ANALYSIS: Behind the 60 Minutes child abduction fiasco

Should Sally Faulker have attempted to recover her children through the correct legal channels?

Should Sally Faulker have attempted to recover her children through the correct legal channels? Absolutely yes.

Should she have agreed to the botched 60 Minutes Child Recovery 'Plan'? Undeniably no.

So what made the Australian mother so desperate to bypass the law?

The 60 Minutes Child Abduction Investigation has no doubt left many asking what the Australian legal system could have done for Ms Faulkner to ensure that her children were safely returned to Australia.

The answer is that Australian Courts can order the return of a child under the Hague Child Abduction Convention if the other country involved is also a Hague country.

The catch is this - the Family Court can only order the return of a child under 16 who has been unilaterally removed from its country of habitual residence if that country is also a signatory to the Hague Convention.

A list of the Hague Convention countries is available on the website of the Department of Justice & Attorney-General.

Where the Hague Convention applies, the International Family Law section of the Department of Justice & Attorney-General can assist to procedurally facilitate the prompt return of the children.

The good news is that Australian parents do not incur costs for the Department to undertake work on their behalf; however it is recommended that parents engage a lawyer to assist in the preparation of documentation.

Unfortunately for Ms Faulkner, Lebanon is not a signatory to the Hague Child Abduction Convention and the course of action available to her is not so straightforward.
 

Sally Faulkner with Noah, 3, or Lahela, 5.

In instances where a child is abducted to a non-Hague child Abduction Convention country, parents can only seek legal advice in the country that the child has been abducted to.

Fortunately however, Australia does have a bilateral agreement with Lebanon that may assist the Department of Foreign Affairs and Trade to facilitate the resolution of the matter.

However, Nicole Cullen Principal at McKays Family Law says that DFAT negotiations are likely to be only persuasive rather than binding, particularly given the high-profile nature of this case.

So what exactly is the Australian Government doing about what can only be described as a hopeless situation?

In 2015 the Australian Government introduced the Family Law Amendment (Financial Agreements and Other Measures) Bill which proposes to make it an offence to keep a child overseas after the date of return specified in the Court order or other parent's consent.

The proposed amendments aim to address the wrongful removal or retention of children regardless of whether that removal is to a Hague Convention or non-Hague Convention country.

Let's hope Mr el-Amien did not want to holiday in Australia - ever.

In the event that this Bill is passed by the Australian Parliament, there is some hope that Ms Faulkner may have some rights against Mr el-Amien.

McKays Solicitors is a Queensland law firm.

Originally published as ANALYSIS: Behind the 60 Minutes child abduction fiasco