60 Minutes, child abduction, and good ratings – a family lawyer’s perspective

One of my bad habits is to check my Facebook news feed when I wake up in the morning.  This morning I saw an article in the Sydney Morning Herald about another “child abduction” that 60 Minutes had been involved in in 2002.

The article by the Herald’s “entertainment reporter” Michael Lallo recounted the story of Theo Johnstone who was apparently “breaking his silence” about the involvement of 60 Minutes with his mother in recovering him from Greece after his biological father had taken him on a six-week holiday and never returned him to Australia.

I’m not entirely sure how this story falls within the remit of an entertainment reporter as it clearly wasn’t entertaining but more likely the Herald wanting capitalise on the furor (or at least some SEO/Google catchwords) given the article in The Australian published on Saturday by Jacquelin Magnay where she alleges that the Nine Network tried to hide its links to the failed international recovery of the children of Sally Faulkner.

It’s taken me a while to process my own opinions about the situation that took place in Lebanon, the Nine Network’s involvement and the allegations that it has paid in excess of $100,000 to a private security firm that apparently specialises in recovering children who have been abducted, and whether Sally Faulkner is the victim.

When I make reference to Ms Faulkner being a victim, I do so taking into consideration what apparently happened in her former partner removing their children from Australia but also whether she has simply been used by a media organisation to try and pull off what would be quite a salacious story if it had all gone to plan.

The story in the Sydney Morning Herald has some parallels to Sally Faulkner and her situation. However, an important difference to consider is that in Theo Johnstone’s case, he had been taken to Greece by his father on the premise that he would return after a six-week holiday. Greece is a signatory to The Hague Convention on the Civil Aspects of International Child Abduction (the Hague Convention).  Mr Johnstone’s mother went through the proper channels and obtained orders from a Greek court allowing her to return her child to Australia. At the time, Theo’s mother was probably advised that in the event her former husband not return Theo, he could be recovered under the Hague Convention.

Some countries are very good at enforcing the Hague Convention and others not so. Australia has an impeccable track record of enforcing the Hague Convention even though this has drawn significant criticism. The Italian Girls case is a prime example. The Courier-Mail thought itself far more qualified than the judges of the Brisbane Registry of the Family Court in determining how the Hague Convention should be applied and enforced. It appeared to me at the time that The Courier-Mail really didn’t take into consideration that, as a signatory to the Hague Convention if we did not properly apply the law in this country, how would our citizens go about trying to use the Hague Convention to recover children in other Convention countries?

If The Australian’s reporting is correct in that members of the 60 Minutes crew were to be involved in “crucial aspects” of the recovery plan (read – the bits that would make for gripping drama), one has to wonder whether this was simply a way of grabbing a salacious story with all the human emotion and drama that attaches to this type of situation. I have to question whether this was simply a ratings grab rather than 60 Minutes wanting to write the wrong is that has occurred. Certainly would appear that little thought was given to whether their conduct was illegal under Lebanese law. Whilst I understand that Sally Faulkner’s former partner was likely in breach of orders made under the Australian Family Law Act, those orders are not enforceable in Lebanon.

From what I’ve managed to read in the media, there are some similarities between what happened in Theo Johnstone’s case and what to Sally Faulkner’s children – mothers had been led to believe that their children would be returned to them after a holiday overseas.

From a practical point of view, it’s questionable whether Sally Faulkner should have let her children go to Lebanon with their father at all. If she had obtained advice about this prior to agreeing to the holiday, she may well have been advised that Lebanon is not a signatory to the Hague Convention.

What hasn’t come out in the media coverage is whether the separation of Ms Faulkner and her former partner was highly acrimonious and whether she had any reason to believe that the children would not be returned after a holiday. In my experience, there can sometimes be a distrust between parties about these types of issues particularly when one party is a citizen of a non-Convention country.

The question often asked is how can things like this be prevented from happening in future. Generally speaking, court orders restricting children from being taken out of Australia without the consent of both parties are effective in ensuring that children simply do not disappear with a non-resident parent. However, in circumstances where it is generally in the best interests of children to understand their cultural heritage and experience overseas travel, there is always a question about how you make sure they will return when they are supposed to.

There are a number of mechanisms that can be used to ensure compliance with court orders. However, the most important consideration will always be where is a child travelling to and is that country a Convention country. If the answer is no, the simple response should always be that it is not in the best interests of the child to travel to that country.

Andrew McCormack is an Accredited Family Law Specialist and an Associate with Best Wilson Buckley Family Law.

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