Wiltshire News

Tuesday, 20 September 2011

In a recent case of “Director-General, Department of Communities (child safety services) & Hardwick [2011] FamCA 553” an Application was filed for final orders that the child P be returned to the United Kingdom pursuant to the provisions of the Family Law (Child Abduction Convention) Regulations 1986.

This case explains that these regulations were promulgated pursuant to s.111B of the Family Law Act 1975 which was enacted to give effect to Australia’s obligations under the Hague Convention on the Civil Aspects of International Child Abduction which was signed at The Hague in the Netherlands on 25 October 1980. That convention has become known as the Hague Convention and the determination of applications for return orders made pursuant to the Regulations have become known as Hague Convention proceedings.

It is important to understand that these Applications are usually made by the “Central Authority” on behalf of one of the child’s parents. In this particular case the Application was brought by the Central Authority for England and Wales on behalf of the mother of the child.

The application for the return order was made under Regulation 14 of the Regulations and Regulation 16 provides that if an application for a return order is filed within one year after the child’s removal or retention and the responsible Central Authority satisfies the court that the child’s removal or retention was wrongful under sub-regulation (1A) then the Court must, subject to sub-regulation (3), make the return order. Sub-regulation (3) enlivens a discretion not to make the return order even if the removal or retention is found to be wrongful, if certain prescribed circumstances are satisfied on the facts of the case before the court.

Regulation 16(1A) provides that a child’s removal to, or retention in, Australia is wrongful if:

• the child was under 16; and

• the child habitually resided in a convention country immediately before the child's removal to, or retention in, Australia; and

• 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

• the child's removal to, or retention in, Australia is in breach of those rights of custody; and

• at the time of the child's removal or retention, the person, institution or other body:

• • was actually exercising the rights of custody (either jointly or alone); or

• • would have exercised those rights if the child had not been removed or retained.

The onus of proving each of the elements required to establish that a child’s removal to, or retention in, Australia is wrongful rests with the responsible Central Authority and the requisite standard of proof required is, pursuant to s.140 of Evidence Act 1995, on the balance of probabilities.

In this particular case, P was under 16 years of age. Whether the court can be satisfied, on the balance of probabilities, that each of the other prescribed elements required for P’s removal to, or retention in, Australia to be considered wrongful are proven requires consideration of factual matters, some of which P’s mother and father agreed upon, others of which they did not agree upon.

In this particular case the Judge found that after considering each of the elements that in all of the circumstances “I do not consider that there would be any policy imperative, having regard to the purposes of the Convention and the Regulations, for a return order to be made in respect of the child”.

It is important to understand that not all countries are signatories to the Hague Convention. If you are considering relocating with your child or your child has been taken to another country without your consent you should contact the team at Wiltshire Lawyers to provide you with advice in this regard.


Emma Ludeke
Family Lawyer
Wiltshire Lawyers

Liability limited by a scheme approved under Professional Standards legislation.

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