Supplementary submission: Consular support for Australian women overseas

In Submission on Consular Strategy 2014-16 I provided the text of a submission which my colleagues Andrew Farran, Garry Woodard and I lodged with the Department of Foreign Affairs and Trade in relation to the current Review of Consular Strategy 2014-16.

Subsequently, Andrew Farran and I lodged a Supplementary Submission on an aspect of consular support practice which seems to warrant particular attention, namely the support to be provided to Australian women fighting custody battles in foreign jurisdictions, often involving domestic violence and/or child abuse, sometimes involving abductions. If we want to ensure that the available resources are directed to the most vulnerable, this group should not be overlooked.

The text of this submission appears below. For anyone who wishes to take up this particular issue, you need do no more than email a letter setting out your views to consularstrategy@dfat.gov.au by 31 January 2014. We would certainly welcome your support.

SUPPLEMENTARY SUBMISSION by Andrew Farran and Paul Barratt in response to the Foreign Minister's Invitation to Comment on Consular Strategy 2014-16

Further to our Submission dated December 7, 2013 we wish to make a Supplementary Submission on an area of Consular practice that has come to our attention, one which derives from one of the matters noted by the Foreign Minister in her Invitation to Comment, namely the fact that one of the factors contributing to the international mobility of Australians and hence the consular workload is the number of Australians marrying overseas – or more generally, we would suggest, the number of Australians living with non-Australian spouses in foreign jurisdictions, which takes in Australians who may marry a foreigner in Australia and subsequently move overseas.

The matter we wish to raise in this Supplementary Submission is the plight of Australian women fighting custody battles in foreign jurisdictions, often involving domestic violence and/or child abuse, sometimes involving abductions. While these cases must of course be governed initially by the law of the country concerned, the women fighting them can face a number of potential problems in their efforts to obtain a just outcome – one which is just not only for them but for their children, who depending upon the circumstances may or may not be Australian citizens. These may involve a failure to deliver on an agreed/negotiated process for considering custody, or a failure to accord natural justice, or even allegations of failure on the part of the relevant assessment authorities to bring all of the relevant information before the court. All of these would seem to be matters warranting consular assistance.

In raising this kind of matter we are not advocating that the Department should deploy its consular capacities on the merits of the custody claims per se. Our concern is that the deliberative processes that determine custody should observe the basic principles of natural justice and not involve any abuse of process. If such be the case then the provisions of and rights arising from relevant international treaties come into play. Their observation should be a matter of the government's responsibility to uphold in so far as they apply to Australian citizens. These provide a basis from which the government can and should rely in its interventions when seeking other governments to uphold and discharge their responsibilities in their own jurisdictions.

While the Convention on the Rights of the Child clearly applies in many such cases, so might the Hague Convention on the Civil Aspects of International Child Abduction. Such abduction might not only arise from the actions of a parent. It could be the consequence of judicial abuse of process. Whether that might or not be argued we come back to the citation from Oppenheimer in our original submission where it is stated that: "It has been repeatedly laid down that there exists ... a minimum standard of civilisation, and that a State which fails to measure up to that standard incurs international liability".

An international legal system committed to order and security is the strongest safeguard of Australia's long-term interests. Naturally if we do not respect and observe our obligations under the system we should not be surprised if other nations do not reciprocate. The fact that some do not do so regardless, is not a reason for Australia to take lightly its own commitments, both to the international community and to its own citizens. Without consular support their rights may prove illusory.

One hears of such cases. Because of their potential complexity (involving both treaty and domestic law) they may be beyond the resources of the Consular Section of the Department to address. Perhaps there should be a dedicated section within DFAT to handle these cases in conjunction with professional consular staff overseas. A private person having initially sought legal assistance in the relevant jurisdiction could not possibly be expected to manage and pay for all that is involved across jurisdictions in these matters to secure a just outcome particularly in circumstances where they have felt obliged for the safety of themselves and/or their children to exit the family home.

We commend to you these additional observations.

Andrew Farran and Paul Barratt

Andrew Farran is a former Australian diplomat, senior law academic (Monash University: 1972-86), and trade policy adviser. Previous vice-president of the Australian Institute of International Affairs. Currently, company director (UK and Australia).

Paul Barratt is a former Secretary of the Department of Defence, former Deputy Secretary of the Department of Foreign Affairs and Trade, and former Executive Director, Business Council of Australia.