International Family Law

Forum disputes

Sometimes the first issue is about the appropriate country in which the dispute needs to be resolved – called jurisdictional or forum disputes. The appropriate forum question considers a wide variety of factors including relevant ties to the country in question (either financially or emotionally) and what can be achieved in terms of as a practical outcome with respect to particular property or the children’s best interests.

Overseas parties or assets

Parties and or their property can be in different countries which can make the prospect of finalising the financial matters appear more complicated. Liaising with overseas lawyers and agencies can help identify the location of any overseas properties and parties and ability to ensure an enforceable outcome can be reached both in Australia and the overseas country.

International parental child abduction – Hague Convention

The 1980 Hague Convention on the Civil Aspects of International Child Abduction (known as the Hague Convention) is a treaty involving multiple countries and Australia and sets out the process for the return of children to their home country who were taken or withheld overseas without one parent’s consent.

Only countries that have signed the Convention agree to adhere to the process and rules set out in the Hague Convention. Countries that have not signed the Convention may have bilateral agreements with Australia that can assist or it may be a matter of applying in that country through its own judicial processes.

In Australia, the Federal Circuit and Family Court of Australia (the Court) has the power to determine cases where a child has been abducted from or to Australia (called Hague proceedings).

Each Convention country has its own government body to deal with Hague proceedings called a State Central Authority.

A parent whose child has been abducted to another Convention country applies to the State Central Authority in Canberra – Australian Central Authority (Federal Government).

If a parent overseas makes an application to the relevant overseas Central Authority in relation to a child abducted to Australia, then the relevant State Central Authority will be represented by the local State Government Department (in Victoria, being the Department of Families, Fairness and Housing).

Hague proceedings are very technical and are not determined under the usual best interests of the children, paramount in usual parenting matters.

The Court has to first determine specific issues around the habitual residence of the child, whether the removal or retention was wrongful (i.e. in breach of a parent’s or relevant person’s rights of custody), what the rights of custody related to and if the appropriate person is bringing the application.

If the Court determines that the child was abducted, the Court must order the return of the child to their home country unless one or more of the six (6) very specific grounds on which the Court can decline to order the return of the child has been made out. Examples of this include that the child is at risk of grave physical or psychological harm if returned to their home country or the child has settled in their new environment.

Acting quickly is important as the longer a child is in another country, the more likely it appears that the move was consented to.

Access to children overseas or in Australia

The Hague Convention also sets out the processes for parents to have contact or access with overseas children – or enforce their access rights. There are very strict processes in place that leave the Court with little option but to enforce the access rights. A parent seeking to stop access will be better placed to try to change or vary the original parenting orders.

International Relocation

International relocation cases involve one party wanting to move with the child/children to another country and they have not been able to get the consent of the other party.

There are no special rules about relocation cases and the Court must determine what arrangement will be in the best interests of the child/ren and make Orders accordingly in accordance with the provisions of the Family Law Act 1975 (Cth).

Some of the relevant matters the Court may consider include:

1. The relationship between each parent and the children and the age of the children;
2. How expensive and difficult it would be for the other party to see the children;
3. The reasons for moving e.g. family support, family, new partner, employment;
4. Whether it is reasonable for the other parent to also relocate;
5. Whether the proposed country is a signatory to the Hague Convention and/or the enforceability of Australian orders in that country; and
6. Any concerns from the other party about the proposed country e.g. safety and quality of life.

Each case is different and specific to the family involved.

International Child Protection

Australia is party to Hague Convention on Jurisdiction Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (1996), which came into force in Australia on 1 August 2003 (“the Child Protection Convention”). The Family Law (Child Protection Convention) Regulations 2003 sets out the procedures for International Child Protection matters.

Similar to the Hague Convention, each Convention country has its own government body to deal with Child Protection proceedings called a State Central Authority.

The Secretary of the Attorney-General’s Department is the designated Australian Central Authority under the Child Protection Convention.

Like the issues in the child protection level at a State level in Victoria’s Children’s Court, the purpose of the Child Protection Convention is to recognise foreign child protection measures and determine the correct court to make decisions about a child and the correct laws that apply to a child protection case – either the child is placed in the care of or under the supervision of the relevant Central Authority and parental responsibility and child residency are changed.

International Child Support

In Australia, child support is determined through the administrative process through Services Australia (formerly Department of Human Services – Child Support) and/or by agreement between parents (which can be formalised through a Child Support Agreement). Detailed information about the child support system in Australia can be found here.

However, where the parents live in different countries the liability and enforceability of child support will ultimately depend on whether the overseas country is a reciprocating, excluded or non- reciprocating jurisdiction with Australia:

1. Reciprocating jurisdictions allow for the overseas country and Australia to coordinate the assessment and/or collection of child support from the liable party to the receiving parent.
2. Excluded jurisdictions means there are no arrangements in place between the overseas country and Australia for the determination or collection of child support.

Non-reciprocating jurisdictions are those not listed in paragraph 1 above which means child support determination and collection is limited

Whether you apply in Australia or the overseas country for child support will depend on whether you are liable party or receiving party and where you live.

Registration and enforceability of overseas orders in Australia and vice versa

Australia has arrangements with some other countries that allow for the registration of overseas orders regarding children in Australia to make the orders enforceable by Australian courts in Australia.

In relation to property matters, there are some international conventions to which Australia is a party that deal with the enforcement of overseas property orders, but these issues may also be dealt with under the common law (ie law derived from previous cases rather than statutes).

Overseas maintenance orders (spousal and/or child support) can be registered and enforced through Services Australia.

An overseas court order can only be registered in Australia if there is a reason for the orders to be registered in Australia (e.g a parent or child or property are in Australia).

In cases where the overseas court orders cannot be registered in Australia, it may be possible to make “mirror orders” or “reciprocal orders” which effectively mean getting new orders done in Australia that replicate the arrangements or agreement reached by way of Consent Orders.

Whether an Australian court order can be enforced in another country is an issue for which legal advice is obtained in the proposed overseas country. Our family lawyers have extensive experience in engaging and liaising with the right people overseas to make sure the correct advice is given.

Specific issues: Passports and Airport Watch List

Passports for children

A passport for a child will not usually be issued without the consent and signature of all parties with parental responsibility and arrangements should not be made to travel overseas with a child without the consent of the parent.

Overseas travel should be planned well in advance and permission from the other party obtained as early as possible.

If one parent does not provide their consent, is no longer in the child’s life or cannot provide their consent for other reasons, there are two options available:

1. An urgent Court application;
2. An application to the Department of Foreign Affairs and Trade on the basis that there are special circumstances existing.

A claim for special circumstances will be assessed and the non-consenting parent or other persons may be contacted to verify the information. However, applying for special circumstances does not guarantee that the child will get a passport.

If this process is unsuccessful, then a Court application will be necessary.

If a child does not have a passport and one party suspect the other may apply for one, a “Child Alert Request form” can be submitted to the Department to get an alert if an application is made without your knowledge.

Airport Watch List

If there are real concerns that a child will be removed from the country an urgent application to the Court for a “Family Law Watch List Order” is necessary. Once the Court application is served on the Australia Federal Police, the child’s name will be placed on a database so that airport officials are alerted if there is an attempt to remove the child from the country.

A Family Law Watch List Order can only be revoked by a further Court Order. This means that a further Application to the Court needs to be made, regardless of whether there is agreement about the removal.