How the Federal Circuit and Family Court of Australia determines a Hague Convention application for the return of a child

Parent and child holding hands.

The Hague Convention

The Hague Convention on the Civil Aspects of International Child Abduction 1980 (the Hague Convention) is an agreement between 83 countries which seeks to protect children from international abduction and arrange the prompt return of children who are wrongfully removed from their home country.

These include:

a) The United Kingdom;
b) Singapore;
c) Japan;
d) Hong Kong; and
e) New Zealand.

There are countries which have acceded to the Hague Convention, but the Hague Convention is not yet in force. These include Russia, Kazakhstan, Iraq and Morocco.

Australia has been a signatory to the Hague Convention since 1973 and has ratified its obligations under the Convention through the Family Law (Child Abduction Convention) Regulations 1986 (Cth).

Regulation 16 of the Family Law (Child Abduction Convention) Regulations 1986

The Federal Circuit and Family Court of Australia (the Court) is required to order the return of a child if:

a) an application for a return is made;
b) the application is filed within one year of the child being removed from or retained in another country; and
c) The Court is satisfied that the child's removal or retention was wrongful.

Generally, Hague Convention applications are made by the Australia Central Authority on behalf of the parenting seeking to have their child returned to their country.

Wrongful removal and wrongful retention

A wrongful removal occurs when a parent takes a child out of a country without the other parent's consent and the Court determines this to be "wrongful".

A wrongful retention occurs when a parent takes a child out of a country for a particular period of time with the other parent's consent, but then refuses to return the child after that period and the Court determines this to be "wrongful".

Determination of "wrongful"

For the Court to have the power to order the return of a child to another country, the Court must find that the removal or retention was wrongful.

The Court therefore considers the following criteria which must be satisfied for the removal or retention to be considered wrongful:

a) The child is under 16 years;
b) Immediately prior to their removal, the child was habitually resident in the country they were removed from;
c) Immediately prior to the removal or the retention, the parent seeking the return of their child had rights of custody in relation to that child;
d) The wrongful removal or retention of the child breached that parent’s rights of custody; and
e) At the time of the removal or the retention the parent seeking the return of their child was exercising those rights of custody or would have exercised those rights had the child not been removed or retained.

If the Court is satisfied of all of the above criteria, the Court is required to order the return of the child.

Exceptions to a return

There are, however, exceptions to the Court being required to order the return of a child.

If the parent who has taken the child can satisfy the Court that they meet one of these exceptions, then the Court may determine that whilst the above criteria is met, the child does not have to return to the country they came from.

The exceptions are as follows:

a) That if the child were returned, there would be a grave risk that the child would be exposed to physical or psychological harm or be placed in an intolerable situation.

b) The parent seeking the return consented to the removal or retention or subsequently acquiesced to the removal or retention.

c) That the child objects to returning to the previous country and the Court considers it appropriate to take into account those views due to the child's age and level of maturity.

d) The parent seeking the return:
i. was not actually exercising rights of custody when the child was removed or retained; and
ii. those rights of custody would not have been exercised by that parent if the child had remained in the country.

e) It would otherwise not be permitted by the principles of fundamental freedoms or for the protection of human rights.

What happens if an order is made for a child to return or for the child to remain in Australia?

If a return order is made, this is not determinative of where the children will continue to live for the foreseeable future.

The purpose of the Hague Convention is to return a child who has been wrongfully removed or retained to the country where it is most appropriate for their family law parenting matters to be determined.

Hague Convention cases do not involve the determination of parenting arrangements or parental responsibility. Further, the Court is not required to consider what is in the best interests of the child, being the paramount consideration of parenting matters in Australia.

Therefore, the parent who removed or retained the child can subsequently apply to the Court of the country which the child is returned to, to relocate back to Australia. If that application is granted, then the parent and the child can permissibly relocate to Australia.

If the child is allowed to stay in Australia, then the parent who sought the return can subsequently make an application to the Court for parenting arrangements and parental responsibility orders in Australia.

Matters involving international parenting disputes are technically difficult and require specialist knowledge and experience to navigate. If you are involved in a relationship breakdown that crosses international jurisdictions, it is important that you secure appropriate legal advice from an organisation with alliances in other countries.

Lander & Rogers has extensive experience in international relationship and family law matters, including international maintenance and child support. Our memberships of the International Academy of Family Lawyers and international referral network, TerraLex, enable us to support the interests of our clients in every overseas jurisdiction.

All information on this site is of a general nature only and is not intended to be relied upon as, nor to be a substitute for, specific legal professional advice. No responsibility for the loss occasioned to any person acting on or refraining from action as a result of any material published can be accepted.