IMPORTANT READ for all couples about to emigrate with their children!!!

[Nikey]

Well, today our container came, I have been up to my ears with packing, I have an Autistic child and I spent the small amount of time I had to share what I felt would be of help to some.

Don't leave the site. Remember the ignore button if u need it. I am sure u will have helped lots. Good luck with the move

Edited August 8, 2014 by ali
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[Quoll]

Well, today our container came, I have been up to my ears with packing, I have an Autistic child and I spent the small amount of time I had to share what I felt would be of help to some. QUOTE]

 

It is important and it is interesting. I'd say that if your post has saved just one person from an unwitting heartache down the track then you've done a grand job. I have a different take on the "interference" aspect - if a parent spots a yawning chasm facing their kids they would be remiss not to at least mention the chasm just in case the offspring in question was blinded by lurve or the sun or just too bloody flat out to take it all in. What said offspring then does with that information is up to them, which it seems is what SallyKay did. It's along the lines of becoming aware that maybe a dengue fever jab might be required and the person had so much else on their plate that they'd missed it. One comes across all sorts of coincidental information at random moments - if the offspring is aware then no worries! If they've missed it then they can take action. Forewarned is forearmed - I think this was an example of surprised incidental learning rather than gung-ho research every iota and organize offspring's life.

Edited August 8, 2014 by ali
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[Parley]

You can tell the people who expect and intend to return to the UK and are laying the groundwork.

 

Nothing wrong with it I suppose but I know the people who set up these agreements will definitely come back to the UK.

Do they care what their kids want though ? I'm not so sure.

Kids are not purely Mum's possessions.

 

I just hope this sort of thing doesn't become the norm, because sure as eggs, it will be a self fulfilling prophecy and lead to a splitup in the family down the track.

[wolvesaussie]

This actually seems a really good law, it is nice to know that if I have children they wont be able to be taken from the country. Dont see how its unfair in anyway.

[VERYSTORMY]

I agree with Quoll on this. Many people make the move without thinking through the what if's enough and many do not appreciate this aspect. The amount of times this has caused heartfelt posts on here by people caught out by it is proof that it is important to understand everything about the leap before making it.

[Guest]

This actually seems a really good law, it is nice to know that if I have children they wont be able to be taken from the country. Dont see how its unfair in anyway.

 

I wish that said 'if we have children'.

 

I think its rather different if a child is born in Aus to an Aus parent and a parent from overseas or to British people in Aus who then have a baby (and especially if they are PR or citizens and the child is also). But if a couple start off in the UK (be they both Brits or one Aus one Brit), have their children there and then migrate, its a whole other can of worms and potential heartache. Children themselves may not settle, one or the other partner may not, couples split up and some want to return to the UK, some don't.

 

Kids are not a bargaining chip. Yet so often parents seem to use them as this. I admire those that do not and who put their kids interests before their own.

 

With regard to the OP also here, I try to keep in mind that while one or the other adult parent may wish to return (in the event of a break up or not), often the kids themselves are being pulled pillar to post but they may well be happy, settled and content in Aus. Just because the parent wants to go back doesn't mean the kids always will. And while I know and appreciate the arguement that kids are kids and they go where they are told, there is a lot to be said in they were made to go to Aus in the first place because of their parents decision, supposedly for their overall happiness. And yet one of those very same parents then decides that their happiness is back in the UK. Is that always fair or right? I don't think so. I realise there are some that its far more complicated for and that returning is something they will need/want to do and a legal process will follow. As to the rights or wrongs of this, each case is different.

 

In all of this I feel for the kids.

Edited August 8, 2014 by Guest

[Rachel Tilley]

Kids are not a bargaining chip. Yet so often parents seem to use them as this. I admire those that do not and who put their kids interests before their own.

 

 

In essence, we are talking about children under the age of 10. I know Sally and Greg's children are under 10, and when I moved my son had just turned 2.

 

I moved to Australia to support my OH's career. In the UK I worked part time, 2 days a week, so that I could be mainly a stay at home mum and care for my son. In Australia I was to be a stay at home mum and my OH was to continue to work full time. The decision whether we would remain in Australia permanently was to be made in two years time. He knew my heart wasn't really in it, but it was all a trial to see if I would like it once we'd been there.

 

Within four months of arrival we had split up. There was domestic violence involved, it turned out he'd met someone else and was having an affair and our relationship went from bad to worse. If I was going to be a single parent then it was not going to be in Australia - that was never an intention at all and not something we had discussed. Not once did I consider the option of 'what if we split up? What if that is the reason it doesn't work out, would he still come back to the UK?' If he wanted to be with someone else, fine, but for me the whole purpose of the move to Australia was no longer valid and I wanted to come home with my son. And that's when I found out I couldn't. He was quite happy for me to go home alone and he would take over as the main parent.

 

His answer was that our 2 year old son could go in to childcare in the day when he was at work. His new girlfriend had three children and she was more than happy to look after our son at other times. When he was working odd hours she would take him to day care and pick him up.

 

Well I didn't think that was acceptable. So yes, my son did become a 'pawn' in this battle, because if I didn't fight for him then the other option was leaving him in Oz and walking away from his life altogether. I didn't think that was in his best interests. So after 19 unhappy weeks of living in Australia I returned to England with our son and was guilty of parental child abduction. Five months later the UK High Court ordered that he had to return to Australia so that they could decide his future. He was still only 2 years old. If I didn't return with him then the courts would give residency to my ex partner, so I had to return on what is known as a 'voluntary return'.

 

Being a temporary resident on a 457 visa meant I had no help in Australia at all. In the two years it took me to go through the Family Courts to come home legally I lived with people I hardly knew who took us in to their homes because otherwise we'd have been sleeping on the streets. We were later housed by a domestic violence service and altogether lived in 11 different places over 2 years. I was finally allowed home just before my son's 5th birthday.

 

During that time I tried to obtain PR so I could remain there, allowing my son access to both of his parents, but this was refused.

 

My son will be 12 next month and is currently in Australia with his dad on a visit. I no longer hate his dad, we can now get along civilly for the sake of our son and I welcome the contact they have. My son has recently told me that he wants to live in Australia full time, and he is of an age where his wishes will be listened to by a court if it were to come to that, but I wouldn't involve courts again. There will come a time when I will have to let him go, but I was certainly not prepared to let him go when he was 2 years old.

 

If I'd have known about the HC in 2004 I could have got a legal agreement drawn up in the UK before we left for Australia, it would have made things so much simpler. But what me and my son were put through, living in poverty, having to get food parcels from local churches because we had no income - I wouldn't want anyone else to go through the same, and that is why I remain so passionate about informing people of the Hague Convention. If I can help prevent just one family from going through this it's worth it.

 

Yes, I feel for the children who are engulfed in the legalities of these cases, it is not their fault that they are caught up in the consequences of that 'better life, that living the dream' that the parents want so much to believe in. But some of these dreams turn in to nightmares, and the biggest nightmare for me was the thought of losing my son for good.

 

So on the basis of my experience Sally has done something to try and protect her family from the same thing happening to them. If people disagree with it that's fine, but for those that are moving without any legal advice/protection, at least you are going in to it with your eyes wide open and know what to expect if, sadly, it doesn't work out. If you have PR and don't want to give up your children then you may face life in Australia as a single parent whether that was what you wanted or not.

[Rachel Tilley]

This actually seems a really good law, it is nice to know that if I have children they wont be able to be taken from the country. Dont see how its unfair in anyway.

 

Yes, you are indeed protected, but what I would hope you would do is tell your wife/girlfriend about this law so that she knows full well that if you do have a baby together then her life is forever committed to Australia. I read on another thread you posted that you have told her that you won't return to England and she knows what she 'signed up to' when she moved with you, but often women want to return to their own families when they've had a baby, so she needs to know in advance that that just ain't gonna happen. Ever!

[Guest]

So on the basis of my experience Sally has done something to try and protect her family from the same thing happening to them. If people disagree with it that's fine, but for those that are moving without any legal advice/protection, at least you are going in to it with your eyes wide open and know what to expect if, sadly, it doesn't work out. If you have PR and don't want to give up your children then you may face life in Australia as a single parent whether that was what you wanted or not.

 

I don't disagree with what Sally has done, I think its fair enough she draw it up with her husband if he was in agreement with it. I am interested to know if any document like this has ever stood up in a court of law and been accepted as legally binding or had an outcome where the wishes of the document were respected and adhered to.

 

I get the whole picture, trust me on that, I know all about the Hague Convention and its implications. As I said, I realise there are some complicated cases and some messy break ups. I've read your story elsewhere on the forum. I've read others also. And I realise that younger children are often without any input into the decisions made on their behalf and understand that returning to a home country is maybe a better option or in some cases the only option. And that for some kids in some situations, older kids, kids that get older as they remain in Aus for a couple of years or perhaps more, it may not be the case in their eyes and they may prefer to remain in Aus rather than be taken back to the UK by a parent. There is no black or white, just lots of grey. Every case is going to be different.

[ali]

This is all a very complex, but what Sally has had written up is a deed that will hopefully be evidence of the defence of 'prior acquiescence'.

 

The Hague Convention of International Parental Child Abduction 1980 states it is an offence for a parent to remove a child from its country of 'habitual residence' without the consent of the other parent. The defence to this is that the other parent agreed to the removal, thus giving 'prior acquiescence'.

 

The terminology of 'habitual residence' is also not defined in law and can be interpreted by different authorities for different reasons. So, in the case of people moving to the UK to claim benefits, they are not deemed 'habitually resident' until a certain number of months have passed, but in cases of moving children overseas they are classed as 'habitually resident' from the moment the plane lands! This inconsistency with 'habitual residence' makes is impossible for families to have 'trial' periods abroad, so Sally and her husband have written up an agreement that their move to Australia in the first instance is not changing their country of 'habitual residence' from the UK with immediate effect.

 

The case would be heard in the UK if Sally or Greg were to leave Australia with the children. The parent remaining in Australia (in legal terms they are called the 'left behind parent') would then contact the authorities in Australia to say they have had their children taken without their consent, and this would start the ball rolling under the Hague Convention of Parental Child Abduction. The Australian authorities would contact the UK authorities, and the case would be heard at the Royal Courts of Justice in London. Australia would be asking England to uphold the law and send the children back to Australia. The English courts are legally bound to comply with this, unless there is evidence that there was 'prior acquiescence' for the removal. In this case there would be. It would be the document that Sally has had drawn up.

 

Whether this would be upheld in the UK remains to be seen. As far as I know, Sally is the first person to have this drawn up. Is it a waste of money? Nobody yet knows. All I know is, verbal consent counts for nothing. My ex promised me that if I didn't like Australia we would all return home as a family, so I went on that trust and belief. He then changed his mind, so when I returned home with our son he successfully had us returned under the parental kidnapping law of the HC. The UK court were obliged under the HC to order a return of my child - and that is when the Australian courts have jurisdiction over what country the child will live in future.

 

Applying in the Australian Family Courts for a Relocation Order is the next step for the parent to take if they still want to return to their home country. This can take years and costs around $40,000 upwards. Not all applications are approved and often judges will rule that the child is to remain in Australia as they are very pro 50/50 shared care. I was one of the lucky ones and allowed a Relocation Order because I only had a temporary visa and there was no way I could obtain Permanent Residency. If I'd held PR the outcome would have been very different.

 

What Sally has done is to try and prevent this whole scenario from unravelling. If I'd have known then what I know now I would have considered £480 money well spent. Getting proof of 'prior acquiescence' is an absolute must to avoid being sent back to a country under the HC.

 

I admire Sally and Greg for doing this and sincerely hope they never have to use it and that their migration is a total success.

 

http://www.international-divorce.com/Acquiescence-or-Consent.htm

 

 

So if one of them changes their mind (as e.g. you can change a will at any time), and withdraws their consent and has this witnessed by a lawyer - wouldn't that change things?

[Guest]

So if one of them changes their mind (as e.g. you can change a will at any time), and withdraws their consent and has this witnessed by a lawyer - wouldn't that change things?

 

This is where I am interested to know if this sort of thing has ever stood up as a legally binding document and been upheld. People can and do change their minds so in effect if you wanted to change this would it null and void the previous one? But then if you did want to change it it may have the other person refusing to have any amendments made and then what? Don't you both have to continue to agree the terms and if only one is wanting to change.....

 

At some point this sort of document will be tested legally and it will be good to know the outcome and in whose favour it goes in. It could then have major implications for future separations. And perhaps it will mean more couples take up drawing something up. It may end up being treated as like a pre nup and depending on the country it's being presented in it may or may not be worth the paper its written on.

[Pumpkin]

My gut feeling is that the agreement would not stand up in court to any kind of robust challenge.

 

But there is a part of me that thinks it was a good process to go through, because it at least challenges both parties to think carefully about the "what if" And because most of us are good people and do not want to renege on an agreement. I sometimes say that couples should make a pact over what they should do if one likes it and one does not, such a pact would also not be legally enforceable, but it tests the thinking, forces people to think the unthinkable and uncomfortable and it is something to refer back to if circumstances require.

[Guest]

My gut feeling is that the agreement would not stand up in court to any kind of robust challenge.

 

But there is a part of me that thinks it was a good process to go through, because it at least challenges both parties to think carefully about the "what if" And because most of us are good people and do not want to renege on an agreement. I sometimes say that couples should make a pact over what they should do if one likes it and one does not, such a pact would also not be legally enforceable, but it tests the thinking, forces people to think the unthinkable and uncomfortable and it is something to refer back to if circumstances require.

 

We have a pact of sorts for our family unit. Like you say, not legally enforceable but it at least made us think about the situation and what it entailed. I can only trust my husband and he trust me and that if we are ever faced with separating we would stand by what we agreed/discussed. Hubby didn't like discussing it and wasn't happy when I brought it up but it was good for us to go over it. Not that he didn't want to discuss, more he can't bear the thought we might not be together and a family and for him that was hard to even open a train of thought on.

 

Like you I am doubtful a written agreement would stand up in a court. I do admire the idea of it and the intentions and can see how it could be a good thing.

[Peach]

A similar fight would happen if say the family had moved to Scotland for work and the relationship broke down -- perhaps leaving one partner wanting to return to their previous town with the kids. Yet it would be unheard of to draw up a pre-move agreement. So I do tend to think like Parleycross where you read of someone drawing one up before going to Australia, it is because they have half-a-mind to use it.

[Nikey]

This actually seems a really good law, it is nice to know that if I have children they wont be able to be taken from the country. Dont see how its unfair in anyway.

Yeah I know what you are saying......that is a whole different debate really.

If I was in SallyKays position I would be doing all I could to protect me and my own.

[Tina2]

This actually seems a really good law, it is nice to know that if I have children they wont be able to be taken from the country. Dont see how its unfair in anyway.

Wow how wrong you are. This law is and has been used by both partners ( but mainly the ex husband against the wife ) to totally control the ex partners life until the youngest child has turned 18. This law as I have said previously goes far deeper than a return to the UK, it is being used to stop the relocation of one partner to a new suburb or state for new emplyment oppertunities, a new relationship, better cheaper accomadation or to be close to family support. There is no requirement in the law to require either parent to make any effort to work out a fair visitation shedual. It creats anger that grows to hate by the parent that is trapped by the law, and that is a very very bad situation for any child to grow up in.

[Pumpkin]

A similar fight would happen if say the family had moved to Scotland for work and the relationship broke down -- perhaps leaving one partner wanting to return to their previous town with the kids. Yet it would be unheard of to draw up a pre-move agreement. So I do tend to think like Parleycross where you read of someone drawing one up before going to Australia, it is because they have half-a-mind to use it.

 

The "pact" I am thinking of is designed to stop the unit from breaking. It is more to say, if one person is unhappy in Scotland, then the agreement is to give it two years or whatever and if still unhappy, we all move back to the original town.

[Pumpkin]

Wow how wrong you are. This law is and has been used by both partners ( but mainly the ex husband against the wife ) to totally control the ex partners life until the youngest child has turned 18. This law as I have said previously goes far deeper than a return to the UK, it is being used to stop the relocation of one partner to a new suburb or state for new emplyment oppertunities, a new relationship, better cheaper accomadation or to be close to family support. There is no requirement in the law to require either parent to make any effort to work out a fair visitation shedual. It creats anger that grows to hate by the parent that is trapped by the law, and that is a very very bad situation for any child to grow up in.

 

Can't agree with that. Men usually come off very badly in these situations..

[MovingtoTasmania]

Can't agree with that. Men usually come off very badly in these situations..

 

I don't think there's a usually in these situations whereby the HC comes in to play. I know that in @Tina2's situation, my heart goes out to her as she's very trapped whilst my understanding is that the ex doesn't really give a hoot as long as she's stuck in Aus in exactly the same place as he plonked her before leaving. Hardly fair on either her or her kids as she's in a very stuck situation. Ditto what @Rachel Tilley went through.

 

Whilst I agree that "generally" in an even playing field, men come off worse when there's a marital/relationship breakdown in terms of access to the children, in terms of migration and the Hague Convention and relationship breakdown, it's not just a different playing field,it's a whole new game.

[Pumpkin]

I don't think there's a usually in these situations whereby the HC comes in to play. I know that in @Tina2's situation, my heart goes out to her as she's very trapped whilst my understanding is that the ex doesn't really give a hoot as long as she's stuck in Aus in exactly the same place as he plonked her before leaving. Hardly fair on either her or her kids as she's in a very stuck situation. Ditto what @Rachel Tilley went through.

 

Whilst I agree that "generally" in an even playing field, men come off worse when there's a marital/relationship breakdown in terms of access to the children, in terms of migration and the Hague Convention and relationship breakdown, it's not just a different playing field,it's a whole new game.

 

Yes I agree that there are some very sad stories like Rachel's for example and I cannot think of anything worse than being truly trapped in a foreign country that don't want to be in. But on the whole, I think men come off worse, never seen anyone on PIO not manage to take their children out of the UK against the fathers wishes, I thought Hague Convention applied there too but maybe I am wrong.

[MovingtoTasmania]

Yes I agree that there are some very sad stories like Rachel's for example and I cannot think of anything worse than being truly trapped in a foreign country that don't want to be in. But on the whole, I think men come off worse, never seen anyone on PIO not manage to take their children out of the UK against the fathers wishes, I thought Hague Convention applied there too but maybe I am wrong.

 

They have to jump through a lot of legal hoops to do so and whilst I haven't seen it on PIO, I've seen it IRL whereby children aren't allowed to leave the UK despite the father not being bothered to maintain regular contact and the mother having no family or support in this country and I was a child who was compelled to stay in a country under court order because of the Hague Convention.

[Pumpkin]

They have to jump through a lot of legal hoops to do so and whilst I haven't seen it on PIO, I've seen it IRL whereby children aren't allowed to leave the UK despite the father not being bothered to maintain regular contact and the mother having no family or support in this country and I was a child who was compelled to stay in a country under court order because of the Hague Convention.

 

They have to go to court and rightly so I think, children are not a mother's possessions. But they are virtually guaranteed a win, no matter how good the father is. I am talking about removal from UK here, other countries may indeed favour the father more.

[MovingtoTasmania]

They have to go to court and rightly so I think, children are not a mother's possessions. But they are virtually guaranteed a win, no matter how good the father is. I am talking about removal from UK here, other countries may indeed favour the father more.

 

I have many children and I have never thought of them as my possession BUT (and I must emphasise this) I haven't wanted to split with my husband and I think we are both in it for the long haul.

 

The cases that I know of in the UK have involved the mother being refused permission to return to her home country because of the HC and the father being British.

[Pumpkin]

I have many children and I have never thought of them as my possession BUT (and I must emphasise this) I haven't wanted to split with my husband and I think we are both in it for the long haul.

 

The cases that I know of in the UK have involved the mother being refused permission to return to her home country because of the HC and the father being British.

 

There are hundreds of cases on PIO over the years with mother wanting to remove the child from the UK and I have never seen any not succeed. These are often when both parents are British.

[M1cha3la]

I have not read the entire thread, but from what I have read on here and other places, I do feel for the partner (mother or farther) who wants to stay in the foreign country. Before I get flamed, I guess I see it as the fact that it is usually a mutual agreement to move abroad and start a new life. That is a decision that requires commitment and is not to be taken lightly. So should the family unit break down, why does it then become ok for one of said unit to run back home and take the children with them? You make the decision as a family to move abroad, if you split up you should still do what is best for the family, even if that means living in a country you don't want to be in, for worst case 18 years.. To me it almost seems as if its a conditional relationship, i.e. I will only keep the kids in said country if we are together..

 

Maybe its because I don't have kids, or have not been in the situation myself, but I do not see why it is ok for someone to revoke on a decision that affects more than just them (i.e. move abroad) and think its ok...

 

Of course that said, I hope it works out for the best for anyone in that situation. Until you are in it I guess you can not fully understand it.

Edited August 8, 2014 by M1cha3la