AUSTRALIA Law and Practice Contributed by: Eleanor Lau, Skye Owen and Monica Bayas Inglis, Lander & Rogers
up to three years’ imprisonment in Australia if a child is removed from Australia. In certain circumstances, there may also be criminal ramifications for owners or captains of vessels removing a child from Australia. It is also a criminal offence to retain a child outside of Australia for longer than consented to by the other parent or ordered by the Court. An exception applies where a person removes a child from Australia (or retains a child outside of Australia) to prevent exposing the child to a grave risk of harm or otherwise intolerable situation, such as family violence or serious neglect, and the conduct is reasonable in the circumstances as perceived by the person who removed or retained the child. 3.2 Steps Taken to Return Abducted Children The following steps can be taken if a child has been removed from Australia or retained in another country outside of Australia without a parent’s consent. • The left-behind parent can seek an order from the Court for sole decision-making in relation to the child and for the child to be returned to Australia. Such an order would only assist if the child was to return to Australia, or if the country to which the child was taken would enforce the Australian court order through some type of registration process. It is unlikely that an Australian court order would be enforced by an overseas jurisdiction. • An application can be made under the Hague Convention. The Hague Convention is an agreement to protect children from international abduction and arrange the prompt return of children who are wrongfully removed from their home country. Australia is a party to the Hague Convention and has ratified its obligations under the Convention through the Family Law (Child Abduction Convention) Regulations 1986 (Cth). If a child has been removed from Australia to another country that is a party to the Hague Convention (with - out consent or a Court order permitting the removal), the following steps can be taken to return the child to Australia.
• An application for the return of the child to Austral - ia can be made by the Central Authority in Australia to the Central Authority of the Hague Convention country where the child has been taken. • The applicant must establish that: (a) they are an eligible applicant (if a child is wrongfully removed from Australia or retained in a Convention country, only the responsible authority may apply); (b) there is a relevant child under the age of 16 years; and (c) the child has been either wrongfully removed or retained in a country that is a party to the Hague Convention. The Court in the jurisdiction where the child has been removed to and/or retained is required to order the return of a child to Australia if: • an application is made for a child to be returned; • the application is filed within one year of the child being removed from or retained in another country (although this is not a statutory bar); and • the court is satisfied that the child’s removal or retention was wrongful. The Court considers the following criteria in deter - mining whether the child’s removal or retention was wrongful: • the child is under 16 years; • immediately prior to their removal, the child was habitually resident in the country from which they were removed; • immediately prior to the removal or retention, the parent seeking the return of their child had rights of custody in relation to that child; • the wrongful removal or retention of the child breached that parent’s rights of custody; and • at the time of the removal or 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 all of the above criteria are met, it is required to order the return of the child.
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