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In a high-profile case that was splashed across the media, the
Family Court recently ordered the Australian mother of four
Italian-born girls (aged between 9 and 15) to return the children
to Italy, where she has a shared care arrangement of the children
with their Italian father.
The mother brought the children to Australia in 2010 for a
holiday, without the consent of the father, but then failed to
return them to Italy.
Following an appeal to the Full Court of the Family Court of
Australia, it has been reported that the father has just returned
to Italy and abandoned his legal battle for the children to return
with him. This report came after his daughters apparently told the
media that authorities would have to 'handcuff and drug
them' to get them on a plane to Italy.
So what can a parent do to prevent their child/ren travelling
overseas without their consent in the first place?
There are a number of options available to parents,
including:
applying for an order with the Family Court to restrain the
removal of the child/ren from Australia;
applying for an order that the child's passport, and the
passport of another party, be lodged with the Court;
applying for an order restraining a person from applying for a
passport for the child; and
serving on the captain, owner or charterer of a vessel or
aircraft a statutory declaration about a parenting order, or
pending proceedings for a parenting order, about the
child/ren.
An Order restraining the removal of a child from Australia
usually also directs the Australian Federal Police to place the
child's name on the Airport Watch
List.
The Watch List is in effect at all international airports and
seaports and prohibits overseas travel by any child named on the
List. The child will only be able to travel overseas once a
Discharge Order removing their name from the List is obtained from
the Court.
However, what if the child has already been removed from
Australia?
If a child has been taken to a country that is a signatory to
the Hague Convention (Civil Aspects of Child Abduction), then
proceedings can be instituted under that international treaty for
the return of the child/ren. For a list of the countries that are
signatories to the Hague Convention visit the following
website: http://www.hcch.net/index_en.php?act=states.listing
This is what happened in the above case, and the father invoked
the provisions of the Hague Convention on child abduction to demand
the return of the children.
In cases where children are taken to a country that is not a
signatory to the Hague Convention, private proceedings will need to
be instituted in that country for their return.
It is important to note that this is a highly complex area of
the law. It is vital that parents seek professional legal advice,
from an experienced family lawyer, in relation to any applications
concerning their child/ren to ensure that the best case is put
forward.
The Family Law Team at Coleman Greig has considerable experience
in this area and working within the parameters of the Hague
Convention. If you would like to discuss your rights and
obligations with respect to children, contact a member of our team
now on ph: 0 9635 6422.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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