AUSTRALIA Law and Practice Contributed by: Kerri Phillips, Matthew Levy and Cassandra Bennett, Phillips Levy Bennet Legal
First, if the country where the child is physically pre - sent is a signatory to the 1980 Convention on the Civil Aspects of International Child Abduction (the “Child Abduction Convention”) and the Convention is in force between Australia and that country, an application can be made for the return of the child under the provi - sions of the Child Abduction Convention. International Social Service Australia (ISS) provides free advice and assistance to parents who want to make an applica - tion for the return of a child to Australia under the Child Abduction Convention. Secondly, a parent could make an application to the FCFCOA for orders to facilitate the return of the child to Australia under the provisions of the Family Law Act. When considering an application for an interna - tional recovery order, the court will consider, amongst other things, whether it has jurisdiction to make orders about the child and, if so, whether the court should exercise jurisdiction to make the orders sought. The court will consider the following factors, amongst oth - ers. • Whether the child is habitually resident in Australia, even though they are physically present in the other country. • Whether the Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforce - ment and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (the “Child Protection Convention”) is in force between Australia and the country where the child is physically present. • If the Child Protection Convention is not in force in the other country, whether that country (or part of that country) is a “prescribed jurisdiction” for the purpose of the Family Law Regulations 2024. If the other country is a prescribed jurisdiction, it means that some types of orders made by the FCFCOA can be registered and enforced in that other coun - try, and vice versa. For example, New Zealand and most states of the United States of America are prescribed jurisdictions. • If the Child Protection Convention is not in force in the country where the child is physically present, and the country is not a prescribed jurisdiction, it does not necessarily mean that the other country will not recognise orders made by the FCFCOA.
It may mean, however, that expert evidence is required about the operation of law in that country. • There are some cases where the FCFCOA will still make orders to facilitate the return of a child, even if the orders will not be recognised, or can - not be registered or enforced in the other country. For example, if the parent or adult who removed or facilitated the removal of the child is present in Australia, the court can sometimes make orders requiring that person to return the child to Aus - tralia. In these types of cases, the parent or other adult might be prevented from leaving Australia until the child is returned. Finally, a parent or other person with parental respon - sibility for a child who has been removed to or retained in another country without their consent can apply to the Overseas Child Abduction Scheme for assistance to cover the costs of legal representation in the other country and flights. The funding is not usually availa - ble if the parent could meet the costs without incurring serious financial difficulty, does not have reasonable prospects of success, or would be eligible for legal assistance in the other country. Funding is available in all types of child abduction cases, whether or not the Child Abduction Convention applies. More informa - tion can be found on the Overseas Child Abduction Scheme. It is important to remember that steps can be taken to prevent a child being removed from Australia. For example, a parent or person with parental responsibil - ity can submit a Child Alert Request to the Australian Passport Office. This is a warning to the Department of Foreign Affairs and Trade that there may be some issues to consider before issuing a child with an Aus - tralian passport or travel document. The Australian Federal Police can also place a child’s name on the Family Law Watchlist, if parenting proceedings have started or an order has been made by the court. 3.3 Hague Convention on the Civil Aspects of International Child Abduction Implementation of the Child Abduction Convention into Australian Domestic Law Australia signed the Child Abduction Convention in 1983, following which the Convention was implement - ed into Australian domestic law through the Family
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