International Family Law

Unique challenges are faced by families who are split across international borders. Disputes between these families have significant effects on both parents and children in various ways.

The Australian Central Authority in the Attorney-General’s Department has the responsibility of administering the 1980 Hague Convention on the Civil Aspects of International Child Abduction.

Family matters that cross international borders

People undergoing family breakdowns that cut across international borders often wonder about their rights and obligations. 

The precise rights and legal possibilities attaching to people in such scenarios very much depend on the jurisdictions involved and the particularities of each case. If individuals are going through family breakdowns or other marriage related issues that are across international borders, a qualified lawyer is needed to determine: 

  • If your marriage is recognised internationally
  • If the same laws in regards to finances, divorce applications and child care arrangements apply in the other country
  • If you can get divorced internationally
  • How your assets will be separated if they are in different countries
  • How long you should expect your case to go for
  • Which jurisdiction is best to file proceedings in
  • How laws in different countries will view same-sex relationships
  • Gender biases that may occur in foreign countries.

Can my former partner relocate internationally with our child?

Sometimes the end of a relationship causes people to relocate internationally. This may be to move closer to family or return to their home country.

If you have children in a relationship that has ended, it is important to carefully consider the legal consequences of moving to another country.

It is important to communicate about this with your former partner from the start and come to an agreement that works for the parents and children.

If you can reach an agreement, it is best to have this put in a parenting order. In that way, it can be enforced if either party does not meet the terms. Either parent can apply for a parenting order. This means you can apply to stop your former partner from taking your child out of the country or you can apply to relocate with your child.

In situations where an agreement can not be reached, it is recommended that you attend family mediation. Family mediation is the most effective way to resolve a dispute without the need for court whilst allowing both parties to control the negotiations.

If someone does take your child out of the country without your permission, it is possible to bring them back to Australia if the other country is part of the Hague Convention.

The Hague Convention

Australia has signed the Convention on the Civil Aspects of International Child Abduction, more commonly known as The Hague Convention. The Hague Convention sets out a process for requesting the return of an abducted child.

It is a treaty between Australia and many other countries that have agreed to a legal procedure for returning abducted children to their home country. It facilitates contact between parents and children who live in different countries.

If your child has illegally been taken out of Australia and is in a country bound by the Hague Convention, you can make an application to have them returned.

What if my child has been abducted from Australia?

You would need a lawyer to first assist you contact the Australian Central Authority (ACA) and make any applications for the return of your child on your behalf. The role of this government department is to communicate with relevant overseas government agents to have your child returned. This process can involve mediation or further court proceedings.

Other steps can involve making an application to the Family Court of Australia, having us provide specialist evidence to the court in the overseas country, and conducting negotiations on behalf of you.

Return of the Child

The ACA is the body in Australia that makes applications in relation to The Hague Convention. This government body ensures all organisations with binding legal force in Australia comply with the Convention. An application for return must be made within twelve months of the date of abduction. The Court will order that the child be returned immediately so that the Child’s habitual country laws can be applied. However, should the child be at risk of harm if they return to their country of habitual residence, the Court will not make an order for return. 

Where the Country is not a signatory to the Hague Convention

In the absence of another binding legal agreement, little legal recourse is available to parents whose child has been taken to a country that is not a signatory to the Hague Convention. In these cases, it is recommended that the party contacts the Department of Foreign Affairs and Trade (DFAT) Consular Office to obtain a list of family lawyers in those particular countries.

Where the location of the child is unknown

Where a party does not know where their child is, they should nonetheless apply to the ACA for assistance.