Co-authored by Chris Gosling
Introduction and background
If your child (or a child for whom you have parental responsibility) is removed from their home country without your consent and without the order of a court, you may be able to obtain assistance under the Hague Convention on the Civil Aspects of International Child Abduction (‘Hague Convention’). However, if you bring your child to Australia from another country and the child’s other parent asserts that you did so without their consent or a court order in that country, court proceedings may be commenced against you in Australia for your child to be returned to the other country.
The Hague Convention is the primary international agreement that encompasses international parental child abduction. It allows for an avenue for a parent to seek to have their child returned to their home country. The Hague Convention sets up a central authority in each signature country to deal with applications for the return of children taken to or from each country. The Australian Government Attorney-General’s Department is the central authority for Australia.
It is therefore imperative to ensure both parents are aligned with their views regarding where their child resides and/or spends time, as well as abiding by court orders.
How to satisfy the legislation for a Court to enforce a return order
It is important to understand the relevant legislation when proceeding with an application to the court to have your child returned. Under the Hague Convention, Family Law (Child Abduction Convention) Regulations 1986 (Cth) (‘CACR’) reg 14 permits an application to be initiated to return a child who has been illegally removed from or kept in a Hague Convention country.
There are four specifications of which must be satisfied under CACR reg 16 (pursuant to CACR reg 14) for the order of the return of a child to another country or to Australia from another country, including:
(a) an application for a return order for a child is made; and
(b) the application is filed within one year after the child‘s removal or retention; and
(c) the responsible Central Authority or Article 3 applicant (means a person, institution or other body that has made an application) satisfies the court that the child‘s removal or retention is wrongful under subregulation (1A).
1A) For subregulation (1), a child’s removal to, or retention in, Australia is wrongful if:
(a) the child is under 16; and
(b) the child habitually resides in a convention country immediately before the child‘s removal to, or retention in, Australia; and
(c) the person, institution or other body seeking the child‘s return has rights of custody in relation to the child under the law of the country in which the child habitually resides immediately before the child‘s removal to, or retention in, Australia; and
(d) the child‘s removal to, or retention in, Australia is in breach of those rights of custody; and
(e) at the time of the child‘s removal or retention, the person, institution or other body:
(i) is actually exercising the rights of custody (either jointly or alone); or
(ii) has exercised those rights if the child has not been removed or retained.
When determining how to define the meaning of an individual’s rights of custody to a child, it is best defined by CACR reg 4(1):
(a) the child is habitually resident in Australia or in a convention country immediately before his or her removal or retention; and
(b) rights of custody in relation to the child are attributed to the person, institution or other body, either jointly or alone, under a law in force in Australia or in the convention country in which the child habitually resided immediately before his or her removal or retention.
When a Court can reject to order the return of a child
There are circumstances pursuant to CACR reg 16(2)-(3) when a Court will not grant an order returning a child, including:
- The person/institution/body applying for the return of the child is not exercising rights of custody when the child is removed to/first retained in Australia and would not have exercised those rights had the child not been so removed/retained (reg 16(3)(a)(i));
- Where the person/institution/body applying for return of the child has consented to or subsequently consented to the child being removed to/retained in Australia (reg 16(3)(a)(ii));
- Where there is a grave risk that return of the child under the Convention would expose the child to physical or psychological harm or will place the child in unacceptable circumstances (reg 16(3)(b));
- The child objects to being returned, with a strength of feeling beyond a small expression of a fondness or of ordinary wishes and has reached an age and a degree of maturity at which it is appropriate to take into account of his/her views (reg 16(3)(c));
- The return of the child would not be permitted by the essential principles of Australia relating to protection of human rights & essential freedoms (reg 16(3)(d));
- The application for return of the child is filed more than 12 months after the day on which the child is removed to/first retained in Australia and the court is satisfied that the child is settled in its new location: (reg 16(2)).
Assistance from Commonwealth Government Departments
If you click on the following link, you will be able to view the countries which are a part of the Hague Convention: https://www.ag.gov.au/families-and-marriage/families/international-family-law-and-children/hague-convention-civil-aspects-international-child-abduction.
If a child you have parental responsibility for has left Australia without your consent, it is advised you contact the Commonwealth Attorney-General’s Department on 1800 100 480.
If a non-Hague country is involved, The Department of Foreign Affairs and Trade may be able to assist left-behind parents in accessing an English-speaking lawyer.