Garning & Director-General, Department of Communities (Child Safety Services)  FamCAFC 35 (9 March 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 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))
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
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"