Insights and Inspiration
When Laws Collide
29 August 2018
It seems that every day somebody expresses an opinion about immigration, its benefits, its limitations, too much, not enough, wrong kind, right kind. However, as with other aspects of modern life, the movement of people in and out of countries creates international legal issues, one of the things for which Pearson Emerson is highly regarded and in which we specialise.
A recent case decided by the Family Court (Lao and Yeng) involved the parents of a child who was three at the time the case was decided.
Both parents were born in China, and met there in 2008, at which time the mother of the child was living in China and the father in Australia. The father was a dual Chinese/Australian citizen and the mother a Chinese citizen. They married in China in 2010 and then both returned to Australia.
Two years later, the father got a job in China and after that spent about half each year there.
Their child was born in China.
Both parents and the child returned to China in May 2016, and they separated in October of that year. The mother then traveled in December 2016 from China to Australia leaving the child with her mother, shortly after which the father collected the child from her maternal grandmother and the child lived with the father in China thereafter.
The mother, being in Australia, filed an application with the Family Court here in February 2017 asking the court to order that the child live with her, and restraining both parents from taking the child out of Australia. The father said that the Australian court had no power to hear the case.
When can Australia hear a case about a child? Ordinarily, it can do so if the child is present in Australia, an Australian citizen or ordinarily resident in Australia, either parent is an Australian citizen or ordinarily resident or present in Australia, or if it would be in accordance with a treaty between Australia and another country for the court to take the case.
There was no question that the father was an Australian citizen, as was the mother. On those rules, the court had the right to hear the case.
However, Australia has entered into a number of treaties, one of which is commonly referred to as the Child Protection Convention. The Child Protection Convention is intended to stop squabbles between courts in different countries over children. It sets out some rules to determine which court has the right to take the case. The treaty goes further than that but for the present purposes we are dealing only with that aspect. The Child Protection Convention has been made part of Australian law in the Family Law Act.
It takes precedence over the rest of the provisions about when the court will hear a case about a child. The child must be present and habitually resident in Australia, or if resident in another convention country, a court can hear a case if the child's protection requires the court making orders but only then of a provisional kind, or if the court where the child habitually lives requests the Australian court to take the case. There are some other issues that are immaterial for the present.
An Australian court can also take the case if the child is habitually resident in Australia even if living in another Convention country or if the child has been wrongfully removed from Australia.
China is a signatory to the Child Protection Convention but it was unclear to our judge whether it had ratified the Convention.
The judge said that it was clear the child was not habitually resident in Australia, not wrongfully removed from Australia, China had not asked Australia to take the case, and there were pending proceedings in China. For those reasons the judge said Australia should not hear the mother's case.
No other provision of the convention entitled Australian to hear the case so the mother's application was dismissed.
It is important therefore to consider not only our law, but those treaties to which Australia has become a party, and that become in turn a part of Australian law. In some cases therefore, when immigrants travel to Australia they pack not only their personal effects but the laws of the country from which they came.
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