When Jeremy is about 2, things start to go down hill for Pierre and Tegan. Tegan is homesick, misses her family and hasn’t fully adjusted to life in France. Pierre does not want to come to Australia – he likes the beauty of France and is a proud Frenchman – his ancestors died in the Revolution – he is very patriotic. Tegan and Pierre have been fighting about where to live – there has been some verbal abuse of Tegan by Pierre. Tegan is stressed and wants to leave. Finally, Pierre and Tegan agree that Tegan can come on a holiday to Australia with Jeremy for 3 weeks so that they can each have their space.

Tegan and Jeremy come on a return ticket to Australia. Tegan’s parents are delighted at her return and her whole family are at the airport to greet her and Jeremy. Jeremy’s Australian grand parents have never seen him before in person. They are delighted – Tegan, her parents and Jeremy all go to Tegan’s childhood home in the Mornington Peninsula. Tegan has an amazing holiday, but she and Pierre are still fighting over WhatsApp. She tells Pierre she wants to stay. He says “no you can’t Jeremy’s home is in France”. At one-point, almost at the end of the holiday Pierre is exasperated sends a message that says “fine, stay then – I don’t care”. Tegan calls Qantas and cancels their return tickets.

Pierre finds out about this and panics. He contacts the Central Authority in France and they contact the Central Authority in Australia who bring an Application under the Hague Convention on the Civil Aspects of International Child Abduction. The matter is to be heard in Melbourne.

What is the Hague Convention?

The Hague Convention is an international convention between multiple countries to provide a process that parents can use to seek the return of their children to their home country. Australia and France are both signatories to the convention.

What are the proceedings?

The proceedings under the convention are a serious matter – they are not something Tegan can do alone and if the return of Jeremy is ordered, she cant bring herself to let him go alone -so she will have to go with him – there is a lot at stake.

The Court, in dealing with the application by the Central Authority will consider the following with respect to Pierre:

• The child involved is aged under 16
• The parent making the application has custody rights
• This parent was exercising the custody rights at the time of the child’s wrongful removal from the country;
• The child’s country of habitual residence before their removal was France;
• The child is currently in a country that is party to the Hague Convention (Australia);
• The child was taken without the applicant parent’s consent or without a court order authorising their removal from the country.

Tegan desperately wants to resist the application, she is particularly concerned about the verbal violence that she suffered and, with no family or support groups to turn to, is has been dealing with it badly. Tegan also says that Pierre acquiesced or consented to her remaining when he sent her that WhatsApp message “fine, stay then – I don’t care”.

In considering Tegan’s defence and in resisting Pierre’s application the Court would need to consider:

• Whether Pierre was exercising custody rights;
• Whether Pierre acquiesced;
• The wishes of Jeremy (based on his maturity);
• The risk to Jeremy of psychological or physical harm if he returns.

You

You may be Pierre or Tegan or someone supporting them. In each of these circumstances it is imperative that they get good legal advice on what it is that they should do and how evidence should be put before the Court.

David De Alwis and Elyse Byrne, of Hope Earle’s family law team are experienced at dealing with all Hague Matters and can quickly and efficiently guide you through the process. Give them a call on 9600 3330 or 0422 432 692 to discuss your case.