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Topic #5895 (no title)

I'm wondering if I will actually get my daughter back ?!?!

Do you have any evidence that the trip was temporary (e.g. return tickets)? You should certainly have evidence that you have parental responsibility and that the child was domiciled here in Australia (school attendance records, reports, health records). I believe that these two factors prove/establish abduction and that recovery under Hague should proceed. However, I'm not an expert by any means. Hopefully SRL's will come in and give some advice.

With regards to parental responsibility, I believe that unless there are court orders stating that you do not have parental responsibility then you have at least shared parental responsibility. I find it hard to see why the other parent's solicitor has said this unless in the UK they can get away with such garbage. I believe, perhaps wrongly, hopefully the SRL's will correct me if I'm wrong, that UK the family law system is more biased against Father's than Mother's than here in Australia and perhaps part of the plan is to try to get the matter dealt with in the UK rather than in Australia. Although I suspect that Hague should not allow that as the child has been abducted from Australia.

Assuming that the child is returned the other parent could then take the matter of the who the child lives with through court here. It could well be that the child's opinions could then, at age 11, be a factor.

I would suggest that you consider joining the SRL-Resource (click on Community near the top of the page and then on SRL-Resource over to the left). When you have joined, if accepted, you will then be able to make secure posts and have some very experienced person help you to help yourself along this way.
On this topic. Andrew Thompson, son of Ken Thompson (Former Deputy Fire Chief for NSW), is reported to be set to return home to Australia (the story can be found by clicking on news or home). It has been nearly three years since the mother abducted the child. However, a lot of that time was spent in actually finding the child. Saying that, as the father was a relatively high profile person that likely assisted in matters.


Looking more closely at the article in the Telegraph the Australian had this,which is more detailed:

The Australian said
SIX-YEAR-OLD Andrew Thompson has finally been cleared by a Dutch court to return to Australia from Amsterdam almost three years after his mother ran away with him.

Andrew's father Ken Thompson, who cycled across Europe searching for his son, may already have flown back to Australia with him in the past few days, The Weekend Australian has learned.

Andrew's mother Melinda Stratton was in tears in a Dutch jail yesterday when the boy did not arrive for an expected prison visit, indicating that he may have already left the country.

In a previously unreported decision, a Dutch appeal court this week rejected her legal bid to stop Mr Thompson taking Andrew back to Australia. The case has been under a veil of media silence in recent months on the order of Dutch authorities.

Ms Stratton was arrested by Dutch police in September after they were tipped off by a suspicious parent at the Amsterdam school where she had enrolled Andrew under the false name of Timothy Welsh.

After yesterday's no-show by Andrew for his regular prison visit, she is now almost certain to end her own fight against extradition to Australia, meaning she could be flown back to Sydney within two weeks.

She will face criminal prosecution in Sydney and could be sentenced to up to three years in jail for running off with her son, but she plans to continue her battle to regain custody of Andrew, whom she believes has been abused by her husband.

Mr Thompson, a former deputy chief of the NSW fire service, denies ever harming Andrew and says his wife has mental health problems.

Mr Thompson was warned by Dutch child protection officials that if he wanted to win permission to take Andrew home he would have to stop discussing the case in the media.

But The Weekend Australian has learned that there have been a series of further twists in the fight over Andrew, with Andrew spending Christmas with his father for the first time in four years and Ms Stratton at one stage winning her freedom from a Dutch prison before Australian officials objected fiercely and she was returned to jail after 15 days.

Officials in the Dutch Justice Ministry say privately that they have been surprised by the tenacity with which Ms Stratton has battled against her own extradition back to Australia.

She was so determined to prevent Andrew being sent home that she chose to stay in jail rather than seek a mediated agreement for his return to his father.

Instead, she tried unsuccessfully to have Dutch authorities investigate her claims that her husband had assaulted their son, a belief she says prompted her to run off to Germany with the boy in 2007.

The Weekend Australian revealed in September that after flying to Frankfurt, Ms Stratton, who speaks German and French, took Andrew to Austria for some time before moving to Amsterdam under the names Mandy and Timothy Welsh.

Despite Interpol arrest notices and Mr Thompson's media and internet campaign to find his son, Ms Stratton was shielded in Amsterdam by Catholic nuns from the order founded by Mother Teresa, and then by a small African Methodist Episcopal congregation which housed the pair and helped to enrol Andrew in school.

The Weekend Australian believes that Ms Stratton was also supported during her 2 1/2 years on the run by friends in Germany and Austria and was in regular contact with a veteran barrister in London.

Ms Stratton was eventually detained by police while picking Andrew up from school after another mother at school became suspicious and recognised Andrew's photograph on an internet site which explained that he was a missing child.

Officials in Amsterdam kept Andrew in a child-protection home with other children for more than two months, with regular visits by his father and trips to see his mother in prison, before releasing him into Mr Thompson's care early last month.

The pair are understood to have lived in the home of a Dutch policeman who is a friend of Mr Thompson.

On November 18, Ms Stratton won her own freedom after a Dutch court accepted that she was unlikely to flee because she did not have Andrew and did not even know his whereabouts.

She was ordered to wear an electronic bracelet to track her movements and to stay in a small town outside Amsterdam with the family of a retired Dutch judge who had befriended her when she was being shielded by the Catholic nuns.

Ms Stratton had two supervised visits with Andrew at the office of a probation official during that period but Australian government officials lobbied their Dutch counterparts to have her returned to jail, arguing that there was a serious chance that she would flee.

She was locked up again on December 3, and three weeks later a court decided that she should be extradited to Australia.

She lodged an appeal which could take up to three months to be decided but in the meantime a separate court decided last month that Andrew should be returned to Australia. Ms Stratton appealed against that decision in a hearing on January 13 and at the start of this week the court ruled against her, meaning Mr Thompson was clear to leave with Andrew.

With Andrew returning to Australia she is now expected to drop her appeal against extradition and to be escorted on to a plane soon by Australian officials.

She will be taken into custody in Sydney but will seek bail while facing prosecution.

Ms Stratton had already sacked her first lawyers and she has now sacked the Sydney lawyer who was engaged by her brother John to represent her after she was caught in The Netherlands.

Last edit: by MikeT

Do we assume there are no parenting orders from any court or parenting plans in place?

She is an Australian citizen now (Dual citizenship?)

She has a step sister here. Does she have a sister in the UK?

The first port of call is a recovery order to be issued by the Family Court of Australia. This is filed in the FEDERAL MAGISTRATES Court firstly (Unless you already have a case in the Family Court). The detail is on the link provided.

Regardless it is an extremely slow and lengthy process if the other party defends the proceedings or relocates and can take between 1 and any number of years. In a number of cases the recovery has not been successful at all. You should prepare yourself for a long haul on this and if you cannot get any agreement she will most certainly not be back at school here this year.




Executive Secretary - Shared Parenting Council of Australia
 Was my post helpful? If so, please let others know about the FamilyLawWebGuide whenever you see the opportunity
 
Here is the PDF file link

Executive Secretary - Shared Parenting Council of Australia
 Was my post helpful? If so, please let others know about the FamilyLawWebGuide whenever you see the opportunity
 

Are the Australian Family Courts really the way to go for overseas abductions?

Hi Percolo.

I'm not sure that this is correct. I've done some research last night and any court order I would obtain through the family courts now a) would not be binding in the UK and b) the order would have been made subsequent to her retention in the UK and therefore not relevent to any Hague proceedings?

The document you sent me the link for, also has a section  which states "What if the child has been taken from Australia?
If a child has been taken from Australia without your consent, or has not been returned to Australia, you should contact the Commonwealth Attorney-Generals Department for assistance. Australia has an agreement with some countries to return abducted children to their country of usual residence. The agreement is called the Convention on the Civil Aspects of International Child Abduction (the Hague Convention). For a list of countries party to the convention, go to www.ag.gov.au (look under the international child abduction link) or call the Department on 1800 100 480. If the child is not in a Hague Convention country, you should seek legal advice."

My only course for her recovery would appear to be through the Hague Convention.

If you are aware of any cases that could help me out here I'd be extremely grateful for any input.

In answer to your questions, yes my daughter has dual citizenship with the UK and Australia. She also has a sister in the UK.

I'm so concerned about my daughter and time is ticking by …

Last edit: by fuzznucket

Although the poster has provided some details our post also contains some generalisations and shortened explanations.

Because Countries have different judicial systems there is a need for a Central Authority to process a ''Hague' order. The Central Authority is a nominated Government department in a Hague signatory country. The Central Authority generally is a department that has a direct or indirect relationship with the judicial system and Federal or other Police forces. (example the AGs department in Australia)

Although you can make an application via the FMC a Hague order is usually signed by a Judge of the Family Court and then passed to the Central Authority for processing.

An application needs to establish that the child is under Australian Jurisdiction and has been removed unlawfully. To this end there would be a need to establish that in the absence of any orders a 'status quo' has existed where the child would normally be habitually resident in Australia or there is paperwork to prove this would be the case. Many Hague cases turn on the phrase Habitual Residence (Note by default although not in any wording Australian Family Court Orders prohibit the removal of a child from the Commonwealth of Australia without the permission of the other parent)

Fortunately since most Australian law is based on UK law the process is far less painful than other countries that have diverse legal, social network systems and not English as their first language. The Hague order is then passed to the UK Central Authority (normally the Home Office) who then pass this onto the Police and CAFCASS to follow up on. Obviously if the location of the child is known this makes everything a little easier.

What happens after this is subject to whether the child is under any risk or under any further flight risk and the Authorities may take the child into care before any Court hearing.

The UK equivalent to the Family Court is the Family Division of the High Court which would hear the Recovery order and would rule on it i.e. whether Australia really has jurisdiction of the child and therefore the validity of the recovery order.

If the Recovery order is considered valid the other side has the option to argue against it on a number of grounds including the ubiquitous best interests. It is this legal argument that can take time (sometimes weeks or months) before the Court will rule on the outcome ie 'Return' or 'No Return'. It is not unusual for the English Courts to bring some pressure to bear to achieve a mediated outcome between the parents.

Other Points

UK Courts that handle Family Law are closed Courts they are not open to the public as Australian Family Courts are.

The solicitor that mentioned 'no responsibility' is talking out of their hat.

If the child was born in the UK they have British citizenship. This means that a passport application can be made for an EU passport. The UK (unlike Australia) only requires the signature of one parent on the application.

There are Lawyers in both Australia and the UK that specialise in Hague recoveries

The link under Community for SRL-Resources is inoperative. You would need to go to the www.srl-resources.org login/join page

Last edit: by SRL-Resources


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