AUSTRALIA Law and Practice Contributed by: Eleanor Lau, Skye Owen and Monica Bayas Inglis, Lander & Rogers
brought for the return of the child to another Conven - tion country, provided the parent meets the relevant means, merit and forum tests. The Central Authority in Australia can also provide limited advice without cost. However, while the inter - ests of a parent of an abducted child and the Central Authority are often the same, the Central Authority does not act on the instructions of the parent and can provide only limited advice to that parent. The Central Authority can also provide financial assis - tance. Applications can be made to cover the overseas legal costs of obtaining a court order for the return of a child and flights to return a child to Australia (as well as flights for those who are required to attend proceed - ings overseas). These grants do not cover the costs to access a child, nor any Australian legal costs. Eligibility requirements mean funding will generally be limited to those experiencing financial difficulties, who have rea - sonable prospects of the child being returned, and who are not otherwise eligible for legal assistance. As of 1 January 2024, the International Child Abduc - tion Respondents Scheme (ICARS) may also provide funding to a parent who is responding to an applica - tion seeking the return of an abducted child made in an Australian court. The parent must be named as the respondent and is subject to certain eligibility require - ments. Funding covers the reasonable costs of an Australian lawyer as well as disbursements, including the costs associated with obtaining an expert report or any court fees that may be incurred. A responding parent may also rely on the fact that the Central Authority is a “model litigant”. A model litigant, in Australia, is a term that refers to a government or government agency that is expected to conduct itself with the highest standards of ethical and professional behaviour in legal proceedings. For example, if the Cen - tral Authority was presented with evidence that a child was in fact not wrongfully retained or if the defences to wrongful removal were made out, the Central Authority would be required to discontinue proceedings. The Number of Hague Convention Cases The number of Hague cases in Australia varies each year. Applications may be bought to the Central
Authority to determine the merits of the case before proceeding with prosecution. Once the matter is listed before a trial judge, parties will be referred to mediation in an attempt to resolve the proceedings and consider the prospects of success. Cases may be withdrawn as evidence unfolds and few cases are ultimately determined by a trial judge, with the exact figure unknown. The Attorney General’s annual report recorded 159 international family law matters that were finalised in the 2022/2023 financial year. While this figure is not Hague specific, it provides an approximate indication of the number of applications bought forward each year. Noting this figure was 101 in the 2021/2022 financial year, the data suggests that applications fluctuate each year. Application of the Hague Convention Australia rigorously applies the underlying principle of the Hague Convention for the immediate return of the child to its habitual residence. However, in doing so, the Court does carefully consider and balance the totality of the evidence, including in relation to any defences to the Convention. Australia is bound to give effect to the Hague Conven - tion insofar as it has been endorsed by the Regula - tions, limiting, to some extent, judicial discretion. This is reflected under the Regulations, which provide that the Court is also required to expedite the determina - tion of any Hague Application, ensuring the immediate return of the child. Accordingly, matters involving the Hague Convention are expedited by the Court and judicial officers return judgments in a timely fashion (usually within six to eight weeks of filing per Article 11). Returning a Child to a Non-Convention Country If the child is in Australia and a parent seeks an order for a child to be returned to a non-Hague Conven - tion country, the parent seeking the return of the child would need to file an application in the Court follow - ing the principles set out in 2.3 Application to a State Authority for Permission to Relocate a Child . In mak - ing such an application, the parent could seek that the application be dealt with urgently. Although not bound by the principles of the Hague Convention, the Court must always consider the best
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