By Jacquelyn Curtis
International child abduction has once again been thrown into the media spotlight, with recent reports detailing the plight of a desperate mother who attempted to take custody of her children from their father in Lebanon.
Media reports reveal that Sally Faulkner engaged the assistance of an international child recovery agency to take her children, ages 5 and 3 from their father Ali Zeid Elamine, a Lebanese native. Ms Faulkner asserts her children ended up in Lebanon with their father after he told her he was taking the children on a three week holiday. Ms Faulkner says she agreed to the children holidaying with their father in Lebanon, but what seemed innocent enough turned into every parent’s nightmare when Mr Elamine never returned the children to Australia.
Lebanon media is reporting that Ms Faulkner agreed to the children living in Beirut with their father and that she made the bungled recovery attempt after Mr Elamine stopped making child maintenance payments. It is also claimed Ms Faulkner has not seen her children since last year, and has only heard their voices over the telephone a handful of times since then.
The case highlights the challenges faced by families who are split across international borders and the risks for all parents to consider before permitting their children to travel or live overseas with the other parent.
Lebanon is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction which provides a legal procedure for abducted children to be returned to their home country. A list of Convention Countries can be found by clicking here.
The “Vincenti Italian sisters custody case” which gained worldwide media attention in 2012 is an example of the Convention in action. In that case, the Family Court of Australia ordered that four girls be removed from their mother’s Sunshine Coast home and returned to live in Italy with their father. The Italian girls case has some similarities to Ms Faulkner’s situation – as the mother had brought the Italian girls to Australia initially under the guise of a holiday.
The reciprocal arrangements provided under the Convention enables many Australian children to be returned to live in Australia each year. However, the Convention is only effective in countries which are signatories.
There is a bilateral agreement between Australia and Lebanon which enables the Australian government to assist parents to resolve disputes between parents relating to children residing in either country. It is not yet clear whether that option was explored by Ms Faulkner, before the recovery mission was made in Beirut.
In this case it seems Ms Faulkner took extreme measures to recover her children. Unfortunately, it all went terribly wrong. Unconfirmed reports indicate Ms Faulkner has a three month old child to a new partner, in Australia. She is currently detained in a Lebanese jail, separated from all of her children, awaiting charge.
International travel and international relocation with children are complex areas of family law. To avoid a situation like Ms Faulkner’s, prevention and risk management is key. Sadly we see situations where the only options parents have left is to take matters into their own hands. That brings with it other serious risks, which may be avoided in taking practical steps to assess and address the risks international travel before your children leave Australia.
Even where your children are travelling to a convention country, if you have any concerns about the travel plans, it is recommended that you obtain legal advice – including about the ways you may be able to ensure the children’s return to Australia before giving consent to the travel. Prevention is always better than the cure. Convention proceedings are often protracted and may lead to lengthy separations between parents and children. Your prospects in those proceedings may also be strengthened by precautionary steps taken by you in advance of the international travel or relocation.
If there are Court proceedings underway or Court orders in place for your children, under the Family Law Act it is a criminal offence to remove children from Australia without the consent of the other parent. That consent must be given in a prescribed form.
If you are thinking of travelling overseas with your children, seeking early advice from us about the steps to take before travelling is essential. We can also advise and assist you where the other parent is unreasonably refusing to give consent to an overseas trip for you and your children. Please contact DDCS Lawyers on (02) 6212 7600 or firstname.lastname@example.org.