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This article was written by Kathryn Sampias

Kathryn Sampias has a Bachelor of Laws, a Bachelor of Arts and a Graduate Diploma in Journalism. Kathryn was admitted to practice in 2005 and practised law for more than eight years, working both in private practice (mainly in defence litigation for professional indemnity disputes) and in the public service for the Australian Securities and Investments Commission (ASIC) in enforcement.

International Child Custody Arrangements

With the world becoming more global in recent decades, relationships between partners of different nationalities have become commonplace. When parents separate or divorce, and one parent wants to return to their home country, or live in another country, the question arises about what international child custody arrangements should be made.

If a child is born in Australia, a parent will not be allowed to move a child to a different state or overseas or abroad without the consent of the other parent in an international child custody arrangement. The law provides a means for preventing one parent from taking a child interstate or overseas. Passports may be required to be surrendered to the Family Court, or orders may be made that restrain the removal of children from Australia. One parent may request that the Australian Federal Police to assist with ensuring the children do not leave the country. However, these rules are not applied where a child was born overseas.

Hague Convention on the Civil Aspects of International Child Abduction and International Child Custody Arrangements

As of July 2019, one hundred and one countries are signatories to the Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention). The purpose of this multilateral treaty is to provide a method for returning children to their normal resident country where a parent has taken them from one signatory country to another without the consent of the other parent in an international child custody arrangement. The convention applies to children who are under the age of sixteen. The Hague Convention has been around since the early 1980s. You can find a full list of the countries that are signatories to this convention here.

What do I do to get my child returned to Australia?

Suppose your ex-partner takes your child from Australia to another country that has not signed the Hague Convention and no international child custody arrangement is in place. In that case, you should contact the Commonwealth Attorney-General’s Department and request assistance. That department will then take the appropriate steps to locate the child and have them safely returned to Australia. Unfortunately, if the country where your child has been taken is not a signatory to the Hague Convention, then it may not be easy to arrange for the child to be returned.

How do I ensure I have the appropriate international child custody arrangement to take my child overseas?

So what if you are the parent who wants to take your child away with you to live overseas? Perhaps you have been made a job offer you cannot refuse. What are the steps that you need to complete to ensure you have the appropriate consent, permissions and international child custody arrangement, to ensure that your child will not be returned to Australia under the Hague Convention?

Firstly, you should discuss the issue with the other parent. You may be able to renegotiate your parenting plan so that you both still maintain the same amount of time that you currently have with them. For example, if the child currently spends half the week with one of you and half with the other, then a new plan may be that they spend all of the holidays with one parent but all of the school term with the other. There is also a possibility that your former partner may be able to relocate to the same country to which you are planning to move. If you do reach an international child custody agreement with your partner, it is a good idea to get this agreement in writing. You may also wish to seek the court’s consent to the international child custody agreement.

If you cannot reach an international child custody agreement with your former partner, then the next step would be to engage a dispute resolution professional, such as a mediator, to help you reach an agreement. If an international child custody agreement is reached through this process, it is best practice to ensure this agreement gets put in writing. It also may be advisable to have the Family Court consent to the international child custody agreement.

If an international child custody agreement still cannot be reached, then you may wish to apply to the Family Court for an order allowing you to take the child with you. The Family Court always seeks to make orders that are in the best interests of the child. The Family Court will consider the relationship between the child and the parents and how the separation and change in location may affect them. The Family Court may also consider what relatives or extended family there may be in the other place to help care for the child. The Family Court will also consider practical matters such as how far the children would have to travel between their parents and the cost of travelling that distance. The Family Court may also consider the financial means of the parents for funding the costs of travel. The Family Court will balance these considerations against what the move would mean for the parent who seeks to relocate, e.g. a better job with better pay, being closer to family.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.

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