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AUSTRALIA: Mothers Assertive in Child Custody Battles

Kalinga Seneviratne

SYDNEY, Jan 25 2007 (IPS) - It could have been the script for a Hollywood thriller. After a Lebanese-Australian spirits away his two daughters to Beirut, his estranged Canadian wife gives chase and retrieves them – with the help of mercenaries.

Melissa Hawach’s determination to regain custody of her daughters – Hanna, 6, an Australian citizen, and Cedar, 3, born in Canada – reflects the growing assertiveness of mothers when it comes to cross-border abduction cases. Over the past six years some 500 Australian children, many with mixed ethnic backgrounds, have been involved in such custody battles.

For a long time there has been a perception in this country, especially among migrant communities, that the Australian Family Courts favour mothers in custody cases leading to the fathers abducting the children and moving them to their countries of origin, where the laws are likely to favour the father.

But many fathers are unaware of recent changes in Australian laws. ‘’Last year a landmark change made to family law, recognises that in cases of parental separation or divorce, a father has as much right and responsibility for decisions about the upbringing of a child as a mother – except where there has been a history of child abuse or domestic violence,” Sandra De Silva, national coordinator of the International Parental Child Abduction Service, explained to IPS.

“(Thus) the demographic of the abducting parent has changed,” she noted. “In the mid-70s, most abducting parents were fathers. Today more mothers are likely to abduct (children) and a key factor is domestic violence”.

“Abductions are almost always influenced by individual and family factors rather than social factors,” argues De Silva, adding, “even if there is a dramatic change in the number of abductions, it would be hard to draw any casual conclusion.”

Lebanese-Australian Joseph Hawach brought his daughters to Australia with the consent of Melissa. But, he then took them to Lebanon and Melissa, after failing to regain custody in a high-profile court case, flew in with five mercenaries – ex-special services soldiers – and snatched the children. She then went into hiding in Lebanon with the children. Meanwhile two of the mercenaries – an Australian and a New Zealander – were hauled off a plane at Beirut airport while trying to flee and now face 15 years in jail, if convicted on kidnapping and mercenary action charges.

Melbourne’s ‘The Age’ newspaper reported last week that Melissa’s Lebanese lawyer Antoine el-Kozah was trying to broker a joint-custody deal. He is also reported to have said that a deal offered by the father’s lawyers to drop all charges against the mother and the two mercenaries in return for sole custody of the children was not a “logical” solution.

El-Kozah has refused to disclose the whereabouts of the children and the mother. Melissa is entitled to custody of the children through a Canadian court ruling while Joseph has custody rights granted by a Maronite Church. Thus, while the father is wanted by Interpol for abducting the children from Australia, the mother is wanted in Lebanon for kidnapping the children.

A Lebanese judge will decide soon whether Melissa should face charges of child abduction while the Canadian foreign ministry has said that it is assisting her with the legal defence, but refuses to disclose her whereabouts.

The Attorney General’s office in Canberra, meanwhile, says that on average 2-3 children are taken illegally by parents out of or into Australia every week, and the Australian government is trying to negotiate a bilateral agreement with Lebanon, which is not a signatory to the Hague Convention on Child Abduction, for the return of children wrongfully taken. This could take up to a year. Australia recently signed a similar agreement with Egypt.

Another case that has attracted public attention is that of Japanese father George Obiso who has not seen his young sons since his ex-wife took them to Japan two years ago to attend her brother’s wedding in Yokohama and never returned. As Japan is not a party to the Hague Convention, he faces the prospect of not ever seeing his children.

The Hague Convention on the Civil Aspects of International Child Abduction came into force on Dec. 1, 1983 and about 70 countries have so far become parties to it. The stated objectives of the Convention are to secure the prompt and safe return of children who have been wrongfully removed from one Contacting State to another; and, to ensure that the rights of custody and of access according to the law of one Contacting State are respected in the other Contacting State.

Many countries in Asia and the Middle East are yet to become parties to this Convention which is based on the principle that when there is an international dispute over a child, it should be resolved by returning the child to the country where he or she usually lives and let the courts of the land resolve custody rights.

But most Asian and Middle Eastern countries have different cultural approaches to dealing with family disputes to those obtaining in Australia.

 
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