AUSTRALIA Law and Practice Contributed by: Eleanor Lau, Skye Owen and Monica Bayas Inglis, Lander & Rogers
interests of the child, and may consider the policy behind the Hague Convention in reaching a deci - sion. Evidence of a foreign parenting order conferring parental responsibility on the parent seeking return of the child may be given weight, particularly where it is a recent order, as may evidence of communication between the parties prior to, and after, the removal of the child. Other relevant evidence includes: • source documents from the non-Hague Conven - tion country (including school reports and medical records); and • expert evidence of the laws in the non-Hague Con - vention country, in respect of family and criminal law. If the Court makes an order to return a child to a non- Hague Convention country, the Court may request the Australian Federal Police to assist with the return of the child. There may be difficulty enforcing any Australian par - enting order in the non-Hague Convention coun - try unless said country is a signatory to the Hague Convention on Jurisdiction, Applicable Law, Recog - nition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protec - tion of Children (the “Hague Child Protection Con - vention”), which requires member states to recognise and enforce parenting orders made in other member states. Australia ratified the treaty in 2003 and imple - mented it through the 2003 Child Protection Conven - tion Regulations. If a parent with orders made in a Convention country intends to travel to Australia and wants those orders to be binding in Australia, they can provide the order to the Central Authority in their home jurisdiction, which will then transmit it to the Australian Central Authority. The Australian Central Authority will then arrange for the order to be issued by the Family Court of Australia as a foreign-registered measure. Once the overseas orders are registered, they will be enforceable in Aus - tralia. Similarly, the Child Protection Convention may assist in circumstances where both countries are signatories
to the Child Protection Convention but one country is not a party to the Hague Convention. In such circum - stances, orders made in Australia could be registered in the non-Hague Convention country. Once regis - tered, the order may be enforceable in that country. Costs and Average Timescale for Hague Applications An application under the Hague Convention is typi - cally made by the Central Authority on behalf of the left-behind parent. Such application is without legal cost to the left-behind parent, who may also seek funding from the ISS to assist with an application. In contrast, there are several grants available to a par - ent responding to or defending an application under the Hague Convention in Australia. Grants include legal aid in the relevant state, ICARS and the ISS. See “Access to Free Legal Advice” for more information. A court must not make an order that requires the Commonwealth Central Authority or a State Central Authority to pay costs in relation to exercising their power or performing the function of the Common - wealth Central Authority pursuant to the Convention. This means that where a responding parent is privately funded, costs associated with meeting the application cannot be recoverable against the Central Authority. Time A Hague Application may be conducted on the papers, meaning the Court can make orders without any oral submissions or cross-examination. While the Court is required to expedite the determination of a Hague Application, an application on the papers is more effi - cient. Other variables influencing timescale include: • whether the location of the child is known; • whether the application is heard on an ex parte basis; • the conduct of the respondent; and • the number of defences and types of disputes raised. 3.4 Non-Hague Convention Countries This is not applicable, as Australia is a Hague Conven - tion country.
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