Caselaw update - Appeal from orders requiring the return of the children to England from Australia where the opposing parent claimed the other was not exercising rights of custody at the time of retention.
A recent case highlights the complexities of international parenting laws, where one parent unilaterally removes the children from their country of residence.
The Australian Commonwealth Central Authority is responsible for ensuring the return of a child wrongfully removed from a convention country or retained in Australia. The request must be made by or on behalf of a party claiming rights of custody that were breached by the child's removal or retention.1
The Court may refuse to order a child's return in certain circumstances. This includes if it is established that the party seeking the return was not exercising rights of custody when the child was removed to or retained in Australia and would not have otherwise exercised those rights.2
Hays & Department of Communities and Justice [2023]3
This case involved two children aged 10 and 8 years who were removed from the United Kingdom and retained in Australia by the father, without the mother's consent. The parents were engaged in family law proceedings in the United Kingdom at the time of the children's travel to Australia. Interim orders made by consent were also in place for the children to spend just three hours on one occasion with the mother at the time. The United Kingdom proceedings were unresolved and listed for trial in the month following the children's retention in Australia.
The mother understood that the father intended to travel to Australia to see his mother and would return with the children briefly thereafter. Despite prior representations, however, the father failed to return the children to the United Kingdom and retained the children in Australia without the mother's consent. The mother immediately communicated her disagreement to the children's retention in Australia and made an application for the children's return to the United Kingdom under the Family Law (Child Abduction Convention) Regulations 1986.
The Family Court of Australia (as it was then known) ordered the return of the children to the United Kingdom at first instance. The father appealed the original decision on various grounds, including on grounds that the mother was not exercising her rights of custody.
On appeal, the Court found that the mother was actively pursuing her rights of custody and dismissed the father's appeal. The order for the children to be returned to the United Kingdom was upheld, and the father was ordered to pay the Independent Children's Lawyers' costs in a fixed sum in relation to the Appeal.
In upholding the original decision, the Court found that the United Kingdom proceedings had been on foot since 2020, when the parents filed competing applications for parenting orders. When the father removed the children from the United Kingdom in December 2021, albeit lawfully, he knew that the mother was seeking orders, at trial the following month, that the children live with her. Senior Counsel for the father was unable to explain how seeking that contact was inconsistent with the mother exercising rights of custody.
The facts of this case are interesting as, notwithstanding the mother having very limited time with the children when the father removed the children from the United Kingdom, she was deemed to have rights of custody that she was actively pursuing when seeking the return of the children.
Lander & Rogers has extensive experience in international family and relationship law matters. Our memberships of the International Academy of Family Lawyers (IAFL), LawAsia, and international referral network, TerraLex, enable us to support the interests of our clients in every overseas jurisdiction.
For more information on how these issues may impact you and your family, please contact our experienced Family & Relationship Law team.
1Family Law (Child Abduction Convention) Regulations 1986 reg 13.
2Family Law (Child Abduction Convention) Regulations 1986 reg 16(3).
3FedCFamC1A 3 (16 January 2023).
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