AUSTRALIA Law and Practice Contributed by: Eleanor Lau, Skye Owen and Monica Bayas Inglis, Lander & Rogers
If the parent who has taken the child can satisfy the Court that they meet one of the following exceptions, then the Court may determine that, whilst the above criteria are met, the child does not have to return to the country they came from. • 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. • The parent seeking the return consented to the removal or retention, or subsequently acquiesced to the removal or retention. • The child objects to returning to the previous coun - try and the Court considers it appropriate to take into account those views due to the child’s age and level of maturity. • The parent seeking the return: (a) was not actually exercising rights of custody when the child was removed or retained; and (b) those rights of custody would not have been exercised by that parent if the child had re - mained in the country. • It would otherwise not be permitted by the princi - ples of fundamental freedoms or for the protection of human rights. If a return order is made, this is not determinative of where the child will continue to live for the foresee - able 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. 3.3 Hague Convention on the Civil Aspects of International Child Abduction Australia is a signatory to the Hague Convention and has ratified its obligations under the Convention through the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (the “Family Law Regulations”). Rights of the Child In May 2024, the Family Law (Child Abduction Con - vention) Amendment (Child’s Objection) Regula - tions 2024 (Cth) came into force, which repealed the requirement that a child’s objection to a return order must “show a strength of feeling beyond the mere
expression of a preference or of ordinary wishes” in order to be considered by the court. The amendment to the Regulations removes the higher threshold requirement which provides that the Family Law (Child Abduction Convention) Regulations 1986 must not allow an objection by a child to return under the Hague Convention to be taken into account unless the objection imports a strength of feeling beyond the mere expression of a preference or of ordinary wishes. The explanatory memorandum observes that the pur - pose of this change is “increasing the voice of the child in these cases, and therefore prompting the child’s right to be heard.” The changes realign the Family Law Act with the obli - gation under Article 13 of the Hague Convention. As yet, no case has considered in any detail or at any length the apparent lowering of the threshold for consideration of children’s wishes, but the Court must still take into account the child’s views in determining the matter. This may not result in a material change in outcomes. Access to Free Legal Advice Free legal advice in relation to the abduction of a child is available by contacting the International Social Service (ISS) Australia. ISS is a not-for-profit charity that provides a range of free legal services to those affected by international child abduction. The relevant services include: • free legal assistance with the preparation and sub - mission of a return application or access to a child under the Hague Convention; • free legal advice to overseas applicant parents dur - ing mediation; • advising and representing parents whose return application has been filed in court in Australia in any mediation regarding that application; and • counselling and social support services, including advice, information and referral to other services. Legal aid is also available in each state or territory to provide free advice in relation to international abduc - tion matters, including assisting with applications
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