INTERNATIONAL PARENTING DISPUTES

International child abduction refers to a situation where a child has been taken from their home country, such as Australia, to another country without their parent’s consent. There are steps that can be taken to prevent this situation arising, but there are times when it may be too late and you need to make an application under the Hague Convention on International Child Abduction.

 

The Hague Convention on the Civil Aspects of International Child Abduction is an agreement or treaty between different countries of the world (called signatories) which seeks to protect children from the harmful effects of abduction and their retention outside of their home country. The Hague Convention provides a procedure between signatory countries to return children to their home country, as well as to secure rights of access to children. The primary purpose of the Convention is not to determine issues of right or wrong between parents, but to secure the return of abducted children to their home country so that issues of residence and contact can be resolved by the courts of the child’s home country.

 

Since the Hague Convention came into effect in Australia in 1987, legislation was changed to ratify the principles and procedures governed by the Convention under the Family Law Act 1975 and the Family La (Child Abduction Convention) Regulations 1986. Whether the Hague Convention can help you in a child abduction matter depends on whether the jurisdictional requirements have been satisfied, i.e. is the other country a party to the agreement. There are a number of countries who are parties to the Hague Convention, including:

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If you believe your child or children is at risk of being taken overseas, you should contact Australian Federal Police immediately and also consult a family lawyer to make an urgent application to the Federal Circuit Court or Family Court of Australia for orders placing your child on the Family Law Airport Watchlist.

 

The Australian Central Authority is the designated agency through which to make a Hague Convention Application to seek the return of your abducted child. You will need to submit the prescribed Form 1 as well as an affidavit setting out the facts and circumstances of your situation and certified copies of your child’s passport and birth certificate. Other documents may need to be annexed to your affidavit to corroborate your evidence and to assist with identifying your child and their whereabouts.

 

Once your application is filed with the Australian Central Authority, it will be accepted or rejected. If your application is rejected, you can appeal the decision. If your application is accepted, then the Australian Central Authority will make contact with the Central Authority (or similar) in the country where your child is believed to be held at. The Australian Central Authority may also commence proceedings in the Family Court of Australia is no resolution is reached.

 

A successful application under the Hague Convention does not guarantee your children will be returned to Australia. The Hague Convention to return a child to their home country so that the Courts in that country can determine issues of residence and care for the child. The proper jurisdiction in which to determine future matters for a child is that which the courts determine to be the child’s place of ‘habitual residence’.

 

It is recommended that you in any court proceedings in the country where your child has been taken or held in, apart from those undertaken under the Hague Convention. If you participate in court proceedings in another country, the Court may deem your conduct as having demonstrated you give permission to remain in that country. This conduct is also phrased as “acquiescence” or “submitted the jurisdiction”. If you have submitted to the jurisdiction of the other Court, you may have severely prejudiced your case.

 

If you complete a Hague Convention application, and it is filed in the court of the country where your child is now, the Family Court of Australia will stop any domestic proceedings until after your Hague Convention application is finalised in the other country. You must also ensure that in any correspondence with the taking person, you do not agree to the child remaining overseas.

 

Applications under the Hague Convention and family law proceedings involving child abduction are complex and stressful. At KF Lawyers, we have experienced family lawyers and barristers to provide you with urgent advice, support and action. If you would like to discuss your options, please contact KF Lawyers for a consultation.