AUSTRALIA Law and Practice Contributed by: Kerri Phillips, Matthew Levy and Cassandra Bennett, Phillips Levy Bennet Legal
Defences to Return Regulation 16 (3) provides that a court may refuse to make a return order if the person opposing return establishes that: • the person, institution or other body seeking the child’s return was not actually exercising rights of custody and would not have exercised the rights of custody if the child had not been removed or retained, or they consented or subsequently acqui - esced in the child being removed to, or retained in, Australia; • there is a grave risk that the return of the child under the Convention would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation; • the child objects to being returned, and has attained an age and a degree of maturity at which it is appropriate to take account of their views; or • the return of the child would not be permitted by the fundamental principles of Australia relating to the protection of human rights and fundamental freedoms. Grave Risk and Family Violence In considering whether the “grave risk” defence has been established, the court may have regard to any risk that the return of the child would expose them to family violence. The court may also have regard to the extent that the child would be protected from any such risk if the child was returned. The court may have regard to these matters regardless of whether or not it is satisfied that the family violence occurred, has occurred or will occur. There are a number of cases in which the court has considered allegations of family violence in the con - text of a grave risk defence. The court will refuse to make a return order if doing so would imperil a child’s safety or psychological stability, and inadequate pro - tective measures are available in the other country, or where the conduct of the perpetrator is such that any protective measures would be disregarded or could not be enforced. Delay in Making an Application If an application for a return order is filed more than a year after the day on which the child was first removed
Law Child Abduction Regulations 1986 (“the Regula - tions”). It is the Regulations that govern the way in which Hague return proceedings are conducted in Australia, rather than the Convention itself. An application for a return order is made to the FCF - COA. In most cases, the application is made by the Australian Central Authority (ACA) through the relevant State Central Authority (SCA), which is usually the state authority responsible for child protection. The taking parent is the respondent to the application. The requesting parent is a witness in the SCA’s case. The child will not be a party to the proceeding, but in many cases an ICL will be appointed to represent the child’s best interests. The ICL is treated in the same way as a party to the proceeding. A Hague return proceeding will be given priority and will usually be heard and determined within a relatively short timeframe. If the prerequisites for a return order are established (also called the “jurisdictional facts”), the court must make a return order, unless the parent opposing return can establish a defence (or exception) to return. If a defence to return is established, the court has discre - tion to return. Jurisdictional Facts Regulation 16 (1A) provides that a child’s removal to, or retention in, Australia is wrongful if all of the follow - ing things can be proven: • the child is under 16; • the child was habitually resident in a Convention country immediately before they were removed to or retained in Australia; • the person, institution or other body seeking the child’s return had rights of custody immediately before the removal or retention; • the child’s removal to or retention in Australia is in breach of those rights of custody; and • at the time of the child’s removal or retention, the person, institution or other body was actually exer - cising rights of custody, or would have done so if the child had not been removed or retained.
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