Australia is a party to the Convention

The Convention entered into force in Australia on 1 January 1987. It has been adopted into Australian law by means of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“FLCACR”). The FLCACR and not the Convention itself constitutes the Australian law.

The Convention provides for the return of child to his or her country of habitual residence so that the courts in that country can determine issues of parental responsibility and with whom a child should live and spend time.

The court’s function in Convention cases is not to determine what is in the child’s best interests. The Convention is primarily concerned with questions of jurisdiction. The court’s function is to return the child to the country of their habitual residence in order for the appropriate authorities in that country to determine what is in the child’s best interests.

Article 16 of the Convention provides that, after receiving notice of a wrongful retention or removal of a child, a court shall not decide on the merits or rights of custody until it has been determined that the child is not to be returned under the convention or unless an application under the convention is not lodged within a reasonable time after receiving notice. Article 19 provides that a decision under the Convention concerning the return of a child shall not be taken to be a determination on the merits of any custody issue.

The countries that are a party to the Convention are listed in Schedule 2 of the FLCACR. The countries are also listed on the official Australian website regarding child abduction maintained by the Commonwealth Attorney-General’s Department.

Each country that is a party to the Convention has a central authority that it is responsible for discharging the duties which are imposed on parties to the Convention. In Australia, the c
entral authority is the Commonwealth Attorney-General’s Department. All incoming and outgoing applications pursuant to the Convention are assessed by the Commonwealth Attorney-General’s Department. All incoming applications for the child to be returned overseas are then sent to the relevant state or territory central authority.

Objections of the Convention

• To secure the prompt return of child wrongfully removed to or retained in any state that is a party to the Convention; and
• To ensure that rights of custody and of access under the law of a state that is a party to the Convention are effectively respected in the other states that are parties to the Convention.

Wrongful removal or retention

• It is in breach of rights of custody under the law of the state in which the child was habitually resident immediately before the removal or retention; and
• At the time of the removal or retention those rights were actually exercised or would have been exercised but for the removal or retention.

Who can make an application?

Article 8 of the Convention provides that any person, in stitution or other body claiming that a child has been removed or retained in breach of custody rights may apply to either the central authority in the child’s habitual residence or the central authority in any other state which is a party to the Convention for assistance in securing the return of the child.

Which children does the Convention apply to?

Article 4 provides that the Convention applies to any child who is habitually resident in a country that is a party to the Convention immediately before any breach of custody or access rights; and is under 16.

Voluntary return encouraged

Article 10 provides that the central authority of the state where the child is must take appropriate measures in order to obtain the voluntary return of the child.

Authorities must act quickly

Article 11 provides that the judicial or administrative authorities of the countries that are parties to the Convention must act expeditiously in proceedings for the return of children. Further, if the authority has not reached a decision within six weeks from the date of the commencement of proceedings, the central authority of the other country involved in the proceedings has the right to request a statement of the reasons for the delay.

The general rule

Article 12 provides that where a child has been wrongfully removed or retained in the terms of Article 3 and at the date of the commencement of proceedings before the judicial or administrative authority (“the authority”) in the state where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.

Further, this Article provides that even if one year has expired, the authority shall return the child, unless it is demonstrated that the child is now settled in his or her new environment.

Abduction from Australia

When the Commonwealth Attorney-General’s Department receives an application from a parent in Australia for the return of a child taken overseas it takes the following steps:

• Assesses whether the application satisfies Convention requirements and that the correct information and documents have been supplied;
• Faxes the application to the central authority in the overseas country;
• Is informed by the overseas central authority of the steps it has taken;
• If the application proceeds to court, the overseas central authority liaises with the Commonwealth Attorney-General’s Department throughout the proceedings and provides it with any documents required by the overseas court.
• Keeps the parent left behind in Australia informed about developments in the other country; and
• If the Australian parent has been provided with financial assistance from the Australian government to go to the overseas country to collect the child, the Commonwealth A ttorney-General’s Department sometimes makes the travel arrangements.

Abduction to non-convention countries

If a child is abducted to a non-Convention country, before any action is taken to recover the child, the central authority in the Australian state or territory the child was taken from should be contacted for country-specific advice. The Commonwealth Attorney-General or the Department of Foreign Affairs and Trade may be able to supply a list of lawyers in an overseas country who are familiar with international child abduction matters. The parent may qualify for limited financial assistance from the Commonwealth to bring domestic proceedings overseas.