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Stuart Barr

- 21 Mar 2024
  • Family Law

When family law goes beyond borders

As a family law specialist for more than 30 years, I frequently advise and represent people as they are going through one of the most traumatic experiences of their lives.

 And while all family breakdowns come with some degree of hurt, anger and heightened emotion, the effect it can have on families and individuals is never more apparent than in cross-border disputes.

The intricacies of international family law 

I regularly advise and represent people in cases where a couple has separated and one has then moved to live overseas, most often returning to their country of birth or where their extended family lives.

In addition to the normal sorts of challenges that come with family breakdown, there are further difficulties in this situation, as it can mean having to deal with two (sometimes very) different legal systems simultaneously.

I would always advise anyone finding themselves in this situation to seek the advice of a specialist in family law rather than a generalist, and ideally someone who understands the administration of family law and justice beyond Australia. This is because knowledge of how cross-border cases are conducted can mean a better, faster and more equitable resolution to the matter.

I am proud to be one of only two practising Fellows of the International Academy of Family Lawyers (IAFL) in South Australia. The IAFL was formed in 1986 to improve the practice of law and the administration of justice in the area of divorce and family law throughout the world.

This has given me an insight into how family law courts are inclined to rule on matters in other jurisdictions, while being able to consult with other Fellows all around the world helps me to better appreciate how cases of family breakdown are handled in places where the parties may be located or have assets.

As a consequence, I am better equipped to advise my clients as we navigate the many complexities that come with cases where one of the parties is located overseas.

It also means that I will sometimes — much to a client’s surprise — recommend that their matter be handled overseas rather than in Australia.

This is because when couples separate and there are assets held in another country, or there is a dispute over which country children should live in and with whom, for instance, the laws in a foreign jurisdiction may be more fair or favourable, given a clients particular circumstances.

This is why it’s important to consult a specialist family lawyer with experience of the way in which divorce and family law matters are resolved throughout the world when family breakdown crosses borders.

Cross-border child custody and abduction cases

This is even more so the case in matters where there is a dispute involving children, which will usually be over where and with whom they live. This can become even more complicated when children are taken abroad without the consent of one of the parents.

Child abduction cases are dealt with in many, but not all, countries according to the principles in the Hague Child Abduction Convention.  However, those principles are not applied in exactly the same way in all countries.

The arguments in cross-border parenting cases can also be long and complex, with many issues that need to be considered. Key amongst these can be determining how, or even if, the child is going to be able to maintain a relationship with the parent with whom they are no longer living.

In this scenario, the parent who is being left behind might argue that it will be impossible to maintain a loving, healthy relationship with their child if they are living overseas; at the same time, the other parent may claim that this is not the case, and that the child is in fact emotionally strong or mature enough to cope.

The court may also consider whether there is any previous history of the parent with whom the child will be living proactively supporting the other parent’s relationship with their child, and the extent to which the relationship between the child and the parent who will be ‘left behind’ can be nurtured and maintained.

It also has to be remembered that different jurisdictions can take a different approach as to how these delicate matters are handled.

However, this brief summary above barely touches on the many intricacies of parenting and child abduction cases when they occur across international borders. It is also why family law is an area in which it can be challenging to predict outcomes in instances where cases end up in court.

This is why mediation has recently been playing a more important role in such matters.

Mediation in international child custody cases

In addition to representing my own clients in international parenting cases, I also act as a mediator with MiKK, the International Mediation Centre for Family Conflict and Child Abduction in Germany.

This includes mediating in international child abduction cases where I work with a female co-mediator on Zoom to provide a process and platform where all parties are supported in the search for a lasting and amicable solution.

Mediation is essentially a structured discussion where the needs of all parties, especially the children, are considered. In the case of international family conflict, it is often the means through which communication between separated parents is re-established and can help to make the child their focus once more.

The process also gives parents a greater sense of involvement than is the case when matters go to court, potentially de-escalating the dispute. It is also a quicker and less expensive process than a trial.

Mediators are not, however, judges, and we can’t make binding decisions or judgements; instead, our role is to explore options and help parents to reach agreements that might be beyond the scope of a court.

As far as possible, as a mediator I foster discussion and seek out ways of achieving an outcome that both parties agree with without having to go to court.

Specialising in cross-border family law

One of the most important things I’ve learned from having spent so much of my career in family law is that outcomes can be unpredictable, perhaps more so than in any other area of law.

It is therefore unsurprising that the additional element of dealing with multiple countries makes international cases especially complex and is why they require specialist experience.

After handling so many matters, I understand how trapped and powerless people can feel in these situations. My priority therefore is to use my experience to guide clients to make decisions that will serve them in the long term rather than those made in the heat of the moment.