Guest Posted June 29, 2013 Share Posted June 29, 2013 (edited) Thank you to everyone who replied to this thread. I have decided it may have not been appropriate to post, as I didn't consult my friend. Your replies have been very, very useful but I am going to ask for the thread to be closed now. Edited June 29, 2013 by Lady Rainicorn To delete post Quote Link to comment Share on other sites More sharing options...
ali Posted June 29, 2013 Share Posted June 29, 2013 (edited) You might have two issues, technically she (and her child) don't have residency in Aus because of the visa type, residency under child law may be different and irrespective of visa type ... think she's going to have to get some sound professional legal advice. Edited June 29, 2013 by ali Quote Link to comment Share on other sites More sharing options...
Rupert Posted June 29, 2013 Share Posted June 29, 2013 If they were permanent residents or citizens then for sure I would have said the child was Australian resident. However I think that the temporary visa status will be very relevant, I can't see that Australia would be particularly interested in supporting the cause. I don't know what the answer is though, but agree good legal representation is required. Quote Link to comment Share on other sites More sharing options...
Tickled Pink Posted June 29, 2013 Share Posted June 29, 2013 What a horrible and upsetting situation for everyone. I believe the Hague convention does not cover temp residents, which a 457 is. Another issue is that she is currently in the UK not Aus.... I think, as above, she needs to get legal advice. Don't wait. Quote Link to comment Share on other sites More sharing options...
Ronan20 Posted June 29, 2013 Share Posted June 29, 2013 I thought that the primary 457 visa holder had the final say in the matter. The primary visa holder can allow or forbid the child from leaving the country, not the people added to the visa Quote Link to comment Share on other sites More sharing options...
Peach Posted June 29, 2013 Share Posted June 29, 2013 The Hague convention uses a term called habitually resident to describe which country a child lives in, it is not based on visa status. Australian law interprets it as: [h=2]Explanation[/h] Habitual residence is a term used in many international instruments and is used specifically in the Australia and New Zealand agreement to define each country's jurisdiction. It is intended to be a simple non-technical term, applied to the facts of each case. A person's country of habitual residence is the country in which a person usually lives. 'Residence' means more than presence, as it refers to a place where a person resides or lives for a settled period. 'Habitual' indicates that something more than occasional or short-term residence is required, but continuous presence is not required. A person who is present in a country as a tourist or in transit is not habitually resident in that country. Examples M arrived in Australia recently and stated on their entry documents that they intended to establish themselves in Australia. M is considered to be a habitual resident of Australia from the entry date. F has been living in New Zealand for eight months and appears to have no immediate intention to leave jurisdiction. F is considered to be a habitual resident of New Zealand. http://guide.csa.gov.au/part_1/1_6_4.php Quote Link to comment Share on other sites More sharing options...
ali Posted June 29, 2013 Share Posted June 29, 2013 The Hague convention uses a term called habitually resident to describe which country a child lives in, it is not based on visa status. Australian law interprets it as: http://guide.csa.gov.au/part_1/1_6_4.php Do the UK child laws subscribe to this too Peach as the lady Jules is writing about is currently in the UK (although home/work are in Aus). Quote Link to comment Share on other sites More sharing options...
Peach Posted June 29, 2013 Share Posted June 29, 2013 http://www.familylore.co.uk/2011/10/h-k-children-habitual-residence-does.html - here is a similar example.. Quote Link to comment Share on other sites More sharing options...
blossom Posted June 29, 2013 Share Posted June 29, 2013 The time they had been in oz before hand would be important too I would think. Quote Link to comment Share on other sites More sharing options...
AJ Posted June 29, 2013 Share Posted June 29, 2013 Not nice, but surely if he has managed to get a court injunction then he is legally correct? Quote Link to comment Share on other sites More sharing options...
Peach Posted June 29, 2013 Share Posted June 29, 2013 (edited) Do the UK child laws subscribe to this too Peach as the lady Jules is writing about is currently in the UK (although home/work are in Aus). I would say, if the child goes to school in Perth and if asked 'where do you live?' would answer 'Australia' etc. He would be considered habitually resident. Edited June 29, 2013 by Peach Quote Link to comment Share on other sites More sharing options...
Sammy1 Posted June 29, 2013 Share Posted June 29, 2013 (edited) Not nice, but surely if he has managed to get a court injunction then he is legally correct? Not necessarily. Legal injunctions can be merely put in place whilst a case is looked at and sorted out. Seek legal advice asap, do not rely on a public forum. Edited June 29, 2013 by Sammy1 Quote Link to comment Share on other sites More sharing options...
Quoll Posted June 29, 2013 Share Posted June 29, 2013 Tricky! Definitely get legal advice! I guess it could come down to whether they split before they left Aus or not and what custody arrangements were in place when they left. If he was still technically the custodial parent then he is habitually resident in UK - if they had agreed that she would be then she is habitually resident in Aus. Looks like payday for a couple of sets of lawyers to me! Quote Link to comment Share on other sites More sharing options...
Guest guest22466 Posted June 29, 2013 Share Posted June 29, 2013 (edited) Thankfully this is not something I have ever needed to know but unfortunately a friend of mine has found herself in a horrible situation. She is in Perth on a 457 visa, she separated from her partner who chose to return to the UK leaving my friend and their son in Perth. Its obviously been a traumatic time and she took some leave from work to have a months holiday in the UK, her partner has now taken out an injunction to prevent her taking their child out of the UK. I would have expected their child to be considered a resident of Australia and therefore her partner would not be able to enforce their son staying in the UK. Is the fact she is a temporary rather than permanent resident relevant. It does not matter if she is on a temp or perm visa as I know of one lady who wanted to return home to the UK with her child then she had to return to Australia on a temp visa with no where to live,no family , no friends and no money for her and her child . The ex was very abusive to her and they had to live in a shelter for women. The visa she had did not allow her to work so she was unable to work and had no money. The church helped them survive, till her court hearing where she said if you give me a perm visa I will be able to stay so my son can see his father the courts said no...you will not get a perm visa so you and your son can go back to the UK now you have lived in poverty in Australia for two years. Do you know what she wrote on the e card on entry to the UK as she may have to locate that to prove she was only going for a holiday to the UK. If the child was resident and went to school etc and has a home in Australia before the holiday to the UK then Australia would have been the country of residence of the child and I would say that UK is not the child's place of residence but just a holiday. In all fairness the father of the child abandoned his child to go live back in the UK . I would get legal advise. Edited June 29, 2013 by guest22466 Quote Link to comment Share on other sites More sharing options...
Guest Posted June 29, 2013 Share Posted June 29, 2013 Not necessarily. Legal injunctions can be merely put in place whilst a case is looked at and sorted out. Seek legal advice asap, do not rely on a public forum. My friend is seeking legal advice, I just want to try and find out some more to support her the best I can - not give her legal advice. Quote Link to comment Share on other sites More sharing options...
Sammy1 Posted June 29, 2013 Share Posted June 29, 2013 My friend is seeking legal advice, I just want to try and find out some more to support her the best I can - not give her legal advice. It's a hard situation and I do understand it. Hopefully a good lawyer will help her. Quote Link to comment Share on other sites More sharing options...
Guest Posted June 29, 2013 Share Posted June 29, 2013 Tricky! Definitely get legal advice! I guess it could come down to whether they split before they left Aus or not and what custody arrangements were in place when they left. If he was still technically the custodial parent then he is habitually resident in UK - if they had agreed that she would be then she is habitually resident in Aus. Looks like payday for a couple of sets of lawyers to me! They spilt up in Australia, her partner left and returned to the UK alone last year. I am not aware of any court or legal involvement before now though. There is still a possibility this could be resolved as her partner has agreed to return to Australia next month. I have my doubts though, they had been together 15 years and their son is 3 and it was her desire to stay in Australia and her partners desire to return to the UK that was the catalyst for the breakup. Quote Link to comment Share on other sites More sharing options...
The Fisheys Posted June 29, 2013 Share Posted June 29, 2013 Ask the child. Oz or UK. Take legal advice, if all else fails, euro tunnel to Paris CDG and fly here. Quote Link to comment Share on other sites More sharing options...
Sammy1 Posted June 29, 2013 Share Posted June 29, 2013 Ask the child. Oz or UK. Take legal advice, if all else fails, euro tunnel to Paris CDG and fly here. Sorry, but that is very dangerous advice to give.Lady R's friend would then be the one that ended up on the wrong side of the law and risk losng residency of her child completely if she just took flight and left. Quote Link to comment Share on other sites More sharing options...
Que Sera Sera Posted June 29, 2013 Share Posted June 29, 2013 I don't think asking a 3 year old to choose countries/parents! Is the way to go either! Quote Link to comment Share on other sites More sharing options...
memmymooch Posted June 29, 2013 Share Posted June 29, 2013 In cases like this it usually gets before the judge very quickly, my ex refused to return my elder daughter after a contact visit and it was only a few days before we were seen and he was ordered to give her back. In order for the child to get the dependant visa for oz the father would have to have signed the consent forms there is two boxes one says permission for short stay the other says permanently cant remember exact wording but either way he gave permission and then abandoned the family leaving the child in oz so the judge is gonna see that this is just maliciousness on the guys part. Fingers crossed it all gets sorted soon. Quote Link to comment Share on other sites More sharing options...
The Fisheys Posted June 29, 2013 Share Posted June 29, 2013 Sorry, but that is very dangerous advice to give.Lady R's friend would then be the one that ended up on the wrong side of the law and risk losng residency of her child completely if she just took flight and left. Sorry. Maybe I should have done very short sentences, so you didn't misunderstand. The sort of key bit was when I said "take legal advice." I said that before the "if all else fails" bit. So what I meant was, take legal advice; then..........................if all else fails.............. Oh, that was what I wrote, what is your problem? LOL Quote Link to comment Share on other sites More sharing options...
Sammy1 Posted June 29, 2013 Share Posted June 29, 2013 Sorry.Maybe I should have done very short sentences, so you didn't misunderstand. The sort of key bit was when I said "take legal advice." I said that before the "if all else fails" bit. So what I meant was, take legal advice; then..........................if all else fails.............. Oh, that was what I wrote, what is your problem? LOL It was the 'if all else fails part' that was and is a concern. Anyway, I am sure that Lady R's friend will ignore that part of your comment and take the safer more sensible route. Quote Link to comment Share on other sites More sharing options...
ali Posted June 29, 2013 Share Posted June 29, 2013 Closed at the request of the OP Quote Link to comment Share on other sites More sharing options...
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