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Ask Clare Your Own Question
Clare, Solicitor
Category: Immigration Law
Satisfied Customers: 34133
Experience:  I have been a solicitor in High Street Practise since 1985 with a wide general experience.
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My husband is in Australia and I am in England. We have a 4

Customer Question

My husband is in Australia and I am in England. We have a 4 year old son residing with me. what requirement if any is there on me to go to Australia so that my partner has visiting rights or is the requirement on him to come to England to exercise his rights? We both work.
Submitted: 2 years ago.
Category: Immigration Law
Expert:  Clare replied 2 years ago.
Thank you for your question.
My name is Clare
I will do my best to help you but I need some further information first.
Which of you moved and what was the agreement between you about contact when that happened?
Customer: replied 2 years ago.

My husband spent 9 years in the Uk. We married in 2009 and our son was born in 2010. MY husband and son have dual nationality. I have British only. During the past 6 years I have had serious health problems including the diagnosis .of M.E. In January 2014 we left to live in Australia. I did agree verbally to give it a try. My health deteriorated over there, I found I was unable to practise as a speech and language therapist because of different professional requirements, my visa to work anyway did not come through until the end of June and we had serious financial problems due the high cost of living and my husband struggled to find permanent employment. I begged him to return to the UK as on top of this I received no support from his family in managing M.E. In August we all returned to the UK for a family wedding and it was agreed that I and our son could stay on for an extended holiday until the beginning of December and flights were booked. At the end of September having asked him continually to return because of my health, my career and financial reasons I told him I could not return to Australia. Things became very heated between us but in December he came over the UK for three weeks and during this time agreed to return to the UK in the 6 months when he hoped to have acquired various skills in a promised job which would increase is employment opportunities here, I have written evidence of this from an independent person and from family members. He also visited various schools with me for our son to start at in January. Meanwhile I had also returned to work for 2 and a half days a week. However once back in Australia he refused to return , blamed me entirely for the breakdown of our marriage and used every form of emotional blackmail on a daily basis to try and force me back. He is now threatening to invoke the Hague convention on child retention. My fears are obviously that and also how I much I am responsible for facilitating contact with his son. Could I be forced to take my son over for holidays or would it be up to my husband to come over to the U.K for contact and also could I because of work commitments be forced to send my son out alone? I have read that children from 5 are allowed to travel unaccompanied . Would that require the consent of both parents? I see no hope for my marriage now and I feel I have very strong reasons for being unable to live in Australia based on health, career, finance and family support .Our son has spent the majority of his life in the U.K and has strong emotional ties here to family, I have been his primary carer from birth.

Expert:  Clare replied 2 years ago.
For clarity.
You and the child have been back in the UK since August last year and your ex helped chose the school that the child will now attend?
Customer: replied 2 years ago.

Yes, except he isn't yet technicaly my ex.. My child is now at school. Schools will have record of visits made. We visited at least 3. I also had frequent visits to the GP and a professional counceller during this time and may be able to provide extenuating circumstances as to why I did not return.

Expert:  Clare replied 2 years ago.
The issue is not why you did not return - but whether or not your ex consented to the child remaining in the Uk and from what you have said he clearly did - even if he changed his mind later
However you will have to accept that you will have to share the burden of contact in terms of cost and travel time - with you having to take the child to Australia once a =year (or every two yours) and Contact also being facilitated here in the Uk
This will have to work around School holidays of course.
Please ask if you need further details
Customer: replied 2 years ago.

Can he stipulate how many weeks of contact during school holidays and would he have to share the cost of our trip over. Could I claim extenuating circumstances regarding travel and health. I am also bearing the cost of bringing our son up although he does contribute. For me to take time out of work for say the school summer holidays would involve me in considerable cost and as I'm only on temporary contract until February maybe impossible for this year. Contact in the Uk would always be open to him.

Thankyou .

Expert:  Clare replied 2 years ago.
If you cannot reach an agreement then it will be for the Court to decide.
You can expect it to be a least half of the total school holidays - if he is able to come to the Uk twice a year
I am afraid that there is no doubt that you will have to take responsibility for some of the travel - how much will depend on a number of factors including the issue of child maintenance

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