and he has withheld them ever since.

Legal Issues

Lebanon is not a signatory to the Hague Convention which member countries agree to return children who are wrongfully removed from their habitual country of residence.  Therefore, the mother had no other option then to institute proceedings in the Lebanese Courts for custody of the children.

Whether or not the mother feared that this process would be prolonged and expensive or that ultimately she believed she would not be successful is uncertain.   Perhaps the same was felt by the Father in terms of applying to the Family Court of Australia to obtain custody of the children while they were living in Australia. Either way two wrongs did not make a right, but you can see the tension between the two parties and their preferred forum to have the dispute decided.

On the 6 April earlier this year, an Australian film crew flew to Lebanon with the mother and engaged an international child recovery agency. The children were sighted at a bus stop in Lebanon and were taken off the streets and put back into the mother’s care but only for a short time. This did not end well and the mother ended up being arrested and spent a number of weeks in a Beruit prison facing the criminal charge of accessory to kidnapping. Only after a civil settlement were the charges withdrawn against the mother and they and the film crew were released from prison. Part of this settlement required the mother to agree to full custody of the children to their Lebanese father.

What do we learn from this?

Parents should be very cautious about agreeing to allow the other parent to take children outside of Australia, particularly to a non-Haugue convention country, a list of Hague convention countries can be found here. This is especially true for parents with dual nationality or children who are entitled to residency in another country due to that parent’s heritage or relative.

If you are the parent of children and the other parent has possession of the children’s passports, if in any doubt at all that the other parent may abscond with the children to another country, you should apply to the Court for a PACE alert, which will immediately alert customs officials at the borders (airport/seaport) that the child/ren cannot leave Australia (even before the matter is first heard in court). If the children are not in possession of passports, you can notify the department of immigration that you wish to be advised and for your permission to be given before a child’s passport is issued to protect you against fraud such as the other parent forging your signature on the child’s passport application.

Laura Garrett v Tomaso Vincenti

This case can be recognised as the Italian girls which involved four children then aged 9 – 14 years old. The children were living in Italy prior to the mother travelling to Australia with the children again for holiday. The mother then refused to return to Italy claiming that both she and the children had been subjected to domestic violence by the father.

Legal Issues

Unlike the previous case of Faulkner, Italy and Australia are both signatures to the Hague Convention. Which meant that the Queensland government had standing to recover the children on behalf of the father and return them to living in Italy.

The case also raised the issues of Domestic Violence and Child Alienation.

Throughout the course of the proceedings much resistance was put up by the mother against the children being returned to Italy. The mother and her family were very vocal in the media about making children do things against their will. You can probably remember seeing the pictures of the children being dragged kicking and screaming onto the plane by federal agents? 

Ultimately, the Judge, Justice Forrest found against the mother and her claims of abuse at the hands of the father and instead found that the children had been coached by the mother into screaming and having tantrums for the camera. Either way, the ultimate ruling was that Australia has an obligation to uphold The Hague Convention and return the children to Italy.

Of note is that the children are now living well and such proceedings in Australia have had no effect on their mental stability. Which is in stark contrast to the risk the mother asserted to the court in that she portrayed the father as a monster and a violent person when ultimately he was not.

What do we learn from this?

If a child is residing in a country then a parent must not unilaterally make the decision to remove them from that country to another country, effectively changing their residence unless they first have the permission of the other parent. We would encourage clients to have consent orders made whenever the other parent decides to allow them to move, whether interstate or overseas. We also can process PACE alert applications and if need be issue international child recovery proceedings.

Conclusion

Highlighted above are the cases that caught the attention of the media. The reality is that every day there are issues of international relocation occurring in our own backyard. If you are separating from your spouse and they have dual-citizenship or residency in a country outside of Australia, you should consult a family lawyer at Adams Wilson Lawyers for advice. It can be a long and expensive process going to court, when a lawyer from our office can immediately arrange to stop the issue of a child’s passport or have the children placed on the customs and boarder protection watch list to prevent a child leaving Australia.