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NSW Custody of Children Born Overseas under Family Law

Discussion in 'Family Law Forum' started by Jackielaw111, 9 April 2015.

  1. Jackielaw111

    Jackielaw111 Member

    9 April 2015
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    Hello, I have been studying law since the age of 13 I know this site is more proposed on real life situations that are happening within people's family life, but that is also why I signed up so I can get a rough concept of how family law works as it is the field of law I am most interested in there are a few questions I want to learn but I will just ask one:

    If a Australian woman goes to China for a let's say 2 years and she finds a male and ends up marrying him and eventually having a child, if the mother was to change her mind and move back to Australia and take the child with her but the father is wanting the child to stay, what must the woman do to try and get her baby to Australia? Even though they both have equal custody of the child and are still married?
  2. Tim W

    Tim W Lawyer
    LawTap Verified Lawyer

    28 April 2014
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    There are two distinct parts to this question.

    The first part is (so to speak) "getting out of China".
    The second part is (so to speak) "getting into Australia".

    As to the first part:

    If the marriage took place in China (and is valid according to Chinese Law); and
    if the child is a PRC citizen by birth;* and
    one parent does not consent to the removal, then any move to expatriate the child
    will be a matter first for the equivalent of "family law" in China.

    Questions of custody, consent to removal, and any arrangements for financial support and/or future visiting,
    as well as permission to emigrate from China, will be dealt with according to the law of China.
    Consider, for example, that it may be a requirement of the law in China that an emigrating national
    departs on a PRC passport.

    I am not in a position to advise on the specifics of family law in PRC.
    Do consider however, that attempting to remove a PRC citizen (ie the child),
    without the correct approvals and travel documents, may well be an offence (that is, a crime)
    in PRC.

    As to the second part:

    It is possible that the child, even if born in mainland PRC, has acquired Australian citizenship by descent
    from its Australian citizen mother.
    If so, then the child may be eligible to apply for an Australian passport.
    It is necessary to obtain Australian citizenship before applying for an Australian passport.
    Applications of this type can be made from overseas.

    Note that the process of issuing a passport does become more complex
    when one parent does not consent.

    It will be necessary to obtain the Australian passport before arriving in Australia.
    A citizen-parent cannot just arrive in Australia with a baby in tow,
    that may be a citizen of another country, but can't be shown to be an Australian citizen.

    If that happens, then there is a very real risk that the child will be literally
    taken from its parent's arms and placed in Immigration Detention
    (that is, the baby can be gaoled, without its parent),**
    until identity and ultimate nationality of the child can be determined.

    I would strongly suggest that a mother in this kind of situation engage
    a lawyer who is also a Migration Agent, to assist her with a matter of this complexity.
    Please pay particular attention to my "signature" below.

    * As well as an Australian Citizen by descent (read on)
    ** If readers think that I feel strongly about this question,
    they would be correct
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  3. AllForHer

    AllForHer Well-Known Member

    23 July 2014
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    This question asks about family law matters under Chinese law, not Australian law, and I'm not sure how familiar anyone here would be with Chinese law. I know that with the exception of Hong Kong and Macau, China isn't a constituent of the Hague Convention, so I'm not sure if it has any enforceable restrictions about international relocation and/or abduction.

    Sorry I can't be more help than that. Family law in Australia, I can provide information about, but Chinese law? Not so much. :(
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    Jackielaw111 likes this.
  4. Jackielaw111

    Jackielaw111 Member

    9 April 2015
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    Thank you both very much this helps me a lot I myself got stuck and also my laws and that they are different in every country but I am grateful you take the time to answer and help me out

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