HZ & State Central Authority [2006] FamCA 466 (7 June 2006) – Family Court of Australia
The court acknowledged the limitations of the Hague Convention in cases where domestic and family violence is alleged:
[48] The operation of the Convention which has the effect of potentially sending a mother back into a situation of risk to her own physical wellbeing has been a matter of significant academic criticism…
[75]…As we have already indicted, the return of these children to Greece was anticipated to be in their mother’s company. She had found accommodation for herself remote from that of the father. She led no evidence to suggest that the Greek authorities would be unable to provide her and the children with appropriate protection pending her utilising lawful means to relocate the children from Greece. The finding by the trial Judge that the mother had not persuaded her that the return of the children to Greece would raise a grave risk of harm to the children or otherwise place them in an intolerable situation was a finding clearly open to the trial Judge.
[78]…Given that these were children who were born in Greece and had spent effectively the entirety of their life in Greece until the mother unilaterally determined to retain them in Australia, Greece was clearly the appropriate forum for issues relating to the welfare of these children to be determined. In those circumstances it was appropriate for her Honour to place significant weight on the first of the objects referred to in Article 1 of the Convention namely the prompt return of the children who had been wrongfully retained in Australia.
Murray & Director of Family Services ACT [1993] FamCA 103 (6 October 1993) – Family Court of Australia
The Full Court in rejecting the mother's appeal characterised the evidence as:
“almost entirely directed at the prospective threat to the wife of a return to New Zealand and more particularly to a return by her to Dunedin.”[170]
They said:
[171] Whilst there is nothing that requires the wife to return to New Zealand, it is obviously desirable and from the point of view of the children that she does so. However, there is no requirement imposed by this court that she or they must return to Dunedin. It is open for her to return to another part of New Zealand where the danger to her may be less and it is of course open to her to seek orders from the New Zealand courts both for personal protection and interim and final custody immediately upon her arrival in New Zealand. She can also, if she wishes, seek leave from the New Zealand court to take the children to Australia.
[172] As his Honour pointed out, New Zealand has a system of family law and provides legal protection to persons in fear of violence which is similar to the system in Australia.
[173] It would be presumptuous and offensive in the extreme for a court in this country to conclude that the wife and the children are not capable of being protected by the New Zealand courts or that relevant New Zealand authorities would not enforce protection orders which are made by the courts.
[174] In our view and in accordance with the views expressed by this Court in Gsponer’s case [Gsponer v Director General, Department Community Services Victoria (1989) FLC 92-001], the circumstances in which Regulation 16(3) comes into operation should be largely confined to situations where such protections are not available…
[175] For us to do otherwise would be to act on untested evidence to thwart the principal purposes of the Hague Convention which are to discourage child abduction and where such abduction has occurred to return such children to the country of habitual residence so the courts of that country can determine where or with whom their best interests lie. These children are New Zealand citizens who have lived all their lives in New Zealand and it is for a New Zealand court to determine their future.
Walpole & Secretary, Department of Communities and Justice [2020] FamCAFC 65 (25 March 2020) – Family Court of Australia (Full Court)
Ryan and Aldridge JJ criticised the role of the Secretary of the Department of Communities and Justice (NSW) as the Central Authority in pursuing the Hague Convention application matter while failing to obtain the full criminal antecedents of the father whom it was aware had effectively been deported from Australia:
[79] ‘In this case, the application disclosed the father’s final term of imprisonment in NSW. Even though the Requesting Authority knew that the father was permanently banned from Australia, had effectively been deported and had lived in New Zealand for many years, it would seem that no attempt was made to establish his criminal antecedents or the involvement (if any) of child protection agencies in New Zealand in relation to his other children. The same applies in NSW. To be fair, the Requesting Authority and the Central Authority disclosed the mother’s application for a protection order and thereby flagged that, on the mother’s case, serious risk issues arose.’
[80] ‘It is our understanding that systems are in place in NSW which enable the Central Authority to access/request information from the NSW Police. We assume New Zealand operates in the same fashion. Thus, the Requesting Authority and Central Authority were able to examine and present the father’s complete criminal history and an entire set of COPS records. Instead, it was left to the mother and the ICL to gather records from New Zealand and domestically. It is no small thing to obtain records from abroad, particularly when time constraints are tight. Fortunately, the mother was granted legal aid, but, what we ask, if she was not? How would this young mother on social security benefits have managed to place this vitally important evidence before the court? The prospect that she would not have been able to do so is obvious.’
Wolfe & Director-General, Department of Human Services [2011] FamCAFC 42 (4 March 2011) – Family Court of Australia (Full Court)
Bryant CJ, Finn and May JJ noted the first instance judge’s comments with approval:
“[i]n part, she relied on her own refusal to establish that a return of the children would place them in an intolerable situation”. Her Honour disposed of this aspect of the mother’s case by saying, correctly, in our view, that “[i]t is well established that, ordinarily, the objects of the Convention should not be frustrated by a parent’s refusal to return with children to their country of habitual residence”. [32]
The Hague Convention on the Civil Aspects of International Child Abduction (the “Hague Convention”) is an international agreement which provides a means for parents to seek the return of their child or children if they have been wrongfully removed or retained in another country, with which the Hague Convention is in force with Australia. This enables parenting disputes to be decided in the jurisdiction where the children are habitually resident. The Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”) give effect to section 111B of the Family Law Act 1975 (Cth) which implement the Hague Convention in Australia
An application under the Hague Convention can only be made to or from a country that is party to the Convention. Unlike most treaties, the Hague Convention requires other states to accept accessions to the Convention. The Hague Convention on the Civil Aspects of International Child Abduction is in force between Australia and the countries listed here.
Article 13(b) of the Hague Convention provides that a country may deny a return request if “there is a grave risk that [the child’s] return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.”
The dual objectives of the Hague Convention, as stated in Article 1 are: “a) to secure the prompt return of children wrongfully to or retained in any Contracting State; and b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.” It is possible, however, that Hague Convention applications may be used by a perpetrator of domestic or family violence, to coerce or attempt to coerce the return of an abused partner when they have escaped a situation of danger. Australian and international research indicates that most respondents to Hague Convention applications are now primary care-giving mothers, many of whom seek to escape domestic and family violence or child abuse. The requirement to demonstrate “grave risk” or that the return would “place the child in an intolerable situation” can be difficult to meet, even where there is a documented history of family violence and child safety concerns.
In the leading Australian case of Murray & Director of Family Services ACT the court refused an appeal seeking to prevent the return of children to New Zealand in circumstances where the father was a member of a Dunedin motorcycle gang and the mother alleged a serious history of and threats of domestic violence towards her. The court expressed the view that the powers to prevent return should be limited to the most extreme cases of risk, noting there was nothing in a return order requiring the mother to return, or for her or the children to reside in the same part of New Zealand as the father, and that it was offensive to suggest New Zealand courts and authorities would be unable to protect the mother and children from any risk of return.
In the more recent case of Walpole & Secretary, Department of Communities and Justice a mother, who had fled from New Zealand and moved to Australia to escape an abusive partner with a history of child abuse with the assistance of New Zealand police, was initially ordered to return her children to New Zealand when the first instance judge accepted she was separated from the father and that she would return to New Zealand where the children could reside with her. This failed to take into account her history of returning to the abusive relationship, in spite of the disclosure of a protection order in favour of the mother. Ryan and Aldridge JJ criticised the role of the Secretary of the Department of Communities and Justice (NSW) as the Central Authority in pursuing the Hague Convention application matter while failing to obtain the full criminal antecedents or child protection records of the father whom it was aware had left Australia under threat of deportation, necessitating the lesser resourced mother to obtain his Australian and New Zealand antecedents and child protection records for the purposes of her appeal.
In 2022, the Family Law (Child Abduction Convention) Regulations 1986 were amended to put beyond doubt that family violence can be considered before return orders are made for children under the Hague Convention. Furthermore, to protect against domestic and family violence risks, protective measures can be put in place to protect the child from high parental conflict by providing certainty for interim parenting arrangements upon the child’s return until more permanent arrangements are made by a court in the habitual residence jurisdiction. These can be used in conjunction with conditions precedent to return which must be fulfilled prior to, and in anticipation of, the child being returned. Failure to comply will result in a child not being returned.
More recently, the Family Law Amendment Act 2023 (Cth), which came into effect of 6 May 2024, removes the requirement that the court must consider there to be ‘exceptional circumstances’ to justify the appointment of an independent children’s lawyer (ICL) in matters brought under the Hague Convention, and it requires ICLs to meet with a child and give them an opportunity to express a view (section 68L FLA). Under the FLA there is an express statement (section 68L(1) FLA) that Hague Convention matters are to be included in the list of matters involving a child’s welfare as a relevant consideration for the purposes of section 68L FLA. The explanatory memorandum observes that the purpose of this change is ‘increasing the voice of the child in these cases, and therefore prompting the child’s right to be heard’. In May 2024, the Family Law (Child Abduction Convention) Amendment (Child’s Objection) Regulations 2024 came into force which repeal the requirement that a child’s objection to a return order must ‘show a strength of feeling beyond the mere expression of a preference or of ordinary wishes’ in order to be considered by the court.
The Hague Convention on the Civil Aspects of International Child Abduction (the “Hague Convention”) is an international agreement which provides a means for parents to seek the return of their child or children if they have been wrongfully removed or retained in another country, with which the Hague Convention is in force with Australia. This enables parenting disputes to be decided in the jurisdiction where the children are habitually resident. The Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”) give effect to section 111B of the Family Law Act 1975 (Cth) which implement the Hague Convention in Australia
An application under the Hague Convention can only be made to or from a country that is party to the Convention. Unlike most treaties, the Hague Convention requires other states to accept accessions to the Convention. The Hague Convention on the Civil Aspects of International Child Abduction is in force between Australia and the countries listed here.
Article 13(b) of the Hague Convention provides that a country may deny a return request if “there is a grave risk that [the child’s] return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.”
The dual objectives of the Hague Convention, as stated in Article 1 are: “a) to secure the prompt return of children wrongfully to or retained in any Contracting State; and b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.” It is possible, however, that Hague Convention applications may be used by a perpetrator of domestic or family violence, to coerce or attempt to coerce the return of an abused partner when they have escaped a situation of danger. Australian and international research indicates that most respondents to Hague Convention applications are now primary care-giving mothers, many of whom seek to escape domestic and family violence or child abuse. The requirement to demonstrate “grave risk” or that the return would “place the child in an intolerable situation” can be difficult to meet, even where there is a documented history of family violence and child safety concerns.
In the leading Australian case of Murray & Director of Family Services ACT the court refused an appeal seeking to prevent the return of children to New Zealand in circumstances where the father was a member of a Dunedin motorcycle gang and the mother alleged a serious history of and threats of domestic violence towards her. The court expressed the view that the powers to prevent return should be limited to the most extreme cases of risk, noting there was nothing in a return order requiring the mother to return, or for her or the children to reside in the same part of New Zealand as the father, and that it was offensive to suggest New Zealand courts and authorities would be unable to protect the mother and children from any risk of return.
In the more recent case of Walpole & Secretary, Department of Communities and Justice a mother, who had fled from New Zealand and moved to Australia to escape an abusive partner with a history of child abuse with the assistance of New Zealand police, was initially ordered to return her children to New Zealand when the first instance judge accepted she was separated from the father and that she would return to New Zealand where the children could reside with her. This failed to take into account her history of returning to the abusive relationship, in spite of the disclosure of a protection order in favour of the mother. Ryan and Aldridge JJ criticised the role of the Secretary of the Department of Communities and Justice (NSW) as the Central Authority in pursuing the Hague Convention application matter while failing to obtain the full criminal antecedents or child protection records of the father whom it was aware had left Australia under threat of deportation, necessitating the lesser resourced mother to obtain his Australian and New Zealand antecedents and child protection records for the purposes of her appeal.
In 2022, the Family Law (Child Abduction Convention) Regulations 1986 were amended to put beyond doubt that family violence can be considered before return orders are made for children under the Hague Convention. Furthermore, to protect against domestic and family violence risks, protective measures can be put in place to protect the child from high parental conflict by providing certainty for interim parenting arrangements upon the child’s return until more permanent arrangements are made by a court in the habitual residence jurisdiction. These can be used in conjunction with conditions precedent to return which must be fulfilled prior to, and in anticipation of, the child being returned. Failure to comply will result in a child not being returned.
More recently, the Family Law Amendment Act 2023 (Cth), which came into effect of 6 May 2024, removes the requirement that the court must consider there to be ‘exceptional circumstances’ to justify the appointment of an independent children’s lawyer (ICL) in matters brought under the Hague Convention, and it requires ICLs to meet with a child and give them an opportunity to express a view (section 68L FLA). Under the FLA there is an express statement (section 68L(1) FLA) that Hague Convention matters are to be included in the list of matters involving a child’s welfare as a relevant consideration for the purposes of section 68L FLA. The explanatory memorandum observes that the purpose of this change is ‘increasing the voice of the child in these cases, and therefore prompting the child’s right to be heard’. In May 2024, the Family Law (Child Abduction Convention) Amendment (Child’s Objection) Regulations 2024 came into force which repeal the requirement that a child’s objection to a return order must ‘show a strength of feeling beyond the mere expression of a preference or of ordinary wishes’ in order to be considered by the court.