Return of a Child to Australia Where I Have Custody
Return of a child to Australia… what if I don’t have rights to custody? Can I obtain an order for the child to be returned to Australia?
In our previous blog, we looked at the Family Law (Child Abduction Convention) Regulations 1986 (the Regulations) which expressly provide for the prompt return of a child who has been wrongly removed to, or retained in, Australia from another convention country, or who has been wrongly removed to, or retained in, another convention country from Australia.
The Regulations require Australian courts to order the return of a child to his or her home country unless certain specific and exceptional circumstances exist.
In that previous blog, we looked at what the terms “Removal” and “Retention” mean in this area.
Rights to custody & actually exercising those rights
Unless the removal or retention of a child is in breach of a person’s or institution’s rights to custody, no relief can be granted under the Regulations.
The term “custody” under the Regulations includes:
- the guardianship of the child;
- responsibility for the long-term or day-to-day care, welfare and development of the child; and
- responsibility as the person with whom the child is to live (reg 18(2)).
It expressly does not cover the concept of the time a child is to spend with a parent.
It is the courts of the jurisdiction which has to determine this issue and not the courts of the child’s home country that must decide whether a person enjoys rights of custody in relation to a child and whether that person’s custody rights have been breached.
In Australia, it is for the Family Court of Australia to decide whether a person has breached rights of custody in relation to a child taken from another convention country.
There are special provisions in s 111B of the Family Law Act 1975 (Cth) (FLA) which specify when a person has custody of, and access to, a child for the purposes of the Hague Convention.
Although it is not intended to be a complete statement, s 111B(4) FLA effectively states that for the purposes of the Convention:
(a) each of the parents of a child should be regarded as having rights of custody in respect of the child unless the parent has no parental responsibility for the child because of any existing court order; and
(b) subject to any current order of a court, a person:
- (i) with whom a child is to live under a parenting order; or
- (ii) who has parental responsibility for a child under a parenting order;
should be regarded as having rights of custody in respect of the child; and
(c) subject to any current order of a court, a person who has parental responsibility for a child under the FLA or another Australian law and is responsible for the day-to-day or long-term care, welfare and development of the child should be regarded as having rights of custody in respect of the child; and
(d) subject to any current order of a court, a person:
(i) with whom a child is to spend time under a parenting order; or
(ii) with whom a child is to communicate under a parenting order;
should be regarded as having a right of access to the child.
Regulation 16(1A) makes specific reference to the fact that rights of custody must have been “actually” exercised at the time of the removal or retention of a child. It is not enough for a person simply to have rights to custody, but to have elected not to exercise them.
Whether a person was actually exercising, or would actually have exercised, rights of custody in relation to a child at the relevant time is a matter of fact (See Re F  Fam 224 at p 235.). The Full Court of the Family Court has held that, for the purposes of reg 4, a person may be regarded as actually exercising rights of custody in relation to a child even though he or she has delegated these rights to someone else (for example, to a relative) for the short term see Director General, Department of Community Services v Crowe (1996) FLC 92-717 at p 83,637).
We will look at further issues in this area in our next blog.