We live in a world where people are more likely to move overseas for work and study, or invest overseas, than they did in the past. As a result, separating couples need advice about their rights and entitlements under both Australian and overseas laws.
OUR EXPERTISE AND APPROACH
We regularly act for clients who live overseas, or who own assets in both Australia and overseas. We ensure that any overseas assets are dealt with in any Australian property settlement and, where possible, that any Australian orders are enforceable overseas. We also advise clients who are or have been involved in overseas court processes and want orders enforced or varied in Australia.
We also advise our international clients about child support and whether it should be determined in the country where the children live, the payer lives, or the payee lives.
We have international alliances through the International Academy of Family Lawyers and the American Bar Association. We have access to family lawyers in most countries. We liaise with overseas lawyers where necessary.
Hidden First Field
Hague Convention: (International Abduction of Children)
Australia is a signatory to the Hague Convention on the International Abduction of Children. The Convention was established to assist in the recovery of children taken abroad to countries that have signed the Convention.
Over 70 countries have signed the Convention. Some notable exceptions include Malaysia, Indonesia, India, Lebanon, Russia and many African nations. If a child is “abducted” to a non-Convention country the remedies under the Convention do not apply.
The Convention enables parents to seek the recovery of children taken abroad unilaterally or retained abroad against the wishes of one of the parents.
An application is made to the State Central Authority by a parent whose child has been abducted to a Convention country. In Australia, the Application is made to the State Central Authority in Canberra. State Government Departments, such as the Department of Human Services Victoria, act for the State Central Authority when overseas agencies are seeking to have children returned to Convention countries from Australia.
The recovery of a child may be successfully opposed on limited grounds. These are:
- The parent seeking the return of the child was not exercising rights of custody when the child was wrongfully removed
- The child has settled in their new environment
- The child objects to being returned to their country of origin
- The parent seeking the return of the child consented to the removal of the child
- The parent seeking the return of the child acquiesced to (did not object to) the child remaining in the country to which it was removed
- Returning the child would subject the child to a grave risk of physical or psychological harm
- Returning the child to its country of origin would interfere with fundamental human rights and freedoms of the child.
The Hague Convention can also be used by parents to enforce “access rights” (contact or spending time):
- The principles applicable to enforcement of access are not the same as in cases for the recovery of children. The law is very strictly applied and courts have little discretion.
- If a parent wants to oppose the enforcement of access rights, it may be better to apply to change the original access orders.
It is important to act very quickly. Delay may mean that the court finds the parent seeking recovery of a child has acquiesced or consented to the move. It often takes time for the State Central Authorities of both countries to act and there may be delays in the court system.
Courts try to list cases quickly. In Australia, the application must be listed within 42 days. However, cases are often adjourned. There may be further delays before the case can be relisted and judgment is delivered.
It is usually helpful if the parent seeking the return of the child physically appears in the court of the other country. Instructions can be given quickly and in person, and perhaps avoid the need for an adjournment. The judge hearing the matter often understands the matter better by seeing both parties. The application may be dealt with faster if both parties are in court.
Forte Family Lawyers has significant, recent experience in Hague Convention matters.
Due to the increasing mobility of people around the world, Australian family law disputes often involve looking at the laws of other countries.
International disputes arise in relation to a variety of aspects of family law including:
- rights of ownership to property in overseas countries and whether that property should be included in the property pool to be divided under Australian family law
- international trusts
- making financial agreements which cover couples who own property both in Australia and overseas
- the enforceability in Australia of court orders or agreements made overseas
- the enforceability of court orders or agreements made under Australian law in overseas countries
- how to obtain child support from a parent who does not live in Australia
- how to obtain access to property held overseas and bring it into Australia
- assessing whether someone is likely to receive a better result under Australian law or under overseas law
- the international abduction of children
- the relocation of children (and one parent) to or from Australia
- overseas surrogacy arrangements.
At Forte Family Lawyers we have considerable experience in dealing with international disputes, such as those above. Jacky Campbell and Jason Walker, two of our partners, are members of the International Academy of Family Lawyers, an officer of the Asia Pacific Chapter of the International Academy of Family Lawyers and an Associate of the American Bar Association, giving us direct contact with expert family lawyers around the world.
In recent years, our lawyers have been involved in family law international disputes involving Canary Islands, Cayman Islands, Canada, China, Cyprus, Dubai, Egypt, England, France, Germany, Greece, Guernsey Islands, Hong Kong, Indonesia, Israel, Italy, Japan, Jersey Islands, Laos, Liechtenstein, Malaysia, Netherlands, New Zealand, Philippines, Qatar, Romania, Russian Federation, Scotland, Singapore, South Korea, Spain, Serbia, South Africa, Switzerland, Thailand, United States of America, Vietnam and Zimbabwe.
- The ability of Forte Family Lawyers to assist in international matters is assisted by some of our lawyers being bilingual. We have lawyers conversationally fluent in the following languages:
- (Conversational) Italian;
- (Conversational) Hebrew;
- Urdu; and
International family law property settlements can involve overseas trusts. Typically, these trusts are established in overseas tax havens or in countries which permit the secrecy of bank holdings.
How Do They Work?
In some overseas countries, particularly tax havens such as the Jersey Islands and Canary Islands, trusts are established in a form where:
- someone lends a sum of money or property to a trust
- the trustee of the trust (effectively the administrator of the funds invested) is a corporation or a legal firm
- the trust will have specified beneficiaries to the income and sometimes capital of the trust.
- the trust repays the lender the amount borrowed over time
In other situations, particularly where banking regulations permit high levels of secrecy of bank account ownership, such as Switzerland, trusts or “foundations” can be established, across international borders. Complex documents establish the legal relationships between the person who originally deposits the funds, the organisation that invests the funds (usually a Swiss bank) and the organisation that administers the distribution of the funds (often a legal firm or corporation).
How Are Overseas Trusts Dealt With In Australian Family Law?
Australian courts are able to take into account not just property owned by the parties in Australia, but all of the property that they own around the world. Thus, the mere fact that monies are held in an overseas trust or bank account does not necessarily mean those funds are excluded from the property pool to be divided between a couple in Australia.
An important question is whether the funds held in the trusts are “property”. This will often depend on whether a party has effective control over that overseas trust. Sometimes the court determines that the funds held in an overseas trust are not “controlled” by a party and therefore cannot be included in the property pool to be divided. On other occasions the court might only treat the regular flow of income or capital sums from the trust as property. The court may “lift the veil” (and look at what lies behind the trust including who exercises the power) of the complex rules of the trust to find that a party controls the trust and that therefore the funds owned by the trust funds ought to be included in the property pool.
At Forte Family Lawyers we have experience in advising clients about the legal implications of overseas trusts. We also have experience in investigating and obtaining documents which are necessary to establish the existence and intricacies of individual overseas trusts. In recent years, our lawyers have dealt with overseas trusts in Switzerland, Liechtenstein, South Africa, the Jersey Islands, the Guernsey Islands and the Canary Islands.
COVID-19 and travel restrictions
As a result of the COVID-19 global pandemic, many parenting arrangements have been affected by border closures and local and international travel restrictions. In response to the challenges posed in these unprecedented times, the Federal Circuit and Family Court of Australia has established a special National COVID-19 List to manage urgent family law disputes that have arisen as a result of the pandemic.
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