The diversity of Australia’s population and the modern ease of travel creates a concern for several parents around this time of the year – that being, what would happen if a parent were to leave the country with the children and threaten to not return.
The Hague Convention on the Civil Aspects of International Child Abduction is an international treaty established to address issues surrounding child abduction across national borders. This treaty, often simply referred to as the Hague Convention, provides for the prompt return of abducted children to the country which they ordinarily live in, even if they are not a citizen of the country. Australia is a signatory to this convention.
In Australia, including the state of Western Australia, the convention plays a significant role in family law, especially in cases involving international custody disputes and child abduction, particularly in cases where a child has been removed from their usual residence in another country or unlawfully retained in Australia.
Understanding the Hague Convention on International Child Abduction
The Hague Convention aims to protect children from the harmful effects of international abduction by a parent or guardian. Its main objectives are to:
- Secure the prompt return of children wrongfully removed to or retained in a contracting state (a country that has agreed to the Convention known as a signatory to the convention known as a signatory to the convention).
- Protect custody rights and access rights across international borders
How the Hague Convention Applies in Western Australian Family Law
When a child is wrongfully removed to or retained in Western Australia, the “left-behind” parent (applicant) can initiate Hague Convention proceedings by submitting an application. This can be done either directly through Western Australia’s Central Authority or the Central Authority in the applicant’s own country, which then liaises with Australian authorities. The Australian Central Authority is responsible for receiving and processing applications, assisting with investigations, and working with relevant family courts in Australia.
Role of the Family Court of Western Australia
The Family Court of Western Australia (FCWA) is tasked with determining whether a child should be returned to their country of habitual residence. The court examines several factors, including:
- Habitual Residence: Determining the child’s habitual residence before removal or retention.
- Wrongful Removal or Retention: Establishing whether the child was wrongfully removed from or retained in a location that violates the custody rights of the left-behind parent.
- Defences Against Return: The court considers certain defences under the Hague Convention. These may include whether returning the child would pose a “grave risk” of harm or if the child objects to being returned and is of sufficient age and maturity to have their views taken into account.
Defences and Exceptions to Return
While the Hague Convention advocates for the prompt return of children to avoid international abduction consequences, there are situations in which the court may refuse an application. The defences available under the convention include:
- Grave Risk of Harm: If returning the child would expose them to physical or psychological harm.
- Child’s Wishes: If the child objects to returning, and the court considers them mature enough to have a valid opinion.
- Settlement in New Environment: If the child has been in the new country for over a year and is settled, the court may decide not to return them.
These exceptions aim to ensure that the child’s welfare remains paramount while balancing the rights and interests of both parents.
What countries are covered?
It is important to note that not all countries are signatories to the Hague Convention, and in the non-signatory countries, attempting to have children returned is significantly more difficult.
Some countries of note which are not signatories to the convention include: Chile; Canada; China; Denmark; Indonesia; Malaysia; Philippines; Sri Lanka; Thailand; Vietnam; and Singapore.
The Importance of Legal Representation and Support
While the Hague Convention has provided a framework for international cooperation, several challenges remain these are often cases that require collaboration between the judicial systems of two different countries.
Cultural differences between countries can also sometimes add to the complexity but should not deter parents from seeking resolution of their parenting affairs under the Hague Convention where necessary.
Navigating the complexities of the Hague Convention requires expertise in family law and international treaties. Parents involved in Hague Convention cases in Western Australia are advised to seek legal representation to ensure that their rights and the child’s best interests are protected. Legal Aid and advisory services in Western Australia can offer support and guidance to parents during these emotionally challenging cases.
Please contact us at Lynn & Brown should you need support or legal representation in navigating the return of your children from or to Western Australia from another country.
About the Author: This article has been authored by Caroline Maradzika. Caroline is a family law solicitor specialising in parenting and property matters. Having been admitted in 2017, she also practices in the Magistrate’s Court particularly in Family Violence Restraining Order matters.
