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Australia Three weeks after arriving in Malta, Alana's husband said if she left him, he wanted to keep the children there

01:11  01 march  2021
01:11  01 march  2021 Source:   abc.net.au

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a little girl standing in a room: Alana said she believed she would be able to return to Australia with her children if the move to Malta did not work out. (Supplied) © Provided by ABC Health Alana said she believed she would be able to return to Australia with her children if the move to Malta did not work out. (Supplied)

A mother of two says she is stranded in Malta, as she fights a bitter custody dispute with her husband for the return of her children to Australia.

The two girls — aged four and six — are currently living with their father in Malta, as their mother fights for their return to Australia

The children's mother Alana, travelled to the country with her husband Matthew in August 2019.*

She said she was having marital problems and considered living in Malta — her husband's birth country — but said the plan was to return if it did not work out.

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"At any point, if we weren't happy, we weren't settling in, it was my understanding that we were always free to come home with the girls back to Australia," she said.

Matthew disputes this and says the plan was always to move to Malta permanently.

Within three weeks of arriving, her husband Matthew hired a lawyer and gave Alana notice that he would seek to keep the children in Malta if Alana pursued a separation from him.

Both children are Australian citizens and were raised in Australia. Alana made an application to have the children returned to Australia under international law.

Right now, she has access to her children one day a week after negotiating an agreement with Matthew.

"I couldn't have imagined in a million years that I would have been in this position and my girls would be in this position," she said.

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The last year, with international travel restrictions, has been difficult for parents like Alana who are dealing with international custody disputes.

She said that she feared that if she had ever left Malta, she would be unable to return.

Matthew worked for a vending machine company in Australia and was an undischarged bankrupt when he left for Malta. He said, via his lawyer, that the family plan was always to settle in the country.

After receiving the legal letter, Alana said she was uncomfortable living with Matthew and felt compelled to leave. The children remained with him.

The husband insists he put no pressure on her to leave and that Alana left the "matrimonial home" and her daughters, without genuinely trying to fix the marriage.

Which law applies in international custody disputes?

Custody disputes across international borders are becoming more of an issue for Australian citizens.

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Between 2013 and 2018, there was a 76 per cent increase in the number of cases, rising to 305 cases. Only around a third of children are ever returned.

International law in these types of family disputes is settled under the Hague Convention, created in 1980. Under the process, a parent can seek to have their child returned to their home country.

But the interpretation of the convention differs from country to country.

In Malta, parents seeking the return of their children must apply from outside the country. This is not the case in Australia and many other states.

Rosa Saladino, a specialist in international custody cases, said in most instances, applicants can launch a case from anywhere.

"Generally you can apply from anywhere and the choice of which authority you apply to is yours," she said.

She said one factor in deciding custody is where the children grew up and are most familiar with.

"It's where the child feels at home," Ms Saladino said.

"Matters that are taken into account can vary but the younger the child, the more likely the child is to have the same habitual residence as its parents."

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Alana believes the longer the children remain in the father's care, the more likely the courts will favour residence in Malta.

"Because they have spent an adequate amount of time in Malta, it might be seen as detrimental to them to remove them and send them back to Australia," she said.

Alana also said leaving Malta, to file her case under the laws of the country, has been impractical because airports were closed due to COVID-19, and she feared if she left the country she would not be allowed back in and may lose access to the children entirely.

"I couldn't leave Malta, and if I left Malta, I had no guarantee I was going to come back in and where would that leave me with my children," she said.

'We're not Malta's problem, we are Australia's problem'

The dispute has also exposed differences in how Australian and Maltese authorities interpret the Hague laws.

Initially, Alana was told by the Australian Central Authority — the government unit that administers Hague cases — that she had a valid claim under international law.

However, the Maltese authority disagreed. According to documents seen by the ABC, the Maltese Central Authority, took the view that because the mother consented to her children's travel to Malta, the case did not qualify "in the strict sense".

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The authority also said the application was not valid because it was not made from outside the country.

The Australian government stopped actively working on the case after their messages to authorities in Malta went unanswered in July last year.

Alana said she feels stranded and let down by the Australian government.

"My Children are Australian, I'm Australian, we were born and lived our lives in Australia, We're not Malta's problem, we are Australia's problem," she said.

Alana's Australian lawyer Tony Nikolic said the Australian government has abandoned the children in Malta.

"We have an Australian citizen who is sitting in a foreign country, she's sitting there purely on the basis of her love and attachment to those children — that's why she's there," he said.

The Australian Central Authority said it would not comment on the case citing privacy reasons.

The Department of Foreign Affairs and Trade said Alana had been offered consular assistance.

*The ABC is using the first names of both parents for legal reasons.

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