Thursday, 24 February 2011

Family Court: 9 month baby allowed to travel to China

A mother was allowed to take her 9 month old baby to China by the Family Court recently, despite opposition by the father, who feared that the baby would not be returned.

The mother told the court that the baby was travelling to China to be with the maternal grandparents during Chinese New Year.

The Family Court in Gin and Hing followed earlier principles in  Line and Line (1997) about whether to allow children to travel overseas:

(a) The existence or otherwise of continuing ties between the departing parent and Australia (such as the ownership of real estate, the existence of business interests, or the residence of close family or friends here);

The court found that the mother was an Australian citizen,  her travel papers did not recognise her as a citizen of China, that she had lived in Australia for the last 7 years,  that there was yet to be a property settlement and the mother had offered to put up her share of a $800,000 and $1 million as a bond to ensure her and the baby's return. This was the key factor for the child to be returned.

(b) The existence and strength of possible motives not to return (including the level of conflict between the parents, particularly over child related issues);

The father said that the mother's parents had come to Australia as business migrants, but had sold their home here and moved back to China, that they were very wealthy and intended for the child not to return. There was no evidence that they would try and prevent the child from returning. 

(c) The existence and strength of possible motives to remain in the other nominated country (such as the ownership of real estate, the existence of business interests, or the residence of close family and/or personal friends there);

Justice Cronin found that the risk of non-return was low.

(d) Whether the country of travel is a signatory to the Hague convention.

The Hague Convention on the Civil Aspects of International Child Abduction is the prime means to retrieve children from overseas. It is usually a lot easier to get a child back from a country that has signed up to the Hague convention than one that has not. China has not signed the Hague convention.

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