03 Aug Proposed Changes to International Child Abduction Laws in Australia
Principal of Justice Family Lawyers, Hayder specialises in complex parenting and property family law matters. He is based in Sydney and holds a Bachelor of Law and Bachelor of Communications from UTS.
Currently, Australia has one of the highest rates of international child abductions in the world.
In 2015 to 2016, Australian parents made 92 Hague Convention applications for the return of 137 abducted children.
Out of those applications, only 63 were returned successfully.
Former Family Court judge Nahum Mushin has declared that foreign courts are ‘too soft’ on parents who abduct children from Australia as the abducting parent is more likely to win a reprieve if their case is heard in a foreign country.
This loophole is being blamed on weak international laws that have ‘watered down’ over time.
International Child Abduction in Australia
Parental Abduction is when one parent takes, detains or conceals a child without permission from the other parent.
This abduction becomes international when one parent takes the child overseas.
It often occurs in circumstances when the parents of the child are separated.
Other family members of the abducting parent commonly assist with the kidnapping.
Currently, international parental child abduction is not a crime in Australia. I
f your child has been abducted by the other parent, you may apply to the Court for a recovery order to return the child to their normal place of residence.
This empowers the Australian Federal Police to speak to customs and border control and find out where the child is.
However, although this will allow the left-behind parent the right to retrieve their child if possible, the abducting parent can only be brought to court for breaching court orders; not a kidnapping charge.
If a child has been taken out of Australia to another country, and that foreign country is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction, the left behind parent can apply under the Convention for the child to be returned to Australia.
The Convention attempts to ‘ensure [a child’s] prompt return to the State of their habitual residence, as well as to secure protection for rights of access’.
Australia also has bilateral agreements on child welfare with Egypt and Lebanon known as the Australia-Egypt Agreement and the Australia-Lebanon Agreement.
However, many countries are not a party to the Convention and do not maintain bilateral child welfare agreements with Australia. In these cases, it can be difficult to have the child returned.
Furthermore, judge Mushin is concerned that signatories to the Hague Convention are not abiding by the spirit of the law, which demands custody battles should ordinarily be heard in the child’s place of habitual residence where evidence will be more readily available.
Instead, legal proceedings are carried out by the abducting parent in the foreign country against the left behind parent.
This can lead to unfortunate cases such as Moorebank father Michael Beshara’s ex-wife, Christina Mamasioulas, claiming allegations of psychological and sexual abuse by Mr Beshara towards their children Demi (12) and Samuel (10) in Greek courts.
In response to why Ms Mamasioulas agreed to extend a joint custody arrangement just six weeks prior to abducting the children from Australia, she claims she did not know about the abuse and the children ‘only opened up once we got to Greece’.
Meanwhile, Mr Beshara denies the abuse allegations and claims ‘practically no one’ can stop a mother from alienating her children from their father in a foreign country.
Change to Australian Child Abduction Laws
The Senate is expected to pass legislation to crack down on international parental child abduction through introducing a prison term of up to three years for parents who take their children for longer than the agreed upon time.
Furthermore, the law intends to expand police powers through enabling phone tapping, monitoring of bank transactions and working with foreign police forces.
Judge Mushin approved of the Government’s attempt to deter parents from believing international child abduction was a viable option.
Left behind parents such as mother Sally Faulkner, who was imprisoned with Channel Nine presenter Tara Brown following 60 Minutes’ bungled attempt to retrieve her children from their father in Lebanon, have also supported the Senate’s proposed law.
However, many experts remain sceptical of the crackdown, stating they are merely a deterrent and Australian police and courts will not gain any new powers to recover the children internationally.