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Transnational Families (Domestic Violence or sexual abuse? (Domestic…
Transnational Families
Nuclear family unit
Family reunion
Family Law in Australia based on this assumption
Definition "family"
Definition of child
Domestic Violence or sexual abuse?
Domestic Violence Is Not Yet Seen as a "Grave Risk" to the Child
how does this bode with non-refoulement and refugee law?
Sanchez v. R.G.L.,
tension between grave risk and best interest
protective measures & avoiding substantial hearing
Principle of comity
exceptions to the requirement to return an abducted child - habitual residence
More than a year has passed
the parent acquiesced to the removal
return = grave risk
would go against int standards for protecting HR and fundamental freedoms
New Zealand's Approach different?
70% of child abductions are by women, but 88% of those women are the primary carers
Canada, - refugee claim and evidentiary burden
Unlike refugee cases - sensitive and handled by the AAT,
HR & fundamental freedoms
US interpreted v narrowly
Costa rica - incorporated "best interests of the child"
Habitual residence
undefined
determines the domestic law to be applied
Has there been a uniform understanding of 'habitual residence'? > No
How has this played out in cases?
Focus on parental intent
Acclimatisation
Does the child ever get a say? (child rights)
Focus on child v parents
What have the courts found to be objective indicators?
A factor not explicitly recognised is the accessibility of both parents to the child
Mother and father equal??
Ethnicity?
Child rights in the country, prospects in countries concerned, HR situation?
Is it better than a child's "nationality" or "docimile"
Transnational parents (factors that differ from non-transnational families/relationships)
Of babies ??
What about a partner's inability to find work there or have social support?
Is the convention a warning against intercultural relationships??
Female migrant workers
Country - land- indigenous sense
Statelessness
Aboriginal/Torres Strait Islanders
Peremptory Norm ??
Question as to the welfare of the child not a paramount consideration
Unmarried fathers
European Union - unified family law approach
2005 declaration
The Development of a Unified Choice of Law on Divorce
Cultural clashes & public policy
polygamy
void marriages
child marriages
infidelity
inter-religious or caste marriage
incestual marriages
Convention on Celebration and Recognition of the Validity of Marriages
sharia law, etc
SPECIAL COMMISSIONS
Subsidiary principle
icrc- art 21
adoption
permanent families vs temporary
Hague Convention apparatus
permanent bureau at the hague
Hague network of judges
Article 13(1)(b)- Grave risk
CONDITIONS
What is their role?
can undertakings really be enforced?,
Costs?
rely on the legal system and the law in place... or is it bigger picture? What happens in practice in DV in the country
ie No 15 Ra Japan Turkey-
Narrow approach
Child being target of DV imporant, or being exposed to frequent episodes of violence against mother
does a child need to be directly exposed to DV to suffer consequences
Evidence
how many expert opinions
clear and convincing evidence
Quick return
summary proceedings
should oral evidence be heard? Should witnesses be cross examined?
Return to the
country
not the
father
System likely to fail
bribery
rely on HR reports - attitudes police, enforcing AVOs etc. Beyond the blackletter law and into impediments in enforcement.
will there be judicial proceedings upon return
Asylum
Sustained pattern of abuse as opposed to sporadic violence
Challenge the award of custody of failure to convict in another country's court. Or accept it as conclusive
HR reports
grave relates to the risk not the harm itself.
role of 13(3)
QUESTIONS TO GUIDE THE ESSAY
Did the guidelines get it right?
against whose standards? the standards of other courts? of leading jurisprudence or against mine?
depends also on the point of guidelines. This should be addressed at the start of the essay
compare two court cases - very different approaches to 13(b) - against the guidelines. Which one is more consistent? Is the consistency obvious ?
What power do the guidelines hold anyway?
are they a legal instrument?
What is their role?
what purpose are they trying to achieve?
can you analogise with extradition?
taking into account the social background - does that give a licence say for afghans to argue that women are men's property? is that relevant?
corporal punishment
habitual residence
coerced relocation - context of dv
fear of reprisal
Courts are independent fact finders. Should not feel pressured by IR
When can states depart from the case law interpretations/guide another country's interpretation?
Weiner says when 2 conditions are met: 1) unjust to large group 2) consistent with object and purpose
Custody - violating ne exeat clauses?
Men & their right to a fair trial. does this take that right away from them?
"intolerable situation" lower or higher threshold than harm..?
should intolerable situation include financial strain, social isolation, emotional support etc
depen