Recently, the media has reported about a Family Court decision, whereby the Court ordered that a 6 year old boy live with his father in Australia, while his 2 year old brother will continue to live in Canada with their mother.
By way of background, the Daily Telegraph stated that in September 2009 the family was living in the Northern Territory. The mother travelled with the eldest son to Canada, described to the father for the purpose of a holiday. The mother is a Canadian citizen however was a permanent resident in Australia permitted to live and work in Australia. At the time that the mother took the son to Canada she was pregnant with the couple’s second child. When the mother refused to return to Australia to live, the father travelled to Canada for the birth of the second child. Later, the father did obtain an Order from the Canadian Courts under the Hague Convention allowing him to return to Australia with the eldest son, for the Australian Family Law Courts to make a decision about the parenting arrangements of the eldest son.
Without knowing all the revenant facts of this matter, it seems that the Court determined that the second child (being born in Canada after the mother returning in 2009) has not been unlawfully retained in Canada and therefore not subject to the proceedings.
The difficulty in this matter seems that the children have for the most part of their lives been separated from their other sibling, the mother refusing to return to Australia with the youngest son and the father refusing for the eldest son to leave Australia (due to having no confidence that the mother will comply with Parenting Orders or facilitate an ongoing relationship with the father).
The Family Court has been heavily criticised in social media for this decision. Such criticisms include “It’s a shocking decision by both parents and the Judge”, “poor little boys” and “this is a disaster for these boys. They will be brothers in name only, regardless what the parents do. Shame”.
Whilst at first glance it does seem difficult to comprehend why a Court made a decision effectively separating two brothers, and each child not having the benefit of a significant and substantial relationship with the other parent. However, it is easy to jump to these conclusions when not all the facts of the case are explained and neither parent is willing to reside in the same country as the other parent.
We do have solicitors available who have been involved in Hague Convention matters. If you seek advice, please contact our office.