Matters involving The Hague Convention On The Civil Aspects of International Child Abduction (“the Convention”) and the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”) are wont to attract some excitement by practitioners, litigants and the community at large. However the law is applied in those matters as it is applied in any other matter.

Garning & Director-General, Department of Communities (Child Safety Services) [2012] FamCAFC 35 (9 March 2012) [2012] FamCAFC 35 was such a matter and it involved an application for a return order under Regulation 15.  In dealing with the subject application the Full Court of the Family Court of Australia reminded us of the following:

The Criteria
The Court must make an order to return the children if the Court was satisfied:
•    an application for a return order:
    •    was made; and
    •    had been filed within one (1) year after the removal or retention of the children; and
•    the Central Authority satisfied the Court that the removal or retention of the children was wrongful under sub-regulation (1A) of Regulation 16.

(1A)   For subregulation (1), a child's removal to, or retention in, Australia is wrongful if:
    (a)     the child was under 16; and
    (b)     the child habitually resided in a convention country immediately before the child's removal to, or retention in, Australia; and
    (c)     the person, institution or other body seeking the child's return had rights of custody in relation to the child under the law of the country in which the child habitually resided immediately before the child's removal to, or retention in, Australia; and
    (d)     the child's removal to, or retention in, Australia is in breach of those rights of custody; and
    (e)     at the time of the child's removal or retention, the person, institution or other body:
        (i)    was actually exercising the rights of custody (either jointly or alone); or
        (ii)    would have exercised those rights if the child had not been removed or retained.

That mandatory return is made subject to the conferral of discretion not to order the return of the children if the person opposing the return of the children establishes one or more of the matters prescribed in sub-regulation (3) of Regulation 16.

(3)     A court may refuse to make an order under subregulation (1) or (2) if a person opposing return establishes that:
    (a)     the person, institution or other body seeking the child's return:
        (i)     was not actually exercising rights of custody when the child was removed to, or first retained in, Australia and those rights would not have been exercised if the child had not been so removed or retained; or
        (ii)    had consented or subsequently acquiesced in the child being removed to, or retained in, Australia; or
    (b)     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; or
    (c)     each of the following applies:
        (i)     the child objects to being returned;
        (ii)    the child's objection shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes;
        (iii)   the child has attained an age, and a degree of maturity, at which it is appropriate to take account of his or her views; or
    (d)     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.

The Court has the power to order any conditions that it considers necessary to give effect to the Convention (See Regulation 15 (1)(c))

Conclusion
Those are the relevant criteria for consideration by the Court. Those are the criteria that will be discussed in argument before the Court. Those are the criteria that should be the subject of the material that purports to support any such application. Attacking the application in that fashion may give lawyers and litigants some respite from the excitement that those cases can generate.

Ross Bowler LLB

Footnote
This article has been published by CCH Australia in its Tracker Series

Ross Bowler, CCH, Australian Family Law Tracker, Issue 5, May 2012 "International Child Abduction, Overseas Travel and Parenting Arrangements"
 
 
Overseas travel is a reasonably common occurrence in Australian life today. That travel can be either for business or pleasure, sometimes it is for both. Matrimonial or relationship disharmony need not be a complete impediment to such travel including the children of separated or divorced parents.

Application by a Parent To Take a Child Out of Australia Temporarily
In Fink & Abernathy [2011] FMCAfam 1467 (16 December 2011), amongst other issues, Scarlett FM dealt with an application by a parent to take a child out of Australia temporarily.  After having recourse to Kuebler & Kuelber [1978] FLC 90-434; [1978] Fam LN 4; Line & Line [1997] FLC 92-729; and Sefu & Gyasi [2010] FMCAfam 1004 the Court found the following to be relevant considerations in such an application:

- The degree of risk that the child will not be returned to Australia; and
- Whether the country of travel is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction.

In Bray & Constable [2011] FMCAfam 1397 (16 December 2011) Kelly FM found the Court should also consider whether:
- The proposed destination may expose the child to any risk or threat of harm; and
- The travelling parent has satisfied the Court regarding their bona fides.

Degree of Risk
Scarlett FM found further that the degree of risk that the departing parent may choose not to return to Australia is considered in light of the following:
- The existence (or otherwise) of continuing ties between the departing parent and Australia (such as the ownership of real estate; the existence of business interests, or the residence of close family and friends here);
- The existence and strength of possible motives not to return (including the level of conflict between the parents, particularly over child-related issues); and
- The existence and strength of possible motives to remain in the other nominated country (such as the ownership of real estate; the existence of business interests; or the residence of close family and / or personal friends there)

Cash Security
Insofar as providing a cash security in such an application is concerned, Scarlett FM found the purpose for so doing is to provide a sum:
- Which will realistically entice the person removing the children to return; and
- To adequately provision the party left in Australia to take action and proceedings in Australia and overseas in an endeavour to obtain the return of the children.

PACE Alert / Airport Watch List
Touching briefly of the issue of PACE Alerts, in addition to the foregoing, relevant considerations in any application for a PACE Alert or for the names of the children to be placed on the Airport Watch List are whether:
- The restrictions as sought by the applicant are unnecessary and unduly restrictive.
- To do as the applicant proposes will doom the parties to further litigation in the future; and
- That further litigation will not in the best interest of the Child.

Conclusion
Like the best travel experiences good preparation can improve the outcome immensely. Properly addressing the issues raised above in your application material will provide the Court with the opportunity to fully consider whether the requested temporary overseas travel with the children of the relationship is appropriate.

Ross Bowler LLB

Footnote
This article has been published by CCH Australia in its Tracker Series

Ross Bowler, CCH, Australian Family Law Tracker, Issue 5, May 2012 "International Child Abduction, Overseas Travel and Parenting Arrangements"