International Child Custody Arrangements

In an increasingly globalised world, it is more common than ever for parents to enter international child custody arrangements. Despite being increasingly common, such arrangements are still difficult to navigate for many parents. Australia’s family law framework, and international treaties such as the Hague Convention on the Civil Aspects of International Child Abduction, provide mechanisms to address these complex issues. This article examines the legal principles, processes, and challenges involved in international child custody arrangements in Australia.

International child custody arrangements

The Family Law Act 1975 is the primary legislation governing parenting matters in Australia. It emphasises the best interests of the child as the paramount consideration. This principle guides the resolution of international child custody disputes, whether they arise within Australia or across borders. In most cases, parents are encouraged to resolve custody disputes through mediation or negotiation. Services such as Family Dispute Resolution (FDR) help parents reach agreements outside of court, minimising emotional and financial strain. Parents who cannot resolve disputes through negotiation or mediation can seek parenting orders from the Federal Circuit and Family Court of Australia. Parenting orders address custody and visitation arrangements, decision-making responsibilities, and conditions for international relocation.

Australian law allows a parent to prevent another parent from unilaterally taking a child interstate or overseas. For instance, the court can force a parent to surrender a child’s passport, or add the child’s name to the Family Law Watchlist, which restrains the parent from removing the child from Australia. Australia is also a signatory to the Hague Convention on the Civil Aspects of International Child Abduction (1980), an international treaty aimed at ensuring the prompt return of abducted children to their country of habitual residence. The Convention operates on two key principles:

• protecting the child’s welfare, which involves prioritising stability and continuity for the child
• preventing forum shopping by ensuring custody disputes are resolved in the child’s country of habitual residence.

In addition to the Hague Convention, Australia has bilateral arrangements with certain countries to facilitate cooperation in international child custody matters. These agreements provide a framework for recognising and enforcing foreign parenting orders.

Relocation overseas and parental consent

When one parent wishes to relocate internationally with a child, they must obtain written consent from the other parent. If the other parent does not consent, the court can make orders based on whether the relocation is in the child’s best interests. In this calculation, the court will consider not only the benefits of the proposed relocation, but also how it will impact the child’s relationship with their other parent and how hard it will be for the child to maintain meaningful contact with them after the relocation. Specific factors influencing the court’s decision about what is best for the child in such instances include:

• the child’s relationship with each parent
• the extended family in either location that would help care for the child
• the child’s views, considering their age and maturity
• the potential impact of relocation on the child’s well-being
• the distance the child would have to travel to see their other parent and vice versa, and the costs of travelling this distance
• the need to protect the child from harm, including exposure to domestic violence or abuse.

The court will weigh these considerations against the reasons the parent wishes to locate, such as job opportunities or desire to be closer to family.

Parental abduction

Parental abduction occurs when one parent removes a child from their habitual residence without the consent of the other parent or court approval. Under the Hague Convention, the primary focus is to return the child to their habitual residence for custody issues to be resolved.

If a parent wrongfully removes a child from Australia, the other parent can file a Hague Convention application. The process involves filing an application with the Australian Central Authority (ACA), the body responsible for Hague Convention matters in Australia. The ACA will assess the application given the child’s habitual residence and the circumstances of the removal or retention. There may be court proceedings to determine whether the child should be returned to their country of habitual residence.

Defences under the Hague Convention

Under the Hague Convention, a parent has limited defences against the need to return a child to their habitual residence. For instance:

• the left-behind parent consented to or acquiesced in the removal
• the application is filed more than a year after the relocation, and the child is settled in their new environment
• the return would expose the child to a grave risk of physical or psychological harm
• the child is of sufficient age and maturity to object to the return.

International child custody arrangements in Australia are governed by a complex interplay of domestic laws and international treaties, aimed at protecting the welfare and rights of children. Whether resolving disputes through mediation, court orders or the Hague Convention, the best interests of the child remain the guiding principle. Parents involved in international custody disputes should seek professional legal advice to navigate the intricate legal landscape. For any legal assistance, please contact Go To Court Lawyers on 1300 636 846.