Australia
Family Law
This office handles many international family law cases that have an Australian connection, working with counsel in Australia as appropriate, including:
-- prenuptial agreements with an Australian connection
-- divorce cases with an Australian connection
-- international child abduction to and from Australia
-- child relocation and child custody cases with an Australian connection.
Mr. Martin is quite familiar with Australia, having family in Melbourne and business interests in Victoria and NSW and having worked on many matters involving children and assets in Australia.
He has acted as an expert witness in Australia by telephone testimony.
Australia and Child Abduction
International Social Service published a report on international parental child abduction in Australia and called for the establishment of a national support service.
There are approximately 170 reported cases of child abduction both into and out of Australia per year. This critical issue is however, not widely known or publicized throughout the general community. The ISS network comes into contact with an increasing number of cases, due predominantly to more family breakdown and the ease of international travel. The Federal Attorney-Generals Department has recently provided seed funding to enable ISS to undertake a short term research project into International Child Abduction with a central aim of identifying appropriate support models.
The Hague Convention on the Civil Aspects of International Child Abduction, of which Australia is a signatory, has as two central aims. Firstly, the restoration of the pre-abduction status quo, and secondly, to deter parents from crossing borders in search of a more sympathetic court. While these aims have significant merit, there is a perception that the Convention, operating within its legal framework, does not always focus on the welfare of the child as the paramount consideration. A key aim of the project is to identify mechanisms, apart from legal ones, which will provide the most effective support and alleviate the trauma, anxiety and powerlessness experienced by the parties.
Currently, families affected by child abduction are directed to the International Family Law Section of the Federal Attorney-Generals Department. The focus of assistance therefore tends to be on the legal and practical aspects of recovering and returning children. Unlike some other countries, Australia does not have a specialized service which is able to provide holistic support to the parties. A key component of the ISS Project is to develop a support service model which would meet the needs of, in the first instance, the left behind parent, but also the child/children and other parent. There are instances where the child has been abducted to Australia and there is a need to support the foreign left-behind parent when visiting Australia for court proceedings, to attempt resolution and to have contact with the child.
The common thread in all these cases is the sense of powerlessness experienced by the left behind parent whose right to access to the child/children often becomes impossible. In these instances, the temptation to resort to drastic steps may become overwhelming.
Canada
Family Law
This office handles very many international family law cases that concern Canada.
These include:
- Divorce issues that have a Canadian element.
- International child abduction to and from Canada.
- International child custody issues.
- International prenuptial agreements that concern Canada.
- Expert testimony in Canadian courts in several cases on international child abduction issues.
The firm always works with local counsel in Canada as appropriate.
Jeremy D. Morley is a former law school professor at the University of New Brunswick, Fredericton, Canada.
Working with local counsel in Quebec, we are pleased to have successfully secured the return of two children abducted to Quebec from California.
Canada and Child Abduction
The following is an extract from Canada's answers to a questionnaire submitted by the Hague Conference on Private International Law concerning the Hague Convention on the Civil Aspects of International Child Abduction:
Legislation and Court Orders
1. Please give details of any civil legislative provisions which exist in your State which may act as a deterrent to a potential abductor, or may have a preventive effect.
Hague Convention on the Civil Aspects of Child Abduction
The Hague Convention, as ratified by Canada in 1983, and now applicable in all provincial and territorial jurisdictions of Canada.
Divorce Act (federal)
Federally, subsection 16(6) of the Divorce Act authorizes the court to make an order for a definite or indefinite period or until the happening of a specified event and may impose such other terms, conditions or restrictions in connection therewith as it thinks fit and just. This allows for very clear and specific conditions to be included in an order - such as travel restrictions, deposing of passport with the court etc that may have a preventive effect.
Provincial legislation -- common law (general and specifics)
At the provincial /territorial level, it is probably worth noting that in Ontario for example, one of the purposes of Part III of Ontario's Children's Law Reform Act is specifically noted in section 19(c) as being: to discourage the abduction of children as an alternative to the determination of custody rights by due process. Children's Law Reform Act, R.S.O. 1990,c. C12
Similarly, to provide for more effective enforcement of custody and access orders as between the provinces of Canada, provinces have attempted to reflect in their legislation, provisions of the Uniform Extra-Provincial Custody Orders Enforcement Act that was adopted by the Uniform Law Conference of Canada.