The situation in Lebanon – where mother Sally Faulkner, alongside a 60 Minutes film crew, made a failed attempt to recover her children from their Lebanese father – highlights the difficulties facing separated Australian parents where one or both parents have connections with a country other than Australia.
Our large international population has created Australia's valuable cultural diversity and boosted economic growth. It is commonplace for middle-class children to travel internationally with their families, especially where one or both of their parents are born outside of the country.
Moving to Australia, however, can lead to isolation for spouses and place stress upon relationships which may result in separation. Some 47 per cent of divorces granted in Australia in 2014 involved either one or both spouses having been born overseas, and of those relationships, 61 per cent of spouses were born in different countries from each other.
The understandable wish of one or both of the parents to have their children visit other countries or move back home adds to the complexity of post-separation parenting arrangements.
The Hague Convention on the Civil Aspects of International Child Abduction is one of the main legal systems for regulating the international movement of children. It provides procedures designed to bring about a prompt return of children who have been abducted (that is, either wrongfully removed to or retained in other convention countries without the consent of the other parent).
In providing such a procedure, the convention also discourages abductions being attempted in the first place. Only about 250 Hague convention applications are filed annually in Australia. However, some of the most common countries of origin for immigrants to Australia are not signatory countries to the Hague Convention.
This means it is likely that the greater number of abductions of children residing in Australia are not recorded or regulated by the convention.
Former High Court judge Michael Kirby described the movement of children to and from non-Hague Convention countries as "a legal wasteland". The only legal remedy for a parent left behind in Australia is to commence proceedings in the foreign country, which may or may not be sympathetic to them.
Lebanon is not a signatory to the Hague Convention, but there are bilateral agreements between it and Australia, although these do not provide specific legal processes nor confer legal rights upon the aggrieved parent. Instead they provide forums for dialogue and assistance in the event of the abduction of children.
Ultimately the law and state cannot regulate all matters of the heart and relationships. It is a matter of caveat emptor, even when it comes to foreign marriage and children.
Separated parents fearful of abduction have a number of unsatisfactory and potentially conflicting options. They may deny their children the widely accepted benefits of overseas experiences. This can be done by preventing their children from travelling at all by controlling their passports or having children placed on the Australian Federal Police airport watchlist, which requires a court order or at least the commencement of proceedings.
Alternatively, they can cross their fingers and trust the other parent.
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