Things go wrong in the best of families. Its what you do next that makes the difference. Children benefit from continuing input from both parents even after separation and sometimes this involves the children travelling overseas to spend time with the parent with whom they do not live day to day. In most cases these holiday trips are just what they should be, an opportunity to spend time and catch up with the non-resident parent. Sometimes however the day-to-day presence of the children during the holiday period raises simmering resentments and the natural desire in the non-resident parent to retain the children beyond the agreed period or sometimes not to send them back at all. This often happens, as children get older. In the glow of holiday time spent with a parent whom distance renders more interesting than the day to day parent, the children themselves may express wishes to stay longer or permanently with the other parent.
We all know how this kind of situation should be handled. The parents should listen to what the children are saying and then have a serious talk about how or if the children’s wishes should or could be accommodated. In most cases I am sure this is exactly what happens. Family Relationship Centres may be able to assist parents to focus on the real issues and on realistic compromises.
An old barrister I once knew worked on the principle of the six Ps. That is Prior Preparation Prevents Piss Poor Performance and I think that principle is applicable here.
There are things, which parents can do which may prevent these situations arising and if they do arise may assist to resolve the problem with the least damage to the children, the relationship and the bank account.
Things which can be done prior to the children’s departure
Make clear and unambiguous arrangements for the children’s travel and return. This includes both parents agreeing preferably in writing on the date of departure and the date of return and both having having copies of the children’s:
- Airline tickets
- Contact details including an emergency contact if something goes wrong with the primary contact method.
Take the time to understand and agree with the travel arrangements. Forget the turf war and my time and your time. Insist on detail. It may on occasions be cheaper to buy a one-way ticket but it’s going to take a lot of explaining about why this was done if the children are not returned. It is often a good arrangement for the receiving parent to arrange travel overseas and the custodial parent to arrange the travel back to Australia. But both parents should know at all times how and when the children are to travel and how they can be contacted.
He is not trying to control you if he wants to know and she is not interfering with your time if she wants to know.
Make sure that any orders or parenting plans are up to date and that you have sealed copies of any orders and signed copies of any parenting plan.
Often parents make adjustments to accommodate the development of the children and their own life circumstances. This is natural and in fact a sign of good responsive parenting but if you are trying to prove that young Garry should have been returned on Christmas Eve and the orders say that he can stay until the beginning of the school term, it becomes a battle of he said she said which a poor judge must resolve probably in a crowded post Christmas list. If there are discrepancies between the arrangements as they currently are and the orders or parenting plan an exchange of emails setting out the current arrangements will remove a whole area of stress dispute and costs.
Sections 63D and 64E of the Family Law Act, 1975are of assistance here.
S63D Parenting plan may be varied or revoked by further written agreement
A parenting plan, other than a plan to which section 63DB applies, may be varied or revoked by agreement in writing between the parties to the plan.
S64D Parenting orders subject to later parenting plans
(1) Subject to subsection (2), a parenting order in relation to a child is taken to include a provision that the order is subject to a parenting plan that is:
(a) entered into subsequently by the child’s parents; and
(b) agreed to, in writing, by any other person (other than the child) to whom the parenting order applies.
If the children are going to a Hague Convention country the sending parent should consider obtaining detailed information about how the Hague Convention is administered in that country and details on that country’s level of compliance with the Hague Convention.
For information on the Hague Convention visit
- the Hague Conference website at http://www.hcch.net
- the Australian Central Authority website: http://www.ag.gov.au/ FamiliesAndMarriage/Families/InternationalFamilyLaw/Pages/ InternationalParentalChildAbduction.aspx
Before you send the children overseas, you might consider consulting a lawyer in the other country to ascertain whether there are specific requirements in that country, regarding children’s international travel. For example, in some countries, the written consent of both parents is required before children are able to leave the country. For these countries, it would be prudent before the children’s departure from Australia, for you to get the consent in writing from the other parent to the children leaving the overseas country and returning to Australia.
The Department of Foreign Affairs and Trade (DFAT) keeps lists of English speaking lawyers in overseas countries. In the case of an emergency you can contact DFAT for 24 hours a day 7 days a week within Australia: 1300 555 135 and outside Australia: +61 2 6261 3305 SMS +61 421 269 080on 02 6261 1111 and on their website https://dfat.gov.au/pages/default.aspx
What you can do if your children are retained overseas
Hague Convention Countries
The 1980 Hague Convention on the Civil Aspects of International Child Abduction is an agreement between over 93 countries to facilitate the speedy return of children wrongfully removed to or retained in another Hague Convention country by a parent. Australia, New Zealand, the United States, the United Kingdom and most European countries have all committed to the Hague Convention.A list of countries is available at: https://www.ag.gov.au/FamiliesAndMarriage/Families/InternationalFamilyLaw/Pages/HagueConventionOnTheCivilAspectsOfInternationalChildAbduction.aspx
If your children are retained in a Hague Convention Country you should immediately make an application for their return. Contact your lawyer or International Social Services Australia for assistance. Contact details are on their website http://www.iss.org.au.
Non-Hague Convention Countries
If your children are retained in a non-Hague Convention Country, you can seek to recover your children by commencing parenting proceedings under that country’s domestic law. The Department of Foreign Affairs and Trade can provide a list of legal and social services, including a list of local English speaking lawyers.
The Australian Government may provide financial assistance to obtain the return of the children to Australia. The financial assistance may cover the fees of the overseas lawyer, your travel costs to attend the hearing and the costs involved in returning your children to Australia. To obtain more information on eligibility and assistance, please visit the Attorney-General’s Department Financial Assistance website: https://www.ag.gov.au/ LegalSystem/Legalaidprogrammes/Commonwealthlegalfinancialassistance/Pages/ default.aspx
Australian Federal Police
If your children have disappeared and you don’t know where they are, you can attend your local police station and file a missing persons’ report. This report will be forwarded to Interpol Canberra requesting assistance to locate your child overseas.
Rosa Saladino MA LLB
Hague Convention Legal Practice