What happens if your ex-partner disappears to another country with your children?

Date: Jul 14, 2014
Document Type: Article

If your ex-partner goes on an international holiday with your children and decides not to return, or leaves without your knowledge, you may find yourself having to make a ‘Hague Convention Application’ to obtain orders for your children to come back to Australia.

An application can only be made if the country to where you suspect your children have been taken has signed the Hague Convention on the Civil Aspects of International Child Abduction and which Australia itself has recognised.

Your application must be supported by an affidavit setting out all the relevant facts of your matter. The most important thing your affidavit should include is how your children can be defined as being “habitually resident” in Australia. 

Once your application and supporting documents have been completed they will then be sent to the Australian Central Authority (“ACA”). The ACA will normally take between three (3) to four (4) weeks to make a determination as to whether they accept your application that your children should be habitually resident in Australia.

If your application is successful, it will be forwarded to the ‘foreign’ Central Authorities, which in turn will make a decision as to whether it accepts the Australian determination. If they do accept it but your ex-partner chooses to contest the decision, he or she will have to do so in a foreign court.

All Courts involved in a contested Hague Convention Application aim to resolve the matter within 42 days. However, the length of time depends upon the Court’s resources and complexity of the matter. If the ‘foreign’ Court ultimately determined that the habitual residence of your children is in fact Australia, an Order will be made for their return. It would then be wise to ensure that such a serious incident does not occur again by protecting your children with Family Law orders in Australia.

If you make an application to the ACA and such application is not accepted, you still have the opportunity to apply directly to the ‘foreign’ Central Authority to determine your children’s habitual residence.

If neither the ACA nor the ‘foreign’ Central Authority determines the habitual residence of your children to be in Australia, you will need to commence legal proceedings overseas.

IMPORTANT: If you find yourself in a similar situation as detailed above, feel free to contact us on (02) 8268 4000 and one of our family lawyers will be happy to talk to you about your options.  

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