AUSTRALIA Law and Practice Contributed by: Kerri Phillips, Matthew Levy and Cassandra Bennett, Phillips Levy Bennet Legal
or retained in Australia, and the taking parent estab - lishes that the child is now settled in their new environ - ment, the court must not make a return order. This is sometimes referred to as the “settled” defence. Conditions to Return The court can make conditions to return, whether or not a defence has been established. Where the court is considering whether to refuse to make a return order, it must consider any conditions proposed by a party, or by the ICL. Conditions can be in the form of “soft landing” (also called “safe harbour orders”) or protective measures. Soft landing orders are directed at making the child’s return more comfortable and can include things like having the requesting parent provide financial assis - tance for flights or accommodation, provided the requesting parent has the capacity to provide the assistance. Protective measures are designed to address issues of grave risk or intolerability, and can include a broad range of services, advice and support. The court will only consider measures to be effective if they can be enforced in the other country. For example, undertak - ings that cannot be enforced in the other country will generally not be accepted as a way of ameliorating risk. Mediation In Hague return proceedings, the parents will often be encouraged to attend mediation, if appropriate. Medi - ation can be facilitated through the court, through the relevant Legal Aid Commission (if one of the parents has a grant of Legal Aid or there is an ICL) or through International Social Service Australia. Costs of Proceedings A parent (or other person) responding to an applica - tion for a return order can apply to the Legal Aid Com - mission in the state or territory where the proceedings are taking place. To be eligible for a grant of Legal Aid, a responding parent must meet both a means and a merit test.
In May 2024, the Attorney-General’s Department launched the International Child Abduction Respond - ents Scheme (ICARS). Funding is available to people: • defending or proposing to defend an application for a return order filed in an Australian court pursu - ant to the Regulations; • appealing or proposing to appeal a return order made by an Australian court under the Regulations; or • responding to or proposing to respond to an appeal against a decision to dismiss an applica - tion for a return order made by an Australian court under the Regulations. Under ICARS, respondents can obtain funding for advice, representation, mediation and disbursements. The funding is not retrospective. More information can be found at the Attorney General’s Department on the Australian Government website. There are limited circumstances in which the court can make orders requiring parties to pay costs in Hague return proceedings. 3.4 Non-Hague Convention Countries Australia has signed and ratified the Child Abduction Convention and the Child Protection Convention. Australia also has mechanisms in place to register orders made in some other countries, called “pre - scribed jurisdictions” (see 3.2 Steps Taken to Return Abducted Children ). There are bilateral agreements in place between the governments of Australia and Egypt, and the govern - ments of Australia and Lebanon, to assist parents to resolve disputes across international borders about their children. Applications for assistance under these agreements should be made to the Commonwealth Attorney-General’s Department. If a child has been brought to Australia, it is possible for the requesting parent to make an application for the summary return of the child to their country of habitual residence. It is possible to make this kind of application regardless of whether or not the Child Abduction Convention is in force between Australia and the other country.
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