Mcphee Lawyers


06 October 2016

Separation on overseas holiday! What happens? Hague Child Abduction Convention


Many children in Australia have parents that were born in a foreign country. It is common for these families to travel to the home country with the children for holidays or for the parents together with their children to move overseas for an extended stay. What happens if a separation occurs while the family is outside Australia and one parent wants to remain in the other country with the children?

In State Central Authority and Trembath [2014] FamCA468 (1 July 2014) Dawes J of the Family Court of Australia, Adelaide heard a case where the parties were on an extended overseas stay in Canada. The Application commenced by the State Central Authority (on behalf of the Mother) for two children (born in Adelaide Australia. Dual citizenship) to be returned to Canada from Australia and in doing so the Court needed to consider the habitual residence of the children.

By way of a brief background:

  • In this case the family moved from Adelaide, Australia to Canada for an extended stay until the Mother (a Canadian Citizen) expressed her wish to separate and the Father (Australian Citizen) returned with the children to Australia.
  • The parties initially met in Australia and worked together in Australia. The Mother returned to Canada at the conclusion of her working visa. The parties maintained a long distance relationship. In 2000 the Mother was granted a spousal visa. She was eventually granted permanent residency. The parties married in December 2000.
  • In 2003 the Mother informed the Father she was feeling homesick and the parties agreed they would travel to Canada as often as possible for holidays and other special events. Over the course of the marriage they travelled to Canada on approximately eight occasions with the children accompanying them on some of those visits.
  • In 2008 the relationship deteriorated. The parties sought counselling. It was decided the family would travel to Canada.
  • In April 2013, the parties informed the Father’s family of their plans and set about making arrangements for their departure. The Mother secured twelve months unpaid leave from her employment and arranged a leave of absence from the children’s school. The parties travelled to Canada. The Mother travelled with the children. The Father followed as he attended to work commitments. The Father made arrangements with his brother to manage the farm and livestock in his absence.
  • When in Canada the family resided at a house on the Mother’s parent’s property. The children were enrolled in school. The Mother obtained full time employment.
  • In October 2013 the Mother informed the Father that she did not intend to return to Australia and that she wished to separate. The Father refused to return to Australia without the children. The Mother refused to allow the children to leave Canada. Without the Mother’s consent or knowledge the Father purchased flights home for himself and the children.
  • In October 2013, the Father and the children returned to Australia where they have continued to reside since their removal.
  • At paragraph 89 of the Judgement, Dawes J, found that the evidence did not establish that the parties made any arrangements to give up their permanent residence in Australia. The evidence also indicates that the Father clearly intended that the visit to Canada would be limited.
  • At paragraph 90, the Court was satisfied that the father established that the habitual residence of the children in Australia had not been lost at any time.

A desire to travel or relocate overseas with your child/ren

It is important to obtain legal advice if you have a desire to travel or relocate overseas with your child/ren.

Concern that your child/ren maybe removed from Australia

If you are concerned that your child/ren maybe removed from Australia by the other parent without your permission you should obtain legal advice as a matter of priority.

If you would like to obtain advice about such matters or your parenting dispute, please make an appointment with one of our solicitors.

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