The Regulations compel Australian courts to order the return of a child to his or her home country unless certain specific and exceptional circumstances exist. Unlike in matters pursuant to Pt VII of the Family Law Act 1975 (Cth), the best interests of the child are not the paramount consideration, and the discretion of a court to refuse to order the return of a child to his or her home country is very limited.
A person, institution or other body has rights of custody in relation to a child only if (inter alia) the child was habitually resident in Australia or in another convention country immediately before the child’s removal or retention.
Removal or retention
Removal and retention are mutually exclusive concepts when considering child abduction. “Removal” involves the physical removal of a child to another country. “Retention” occurs when a child remains in another country beyond the period consented to by the other parent (or person/entity with rights of custody relating to that child). The Regulations apply where a child is:
- removed from a Hague Convention country to Australia
- removed from Australia to a Hague Convention country
- retained in a Hague Convention country, or
- retained in Australia.
The removal or retention is “wrongful” where a child has been removed from his or her place of habitual residence, or retained in a place in which he or she is not habitually resident, in breach of a parent’s (or other’s) rights of custody, which were actually being exercised at the time of removal or retention.
Rights of custody
For the purposes of the Regulations, “custody” 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. That term does not refer to the concept of the time a child is to spend with a parent.
Applications for an order for the return of the child may be brought by a Central Authority or a person, institution or other body with rights of custody in relation to a child.
The removal or retention of a child may not be wrongful at the time it occurred but may subsequently become so, and therefore fall within the scope of the Regulations. For example, if a child is taken to Australia, from a convention country, for a holiday and with the consent of the other parent but is not returned at the agreed conclusion date, the retention becomes wrongful and the parent in the child’s place of habitual residence may bring an application or request that the relevant Central Authority do so.
There will ordinarily be a wrongful retention if consent that a child reside in another country indefinitely is then reasonably revoked.
The date on which a child is wrongfully retained is the day after the date a child is due to be returned under any original agreement between the parents, and not from the date on which a threat to retain the child is made.
We will look further into how the Regulations apply in our next blog.
If you are needing to resolve your family law issues, contact our experienced family lawyers at LGM Family Law who will be happy to assist.