Your child has been abducted FROM Australia TO another country OVERSEAS
a) The 'overseas country' is a 'Convention country'
If a child has been taken from Australia without proper consent, or has not been returned to Australia after a contact visit, you may request assistance from the Department.
If your child is returned to Australia from another country under the Convention, any dispute as to issues of parental responsibility must be resolved by the courts in Australia.
The court will have to consider what is in the best interests of the child, and the abducting parent may be successful in obtaining an order permitting the abducting parent to relocate with the child from Australia to live permanently in another country.
If you wish to make an application, please read the following information before you apply:
- Requirements for Application
- Grounds for objection
- Legal Expenses and Other Costs
- Processing an Application for return
Requirements for Application
There are a number of requirements that must be satisfied before a person can make an application for the return of a child under the Convention. These are:
1. The child must be under 16
The Convention will not apply to a child over 16. Even if proceedings have commenced, they would be terminated if the child turned 16. A birth certificate or passport is sufficient proof of age.
2. The abduction or retention must have occurred between countries that are parties to the Convention
If you are unsure whether your child has been removed from Australia, or unsure about which country the child has been taken to, the Australian Government Attorney General's Department may be able to find out if your child has left Australia by aircraft or ship to go to another country (Telephone 1800 100 480).
3. The removal or retention of the child must be a breach of a person's rights of custody
A person has 'rights of custody' if they have parental responsibility for a child. Parents do not need to have a court order to have parental responsibility for a child. The Family Law Act 1975 automatically gives most parents in Australia parental responsibility for their children. A person may still have 'rights of custody' even when a court has made an order giving one parent day to day responsibility for the care of a child. In this situation most Convention countries will accept that the other parent has 'rights of custody' as they are still responsible for the long term care, welfare and development of the child.
4. The applicant must have been exercising his or her rights of custody to the child (or would have been exercising those rights but for the removal or retention)
This is not usually a significant barrier to making an application. In practice a parent who has the right to determine where his or her child lives, and who has not abandoned that right, will be recognised as a person who is 'exercising rights of custody' within the meaning of the Convention.
5. The child must have been habitually resident in a Convention country before the removal or retention
6. The applicant must not have consented to the removal or retention
If any one of these requirements is not met, the child will NOT be returned.
Grounds for objection
The Convention establishes a number of grounds on which an abducting parent may rely to oppose the return of a child to Australia. You may be asked to provide evidence to counter any allegations made by the parent overseas in relation to these defences.
The abducting parent may oppose return of the child for the following reasons:
1. The child is aged 16 or over
If the child turns 16 before the application is resolved by the overseas court, the child will not be returned as the Convention no longer applies.
2. The child has been outside Australia for over 12 months and is settled in his or her new environment
If an application is made to an overseas court more than 12 months after a child is removed or retained outside Australia, and the child is settled in his or her new environment overseas, the overseas authorities may refuse to return the child.
3. The child was not habitually resident in Australia at the time of the removal or retention
The habitual residence of the child is the same as that of the parents. If there is some doubt about habitual residence, the court will examine all the evidence, such as the length of time the child was in the country, the parents' intentions and any change of intention following a decision to migrate.
4. The applicant in Australia did not have rights of custody to the child
A parent in Australia who has parental responsibility for a child has a 'right of custody' for the purpose of the Convention. Occasionally a foreign court has refused to recognise a 'right of custody' under Australian law because the applicant parent had a contact order which did not state that the parent had ongoing parental responsibility.
5. The applicant in Australia was not exercising rights of custody to the child at the time of the removal
Sometimes the abducting parent will argue that the applicant parent was not 'exercising rights of custody' because e/she had not seen the child for some time. In practice as parent who has the right to determine where his or her child lives, and who has not abandoned that right, will usually be recognised as a person who is 'exercising rights of custody' within the meaning of the Convention.
6. The applicant gave prior consent to the permanent removal or retention or subsequently acquiesced to the removal or retention
In some cases overseas authorities refuse to order the return of a child because the applicant has by words or by conduct given prior consent to, or subsequently acquiesced in, the permanent removal or retention of the child overseas. Where there is clear and unequivocal consent or acquiescence, the overseas authorities will exercise discretion about whether to order the return of the child.
7. The child would be exposed to a grave risk of physical harm, psychological harm or some other intolerable situation if returned to Australia
In some cases overseas authorities refuse to order the return of a child because they accept arguments from an abducting parent that the child will be at grave risk of physical or psychological harm, or otherwise be placed in an intolerable situation, on return. These arguments are rarely accepted by authorities in New Zealand, the United Kingdom, Canada or the USA because arrangements can be made by Australian government authorities for the protection of children and abducting parents on their return to Australia. However, authorities in other countries may accept such arguments more readily.
8. The child objects to being returned and is of an age and maturity to justify his or her views being taken into account
In some cases overseas authorities have accepted the objection of a child as a reason for refusing return. The objections of children as young a 9 or 10 have been accepted by foreign courts. If such a child has valid grounds for objecting to return to Australia (as distinct from a preference to remain with the abducting parent), the overseas court will exercise a discretion about whether to order the return of the child.
9. The child's return would be a breach of its fundamental freedoms and human rights
This ground is recognised in the Hague Convention but in practice is rarely relied on by overseas authorities as a ground for refusing return.
If only one of the above grounds can be met, then the abducting parent is likely to successfully oppose the return of the child.
Legal Expenses and Other Costs
State Central Authorities will assist an applicant in Australia to prepare an application. However, an applicant who chooses to instruct a private solicitor to prepare an application will not have those legal expenses reimbursed by the Commonwealth.
Some Convention countries impose charges if legal proceedings are taken in that country to obtain an order for return.
Where a child has been abducted from Australia, an application for financial assistance for the return of the child may be made under the Overseas Custody (Child Removal) Scheme. The scheme provides financial assistance to parents for expenses for legal representation overseas and for reasonable costs associated with securing the return of the child eg. travel and accommodation costs for the parent in Australia to travel overseas and accompany the child back to Australia. Applications should be made to the Financial Assistance Section, Legal Assistance Branch, Australian Government Attorney-General's Department, National Circuit Barton ACT 2600, telephone 02 6250 6770.
Processing an Application for return
When an application is received by the State or Territory Central Authority, it will be faxed to the Attorney-General's Department in Canberra which co-ordinates the operation of the Convention in Australia. The Attorney-General's Department will transmit the application to authorities in the Convention country where the child is thought to be. That Authority will take action to have the child returned. There may a short delay if documents must be translated into another language.
The length of time before the child is returned varies, depending on:
- delays in the legal system of the Convention country,
- whether the abducting parent opposes the application for return of the child, and
- whether the abducting parent appeals a court decision to return the child.
The procedures which are followed in the other Convention country vary from country to country, and in some countries it may take some time for any action to be taken. Applicants in Australia will be kept informed of developments in their case by the relevant State or Territory Central Authority. Progress reports will be provided by overseas authorities, but not usually before six weeks from the date of receipt of the application. For progress reports, contact the relevant State or Territory Central Authority.
In many countries you will need a lawyer to represent you. The Australian Government Attorney-General's Department can usually arrange for the Central Authority in the overseas Convention country to find a lawyer to act on your behalf. In other cases the Department may be able to arrange for an Australian embassy or overseas post to recommend a lawyer.
The Convention envisages that overseas authorities will make a decision about the return of the child without the applicant travelling to the Convention country. In most cases overseas authorities will allow a child to be returned to Australia in the company of the parent who took the child overseas. Nevertheless, in some countries you may be required to attend court proceedings in that country to give evidence as a witness or to collect the child. The Australian Government Attorney-General's Department will advise you if this is necessary. You should ensure that you have a current passport and valid visa for the relevant country. You should not travel unless this is absolutely necessary because legal proceedings in other countries often involve lengthy adjournments. Where travel to the Convention country is required and a parent needs assistance to pay fares and living expenses, the Australian Government Attorney-General's Department may provide financial assistance.
b) The 'overseas country' is a party to a bilateral agreement
Currently, the only existing bilateral agreement is with Egypt. To find out what to do if your child has been abducted to Egypt, please call the ICA Hotline on 1800 100 480
c) The 'overseas country' is NOT a party to the Convention and is NOT a party to a bilateral agreement
If your child has been taken to a country that is NOT a party to the Hague Convention and is NOT a party to a bilateral agreement with Australia, you are advised to employ a lawyer in the overseas country to take legal proceedings to recover your child. Unfortunately, this process can be more complicated, time-consuming and expensive than the process under the Hague Convention.
The Consular Section of the Department of Foreign Affairs and Trade may be able to provide a list of lawyers in that country. The service operates 24-hours a day and can be contacted on 1300 555 135.
Officers in Australian embassies and missions abroad may also be able to obtain information with respect to the health and safety of the abducted child.
If you cannot pay legal fees, airfares or other costs associated with the recovery of your child, you may be eligible for financial assistance from the Australian Goverment Attorney-General's Department.