Your child has been abducted FROM another country overseas TO Australia
a) The 'overseas country' is a 'Convention country'
If your child was habitually resident in a Convention country and has been wrongfully removed to or retained in Australia, you may apply for the return of the child to the Convention 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,
2. the applicant must have had 'rights of custody' to the child (by law, court order or legal agreement) prior to the removal or retention,
3. 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),
4. the child must have been habitually resident in a Convention country before the removal or retention in Australia, and
5. the applicant must not have consented to the removal or retention of the child
If one of these requirements is not met, the child will not be returned.'
Grounds for objection
The abducting parent in Australia may oppose return of the child for the following reasons:
1. The child is aged 16 or over,
2. The child has been outside the other country for over 12 months and is settled in his or her new environment in Australia,
3. The child was not habitually resident in the other country at the time of the removal or retention,
4. The applicant in the other country did not have rights of custody to the child,
5. The applicant in the other country was not exercising rights of custody to the child at the time of the removal,
6. The applicant gave prior consent to the permanent removal or retention or subsequently acquiesced to the removal or retention,
7. The child would be exposed to a grave risk of physical harm, psychological harm or some other intolerable situation if returned to the other country,
8. The child objects to being returned and is of an age and maturity to justify his or her views being taken into account, OR
9. The child's return would be a breach of its fundamental freedoms and human rights
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
Persons from an overseas Convention country seeking the return of their child from Australia will not be required to bear any legal costs incurred by Central Authorities in Australia giving effect to Australia's Convention obligations. If an applicant chooses to instruct a private solicitor to prepare the application, these costs will not be reimbursed.
The Commonwealth will not be responsible under the Convention for any costs incurred by an applicant for airfares for the return of the child from Australia to the country of habitual residence. An undertaking may be required from overseas applicants to pay for the travel and related costs of returning the child. However, an applicant can request that the responsible Central Authority obtain a court order directing that the necessary expenses incurred by or on behalf of the applicant, including travelling expenses and costs incurred to locate a child, be paid by the person who removed the child to Australia.
Processing an Application for return
You would normally apply for the child's return through the Central Authority of your country of habitual residence.
If you are in Australia because your child has been abducted from another Convention country to Australia, or is being wrongfully retained in Australia, an application under the Convention for the return of the child should be sent in the first instance to the Commonwealth Central Authority. State/Territory Central Authorities can assist you to prepare an application form. The Commonwealth Central Authority will consult the Central Authority in your country of habitual residence about the application.
The Commonwealth Central Authority must be satisfied that the application is in accordance with the requirements of the Convention. If it is satisfied with the application it will arrange for the appropriate State Central Authority to take legal action to obtain an order from the Family Court for the return of the child to his or her country of habitual residence. The abducting parent will then be required to defend the application or negotiate with the State/Territory Central Authority for a voluntary return. You may have to pay airfares for the return of the child.
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 from 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.