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 Information for responding parents

Abduction

If you have taken your child out of the child's home country

If you have brought your child to Australia without the permission of another parent or guardian, and are worried about a child abduction case, you may wish to read the information on the international child abduction and access page.

It is possible that the other parent, or another person who has rights of custody of the child, will make an application under the Hague Convention for the return of the child to their home country.

If you are worried about this possibility, you may wish to seek legal advice about your options. Visit the Support and assistance page for resources to help you locate a lawyer or legal service near you.

If you have been served with court documents

If a person has named you as the person who has abducted a child, you may have been served with court documents about a Hague Convention child abduction case.

For general information about the Hague Convention, visit the international child abduction and access page.

If you have been served with court documents, you will be named as the 'respondent' in a court case. Remember that breaching any court orders or not complying with court directions may have negative consequences for you.

Below is some general information about the defences you can use under the Hague Convention to object to the return of your child to the child's home country. For specific information about how they apply to your situation, or what you should argue in your case, you should contact a lawyer. Visit the Support and assistance page for resources to help you locate a lawyer or legal service near you.

Grounds for non-return

The court may decide not to return the child for one or more of the following reasons:

  • the applicant was not exercising their rights of custody of the child at the time of the removal or retention
  • the applicant consented to the removal or retention, or subsequently acquiesced to the removal or retention (visit the questions about international child abduction page for more information on what 'acquiescence' means)
  • there is a grave risk that the child's return would expose the child to physical or psychological harm, or otherwise place the child in an intolerable situation
  • the key requirements of the convention have not been met (read the 'Guide for applicants—abduction' brochure available on the international child abduction and access page for information on the key requirements of the convention)
  • the child has been in the new country for more than twelve months and is settled there
  • the child objects to being returned to its home country, and is old enough and mature enough for its views to be considered
  • returning the child would breach their fundamental freedoms and human rights.

The process

Once you are served with documents, it is likely that there will be a court date soon. It is likely that you will then be given some time to respond to the application for the return of the child to its home country.

If you decide to return the child voluntarily (that is, you do not want to oppose the application), you should contact the other party to the court proceedings, who will be listed on the court documents.

If you decide to oppose the application and do not want the child to return to their home country, the correct form for responding is the Form 2A answer and cross-application.

If you need help completing the answer or complying with the court's directions, you should seek legal advice. Visit the Support and assistance page for resources to help you locate a lawyer or legal service near you. If you have questions about lodging documents or other court processes, you can contact the Family Court and Federal Circuit Court national enquiry centre on 1300 352 000, or the Family Court of Western Australia on 08 9224 8222.

After you submit your answer, the applicant will have an opportunity to respond to any arguments you make in your answer before the court hearing.

The court will order whether the child should be returned to its home country or not.

Access

If you have been contacted about negotiating access to a child

If someone in another country wants access to a child of whom you have custody, and feels that they are being prevented from having that access, they may make an application under the Hague Convention for court orders giving them access to the child.

If you have been contacted by someone acting on behalf of a person who wants access to your child, they may be asking you to consider negotiating or mediating access to the child, before they go to court. It is up to you whether or not you wish to negotiate or mediate. You may wish to seek legal advice if you are unsure.

Visit the Support and assistance page for resources to help you locate a lawyer or legal service near you.

If you have been served with court documents

If you have been served with court documents about a Hague Convention access application, it is likely that you are now a 'respondent' in a court case.

The Hague Convention does not include any specific arguments against granting access to a person. If a person has rights of access under law to the child, the court will decide, based on the submissions from the applicant and the respondent, what access to order.

Access can include things like telephone, email, text messaging and Skype, as well as physical contact such as holidays.

The process

Once you are served with documents, it is likely that there will be a court date soon. It is likely that you will then be given some time to respond to the application for access.

If you decide to oppose the application and do not want the person to have access to the child, or want to propose different access to what the applicant is seeking, the correct form for responding is the Form 4A answer and cross-application.

If you need help to complete the answer, or to comply with the court's directions, you should seek legal advice. Visit the Support and assistance page for resources to help you locate a lawyer or legal service near you. If you have questions about lodging documents or other court processes, you can contact the Family Court and Federal Circuit Court national enquiry centre on 1300 352 000, or the Family Court of Western Australia on 08 9224 8222.

After you submit your answer, the applicant will then have an opportunity to respond to any arguments you make in your answer before the court hearing.

The court will order the access it thinks appropriate based on a number of factors. These factors include the arguments of the applicant and respondent, the age of the child, the relationship between the child and the applicant, and the financial situations of the parties.

For more assistance

If you need help understanding your situation and what you should do, you will need to contact a lawyer. Visit the Support and assistance page for resources to help you locate a lawyer or legal service near you.

If you need information about court processes, you may wish to contact the relevant court. If you have received court documents, the court will be listed on those documents. You can contact the relevant court at:

Family Court of Australia and Federal Circuit Court
Call: 1300 352 000
Email: enquiries@familylawcourts.gov.au

Family Court of Western Australia
Call: 08 9224 8222.

The Australian Central Authority cannot assist responding parents or provide legal advice.

You may wish to visit the Support and assistance page for details of other relevant services and organisations.