Insights and Inspiration
Freedom's just another word...
21 August 2017
We take our freedoms for granted. This includes some we don't really have.
In the USA the Bill of Rights in the Constitution guarantees that life, liberty and pursuit of happiness are inalienable rights. Yet the first two of those are at risk every day. Liberty is taken away for the commission of crime. For the commission of serious crime life is taken away; sometimes not even that is necessary.
One of the rights that we may take for granted is freedom of movement, but in family law even that is curtailed. If you are a parent, separated from your partner, you cannot simply move away with your child or children as you wish. The best interests of the child might dictate that the court will stop you going with the child, though of course it may allow you to go without the child. That is a choice not many parents would make.
What is less well known is that the court has power to stop a party to a family court case from leaving the country altogether. This is sometimes to stop somebody if there is evidence that that person intends to remove assets from the court's reach. A recent example, however, related to a child.
The Court had to deal with a case called Millar and Oakley. The mother was 28 and the father 43, and their marriage lasted only four years. The children were born in 2012 and 2014. After separation the father took the children to what the court described as "country B". There he left them with his family and came back to Australia. The mother then went to country B and took the children but the court in country B issued an order that she could not leave with the children. She could not leave country B because of court applications made by the father and other members of his family.
The mother applied to the Australian courts for an order that the children be allowed to live with her in Australia.
It may seem peculiar that a parent could ask the Australian court for orders about children who are not in Australia. The Australian court certainly has power to make such orders including an order for a child to be brought to Australia. It can do so if the child is an Australian citizen, ordinarily resident in Australia, or a parent is a citizen or resident or even just present in Australia. (and for some other reasons)
So we had proceedings in country B and proceedings in Australia concerning the fate of these children. The father argued that Australia should not hear the case because the children were in country B. The mother said that Australia should hear the case. How did the court reach a decision?
Where children are concerned, the test is what is in the best interests of the children. Applying that test, the Australian court said the case should continue in Australia.
It seemed clear that the proceedings in country B were continuing, so the mother applied for an order restraining the father from leaving Australia. The father said, unsurprisingly, that the court could not and should not do this and it was a limitation on his freedom. The court found that it definitely had the power to restrain the freedom of movement of a parent. The basis of the court's order against the father was that if he was allowed to return to country B and join the children he would never come back with them no matter what the Australian court might order. That was the key feature of the case.
There are two international Conventions that also exist to limit the right of parents to do what they like with their children, but country B is not a party to either of them, and sometimes the places where you most want those Conventions to be in force are the places in which they are not.
Pearson Emerson Meyer has three partners all of whom are Fellows of the select International Academy of Family Lawyers, Sheridan Emerson having very recently been elected to the Academy. One of our recently appointed partners Melanie Rubin, qualified to practise and practised in South Africa before coming to Australia. The other new partner, Josie Blight, worked in a major family law firm in London for two years, and is a member of the International Academy of Collaborative Lawyers.
We have experience and expertise in international matters both parenting and financial, a field that we consider important in our shrinking world.
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