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rahul159

Can I Take My 2 Year Old Son To Australia With Me As He Is An Australian Citizen

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Dear Friends,

 

I'm an Indian born Australian Citizen, OCI card holder, married to an Indian Citizen from last 3 years, and have one 2 years old son, who is born in India and gained 

 

Australian Citizenship by Descent and dosent have OCI card at the moment.

 

We live in India and are working so my mum takes care of my son all the time.

 

My wife who is Indian Citizen is creating problems in family. So I wish to move back to Australia with my son. My wife didn't applied for Australian Spouse Visa as she 

 

doesn't want to move to Australia because she is very possessive about her family and want to live close to them. I have 3 brother-in-laws and 2 sister-in-laws so there is no question of anything like they need her support or financially dependent on her.

 

My question is "Can I take my 2 year old son to Australia with me as he is an Australian Citizen. Can She by any means create problems for him to move to Australia with me.

 

Please advice.

 

Regards,

Rahul

 

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Rahul, 

 

Basically NO, unless you have her FULL consent.

 

This is a very complex aspect of international law, and is governed by the Hague Child Abduction Convention (see https://en.wikipedia.org/wiki/Hague_Convention_on_the_Civil_Aspects_of_International_Child_Abduction).  Although India is not a signatory to the Convention, Australia is.  The convention states that any child removed , from his/her country of habitual residence (your case India), without the FULL permission of ALL the childs guardians or parents, the child MUST be returned by the host country (Australia).  If you were to bring the child into Australia, against the Mothers permisssion, and she raises a complaint to the Australian Authorities, the following may happen;

  1. If Australian Immigration are advised before the child flies, they will place a 'No Entry Ban' on the Child, and the airline will not let either of you board.
  2. if your able to actually enter Australia, you would be technically committing Child Abduction, a very serious offence in Australia
  3. If you manage to get through all the checks, and you arrive inside Australia, then the local Authorities will be advised.
  4. The child would be returned to India, as India is his/her country of habitual residence, even though the child is an Australian Citizen.

I stress the mother would have to raise a formal complaint through Indian, and then Australian Police for any of the above to happen.

 

The convention exists to ensure that family custody disagreements are settled in the child's natural home or country of habitual residence, with the child and the parents/guardians in front of the local courts.

 

My advice is settle this with the mother by whatever way works, and get her permission for the child to leave with you.  This usually involves one parent obtaining sole legal custody, or a legal letter of permission.

 

I see this situation occurring often with Thai women wanting to immigrate with their child, under a Partner Visa to marry an Aussie, and the Biological Thai husband blocks the immigration, usually for money. Yes blackmail.

 

Depending on how long the child has been in India, there are remote possibilities of challenging the definition of 'country of habitual residence' (this will require a lot of legal work), two considerations exist;

  1. If the child has spent his/her whole life in India, then there is NO QUESTION, India is the country of habitual residence.
  2. If the Child has spent a 'significant' amount of time in Australia (that would be probably 12 months or more for a 2 year old), then you may have a chance to challenge that of country of habitual residence is Australia, but this is unlikely I feel.

 

The only other option is to make a case for the child's wellbeing, that is if the child was returned to his/her country of habitual residence, it would place the child in direct risk of harm from the mother or others.  Even in this case, the convention is usually upheld and the child is return home.

 

Please, please, please, under no circumstances should you remove the child from India without the full consent of the mother, that would be a very bad thing for all involved.

 

Please IM me if you wish to chat more on this sensitive area.

 

I would also suggest you consult a Family Law Legal Specialist in Australia for formal advice, not a general Immigration Agent.

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