Has your child been wrongfully removed from Australia without your knowledge and/or consent?
Read on to find out more about the processes available to you to assist you in securing the return of your child.
Removing a child from Australia without the consent of a parent may constitute a criminal offence under the Family Law Act 1975 (Cth). In the event that your child has been wrongfully removed from Australia, there are remedies available to you to secure the return of your child.
The Convention on the Civil Aspects of International Child Abduction
The Hague Convention on the Civil Aspects of International Child Abduction (Concluded 25 October 1980) is the main international agreement that deals with international parental child abduction and provides a process through which a parent can seek to secure the return of their child.
Cases to which the Hague Convention applies
It is important to note that the Hague Convention does not apply to all cases. In Australia, an application under the Hague Convention can be made in circumstances where:
- The child was taken to a country which is a contracting party to the Hague Convention and which Australia has recognised;
- Australia can be established as the “habitual residence” of the child, prior to the child’s removal from the jurisdiction;
- The child is under 16 years of age, as regulation 2(1C) of the Family Law (Child Abduction Convention) Regulation 1986 (Cth) defines a “child” as “a person who has not attained the age of 16 years”;
- It can be established that the removal or retention of the child was wrongful, such as; if the child was taken without the consent of the other parent or without a Court order authorising the child’s removal from the jurisdiction; and
- It can be established that the parent making the application has custody rights and was exercising those custody rights at the time of the child’s wrongful removal.
Habitual residence under the Hague Convention
If a return order is successfully made pursuant to the Hague Convention, it would be to the child’s place of habitual residence. Accordingly, in Hague Convention cases, one of the first and most crucial steps is to effectively establish the child’s place of habitual residence.
Establishing a child’s place of habitual residence can at times be problematic, given that currently the term remains undefined under the Hague Convention. Legal practitioners currently rely on case law to help establish a child’s place of habitual residence. In Australia, the Full Court of the Family Court, in De Lewinski v Director-General, New South Wales Department of Community Services following the English decision in Re B (Minors) (Abduction) (No2), held that the habitual residence of a young child is the place of residence adopted by a person with parental responsibility for the child, for an appreciable time and for settled purposes.
Should a child’s habitual residence not be established sufficiently, the return order can fail. In the Marriage of Gollogly and Owen, one parent consented to an order being made in a foreign jurisdiction granting custody of the children of the marriage to the other parent. Subsequently, the custodial-parent removed four of the children to Australia. The non-custodial parent sought an order for the return of the children. However, it was held that the removal of the children was wrongful only if the non-custodial parent was able to establish that the children were habitually residents of that foreign country, which the non-custodial parent failed to establish sufficiently.
It is worth noting that establishing a child’s habitual residence can vary drastically from case to case and will heavily depend on the circumstances and background of each individual case. Accordingly, it is prudent that an experienced Family Lawyer is retained to assist in effectively establishing the Child’s Habitual Residence.
Wrongful removal or retention under the Hague Convention
For the purposes of the Hague Convention, wrongful removal or retention of a child must be established to invoke the Hague Convention.
The removal or retention of a child is wrongful if the action breaches the rights of custody vested in a person, an institution or any other body. Overall, wrongful removal or retention is usually satisfied if it can be established that the child was removed from his or her habitual residence and wrongfully retained in another jurisdiction. Further, the removal or retention will be considered wrongful where, at the time of the event, the rights of custody were actually being exercised by the other parent, or would have been except for the wrongful removal or retention.
Wrongful removal and retention for the purposes of the Hague Convention was reviewed in Director-General of Department of Child Safety v Stratford where it was concluded that, for the purposes of presenting a competent Hague Convention application, it would simply need to be declared that at the time of the child’s removal or retention, there was actual exercise of the rights of custody by the or that they would have been exercised if the child had not been removed or retained from the child’s place of habitual residence.
Wrongful removal and retention may also at times be established in cases where a child is taken from a contracting state to the Hague Convention, to a non-contracting state to the Hague Convention (where the abducting parent intends on remaining with the child) and then on to a third jurisdiction (such as on holiday).
In the case of State Central Authority v Ayoub, a child whose habitual residence was found to be the US, was removed by his Malaysian mother and taken to Malaysia (which was not a contracting state to the convention). Subsequently, the mother brought the child to Australia (a contracting state to the Convention). The father successfully brought proceedings under the Hague Convention. The mother and child were apprehended as they entered Australia and the Court ordered the child’s immediate return to the US.
Establishing rights of custody under the Hague Convention
Article 5(a) of the Convention defines “rights of custody” to include the right to determine the child’s’ place of residence. In Australia, section 111B (4) of the Family Law Act 1975 provides that each of the parents of a child should be regarded as having custody of a child (subject to any Court order). It is vital to accurately ascertain how the right of custody is created in each individual case and applied within the meaning of the Hague Convention.
In the case of Jiang v Director-General, Department of Community Services, although the father had ‘joint legal custody’, the mother had an order which gave her ‘sole physical custody’ and it was found that the father had no more than a right to be consulted as to the residence of the child and was therefore not able to determine where the child could live.
Accordingly, under the Hague Convention, it is worth noting that establishing a parent’s right of custody will vary from case to case and will depend on each individual matter’s background and circumstances. It is prudent that an experience Family Lawyer be retained to assist you with establishing your rights of custody under the Hague Convention.
Steps you should take
Prompt action is critical given that a Hague Convention application should be prepared and filed as soon as possible, especially in circumstances where the Hague Convention requires that hearings be conducted expeditiously.
Each case also varies based on its factual background and circumstances. Accordingly, given that swift action is required, it is prudent that an experienced Family Lawyer in Hague Convention matters is engaged to advise you on how you may commence the process as soon as possible.
Doolan Wagner Family Lawyers offer specialist family law advice in St Leonards on Sydney’s North Shore. If you have a Family Law enquiry, please contact us on (02) 9437 0010 or firstname.lastname@example.org to discuss your matter in complete confidence. We have a team of experienced and caring professional family lawyers available to help you in this difficult time.
These posts are only intended as an overview or comment on current issues that may interest you and are not legal advice. If there are any matters that you would like us to advise you on, then please contact us.