The Hague Convention
The Hague Convention on the Civil Aspects of International Child Abduction (“the Convention”) is a multi-lateral treaty enforced between Australia and a number of other countries. It provides a lawful procedure for seeking the return of abducted children to their home country.
The Convention is not by itself part of Australian domestic law. The Family Law (Child Abduction Convention) Regulations 1986 (“the Regulations”) are used to interpret the Convention.
The Regulations compel an Australian Court to order the return of a child to their home country unless certain specific and exceptional circumstances exist. The best interests of the child is not the paramount consideration and the discretion of a Court to refuse to order the return of a child to their home country is very limited.
If the matter comes within the scope of the Regulations, the Central Authority must take all action required under the Convention. This usually involves them filing an Application in the Federal Circuit and Family Court of Australia seeking a return order.
The Central Authority is not limited to the instructions of the parents seeking the return of the child. They have an obligation to be an honest broker and to put all relevant information before the Court to enable it to implement the Convention.
There are threshold conditions that must be met before a return order is made. The onus is on the Central Authority to establish those threshold conditions which include:-
- That the child is under 16 years of age;
- The child was habitually resident in the Convention country immediately before the removal or retention;
- That the left-behind parent had rights of custody which the removal or retention breached; and
- The child’s removal or retention was in breach of those rights of custody.
However there are limited grounds upon which the Court can refuse to make a return order including that the left-behind parent was:-
- Not actually exercising their rights of custody when the child was removed or retained;
- The left-behind parent consented or subsequently acquiesced to the child being removed or retained;
- There is a grave risk that the return Order would expose the child to physical or psychological harm or place the child in an intolerable situation;
- The child objects to the return (and is of an age and maturity where this is applicable); or
- The return of the child would not be permitted by the fundamental principles of Australia relating to the protection of human rights and fundamental freedoms.
In some cases, there needs be extremely compelling evidence that the child will face grave risk. Family violence to a parent does not always tick that box.
Changes to the regulations
On 9 December 2022, The Family Law (Child Abduction Convention) amendment (Family Violence) Regulations 2022 (Cth) were amended to include that family violence now has to be considered in whether a child is at grave risk and whether they should return to their home country or not.
The amended regulations have been effective since 10 December 2022.
The Saving Provision of the amendments states that;
Despite the amendments of this instrument made by the Family Law (Child Abduction Convention) Amendment (Family Violence) Regulations 2022 (the amending regulations), this instrument continues to apply, in relation to any application made under regulation 14 or 14A of this instrument before the commencement of the amending regulations, as if those amendments had not been made.
This means, that the new regulations will only apply to applications filed after 9 December 2022.
Should you or your family be faced with a Hague Application or an international parenting matter, please contact Amanda Di Placido or our Family Law Team at RNG Lawyers on 03 9739 7377
Written by RNG Lawyers Accredited Family Law Specialist, Amanda Di Placido