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Leon
Leon, Solicitor
Category: Australia Law
Satisfied Customers: 44647
Experience:  BEc Dip Ed, Dip Law (SAB) MTax (UNSW)
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My husband lives in Hong Kong and I live in Sydney for work

Customer Question

Hi, my husband lives in Hong Kong and I live in Sydney for work reasons and we are both having our first child. We disagree about custody on which custody the child should be raised. We are all Australian Citizens. For our childs sake I have agreed to live in Hong Kong during my maternity leave period (around 14 months) so the child and father can bond. My husband has threatened not to let me move back to Australia from Hong Kong after my maternity leave ends when I intend to return to Sydney to live and return to work.
Submitted: 8 months ago.
Category: Australia Law
Customer: replied 8 months ago.
The baby is due to be born 12th May 2017. I would like to know my legal custody rights and whether my husband and I can formalise some custody agreement before my maternity leave commences and I move from Sydney to Hong Kong with the child, to ensure it is only a temporary period.
Customer: replied 8 months ago.
Work is going excellent for my Australian husband in Hong Kong and he says he may not be ready to return to Sydney for several years which I think would contribute to the breakdown of the marriage.
Expert:  Leon replied 8 months ago.

My name is ***** ***** I am a NSW Solicitor. I will do my best to assist you with your question.

Expert:  Leon replied 8 months ago.

Good Morning.

Until the child is born he cannot do anything to you. You have your own passport and you can book a flight and leave. I would suggest you leave before the child is born and come home.

He can only stop you leaving after the child is born.

The agreement you have is not binding as it is not a court order. It is your body and you can leave now and he as a father has no rights until the child is born.

Once the child is born in Sydney if he wishes to have a bond he can come to sydney.

Only once the children is born can he commence and action in Australia to get custody or to have some contact.

If you are in Hong Kong then the laws of Hong Kong will apply. But while you are still pregnant you can do what you want and he cannot stop you.

I hope this makes sense and is of assistance. if there is nothing further Happy New Year and

Thank you for using my services.

If I have missed anything, or you have any further questions please let me know

If there is anything else in the future please do not hesitate to ask.

Please do not forget to leave positive feedback.

Regards

Leon

Customer: replied 8 months ago.
Hi Leon,
You have completely misunderstood my question.We are in a long distance marriage but i want the child to spend time with the father in Hong Kong when i am on maternity leave so the father can continue working in Hong Kong. However once my maternity leave is over (which could be up to 14 months where our child and l) live with the father in Hong Kong then l would like to be confident l would legally have the right to return to Sydney with our child.My husband and l live each other but are unable to work in the same countries for career reasons. I have told him if l bring the baby to Hong Kong for us all to live with him when i am on maternity leave then he must understand it is temporary.
Customer: replied 8 months ago.
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Customer: replied 8 months ago.
Hi Leon,
You have completely misunderstood my question.We are in a long distance marriage but i want the child to spend time with the father in Hong Kong when i am on maternity leave so the father can continue working in Hong Kong. However once my maternity leave is over (which could be up to 14 months with our child and l) living with the father in Hong Kong, then l would like to be confident l would legally have the right to return to Sydney with our child.My husband and l love each other but are unable to work in the same countries for career reasons. I have told him if l bring the baby to Hong Kong for us all to live with him when i am on maternity leave then he must understand it is temporary.
Customer: replied 8 months ago.
If your advice is just that once we are in Hong Kong, Hong Kong laws apply then, i would like a refund for this service advice.
Customer: replied 8 months ago.
Staying in Sydney with the child on maternity leave and never visiting the father in Hong Kong, was not what i plan to do otherwise i would have no need for legal advice.
Expert:  Leon replied 8 months ago.

Good Morning

If you have the child in Hong Kong, and you wish to leave, you will be governed by the laws of Hong Kong. If he refuses to let you leave then you have to go to Court and get Court orders.

There is no guarantee that the court will let you return to Australia.

If you have the child in Australia, you can get orders here and then you can enforce the orders in hong kong to allow you to leave.

If he will not allow you to leave Hong Kong you will be stuck in Hong Kong until you get orders to leave. If you leave without the order he can seek orders under the UN child abduction laws which Hong Kong is a signatory.

If you want control then you have to come back before the child is born, have the child and then you can negotiate about orders so that you can come and go as you please.

Customer: replied 8 months ago.
Hi Leon, hmmm that might be helpful... Please note the baby will be born in Sydney and have an Australian passport as i noted we are all Australian citizens in my original post.To clarify, If you have the child in Australia, you can get orders here and then you can enforce the orders in hong kong to allow you to leave.Does this mean i wait till after the baby is born in Australia to get orders to enforce Hong Kong to return the child to Sydney?How and when can i get an order in Sydney that is binding in Hong Kong before the newborn and l travel there for the period of my maternity leave? Does my husband have to agree to sign it?
Customer: replied 8 months ago.
I do not even know if my husband will legally try to prevent the baby and l leaving HK to return to Sydney by the end of my maternity leave but l do not want to take any chances.
Customer: replied 8 months ago.
Also could you please clarify the following context of this advice?"If he will not allow you to leave Hong Kong you will be stuck in Hong Kong until you get orders to leave. If you leave without the order he can seek orders under the UN child abduction laws which Hong Kong is a signatory."I am confused are you saying even if l have Australian orders in Hk, my husband could still prevent us leaving HK so we are stuck there until i also get Hong Kong orders to leave?
Expert:  Leon replied 8 months ago.

Good Morning.

You would file an application in australia for orders that the child live with you in Australia.

The orders would say that the child would visit the father and the time frame and then the father would send the child back.

I believe that if the child is in hong kong and you have no orders that you risk not being able to take the child back home.

If you take the child out of hong kong without his consent he can apply for the child to be returned under the UN convention and accuse you of abduction.

This is if you do not have orders.