International Family Law (Hague Convention)
Australia is a signatory to an international agreement entitled the Hague Convention on the Civil Aspects of International Child Abduction, a multilateral treaty which governs the return of children to their country of habitual residence in circumstances where they have been wrongfully retained in a convention country. The Family Law (Child Abduction) Regulations 1986 (Cth) is the Australian legislative framework governing “Hague Applications” in this country.
My Child Is Being Retained In Australia, What Can I Do?
Provided the jurisdictional facts are proven, you can make a request to the Commonwealth Central Authority to take action on your behalf in Australia pursuant to the Hague Convention.
What Are The Jurisdictional Facts?
In order to successfully obtain an order from the Family Court of Australia for the return of your child, the following criteria must be met:
- The Application must be filed within 1 year of the child’s removal or retention (if the child has not settled in the convention country, then the Court might accept an Application made after the 1 year period);
- The child is under 16 years old;
- The child habitually resided in a convention country immediately prior to their removal to/from Australia;
- You had rights of custody under the law of the convention country in which the child habitually resided before their removal;
- The retention or removal of the child was directly in breach of those rights; and
- You were exercising those rights of custody (either jointly or alone) or would have if the child had not been removed.
If you are able to prove those jurisdictional facts, then the party who removed the child must prove that one of the regulation 16 exceptions applies.
What Are The Exceptions?
There are a number of exceptions that might prevent the Court from making an order for the child to return to their country of habitual residence. A person who has removed the child to Australia, need only prove that one of these exceptions apply to prevent the child from being returned:
- The person seeking the return of the child:
- was not actually exercising rights of custody when the child was removed to, or retained in Australia; or
- had consented to the child being removed to Australia;
- had consented to the child’s removal or retention in Australia;
- once learning of the child’s retention, the person acquiesced to their retention in Australia; or
- There is a grave risk of physical or psychological harm to the child if they return to their country of habitual residence (note: the Court is unwilling to suggest that another country’s police force or court is inadequate to deal with the child’s protection unless such protections are not available (see Murray v Director, Family Services (ACT) FamCA 103) and therefore this argument can be difficult to run successfully);or
- Each of the three elements apply:
- the child objects to their return; and
- the objection is so strong that it displays a strength of feeling beyond the expression of a preference; and
- the child is old enough that it is appropriate to take their views into consideration; or
- The fundamental Australian principles of human rights and fundamental freedoms would not permit the child’s return to their country of habitual residence.
My Child Has Travelled Overseas With Their Parents And I Am Worried They Will Not Return, What Should I Do?
Our Melbourne office has a number of professionals who are able to provide advice in relation to potential proceedings pursuant to the Hague Convention. It is always a good idea to seek legal advice on these matters as each situation is different and might be dealt with differently.
In the event the other parent is either hostile, refuses to answer, or suggests they may be staying permanently with the child, it is best to act promptly so as to avoid a finding by the Court that you had acquiesced to the child living in the convention country or consented to the child becoming a habitual resident of that country.
My Partner Wants To Travel To A Convention Country With Our Child, What Can I Do To Protect My Rights?
Ensure you have the communication about the pending travel in writing with the other parent including the following:
- Expected date of departure;
- Purpose of the travel; and
- Expected date of return.
Where the travel is to occur over the school holidays, ensure your child is enrolled in school for the next school year;
Stay in contact with the child and the partner, as you normally would during that time; and
Any further arrangements to extend travel are agreed in writing (by e-mail for example).
WHERE TO NEXT?
Taking the next step and contacting a family lawyer can be scary. Our lawyers will make you feel comfortable so you can talk about your situation. But first, ask yourself, Do I really need a lawyer?