Family lawyers can gain a number of valuable insights from the ‘child recovery’ attempt backed by Channel Nine in Lebanon, writes Jennifer Hetherington.
From a family law perspective, the child abduction fiasco in Lebanon earlier this year continues to generate shock waves.
It began in April when Channel Nine’s 60 Minutes funded a child abduction in Lebanon for a Brisbane mother locked in a custody war with her estranged Lebanese husband.
The TV crew, led by reporter Tara Brown, filmed Brisbane mother Sally Faulkner as a hired ‘recovery’ team snatched her children from a Beirut street. As we all know, the plan turned to toast, the authorities quickly pounced and the TV crew and those who ran the abduction operation were arrested and thrown into jail.
Channel Nine subsequently paid a sizeable sum to someone to get their people back. Sally Faulkner and the TV crew were freed and flown back to Australia (without the children) while the ‘recovery team’ languish in a Beirut jail.
Now media outlets are reporting that a judge in Lebanon has recommended Faulkner should face kidnap charges over the botched child recovery operation, while the TV crew (who were just following orders) face fines. Ms Faulkner has reportedly not spoken to the children since the debacle and if she enters Lebanon to attempt to see them, could well be arrested.
So in the wake of the whole disaster, what are the wider lessons for family lawyers in Australia and for the Australian media (which appears to have crossed the ethical line between merely reporting on events and actually funding them)?
The key to international child custody issues is the Hague Convention, an international agreement whereby more than 90 signatory countries agree to uphold child custody orders from other signatory countries, should a parent move or retain a child between countries without consent.
The Hague Convention featured prominently in Australia in the custody case of ‘the Italian girls’, which made headlines in 2012 after an Australian mother refused to return her daughters to Italy.
The girls were ordered to return to Italy, in line with the provisions of the Hague Convention. The father did not have to incur the legal costs of the recovery as it was handled by the relevant government department in Australia.
Sally Faulkner’s problem was that Lebanon is not a signatory to the Hague Convention. The abduction drama began when the children’s father said they were not returning to Australia, and the desperate measures taken mean these children may not see their mother until they are adults.
Family lawyers should ensure they understand the processes to protect clients whose children may travel overseas. Similarly, they should ensure all clients are aware of the restrictions on overseas travel contained in sections 65Y and 65Z of the Family Law Act (the act) which, if breached, can leaded to up to three years’ imprisonment.
To prevent overseas travel:
Step 1: consider a child alert from DFAT to prevent the issuing of an Australian passport.
Step 2: consider obtaining a PACE (airport watch) alert. This will require proceedings to be commenced (which will also invoke section 65Z of the act).
If a parent wishes to permit overseas travel – or the other parent is seeking orders to travel overseas – family lawyers should of course check whether or not the proposed country is a Hague Convention signatory, but that is not the end of it. Lawyers should also consider the following when advising clients:
1. Is the proposed travel to a country where the Hague Convention is in force with Australia? For some countries that have acceded to the Convention (e.g. Russia), it is not yet in force with Australia. Don’t make the mistake of thinking that just because a country has signed, the Convention is in force! Check the Attorney-General’s website or Hague website for the most up-to-date information.
2. Even if the proposed travel is to a ‘Hague Convention country’, people can move between countries and travel to a non-Hague jurisdictions. Registering an Australian order permitting travel only to certain countries can provide additional peace of mind.
3. The Family Law Regulations 1984 (regulation 24) provides a process for registering Australian orders in some countries. (See schedule 1A of the Family Law Regulations 1984).
4. For those countries not listed in the schedule, the Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children provides a mechanism for recognition of an Australian order to be obtained in an overseas jurisdiction. There are currently 44 contracting countries to this convention.
5. Consider obtaining advice from a lawyer in the jurisdiction to which travel is sought about the availability of an ‘airport watch list’, to ensure this is covered in your Australian orders before they are registered in the foreign jurisdiction.
6. If registration of the Australian order is not available and/or the country is not a Hague signatory, then consider engaging a lawyer in that country to advise on their family law system. In some countries fathers have all the rights; in others it’s mothers who have the rights. Without registration or the protection of the Hague Convention, an Australian order may be worthless.
Even where there are bilateral treaties in existence (for example, Australia/Lebanon and Australia/Egypt) for any non-Hague Convention country, the parent incurs the costs and delays in attempting to retrieve their child, and must rely on local law.
The problem with the fiasco in Lebanon was that the media took over what was – and remains – a family law issue.
What legal negotiations there may have been between Australia and Beirut, under the existing bilateral agreement, were swept aside by 60 Minutes.
When did the media consider the emotional impact on the children, being grabbed by strangers from a street and flung into a van with TV cameras?
When did they consider the emotional impact of the children being separated from their mother if the ‘recovery’ failed? When did they consider they were disrespecting and flouting the laws of Lebanon? When did they consider the children’s needs? When did they listen to the other parent’s story?
The abduction of a child during custody negotiations is a traumatic event for both parents and children. The emotional impact and consequences cannot be over-emphasised.
A lesson for the media from the botched grab in Lebanon is to stop treating highly emotional family crises as TV ratings winners. Funding a legal team for Ms Faulkner to obtain orders in Lebanon would have given her a chance to have a relationship with her children. But that doesn’t sell advertising space.
Jennifer Hetherington is an accredited family law specialist with Brisbane firm Hetherington Legal.