will I see my son again

Alhaadi was an international student from Kenya studying in Australia. He was of low means and unable to afford a private lawyer. During his time here, he married Eidi and they had a child. The relationship broke down after a dispute arose back in Kenya about the dowry that Alhaddi’s family was expected to pay to his bride’s family. Without the Alhaadi’s knowledge, Eidi obtained Kenyan travel documents which permitted her to remove the child from Australia back to Kenya. Upon arrival there, the Eidi left the child with the maternal grandmother and then returned to Australia.

As soon as Alhaadi learned that Eidi had left the child in Kenya, he went to the Federal Circuit Court in Dandenong where he spoke to a PCLC duty lawyer. Having regard to the gravity of Alhaadi’s matter and his inability to deal with its legal complexity, the duty lawyer assisted him to file an application for orders to have his son returned to Australia, and then agreed to appear for the client as a friend of the court.

The Court at first instance expressed doubt that it had jurisdiction to make the orders sought by the client because Kenya was not a signatory to the relevant Convention, and the child was not residing in Australia at the time the application was made. The Court indicated that the matter should be dismissed.

Based on extensive experience gained in previous international family law matters, the PCLC duty lawyer sought to distinguish previous judgements relied upon by the mother’s lawyer at the hearing, and was successful in having the matter adjourned for contested hearing on jurisdictional issues. Had the client not been represented, it was likely that the Court would have accepted the mother’s lawyer’s submissions and dismissed the client’s application.

In preparation for the contested hearing, the duty lawyer secured pro bono assistance from an international family law Barrister and written submissions were drafted by the PCLC duty lawyer. These submissions were presented by Counsel at the contested hearing.

The Court was persuaded by Counsel’s submissions, and decided that it did have jurisdiction to deal with the matter. Accordingly, parenting orders were made. Importantly, Eidi was prohibited from leaving the country and ordered to have the child returned to Australia. Alhaadi is still attempting to secure Eidi’s compliance with these orders.

This case illustrates the critical importance of availability of duty lawyer services and subsequent casework in international family law matters. Alhaddi received significant pro bono legal assistance because our duty lawyer saw the importance of mounting technical legal argument, so that jurisdiction would not be a barrier for families facing similar fact scenarios.

More broadly, the decision of the Court sends a clear message to parents intending to remove children from the jurisdiction to non-Convention countries that Australian family courts have jurisdiction to make parenting and other orders necessary to secure the return of those children. This is significant considering the increasing frequency of removals to non-Convention countries witnesses by our Federal Circuit Court duty lawyers.

A duty lawyer service provided by dedicated and driven community lawyers can change a life and strengthen a community.