State Central Authority (Tasmania) & Thomas
[2008] FamCA 620
•7 August 2008
FAMILY COURT OF AUSTRALIA
| STATE CENTRAL AUTHORITY (TASMANIA) & THOMAS | [2008] FamCA 620 |
| FAMILY LAW - HAGUE CONVENTION - Declaration Regulation 17 - Rights of custody - Rights of custody vested in a Court - Discretion to order Family Law Act 1975 (Cth) |
Brown & Burke [2007] FamCA 1421
Cooper v Casey (1995) FLC 92-575
In Re B (Minors) (Abduction) (No 2) 1993 1 FLR 993
In Re J (a Minor) (Abduction: Custody Rights) (1990) 2 AC 562
In re S (Minors) (Abduction: wrongful retention) [1994] 1 FLR 82
John Pryde Paterson, Department of Health & Community Services, State Central Authority & Casse (1995) FLC 92-629
MW v Director-General, Department of Community Services (2008) 244 ALR 205
Ward v Ward and Anor (2008) FamCA
| APPLICANT: | State Central Authority (Tasmania) |
| RESPONDENT: | Ms Thomas |
| FILE NUMBER: | HBC | 703 | of | 2008 |
| DATE DELIVERED: | 7 August 2008 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Hobart |
| JUDGMENT OF: | Benjamin J |
| HEARING DATE: | 30 July 2008 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Neasey |
| SOLICITORS FOR THE APPLICANT: | Attorney Generals Department |
| COUNSEL FOR THE RESPONDENT: |
| SOLICITORS FOR THE RESPONDENT: |
Orders
Pursuant to Regulation 17 of the Family Law (Child Abduction Convention) Regulations 1986 it is HEREBY DECLARED that the removal of the child born […] January 2005 (“the child”), from Australia to a Convention country, namely the United States of America, on or about 21 June 2007, was wrongful under the laws of Australia within the meaning of Article 3 of the Hague Convention on the Civil Aspects of International Child Abduction.
This matter be removed from the list of cases requiring determination.
IT IS CERTIFIED
Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.
IT IS NOTED that publication of this judgment under the pseudonym State Central Authority (Tasmania) & Thomas is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT HOBART |
FILE NUMBER: HBC703/2008
| STATE CENTRAL AUTHORITY (TASMANIA) |
Applicant
and
| MS THOMAS |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
This is an application by the State Central Authority (Tasmania), (“State Central Authority”) as State Central Authority under the Family Law (Child Abduction Convention) Regulations 1986 (“the Regulations”), the other party being Ms Thomas (“the mother”).
The State Central Authority seeks orders as follows:-
1 Pursuant to reg 17(1) of the Family Law (Child Abduction Convention) Regulations 1986, a declaration that the removal of the child […] (“the child”), born on […] January 2005, from Australia to a Convention country, namely the United States of America, on or about 21 June 2007, was wrongful under the laws of Australia within the meaning of Article 3 of the Hague Convention on the Civil Aspects of International Child Abduction (“the Convention”).
2 That the application be dealt with ex parte.
3 Such other orders as the Court thinks fit to give effect to the Convention.
The application relates to a declaration with regard to a child (“the child”), and his removal from Australia on or about 21 June 2007. The child’s parents are Mr B (“the father”) and the mother.
The proceedings arise out of an order on declaration made by Circuit Court Judge Susan F Greenhawt in Chambers on 30 June 2008. This was an order of the Circuit Court of the Seventeenth Judicial Circuit in and for D County, Florida in the United States of America (“the Florida Court”). The Florida Court made the following order:-
THIS CAUSE having come on to be heard on the Petitioner’s Motion for Declaration under Article 15 of the Hague Convention, and the parties having agreed to the entry thereto, and the Court having otherwise been fully advised in the premises
IT IS ADJUDGED as follows:-
1.This is an action for return of child under Hague Convention on the Civil Aspects of International Child Abduction.
2.Pursuant to Article 15 of the Hague Convention on the Civil Aspects of International Child Abduction, the Court hereby requests the Petitioner to obtain from the Family Court in Australia or other appropriate judicial authority a decision or other determination that, under the Laws of Australia as they apply to the facts in this case, the removal of [the child], born on January […], 2005, from Australia to a Convention country, namely the United States of America, on or about June 21, 2007 was wrongful within the meaning of Article 3 within the Convention.
3.The decision or other determination issued by the Family Court of Australia or other appropriate judicial authority is not an adjudication on the merits of the case and shall not be binding upon this court.
4.The Respondent shall have the same opportunity as the Petitioner to request a decision or determination from the Family Court of Australia or other appropriate judicial authority as to whether or not the taking was wrongful pursuant to Article 3 of the Hague Convention
BACKGROUND
In September 2007 the father executed an “application for return of a child”, for lodgement with the Central Authority (Attorney Generals Department Australian Government) in Canberra, Australia. On 10 October 2007 the father made application to the Australian Government for the grant of financial assistance with respect to the Return of Child Application. On 16 November 2007 the father received notification that that assistance had been granted.
In early January 2008 a Petition for the return of the child was filed by the father’s attorney in the Florida Court. Subsequently the mother filed a Motion in the Florida Court to dismiss the father’s Petition. That motion was dismissed on 28 May 2008 and the substantive proceedings have been listed for hearing before the Florida Court on 14 and 15 August 2008.
The application in the Family Court of Australia (Hobart Registry) was filed by the State Central Authority on 10 July 2008 and was listed before me in a Judicial Duty List on 28 July 2008. The State Central Authority sought to have the matter heard ex parte. I declined to do so at that time and directed that a notice of the application be provided to the mother care of her attorney in the United States of America.
This Court[1] directed that a copy of the application and supporting material be forwarded by facsimile to the attorneys for the mother by 5.00pm on 28 July 2008.
[1] The Family Court is a Federal Court created pursuant to Chapter III of the Australian Constitution and has jurisdiction to make determinations in respect of children, including orders in respect of the Hague Convention on the Civil Aspects of International Child Abduction.
Leave was given for the mother and/or her attorneys to appear by telephone on 30 July 2008, the proceedings having been adjourned for hearing to 2.15pm (Eastern Australian Standard Time) Wednesday, 30 July 2008.
When the application came back before me, on 30 July 2008 at 2.15pm, enquiries made in the Hobart Registry of the Family Court revealed that there was no indication of telephone calls from or on behalf of the mother to the Court in accordance with the orders made on 28 July 2008. Tendered in evidence on behalf of the State Central Authority was a copy of a letter addressed to Ms Joyce A Julian P A at Ft Lauderdale dated 28 July 2008.[2] I was informed that Ms Joyce A Julian is the Attorney acting for the mother in the Florida Court proceedings. Forwarded to her with that facsimile letter were details of the orders made by me on 28 July 2008, a copy of the application and a list of authorities relied upon by the State Central Authority.
[2] Exhibit “A1”.
I accept the assurance of Mr Neasey of Counsel that no response had been received from or on behalf of the mother by the Solicitor General of Tasmania and there was no appearance by or on behalf of the mother when the proceedings were called outside the Court on 30 July 2008 at 2.15pm.
The State Central Authority otherwise relied upon an affidavit of Frances Neasey, of Counsel, sworn 10 July 2008 and filed 28 July 2008 (“Neasey’s affidavit”).
Annexed to Neasey’s affidavit was an affidavit of the father sworn 10 July 2008 (“affidavit of father”).
Annexed to the affidavit of the father were copies of:-
Page 1: The birth certificate of the child
Pages 2 – 4: An application to the Commissioner for Licensing in Tasmania for a Liquor Licence for W Business.
Page 5: A Letter from the Secretary of the State of Tasmania Licensing Board dated 4 June 2007.
Page 6: A record from the joint mobile telephone account of the mother and father showing that a text was sent from Sydney International Airport on 21 June 2007.
Page 7: A Notification from the Commissioner for Licensing to direct the grant of a Special Licence to the father.
Page 8: Liquor Licence No. … dated 13 July 2007.
Pages 9 & 10: Emails between the parents dated between 28 June 2007 and 29 June 2007.
Pages 11 & 12 : Emails between the parents dated between 2 July and 5 July 2007.
Page 13: Emails in relation to father’s migration status.
Page 14: An email from the mother to Ms J dated 5 July 2007 including the words “I am not sure when I will be back ….”
Page 15: An advice from Express Courier (“no such person at this PO box”)
Page 16: An advice to the father in relation to his visa status, dated 15 August 2007.
Page 17: An email from the mother to the father dated 1 September 2007.
Pages 19-28: An application “Application for Return of Child” lodged with the Attorney General’s Department, Australian Government.
Page 29: Emails between the father and the mother dated 29 December 2007.
Pages 30 & 34 : A petition filed in the Circuit Court of the 17th Judicial Circuit in and for D County Florida (Case No. […])
Pages 35 & 36 : An email from the mother April 2008.
Pages 37 & 38 : An order made by Circuit Judge Susan F Greenhawt dated 20 June 2008.
Attached to these reasons are three schedules.
(i)Schedule 1 contains the relevant provisions of the Family Law Act 1975 to which I will be referring in these reasons;
(ii)Schedule 2 contains the relevant provisions of the Family Law Rules 2004 (“the rules”) to which I will be referring in these reasons; and
(iii)Schedule 3 contains the relevant provisions of the Family Law (Child Abduction) Regulations 1986 (“the regulations”) and included in those regulations is the schedule containing the Convention on the Civil Aspects of International Child Abduction (“the Convention”), which convention is by reason of the Family law Act and the Regulations part of Australian domestic law.
Any statement of fact in these reasons is to be regarded as a finding of fact unless the contrary intention is clear from the context of any such statement.
THE FACTS
The father is a manager of a family business called W (“the business”) at R in Tasmania, which is a State of the Commonwealth of Australia. The father is a part-owner of the real property at R from which the business is operated. The father lives at those premises.
The father was born in Scotland in May 1972 and is now aged thirty six. He came to Australia at the age of four years and has resided in Australia since that time. He holds a British passport.
The father met the mother in July 1998 at R. The mother is a citizen of both Australia and the United States of America, the mother having become an Australian citizen in July 2000.
The mother had married another person in Australia but that marriage was subsequently dissolved in 2003.
The mother and father commenced a relationship in September 2003 and then commenced living together as a couple in January 2004 in R, Tasmania. The mother and father have never married.
When the parents first began living together as a couple the mother was employed as a consultant and worked three days per week, commuting from Hobart, Tasmania to Melbourne, Victoria. At that time the father was working full time in the business.
The mother and father lived in a home unit (a condominium) owned by a Company controlled by the mother. The parents lived together as husband and wife and slept in the same bed. As a consequence of their relationship the mother fell pregnant in early 2004 but miscarried in February/March 2004. After that time the parents agreed to start a family and soon after, as a result of their relationship the mother fell pregnant with the child. The mother consulted with Dr C of R, Tasmania and it was anticipated that the child would be born in Hobart Tasmania. The mother consulted Dr K in V, a suburb of Hobart in Tasmania. The father and mother had a family medical insurance policy with the Medical Benefits Fund of Australia.
Whilst pregnant with the child the mother continued to commute between Hobart and Melbourne.[3] The mother had commuted to Melbourne and from Hobart on both on 5 January 2005 and 10 January 2005. In January 2005, whilst the mother was in Melbourne for work, she consulted a doctor and as a consequence she was admitted to a Melbourne hospital. The father travelled to Melbourne the following day.
[3] These cities are about 500 nautical miles apart and commuting would be generally by airline as Tasmania is an island to the south of the Australian continent.
The child was born in January 2005. The father was named as father on the child’s birth certificate. The child was born prematurely and required significant medical care. When the child was in hospital in Melbourne he was initially in intensive care. He remained in hospital in Melbourne until about 23 March 2005 when he was transferred to the Royal Hobart Hospital Hobart under the care of Dr P.
After the child was admitted to the Royal Hobart Hospital the mother continued to live in Hobart and continued to commute to Melbourne for her work.
The mother returned to work in Melbourne on 28 January 2005 and commuted between Hobart and Melbourne on at least four occasions in February and March 2005.
Whilst the child was in hospital in Melbourne the father spent most of his time in Melbourne and worked limited hours in the business. The child’s paternal grandparents visited the mother, father and child in Melbourne in that period of time.
At the time of the birth of the child, neither the father nor the mother had expressed any intention of living full time in Melbourne and neither of the parents had made efforts to relocate permanently to Melbourne.
The child was released from Royal Hobart Hospital on 9 May 2005 and various family members and friends assisted the parents in the care of the child.
Between 16 July and 25 July 2005 the mother visited the United States of America leaving the child in the care of the father together with his parents and/or Ms J (a family friend) assisting from time to time. The father cared for the child most of the time when he was not at work.
In June or July 2005 the father engaged a migration agent to assist him in respect to him gaining Australian citizenship. The father’s understanding was that despite his lengthy residence in Australia since first arriving (many years previously) he was not an Australian citizen and his status was unclear, as his parents had initially overstayed their visas. As at the date of this hearing the circumstances surrounding the residency status of the father has not been finalised. There is no evidence of any steps being taken to remove the father from Australia. Until he is able to obtain a visa or Australian citizenship, if he leaves Australia he may not be allowed to re-enter Australia.
It is apposite to note that in the matter of John Pryde Paterson, Department of Health & Community Services, State Central Authority & Casse (1995) FLC 92-629 in a factual circumstance where the parents were in Australia under a visitor permit it did not constrain or prevent a determination by Kay J as follows:
46.… as at the date of filing of the application the children were not habitually resident in Mauritius, that they were habitually resident in Australia …
As such the law in Australia is that the father’s visa status is not a factor that will impact on whether I should make a declaration pursuant to regulation 17(1) of the regulations.
In August 2005 the mother commenced working from the parties’ home in R in Tasmania. The father continued to work full time and the child was cared for by his parents with the assistance of family members.
In August 2005 the mother and father and the child had a family holiday in Western Australia. In September 2005 the child’s maternal grandmother arrived from the United States of America and during October 2005 assisted in caring for the child. In October 2005 members of the child’s family from the United States of America visited and also assisted with the care of the child. The child was baptised at R in October 2005.
In November 2005 the child was enrolled at a Child Care Centre in R to attend four days per week. The parents and the paternal grandparents shared the responsibility of taking the child to and from the child care centre.
The child’s paternal grandfather was diagnosed with cancer in December 2005 and died in late December 2005.
One of the many impacts of this death was the increased involvement of the father in the business. In March/April 2006 the business was put on the market for sale but the business did not sell and the father has continued to work at the business since that time.
In about April 2006 the mother recommenced work which involved regular trips commuting to Melbourne from Hobart.
In June 2006 the parents and the child travelled to Melbourne to obtain a United States of America passport for the child. The father says he did this on the basis that it would make it easier for the child to travel with the mother and said that it was not done as part of any plan to relocate the child to the United States of America. I accept his evidence in that regard
With the consent of the father, the mother and the child visited the United States of America between June 2006 and August 2006. The father was unable to travel on this trip because of his citizenship problems. The mother returned the child to Australia in August 2006 in accordance with the arrangements made between the parents.
In June 2006 the parents had discussions and agreed that they would both endeavour to find work in Sydney.[4] The parents discussed moving within the Commonwealth of Australia, but not, on the evidence before me, to the United States of America. The parents agreed that the mother would move to Sydney and take up a job in that city. The child would move with the mother to Sydney and the father would commute to Sydney from Hobart. As a consequence the parents arranged to lease accommodation at L (a suburb of Sydney) for six months under the name of the mother. The child was booked into a child care centre. The home unit (owned by the Company controlled by the mother in R) was rented out and the father arranged to live with his mother when he was in Tasmania. Some of the parties’ furniture was moved to Sydney and other items of their furniture were placed in storage in Tasmania where it still remains.
[4] Sydney is the capital city of the state of New South Wales and is Australia’s most populous city. It is about 1,100 nautical miles north of Hobart.
The child and the mother moved to Sydney in December 2006 and the father joined them in January 2007 where he remained for approximately forty four days. After that time and up to 20 June 2007 the father visited Sydney and spent time with the mother and the child on the following dates:-
20 February 2007 - 4 March 2007 (12 days)
12 March 2007 - 2 April 2007 (21 days)
6 April 2007 - 27 April 2007 (21 days)
13 May 2007 - 11 June 2007 (29 days)
15 June 2007 - 20 June 2007 (5 days)
In April 2007 the child was hospitalised in a Sydney hospital. The father spent two nights with the child at hospital and he took the child for a check-up with a doctor in T (a suburb of Sydney) in April 2007.
On 18 May, 2007, in running the business the father made an application for a liquor licence. The father was required to attend a hearing of the State of Tasmania Licensing Board in Hobart in June 2007, to enable the issue of the licence, which he did.
In June 2007 the mother’s brother was visiting Sydney from the United States of America. The mother and her brother went to Queensland for a holiday. The child was in the sole care of the father from 7 June to 12 June 2007.
On 20 June 2007 the father returned to Hobart leaving the child and the mother at the rental home unit in Sydney.
The father says, and I accept, that he had the following communications with the mother on 21 June 2007:-
8.48am: the mother called the father to wish him well with the liquor licence application that he had to attend in Hobart.
10.42am: the mother called the father and said she would ring back as the liquor licence application was about to start.
11.22am: the father called the mother and that call went through to message bank
1.03pm: the mother called the father and congratulated him on his success with the liquor licence. The father thanked her for her support and said he looked forward to seeing her and the child the following day. The mother responded “yeh, we look forward to seeing you soon, got to go, meeting in five minutes, talk later”
5.23pm: the mother sent a text message to the father saying “all ok, phone issue”.
From the joint mobile telephone account of the parents it shows that the 5.23pm text message was sent from the Sydney International Airport.
On 22 June 2007 the father returned to Sydney and found the home unit partly empty and discovered that the mother and child had disappeared. The father endeavoured to telephone the mother, but this did not meet with any success. The father ascertained that the child had not been taken to the child care centre on that day.
The father made telephone calls to locate the mother and contacted her uncle in Florida. The father says he was told that the mother had left Australia with the child for “time out” and that the mother had taken money from the father’s bank account but that she would repay it later.
The father rang the mother’s uncle the following day. The father was not aware and had not been made aware of any plans for the mother to travel to the United States of America let alone move permanently to the United States.
On 25 June 2007 the father spoke to the mother who said she was in the United States of America with the child and said that she had not informed the father that she was leaving Australia because she had obtained stand-by air tickets.
It is significant and telling that the mother left Australia on a day when she was aware that the father would be occupied in a licensing court in Hobart and that the father would not be in Sydney on that day. The mother’s removal of the child from Australia to the United States of America was without the father’s knowledge or consent and at a time where the father was not aware of any plans to relocate the child to the United States of America.
On 21 June 2007, $3,000.00 was removed from the father’s bank account and the only other person to have access to that account was the mother. I find that the mother removed those funds.
An appointment which the child had to see Dr H in Sydney on 28 June 2007 was cancelled on 21 June 2007. The mother took out travel insurance policy for the child on 20 June 2007.
The father’s liquor licence for the R Business was approved on 28 June 2007.
The father and mother communicated by email on 28 and 29 June 2007. It is apposite to note the mother observed in her email of 28 June 2007 that:
“other than that I need a rest and a break right now”.
Further emails passed between the parents and Ms J which are set out in paragraphs 78 to 81 of the father’s affidavit.
The father had arranged to have surgery on his left ear and was admitted to hospital in late July 2007 for that surgery. It is significant to note that the visit to the doctor to plan this operation had been arranged prior to the mother’s departure for the United States of America.
After 21 June 2007, and by telephone and/or e-mail the mother informed the father that she was staying at her brother’s house in the United States of America and the mother provided to the father a post office box address. Two packages were sent to that address, both of which were returned to the father marked “no such person at this PO box”.
The father made enquiries of an international directory which showed the mother’s brother at a different address. I accept that the mother had provided the father with incorrect residential and postal addresses for herself and the child.
On 29 December 2007 the father sent an email to the mother expressing hope that she would bring the child to Australia for a visit one day.
The father had regular telephone contact with the child for the six months following the child’s removal from Australia. The last time the father has spoken to the child was on New Years Day 2008 and he has not spoken to the child or the mother since that time.
The father has closed up the home unit in Sydney and has relocated the remaining furniture to Tasmania. The father says, and I accept, that the child was removed from Australia in circumstances where the father did not know of the planned removal and where there was no discussion between the mother and the father about the father moving to the United States of America with the child on a permanent basis.
The father has not commenced proceedings in the Family Court or any other Court exercising jurisdiction under the Family Law Act 1975 nor has he received any notice of such proceedings. There is no evidence before me of any other orders presently in force made by an Australian Court with respect to the child and/or the mother or the father. There is no evidence of any court order or declaration (apart from these present proceedings) asserting that the father is not the father of the child nor has there been any court order removing or diminishing the father’s parental responsibility under the Family Law Act.
DETAILS CONCERNING THE CHILD
Legal Issues
The child was born in Melbourne Australia in January 2005. The habitual residence of the child immediately prior to his removal from Australia was in Australia, a Convention country. On the evidence before me I find that the child has been wrongfully removed and retained in the United States of America from Australia. As far as the father is aware the child resides with the mother in Florida.
Details concerning the child’s custodian
The father resides at R in Tasmania and has habitually resided in Australia since he was aged about four. He has rights of custody in respect of the child by virtue of the factual circumstances set out earlier in these reasons and in the following legal circumstances
Sections 69P to 69U of the Family Law Act set out the presumption of parentage where a man is presumed to be a child’s father in certain circumstances.
Section 69R of the Family Law Act provides that a person who is named as a parent of a child on the Register of Births is presumed to be the parent of the child.
The presumption under s69R applies irrespective of whether or not the person named on the birth certificate as father was ever married to the mother. The father is named as the father on the birth certificate of the child.[5] That birth certificate was lawfully issued in the State of Victoria under the Births, Deaths and Marriages Registration Act 1996 (Victoria). That Act is a “law of Australia” for the purpose of s69R of the Family Law Act. As such, as the father is named as the father on the birth certificate he is presumed to be the father of the child.
[5] Annexure to affidavit of father, page 1.
Section 69Q of the Family Law Act provides for a presumption of paternity arising from cohabitation. That provision sets out that if a child is born to a woman and at any time during the period of beginning not earlier than forty four weeks and any not less than twenty weeks before the birth, the woman cohabitated with a man to whom she was not married, the child is presumed to be a child of the marriage. The child’s birth certificate states the child’s birth is … January 2005. The relevant period for the purpose of s69Q of the Family Law Act was therefore March 2004 to September 2004.
In terms of the facts referred to above, the father and mother commenced living together in February 2004 and continued to live together until after the child was born. The mother occasionally travelled to Melbourne for work purposes. For the purposes of s69Q of the Family Law Act the father cohabited with the mother during the entirety of the relevant period and as such is presumed to be the father of the child.
The question should then be asked whether the presumption arising by operation of the Family Law Act is rebutted. Section 69U(1) of the Family Law Act is a parentage presumption arising under the Act and is rebuttable by proof, on the balance of probabilities. Furthermore, under the Family Law Act, there is provision allowing a Court exercising jurisdiction under the Family Law Act, to make a declaration of parentage, which declaration may be sought where parentage is in dispute. Section 69VA provides that a Court may issue a declaration of parentage which is conclusive evidence of parentage.
There is no evidence of any declaration by a Court exercising jurisdiction under the Family Law Act, accordingly the presumption that the father is the father of the child has not been rebutted.
Rights of custody
Article 4 of the Convention provides that the Convention shall only apply to a child who was habitually resident in a Contracting State immediately before any breach of custody or access rights.
Article 5 provides:-
For the purpose of this Convention ‘a right of custody’ shall include any right relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence
Regulation 4 of the Family Law (Child Abduction Convention) Regulations 1986 sets out the meaning of rights of custody (see schedule 2) and in particular sets out that for the purposes of the Regulation rights to custody may arise by operation of law.
It was the assertion on behalf of the State Central Authority that the right of custody in this case arose by operation of law. Further, it is the submission on behalf of the State Central Authority that the time that the child was removed from Australia those rights were being actively exercised. On the evidence I accept those submissions.
Division 2 of Part VII of the Family Law Act provides for parental responsibility. Section 61B of the Family Law Act provides that, in Part VII of the Family Law Act, “parental responsibility” in relation to a child means all duties, powers, responsibilities and authorities which, by law, parents have in relation to children. Further, s61C(1) of the Family Law Act provides that each of the parents of the child who is under the age of eighteen has parental responsibility for the child.
Section 61C(2) of the Family Law Act provides that s61C(1) has effect despite any change in the nature of the relationship of the child’s parents. It is not affected, for example, by parents becoming separated or upon the parents remarrying or marrying. Section 61C(3) of the Family Law Act provides that ss(1) has effect subject to any order of a Court for the time being in force. Section 111B(4)(a) of the Family Law Act provides that for the purpose of the Convention, 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 order of the court for the time being in force.
The combined effect of s61C and s111B(4)(a) of the Family Law Act is that both parents of the child have parental responsibility and therefore have “rights of custody” for the purpose of the Convention. This continues until such time as the child attains the age of eighteen years unless the person’s parental responsibility has expressly been removed by an order of the Court. This remains the case irrespective of whether or not the parents of the child were ever married to each other.
I am satisfied that there are no court orders made by an Australian Court exercising jurisdiction under the Family Law Act or under any other Australian law removing or diminishing the father’s parental responsibility for the child. Accordingly as a parent of the child the applicant father retains parental responsibility and therefore rights of custody for the purpose of the Convention until the child reaches the age of eighteen years.
Right to determine residence
Section 61C(1) of the Family Law Act provides that each parent has parental responsibility. It is not expressed to be joint parental responsibility.
It is the law in Australia that a parent cannot alter the child’s habitual residence without the other parent’s consent or a Court order. In Cooper v Casey (1995) FLC 92-575 the Full Court of the Family Court of Australia (at paragraph 10) adopted and applied the statement of Waite J in re B (Minors) (Abduction) (No. 2) 1993 1 FLR 993:
The habitual residence of the young children of parents who are living together is the same as the habitual residence of parents themselves and neither parent can change it without the express or tacit consent of the other or an order of the Court.
In the English Court of Appeal case In Re J (a Minor) (Abduction: Custody Rights) [1990] 2AC 562, Lord Donaldson said in the House of Lords (at page 572):
It would not be possible for one parent unilaterally to terminate the habitual residence of the child by removing the child from the jurisdiction wrongfully and in breach of the other parent’s rights.
In the case of In re S (Minors) (Abduction: wrongful retention) [1994] 1 FLR 82 Wall J in the Family Division of the High Court in England followed In re J, stating, at 82 :-
Where both parents have equal rights of custody no unilateral action by one of them can change the habitual residence of their children.
Australian Courts have followed this approach. In Brown & Burke (2007) FamCA 1421 (10 December 2007) Murphy J in the Family Court of Australia, referring to the Family Law Act said at paragraph 77:-
The right of a parent to determine the place of residence of a child is an incident of parental responsibility as defined in the [Family Law] Act.
This means under Australian Law each parent with parental responsibility has a right to determine the habitual residence of a child and it is not possible for one party to change the habitual residence without the consent of the other parent or an order of a Court. This is the case whether the parents were married or not.
In paragraph 80 of his affidavit, the father deposes that he sent an email to the mother saying he was considering joining her in the United States of America because he saw no other way of seeing the child. The father had no such plans and was unable to do so. This must be seen in the context of the father’s confusion or emotional turmoil. As discussed by Kay J in the matter of John PrydePaterson, Department of Health & Community Service, State Central Authority & Casse (1995) FLC 92-629 at paragraph 43:
43.I will adopt the views of the Court of Appeal in re: R (Child Abduction) 1995 FLR 716 at 727 that there needs to be a clear and unequivocal words in conduct which could not properly be interpreted as acquiescence on the part of the father. In my view there cannot be true acquiescence where the parties are in a state of confusion and emotional turmoil (as identified by Stuart-Smith LJ in re: Abduction: Custody Rights) 1992 Fam 106 at 121
I am satisfied the father had a right to determine the child’s habitual residence at all relevant times and had the right to veto any unilateral change of the child’s habitual residence by the mother. The child was wrongly removed from Australia in the circumstances as are set out elsewhere in these reasons. The mother’s removal of the child from Australia was without the knowledge or consent of the father and he has not subsequently acquiesced to the retention of the child in the United States of America by the mother or otherwise.
At all relevant times, in particular immediately prior to the child’s removal from Australia by the mother the father was exercising rights of custody with respect to the child. There are no pending Family Law or child welfare proceedings concerning the child.
It is open for a State Central Authority to make an application to a court for a declaration made under Regulation 17. The making of a declaration under Regulation 17 is a discretionary matter for a Court. Murphy J in Brown & Burke (supra) said that the regulations provide that:
134.On application, a Court may by order declare that ... [my emphasis].
The Regulations are, though, silent as to the matters which the Court ought take into account in the exercise of the discretion inherent in that Regulation.
There seems to me little doubt, that any “residual discretion” pursuant to the Convention, must have as a primary – if not the primary – focus the purpose and intent of the Convention. Included among the specific objects of the Convention, is
(B) To ensure that rights of custody and access under the law of one contracting State are effectively respected in the other contracting State.
I note in this case the application is made by the State Central Authority and it could equally have been made by the father. Both the father and the State Central Authority are entitled to seek such a declaration. The application does not need to be made pursuant to a court order or request from a Court in a reciprocating jurisdiction, although in this case such a request has been made.
The State Central Authority made this application and that circumstance is a relevant consideration in the exercise of the Court’s discretion. I agree with Murphy J in Brown & Burke (supra) when he said:-
140.I regard the wrongful removal and/or retention (as found by me) in the context of the primary intention and purposes of the Convention and the Regulations, and the support of same by the relevant Central Authorities, to be powerful factors relevant to the exercise of the discretion which I find is vested in this Court pursuant to Regulation 17.
I likewise regard the fact of the application having been made by the State Central Authority as a powerful factor in the exercise of discretion pursuant to Regulation 17.
Having considered all of the facts and law in this case I will exercise my discretion and make the declaration under Regulation 17 and I will order accordingly.
I certify that the preceding ninety-eight (98) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin
Associate: …
Date: 7 August, 2008
Schedule 1 to Reasons
Family Law Act 1975 (Commonwealth)
SECT 61B
Meaning of parental responsibility
In this Part, parental responsibility , in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children
SECT 61C
Each parent has parental responsibility (subject to court orders)
(1) Each of the parents of a child who is not 18 has parental responsibility for the child.
Note 1: This section states the legal position that prevails in relation to parental responsibility to the extent to which it is not displaced by a parenting order made by the court. See subsection (3) of this section and subsection 61D(2) for the effect of a parenting order.
Note 2: This section does not establish a presumption to be applied by the court when making a parenting order. See section 61DA for the presumption that the court does apply when making a parenting order.
Note 3: Under section 63C, the parents of a child may make a parenting plan that deals with the allocation of parental responsibility for the child.
(2) Subsection (1) has effect despite any changes in the nature of the relationships of the child's parents. It is not affected, for example, by the parents becoming separated or by either or both of them marrying or re‑marrying.
(3) Subsection (1) has effect subject to any order of a court for the time being in force (whether or not made under this Act and whether made before or after the commencement of this section).
Note: Section 111CS may affect the attribution of parental responsibility for a child
SECT 69R
Presumption of parentage arising from registration of birth
If a person's name is entered as a parent of a child in a register of births or parentage information kept under a law of the Commonwealth or of a State, Territory or prescribed overseas jurisdiction, the person is presumed to be a parent of the child.
SECT 69Q
Presumption of paternity arising from cohabitation
If:
(a) a child is born to a woman; and
(b) at any time during the period beginning not earlier than 44 weeks and ending not less than 20 weeks before the birth, the woman cohabited with a man to whom she was not married;
the child is presumed to be a child of the man.
SECT 69U
Rebuttal of presumptions etc.
(1) A presumption arising under this Subdivision is rebuttable by proof on a balance of probabilities.
(2) Where:
(a) 2 or more presumptions arising under this Subdivision are relevant in any proceedings; and
(b) those presumptions, or some of those presumptions, conflict with each other and are not rebutted in the proceedings;
the presumption that appears to the court to be the more or most likely to be correct prevails.
(3) This section does not apply to a presumption arising under subsection 69S(1).
SECT 69VA
Declarations of parentage
As well as deciding, after receiving evidence, the issue of the parentage of a child for the purposes of proceedings, the court may also issue a declaration of parentage that is conclusive evidence of parentage for the purposes of all laws of the Commonwealth
SECT 111B
Convention on the Civil Aspects of International Child Abduction
(1) The regulations may make such provision as is necessary or convenient to enable the performance of the obligations of Australia, or to obtain for Australia any advantage or benefit, under the Convention on the Civil Aspects of International Child Abduction signed at The Hague on 25 October 1980 (the Convention ) but any such regulations shall not come into operation until the day on which that Convention enters into force for Australia.
(1A) In relation to proceedings under regulations made for the purposes of subsection (1), the regulations may make provision:
(a) relating to the onus of establishing that a child should not be returned under the Convention; and
(b) establishing rebuttable presumptions in favour of returning a child under the Convention; and
(c) relating to a Central Authority within the meaning of the regulations applying on behalf of another person for a parenting order that deals with the person or persons with whom a child is to spend time or communicate if the outcome of the proceedings is that the child is not to be returned under the Convention.
(1B) The regulations made for the purposes of this section must not allow an objection by a child to return under the Convention to be taken into account in proceedings unless the objection imports a strength of feeling beyond the mere expression of a preference or of ordinary wishes.
(1C) A Central Authority within the meaning of the regulations may arrange to place a child, who has been returned to Australia under the Convention, with an appropriate person, institution or other body to secure the child's welfare until a court exercising jurisdiction under this Act makes an order (including an interim order) for the child's care, welfare or development.
(1D) A Central Authority may do so despite any orders made by a court before the child's return to Australia.
(1E) Any regulations made for the purposes of this section to give effect to Article 21 (rights of access) of the Convention may have effect regardless of:
(a) whether an order or determination (however described) has been made under a law in force in another Convention country (within the meaning of the regulations made for the purposes of this section), with respect to rights of access to the child concerned; or
(b) if the child was removed to Australia--when that happened; or
(c) whether the child has been wrongfully removed to, or retained in, Australia.
(2) Because of amendments of this Act made by the Family Law Reform Act 1995:
(a) a parent or guardian of a child is no longer expressly stated to have custody of the child; and
(b) a court can no longer make an order under this Act expressed in terms of granting a person custody of, or access to, a child.
(3) The purpose of subsection (4) is to resolve doubts about the implications of these changes for the Convention. That is the only purpose of the subsection.
(4) 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 order of a court for the time being in force; and
(b) subject to any order of a court for the time being in force, 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 order of a court for the time being in force, a person who has parental responsibility for a child because of the operation of this Act 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 order of a court for the time being in force, 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.
Note: The references in paragraphs (b) and (d) to parenting orders also cover provisions of parenting agreements registered under section 63E (see section 63F, in particular subsection (3)).
(5) Subsection (4) is not intended to be a complete statement of the circumstances in which, under the laws of the Commonwealth, the States and the Territories, a person has, for the purposes of the Convention, custody of, or access to, a child, or a right or rights of custody or access in relation to a child.
(5A) Subsections (1A) and (2) to (5) do not, by implication, limit subsection (1).
(6) Expressions used in this section have the same meaning as they have in Part VII
SECT 4
Interpretation
(1) In this Act, the standard Rules of Court and the related Federal Magistrates Rules, unless the contrary intention appears:
"Aboriginal child" means a child who is a descendant of the Aboriginal people of Australia.
"Aboriginal or" Torres Strait Islander culture in relation to a child:
(a) means the culture of the Aboriginal or Torres Strait Islander community or communities to which the child belongs; and
(b) includes Aboriginal or Torres Strait Islander lifestyle and traditions of that community or communities.
abuse , in relation to a child, means:
(a) an assault, including a sexual assault, of the child which is an offence under a law, written or unwritten, in force in the State or Territory in which the act constituting the assault occurs; or
(b) a person involving the child in a sexual activity with that person or another person in which the child is used, directly or indirectly, as a sexual object by the first‑mentioned person or the other person, and where there is unequal power in the relationship between the child and the first‑mentioned person.
"Accreditation Rules" means regulations made under section 10A.
"adopted" , in relation to a child, means adopted under the law of any place (whether in or out of Australia) relating to the adoption of children.
"alleged contravention" , in Subdivision D of Division 6 of Part VII, means the alleged contravention because of which the alleged offender is arrested.
"alleged offender" , in Subdivision D of Division 6 of Part VII, means the person who is arrested.
"appeal" includes an application for a re-hearing.
"Appeal Division" means the Appeal Division of the Family Court.
"applicable Rules of Court" :
(a) in relation to the Federal Magistrates Court--means the related Federal Magistrates Rules; and
(b) in relation to any other court--means the standard Rules of Court.
"applicant" includes a cross-applicant and, in relation to proceedings for dissolution of marriage instituted before the commencement of this Act, includes a petitioner or cross-petitioner.
"applied provisions" , when used in Division 13A of Part VII in relation to a community service order made under paragraph 70NFB(2)(a), means the provisions of the laws of a State or Territory (as modified by regulations made under subsection 70NFC(4)), that, because of regulations made under that subsection, apply in relation to the order.
"appropriate authority" , when used in Part VII in relation to a Commonwealth instrumentality, means a person:
(a) who in, or in relation to, the instrumentality:
(i) is an SES employee or acting SES employee; or
(ii) holds an office or position that is at a level equivalent to that of an SES employee; or
(b) who is authorised in writing by the principal officer of the instrumentality to provide information under Commonwealth information orders.
"appropriate officer" , when used in Division 5 of Part III in relation to the Family Court, means:
(a) the Chief Executive Officer of the Family Court; or
(b) any other officer of the Family Court specified in writing by the Chief Executive Officer for the purposes of this definition.
"arbitration" has the meaning given by section 10L.
"arbitrator" has the meaning given by section 10M.
"arresting person" means the person who arrests the alleged offender.
"artificial conception procedure" includes:
(a) artificial insemination; and
(b) the implantation of an embryo in the body of a woman.
"audio link" means facilities (for example, telephone facilities) that enable audio communication between persons in different places.
"Australia" includes Norfolk Island.
"bankruptcy trustee" , in relation to a bankrupt, means the trustee of the bankrupt's estate.
"birth" includes stillbirth.
"captain" , in relation to an aircraft or vessel, means the person in charge or command of the aircraft or vessel.
"Chief Executive Officer" means the Chief Executive Officer of the Family Court.
Note: The Chief Executive Officer is appointed under section 38C. A person is appointed to act as the Chief Executive Officer under section 38M.
"child" :
(a) in Part VII, includes an adopted child and a stillborn child; and
(b) in Subdivision E of Division 6 of that Part, means a person who is under 18 (including a person who is an adopted child).
"childbirth maintenance period" , in relation to the birth of a child, means the period that begins on the day mentioned in paragraph (a) or (b) and ends 3 months after the child's birth:
(a) if the mother:
(i) works in paid employment; and
(ii) is advised by a medical practitioner to stop working for medical reasons related to her pregnancy; and
(iii) stops working after being so advised and more than 2 months before the child is due to be born;
the period begins on the day on which she stops working; or
(b) in any other case--the period begins on the day that is 2 months before the child is due to be born.
"child maintenance order" has the meaning given by subsection 64B(5).
"child maintenance provisions" , in relation to a parenting plan, has the meaning given by subsection 63C(5).
"child of a marriage" includes a child who is, under subsection 60F(1) or (2), a child of a marriage, but does not include a child who has, under subsection 60F(3), ceased to be a child of a marriage.
"child-related proceedings" has the meaning given by section 69ZM.
"child welfare law" means a law of a State or Territory prescribed, or included in a class of laws of a State or Territory prescribed, for the purposes of this definition.
child welfare officer , in relation to a State or Territory, means:
(a) a person who, because he or she holds, or performs the duties of, a prescribed office of the State or Territory, has responsibilities in relation to a child welfare law of the State or Territory; or
(b) a person authorised in writing by such a person for the purposes of Part VII.
"child welfare provisions" , in relation to a parenting plan, has the meaning given by subsection 63C(4).
"Commonwealth information order" has the meaning given by subsection 67J(2).
"Commonwealth instrumentality" means a body or authority established for a public purpose by or under a law of the Commonwealth.
"community service order" has the meaning given by subsection 70NFC(3).
"contravened" an order, in Division 13A of Part VII, has the meaning given by section 70NAC.
"court" , in relation to any proceedings, means the court exercising jurisdiction in those proceedings by virtue of this Act.
"debtor subject to a personal insolvency agreement" has the meaning given by section 5.
"decree" means decree, judgment or order and includes:
(a) an order dismissing an application; or
(b) a refusal to make a decree or order.
de facto relationship means the relationship between a man and a woman who live with each other as spouses on a genuine domestic basis although not legally married to each other.
"Department" , in Subdivision C of Division 8 of Part VII, means a Department of State of the Commonwealth.
"divorce" means the termination of a marriage otherwise than by the death of a party to the marriage.
Note: Annulment does not involve the termination of a marriage but simply a declaration that a purported marriage is in fact void.
divorce or validity of marriage proceedings means:
(a) proceedings between the parties to a marriage, or by the parties to a marriage, for:
(i) a divorce order in relation to the marriage; or
(ii) a decree of nullity of marriage; or
(b) proceedings for a declaration as to the validity of:
(i) a marriage; or
(ii) a divorce; or
(iii) the annulment of a marriage;
by decree or otherwise.
"DPP" means the Director of Public Prosecutions.
"education" includes apprenticeship or vocational training.
"excluded order" means:
(a) an interim order; or
(b) an order made in favour of a person where:
(i) the order was made on the application of the person; and
(ii) notice of making the application was not served on any other person; and
(iii) no other person appeared at the hearing of the application.
"family consultant" has the meaning given by section 11B.
"family counselling" has the meaning given by section 10B.
"family counsellor" has the meaning given by section 10C.
"family dispute resolution" has the meaning given by section 10F.
"family dispute resolution practitioner" has the meaning given by section 10G.
"Family Law Magistrate of Western Australia" means a person who holds office concurrently:
(a) as a magistrate under the Magistrates Court Act 2004 of Western Australia; and
(b) as the Principal Registrar, or as a Registrar, of the Family Court of Western Australia.
"family violence" means conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person's family that causes that or any other member of the person's family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.
Note: A person reasonably fears for, or reasonably is apprehensive about, his or her personal wellbeing or safety in particular circumstances if a reasonable person in those circumstances would fear for, or be apprehensive about, his or her personal wellbeing or safety.
"family violence order" means an order (including an interim order) made under a prescribed law of a State or Territory to protect a person from family violence.
"financial agreement" means an agreement that is a financial agreement under section 90B, 90C or 90D, but does not include an ante-nuptial or post-nuptial settlement to which section 85A applies.
financial matters , in relation to the parties to a marriage, means matters with respect to:
(a) the maintenance of one of the parties;
(b) the property of those parties or of either of them; or
(c) the maintenance of children of the marriage.
financial or Part VII proceedings means proceedings (being, unless the context otherwise requires, proceedings under this Act) of a kind referred to in any of paragraphs (c) to (eb) of the definition of matrimonial cause in this subsection or proceedings under Part VII.
"forfeiture application" means an application for a forfeiture order under the Proceeds of Crime Act 2002 .
"forfeiture order" means a forfeiture order under the Proceeds of Crime Act 2002 .
Full Court means:
(a) 3 or more Judges of the Family Court sitting together, where a majority of those Judges are members of the Appeal Division; or
(b) in relation to particular proceedings:
(i) 3 or more Judges of the Family Court sitting together, where, at the commencement of the hearing of the proceedings, a majority of those Judges were members of the Appeal Division; or
(ii) 2 Judges of the Family Court sitting together, where those Judges are permitted, by subsection 28(4), to complete the hearing and determination, or the determination, of those proceedings.
"General Division" means the General Division of the Family Court.
"guardian" , when used in Part VII in relation to a child, includes a person who has been granted (whether alone or jointly with another person or other persons) guardianship of the child under the law of the Commonwealth or of a State or Territory.
"income tested pension, allowance or benefit" means a pension, allowance or benefit prescribed, or included in a class of pensions, allowances or benefits prescribed, for the purposes of this definition.
"independent children's lawyer" for a child means a lawyer who represents the child's interests in proceedings under an appointment made under a court order under subsection 68L(2).
"information about the child's location" , in the context of a location order made or to be made by a court in relation to a child, means information about:
(a) where the child is; or
(b) where a person, who the court has reasonable cause to believe has the child, is.
"interests" , when used in Part VII in relation to a child, includes matters related to the care, welfare or development of the child.
"lawyer" means a person enrolled as a legal practitioner of:
(a) a federal court; or
(b) the Supreme Court of a State or Territory.
"location order" has the meaning given by subsection 67J(1).
"made" , in relation to a decree, being a judgment, means given.
"made in favour" , in relation to a parenting order (other than a child maintenance order), has the meaning given by subsection 64B(6).
"maintenance agreement" means an agreement in writing made, whether before or after the commencement of this Act and whether within or outside Australia, between the parties to a marriage, being an agreement that makes provision with respect to financial matters, whether or not there are other parties to the agreement and whether or not it also makes provision with respect to other matters, and includes such an agreement that varies an earlier maintenance agreement.
"major long-term issues" , in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a) the child's education (both current and future); and
(b) the child's religious and cultural upbringing; and
(c) the child's health; and
(d) the child's name; and
(e) changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent.
To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long‑term issue in relation to the child. However, the decision will involve a major long‑term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.
"matrimonial cause" means:
(a) proceedings between the parties to a marriage, or by the parties to a marriage, for:
(i) a divorce order in relation to the marriage; or
(ii) a decree of nullity of marriage; or
(b) proceedings for a declaration as to the validity of:
(i) a marriage; or
(ii) a divorce; or
(iii) the annulment of a marriage;
by decree or otherwise; or
(c) proceedings between the parties to a marriage with respect to the maintenance of one of the parties to the marriage; or
(caa) proceedings between:
(i) a party to a marriage; and
(ii) the bankruptcy trustee of a bankrupt party to the marriage;
with respect to the maintenance of the first‑mentioned party; or
(ca) proceedings between the parties to a marriage with respect to the property of the parties to the marriage or either of them, being proceedings:
(i) arising out of the marital relationship;
(ii) in relation to concurrent, pending or completed divorce or validity of marriage proceedings between those parties; or
(iii) in relation to the divorce of the parties to that marriage, the annulment of that marriage or the legal separation of the parties to that marriage, being a divorce, annulment or legal separation effected in accordance with the law of an overseas jurisdiction, where that divorce, annulment or legal separation is recognised as valid in Australia under section 104; or
(cb) proceedings between:
(i) a party to a marriage; and
(ii) the bankruptcy trustee of a bankrupt party to the marriage;
with respect to any vested bankruptcy property in relation to the bankrupt party, being proceedings:
(iii) arising out of the marital relationship; or
(iv) in relation to concurrent, pending or completed divorce or validity of marriage proceedings between the parties to the marriage; or
(v) in relation to the divorce of the parties to the marriage, the annulment of the marriage or the legal separation of the parties to the marriage, being a divorce, annulment or legal separation effected in accordance with the law of an overseas jurisdiction, where that divorce, annulment or legal separation is recognised as valid in Australia under section 104; or
(d) proceedings between the parties to a marriage for the approval by a court of a maintenance agreement or for the revocation of such an approval or for the registration of a maintenance agreement; or
(e) proceedings between the parties to a marriage for an order or injunction in circumstances arising out of the marital relationship (other than proceedings under a law of a State or Territory prescribed for the purposes of section 114AB); or
(ea) proceedings between:
(i) the parties to a marriage; or
(ii) if one of the parties to a marriage has died--the other party to the marriage and the legal personal representative of the deceased party to the marriage;
being proceedings:
(iii) for the enforcement of, or otherwise in relation to, a maintenance agreement that has been approved under section 87 and the approval of which has not been revoked;
(iv) in relation to a maintenance agreement the approval of which under section 87 has been revoked; or
(v) with respect to the enforcement under this Act or the applicable Rules of Court of a maintenance agreement that is registered in a court under section 86 or an overseas maintenance agreement that is registered in a court under regulations made pursuant to section 89; or
(eaa) without limiting any of the preceding paragraphs, proceedings between the parties to a marriage with respect to a financial agreement made by them; or
(eab) third party proceedings (as defined in section 4A) to set aside a financial agreement; or
(eb) proceedings with respect to the enforcement of a decree made under the law of an overseas jurisdiction in proceedings of a kind referred to in paragraph (c); or
(f) any other proceedings (including proceedings with respect to the enforcement of a decree or the service of process) in relation to concurrent, pending or completed proceedings of a kind referred to in any of paragraphs (a) to (eb), including proceedings of such a kind pending at, or completed before, the commencement of this Act.
"medical expenses" includes medical, surgical, dental, diagnostic, hospital, nursing, pharmaceutical and physiotherapy expenses.
"medical practitioner" means a person registered or licensed as a medical practitioner under a law of a State or Territory that provides for the registration or licensing of medical practitioners.
"member of the family" , in relation to a person, has, for the purposes of the definition of step-parent , paragraphs 60CC(3)(j) and (k) and section 60CF, the meaning given by subsection (1AB) of this section.
"order under this Act affecting children" , in relation to a court, means:
(a) a parenting order; or
(b) an injunction granted by the court:
(i) under section 68B; or
(ii) under section 114 in so far as the injunction is for the protection of a child; or
(c) an undertaking given to, and accepted by, the court:
(i) that relates to, or to the making of, an order or injunction referred to in paragraph (a) or (b) or a community service order referred to in paragraph (f); or
(ii) that relates to a bond referred to in paragraph (g); or
(d) a subpoena issued under the applicable Rules of Court:
(i) that relates to, or to the making of, an order or injunction referred to in paragraph (a) or (b) or a community service order referred to in paragraph (f); or
(ii) that relates to a bond referred to in paragraph (g);
being a subpoena issued to a party to the proceedings for the order, injunction or bond, as the case may be; or
(e) a registered parenting plan within the meaning of subsection 63C(6); or
(f) a community service order made under paragraph 70NFB(2)(a); or
(g) a bond entered into:
(i) under a parenting order; or
(ii) under paragraph 70NFB(2)(b); or
(iii) for the purposes of subsection 70NFG(6);
and includes an order, injunction, plan or bond that:
(h) is an order under this Act affecting children made by another court because of paragraph (a), (b), (e) or (g); and
(i) has been registered in the first‑mentioned court.
"ordinarily resident" includes habitually resident.
"overseas child order" means:
(a) an order made by a court of a prescribed overseas jurisdiction that:
(i) however it is expressed, has the effect of determining the person or persons with whom a child who is under 18 is to live, or that provides for a person or persons to have custody of a child who is under 18; or
(ii) however it is expressed, has the effect of providing for a person or persons to spend time with a child who is under 18; or
(iii) however it is expressed, has the effect of providing for contact between a child who is under 18 and another person or persons, or that provides for a person or persons to have access to a child who is under 18; or
(iv) varies or discharges an order of the kind referred to in subparagraph (i), (ii) or (iii), including an order of that kind made under this Act; or
(b) an order made for the purposes of the Convention referred to in section 111B by a judicial or administrative authority of a convention country (within the meaning of the regulations made for the purposes of that section).
"overseas jurisdiction" means a country, or part of a country, outside Australia.
"overseas maintenance agreement" means a maintenance agreement that has force and effect in a prescribed overseas jurisdiction by reason of the registration of the agreement, or the taking of any other action in relation to the agreement, under the law of that jurisdiction and includes an agreement with respect to the maintenance of an ex-nuptial child that would be covered by the foregoing provisions of this definition if the child were a child of the marriage of the parties to the agreement.
"parent" , when used in Part VII in relation to a child who has been adopted, means an adoptive parent of the child.
"parentage testing order" has the meaning given by subsection 69W(1).
"parentage testing procedure" means a medical procedure prescribed, or included in a class of medical procedures prescribed, for the purposes of this definition.
"parental responsibility" , in Part VII, has the meaning given by section 61B.
"parenting order" has the meaning given by subsection 64B(1).
"parenting plan" has the meaning given by subsection 63C(1).
Part VIIIA proceedings means proceedings in relation to a financial agreement.
Part VIIIB proceedings means:
(a) proceedings in relation to a superannuation agreement (within the meaning of Part VIIIB); or
(b) proceedings in relation to a payment split or payment flag (within the meaning of that Part); or
(c) any other proceedings under that Part.
Part VIII proceedings means proceedings under Part VIII for orders with respect to spousal maintenance or the property of parties to a marriage, but does not include any proceedings specified in the regulations for the purposes of this definition.
"pending" , in Subdivision E of Division 6 of Part VII, has a meaning affected by section 65X.
"personal insolvency agreement" has the same meaning as in the Bankruptcy Act 1966 .
police officer means:
(a) a member or special member of the Australian Federal Police; or
(b) a member, however described, of the police force of a State or Territory.
"post-separation parenting program" means a program:
(a) that is designed to help people to resolve problems that adversely affect the carrying out of their parenting responsibilities (including by providing counselling services or by teaching techniques to resolve disputes); and
(b) that consists of lectures, discussions (including group discussions) or other activities; and
(c) that is provided by an organisation that meets the conditions in section 65LB.
"prescribed adopting parent" , in relation to a child, means:
(a) a parent of the child; or
(b) the spouse of, or a person in a de facto relationship with, a parent of the child; or
(c) a parent of the child and either his or her spouse or a person in a de facto relationship with the parent.
"prescribed child welfare authority" , in relation to abuse of a child, means:
(a) if the child is the subject of proceedings under Part VII in a State or Territory--an officer of the State or Territory who is responsible for the administration of the child welfare laws of the State or Territory, or some other prescribed person; or
(b) if the child is not the subject of proceedings under Part VII--an officer of the State or Territory in which the child is located or is believed to be located who is responsible for the administration of the child welfare laws of the State or Territory, or some other prescribed person.
"prescribed overseas jurisdiction" means any country, or part of a country, outside Australia that is declared by the regulations to be a prescribed overseas jurisdiction for the purposes of the provision in which the expression is used.
"prescribed proceedings" means:
(a) divorce or validity of marriage proceedings; or
(b) proceedings in relation to concurrent, pending or completed divorce or validity of marriage proceedings.
"primary order" means an order under this Act affecting children and includes such order as varied.
principal officer , when used in Subdivision C of Division 8 of Part VII in relation to a Commonwealth instrumentality, means:
(a) if the regulations declare an office to be the principal office in respect of the instrumentality--the person holding, or performing the duties of, that office; or
(b) the person who constitutes the instrumentality or who is entitled to preside at any meeting of the instrumentality, or of its governing body, at which the person is present.
"proceedings" means a proceeding in a court, whether between parties or not, and includes cross-proceedings or an incidental proceeding in the course of or in connexion with a proceeding.
"proceedings for principal relief" means proceedings under this Act of a kind referred to in paragraph (a) or (b) of the definition of matrimonial cause in this subsection.
"proceeds of crime order" means:
(a) a restraining order under the Proceeds of Crime Act 2002 ; or
(b) a forfeiture order under the Proceeds of Crime Act 2002 .
"professional ethics" includes:
(a) rules of professional conduct; and
(b) rules of professional etiquette; and
(c) a code of ethics; and
(d) standards of professional conduct.
"property" , in relation to the parties to a marriage or either of them, means property to which those parties are, or that party is, as the case may be, entitled, whether in possession or reversion.
"property settlement or spousal maintenance proceedings" means proceedings with respect to:
(a) the property of the parties to a marriage or either of them; or
(aa) the vested bankruptcy property in relation to a bankrupt party to a marriage; or
(b) the maintenance of a party to a marriage.
property settlement proceedings means proceedings with respect to:
(a) the property of the parties to a marriage or either of them; or
(b) the vested bankruptcy property in relation to a bankrupt party to a marriage.
"reasonable excuse for contravening" an order includes the meanings given by section 70NAE.
"recovery order" has the meaning given by section 67Q.
"Registrar" means:
(a) in relation to the Family Court -- the Principal Registrar, a Registrar, or a Deputy Registrar of the Court; and
(b) in relation to a court other than the Family Court--the principal legal officer of the court or any other appropriate officer of the court.
"Registry Manager" :
(a) except in Subdivision C of Division 8 of Part VII and section 67Z, means:
(i) in relation to the Family Court--the Registry Manager of a Registry of the Court; and
(ii) in relation to a court other than the Family Court--the principal officer of the court or any other appropriate officer of the court; and
(b) in Subdivision C of Division 8 of Part VII, means:
(i) in relation to the Family Court--the Registry Manager of the Registry of the Court; and
(ii) in relation to the Family Court of Western Australia--the Principal Registrar, a Registrar or a Deputy Registrar, of the court; and
(iii) in relation to any other court--the principal officer of the court.
"related Federal Magistrates Rules" means the Rules of Court made under the Federal Magistrates Act 1999 to the extent to which they relate to this Act.
relative of a child:
(a) in Part VII, means:
(i) a step‑parent of the child; or
(ii) a brother, sister, half‑brother, half‑sister, step‑brother or step‑sister of the child; or
(iii) a grandparent of the child; or
(iv) an uncle or aunt of the child; or
(v) a nephew or niece of the child; or
(vi) a cousin of the child; and
(b) in subsection (1AB), has the meaning given by subsection (1AC).
"relevant property or financial arbitration" has the meaning given by subsection 10L(2).
"repealed Act" means the Matrimonial Causes Act 1959 .
section 13E arbitration has the meaning given by subsection 10L(2).
section 106A proceedings means proceedings under section 106A.
"separation order" means a decree, not being a decree of dissolution or nullity of marriage or for a judicial separation, having the effect of relieving a party to a marriage from any obligation to cohabit with the other party to the marriage.
"split court" has the meaning given by subsection 27(2).
"standard Rules of Court" means Rules of Court made under this Act.
"State" , in Subdivision B of Division 13 of Part VII, includes a Territory.
"State child order" means an order made under the law of a State:
(a) that (however it is expressed) has the effect of determining the person or persons with whom a child who is under 18 is to live, or that provides for a person or persons to have custody of a child who is under 18; or
(b) that (however it is expressed) has the effect of providing for a person or persons to spend time with a child who is under 18; or
(c) that (however it is expressed) has the effect of providing for contact between a child who is under 18 and another person or persons, or that provides for a person or persons to have access to a child who is under 18.
"step-parent" , in relation to a child, means a person who:
(a) is not a parent of the child; and
(b) is or has been married to a parent of the child; and
(c) treats, or at any time during the marriage treated, the child as a member of the family formed with the parent.
"Subdivision C parenting order" , when used in Division 13 of Part VII, means a parenting order to the extent to which it deals with:
(a) whom a child is to live with; or
(b) whom a child is to spend time with; or
(c) who is to be responsible for a child's day‑to‑day care, welfare and development.
Territory includes:
(a) Norfolk Island;
(b) the Territory of Christmas Island;
(c) the Territory of Cocos (Keeling) Islands;
but does not include any other external Territory.
"this Act" includes the regulations.
"Torres Strait" Islander child means a child who is a descendant of the Indigenous inhabitants of the Torres Strait Islands.
"trustee" , in relation to a personal insolvency agreement, has the same meaning as in the Bankruptcy Act 1966 .
"vested bankruptcy property" , in relation to a bankrupt, means property of the bankrupt that has vested in the bankruptcy trustee under the Bankruptcy Act 1966 . For this purpose, property has the same meaning as in the Bankruptcy Act 1966 .
"video link" means facilities (for example, closed-circuit television facilities) that enable audio and visual communication between persons in different places.
"warrant issued under a provision of this Act" includes a warrant issued under the standard Rules of Court or the related Federal Magistrates Rules.
(1AA) A reference in this Act to a person or people involved in proceedings is a reference to:
(a) any of the parties to the proceedings; and
(b) any child whose interests are considered in, or affected by, the proceedings; and
(c) any person whose conduct is having an effect on the proceedings.
(1AB) For the purposes of:
(a) the definitions of family violence and step‑parent in subsection (1); and
(b) paragraphs 60CC(3)(j) and (k); and
(c) section 60CF;
a person (the first person ) is a member of the family of another person (the second person ) if:
(d) the first person is or has been married to, or in a de facto relationship with, the second person; or
(e) the first person is or has been a relative of the second person (as defined in subsection (1AC)); or
(f) an order under this Act described in subparagraph (i) or (ii) is or was (at any time) in force:
(i) a parenting order (other than a child maintenance order) that relates to a child who is either the first person or the second person and that is in favour of the other of those persons;
(ii) an order providing for the first person or the second person to have custody or guardianship of, or a right of access to, the other of those persons; or
(g) an order under a law of a State or Territory described in subparagraph (i) or (ii) is or was (at any time) in force:
(i) an order determining that the first person or the second person is or was to live with the other of those persons, or is or was to have custody or guardianship of the other of those persons;
(ii) an order providing for contact between the first person and the second person, or for the first person or the second person to have a right of access to the other of those persons; or
(h) the first person ordinarily or regularly resides or resided with the second person, or with another member of the family of the second person; or
(i) the first person is or has been a member of the family of a child of the second person.
(1AC) For the purposes of subsection (1AB), a relative of a person is:
(a) a father, mother, grandfather, grandmother, step‑father or step‑mother of the person; or
(b) a son, daughter, grandson, grand‑daughter, step‑son or step‑daughter of the person; or
(c) a brother, sister, half‑brother, half‑sister, step‑brother or step‑sister of the person; or
(d) an uncle or aunt of the person; or
(e) a nephew or niece of the person; or
(f) a cousin of the person; or
(g) if the person is or was married--in addition to paragraphs (a) to (f), a person who is or was a relative, of the kind described in any of those paragraphs, of the person's spouse; or
(h) if the person is or was in a de facto relationship with another person--in addition to paragraphs (a) to (f), a person who would be a relative of a kind described in any of those paragraphs if the persons in that de facto relationship were or had been married to each other.
(1A) In this Act, the standard Rules of Court and the related Federal Magistrates Rules:
(a) a reference to the Family Court is a reference to the Family Court of Australia; and
(b) a reference to a Family Court of a State is a reference to a court to which section 41 applies.
(2) A reference in this Act, the standard Rules of Court or the related Federal Magistrates Rules to a party to a marriage includes a reference to a person who was a party to a marriage that has been:
(a) terminated by divorce (in Australia or elsewhere); or
(b) annulled (in Australia or elsewhere); or
(c) terminated by the death of one party to the marriage.
(3) To avoid doubt, for all purposes:
(a) jurisdiction under the standard Rules of Court is taken to be jurisdiction under this Act; and
(b) jurisdiction under the related Federal Magistrates Rules is taken to be jurisdiction under this Act; and
(c) proceedings under the standard Rules of Court are taken to be proceedings under this Act; and
(d) proceedings under the related Federal Magistrates Rules are taken to be proceedings under this Act; and
(e) an order (however described) made by a court under the standard Rules of Court is taken to be an order made by the court under this Act; and
(f) an order (however described) made by a court under the related Federal Magistrates Rules is taken to be an order made by the court under this Act.
(4) A reference in this Act to a person who has parental responsibility for a child is a reference to a person who:
(a) has some or all of that responsibility solely; or
(b) shares some or all of that responsibility with another person.
(5) A reference in this Act to a person who shares parental responsibility for a child with another person is a reference to a person who shares some or all of the parental responsibility for the child with that other person.
Schedule 2 to Reasons
FAMILY LAW RULES
FAMILY LAW RULES 2004 - RULE 5.12
Application without notice
An applicant seeking that an interim order or procedural order be made without notice to the respondent must:
(a) satisfy the court about why:
(i) shortening the time for service of the application and the fixing of an early date for hearing after service would not be more appropriate; and
(ii) an order should be made without notice to the other party; and
(b) in an affidavit or orally, with the court’s permission, make full and frank disclosure of all the facts relevant to the application, including:
(i) whether there is a history or allegation of child abuse or family violence between the parties;
(ii) whether there has been a previous case between the parties and, if so, the nature of the case;
(iii) the particulars of any orders currently in force between the parties;
(iv) whether there has been a breach of a previous order by either party to the case;
(v) whether the respondent or the respondent’s lawyer has been told of the intention to make the application;
(vi) whether there is likely to be any hardship, danger or prejudice to the respondent, a child or a third party if the order is made;
(vii) the capacity of the applicant to give an undertaking as to damages;
(viii) the nature of the damage or harm that may result if the order is not made;
(ix) why the order must be urgently made; and
(x) the last known address or address for service of the other party.
Note The applicant must file any existing family violence order when filing the application (see rule 2.05).
FAMILY LAW RULES 2004 - RULE 7.18
Service with conditions or dispensing with service
(1) A party who is unable to serve a document may apply, without notice, for an order:
(a) to serve the document in another way; or
(b) to dispense with service of the document, with or without conditions.
(2) The factors the court may have regard to when considering an application under subrule (1) include:
(a) the proposed method of bringing the document to the attention of the person to be served;
(b) whether all reasonable steps have been taken to serve the document or bring it to the notice of the person to be served;
(c) whether the person to be served could reasonably become aware of the existence and nature of the document by advertisement or another form of communication that is reasonably available;
(d) the likely cost of service; and
(e) the nature of the case.
(3) If the court orders that service of a document is:
(a) dispensed with unconditionally; or
(b) dispensed with on a condition that is complied with;
the document is taken to have been served.
Note An application under this rule is made by filing an Application in a Case and an affidavit (see rules 5.01 and 5.02).
Schedule 3 to Reasons
FAMILY LAW (CHILD ABDUCTION CONVENTION) REGULATIONS 1986
FAMILY LAW (CHILD ABDUCTION CONVENTION) REGULATIONS 1986 - REG 1
Name of Regulations [see Note 1]
These Regulations are the Family Law (Child Abduction Convention) Regulations 1986 .
FAMILY LAW (CHILD ABDUCTION CONVENTION) REGULATIONS 1986 - REG 1A
Purpose
(1) The purpose of these Regulations is to give effect to section 111B of the Act.
(2) These Regulations are intended to be construed:
(a) having regard to the principles and objects mentioned in the preamble to and Article 1 of the Convention; and
(b) recognising, in accordance with the Convention, that the appropriate forum for resolving disputes relating to a child's care, welfare and development is ordinarily the child's country of habitual residence; and(c)recognising that the effective implementation of the Convention depends on the reciprocity and mutual respect between judicial or administrative authorities (as the case may be) of convention countries
FAMILY LAW (CHILD ABDUCTION CONVENTION) REGULATIONS 1986 - REG 2
Interpretation
(1) In these Regulations, unless the contrary intention appears:
Article 3 applicant means a person, institution or other body that has made an application under paragraph 14 (1) (b) or subregulation 14 (2).
"Central Authority" has the meaning it has in the Convention.
"child" means a person who has not attained the age of 16 years.
"Commonwealth Central Authority" means the Secretary of the Attorney-General's Department.
Convention means the Convention on the Civil Aspects of International Child Abduction referred to in section 111B of the Act, a copy of the English text of which is set out in Schedule 1.
"convention country" means a country that under regulation 10 is a convention country.
"court" means a court having jurisdiction under paragraph 39 (5) (d), 39 (5A) (a) or 39 (6) (d) of the Act.
"filed" has the same meaning as in the applicable Rules of Court.
"Registrar" means:
(a) in relation to the Family Court, or the Family Court of Western Australia -- the Registrar, or a Deputy Registrar, of the court; and
(b) in relation to any other court -- the principal officer of the other court.
"request" means a request made to a responsible Central Authority for the purposes of Article 8 or 21 of the Convention.
responsible Central Authority , in relation to action to be taken in a State or Territory, means the Commonwealth Central Authority or the State Central Authority of that State or Territory, as the case requires.
"return order" means an order under Part 3 for the return, under the Convention, of a child who has been removed to, or retained in, Australia.
"rights of access" include the right to take a child for a limited period of time to a place other than the child's habitual residence.
"rights of custody" has the meaning given in regulation 4.
"State Central Authority" means a person appointed under subregulation 8 (1) to be the Central Authority of a State or Territory.
"the Act" means the Family Law Act 1975 .
Note applicable Rules of Court is defined in subsection 4 (1) of the Act.
(1A) A reference in these Regulations to a form by number is a reference to the form so numbered in Schedule 3.
(1B) Unless the contrary intention appears, an expression that is used in these Regulations and in the Convention has the same meaning in these regulations as in the Convention.
(1C) A reference in these Regulations to a child who is removed:
(a) from Australia to a convention country; or
(b) from a convention country to another convention country or to Australia;
includes a reference to the removal of the child to the convention country concerned or to Australia, as the case may be, whether or not the child is first removed to another country.
(2) The removal or retention of a child is wrongful in the circumstances mentioned in Article 3 of the Convention.
FAMILY LAW (CHILD ABDUCTION CONVENTION) REGULATIONS 1986 - REG 17
Declaration that removal or retention was wrongful
(1) On application, a court may by order declare that:
(a) the removal of a child from Australia to a convention country; or
(b) the retention of a child in a convention country;
was wrongful within the meaning of Article 3 of the Convention.
(2) The court may ask a responsible Central Authority to arrange for the person, institution or other body making a request in relation to the return of a child under the Convention to obtain an order of a court, or a decision of a competent authority, of the country in which the child habitually resided immediately before his or her removal or retention declaring that the removal or retention was wrongful within the meaning of Article 3 of the Convention.
FAMILY LAW (CHILD ABDUCTION CONVENTION) REGULATIONS 1986 - REG 27
Service of notice of certain applications
(1) Subject to subregulation (2), notice of an application under regulation 14, 19A or 25 that includes a copy of the application must be served by the applicant in accordance with the applicable Rules of Court:
(a) for an application under regulation 14 -- on the person whom the applicant claims has wrongfully removed or retained the child who is the subject of the application; and
(b) for an application under regulation 19A -- on any other party to the proceeding for return of the child; and
(c) for an application under regulation 25 -- on the person, institution or other body in possession of the child who is the subject of the application.
(2) In accordance with the applicable Rules of Court, the court to which an application referred to in subregulation (1) is made may dispense with service of notice of the application under that subregulation.
FAMILY LAW (CHILD ABDUCTION CONVENTION) REGULATIONS 1986 - SCHEDULE 1
Convention on the civil aspects of international child abduction
(regulation 2)
The States signatory to the present Convention,
Firmly convinced that the interests of children are of paramount importance in matters relating to their custody,
Desiring to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access,
Have resolved to conclude a Convention to this effect, and have agreed upon the following provisions--
CHAPTER I--SCOPE OF THE CONVENTION
Article 1
The objects of the present Convention are--
a to secure the prompt return of children wrongfully removed 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.
Article 2
Contracting States shall take all appropriate measures to secure within their territories the implementation of the objects of the Convention. For this purpose they shall use the most expeditious procedures available.
Article 3
The removal or the retention of a child is to be considered wrongful where--
a it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and
b at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.
The rights of custody mentioned in sub‑paragraph a above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.
Article 4
The Convention shall apply to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights. The Convention shall cease to apply when the child attains the age of 16 years.
Article 5
For the purposes of this Convention--
a 'rights of custody' shall include rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence;
b 'rights of access' shall include the right to take a child for a limited period of time to a place other than the child's habitual residence.
CHAPTER II--CENTRAL AUTHORITIES
Article 6
A Contracting State shall designate a Central Authority to discharge the duties which are imposed by the Convention upon such authorities.
Federal States, States with more than one system of law or States having autonomous territorial organizations shall be free to appoint more than one Central Authority and to specify the territorial extent of their powers. Where a State has appointed more than one Central Authority, it shall designate the Central Authority to which applications may be addressed for transmission to the appropriate Central Authority within that State.
Article 7
Central Authorities shall co‑operate with each other and promote co‑operation amongst the competent authorities in their respective States to secure the prompt return of children and to achieve the other objects of this Convention.
In particular, either directly or through any intermediary, they shall take all appropriate measures--
a to discover the whereabouts of a child who has been wrongfully removed or retained;
b to prevent further harm to the child or prejudice to interested parties by taking or causing to be taken provisional measures;
c to secure the voluntary return of the child or to bring about an amicable resolution of the issues;
d to exchange, where desirable, information relating to the social background of the child;
e to provide information of a general character as to the law of their State in connection with the application of the Convention;
f to initiate or facilitate the institution of judicial or administrative proceedings with a view to obtaining the return of the child and, in a proper case, to make arrangements for organizing or securing the effective exercise of rights of access;
g where the circumstances so require, to provide or facilitate the provision of legal aid and advice, including the participation of legal counsel and advisers;
h to provide such administrative arrangements as may be necessary and appropriate to secure the safe return of the child;
to keep each other informed with respect to the operation of this Convention and, as far as possible, to eliminate any obstacles to its application.
CHAPTER III--RETURN OF CHILDREN
Article 8
Any person, institution or other body claiming that a child has been removed or retained in breach of custody rights may apply either to the Central Authority of the child's habitual residence or to the Central Authority of any other Contracting State for assistance in securing the return of the child.
The application shall contain--
a information concerning the identity of the applicant, of the child and of the person alleged to have removed or retained the child;
b where available, the date of birth of the child;
c the grounds on which the applicant's claim for return of the child is based;
d all available information relating to the whereabouts of the child and the identity of the person with whom the child is presumed to be.
The application may be accompanied or supplemented by--
e an authenticated copy of any relevant decision or agreement;
f a certificate or an affidavit emanating from a Central Authority, or other competent authority of the State of the child's habitual residence, or from a qualified person, concerning the relevant law of that State;
g any other relevant document.
Article 9
If the Central Authority which receives an application referred to in Article 8 has reason to believe that the child is in another Contracting State, it shall directly and without delay transmit the application to the Central Authority of that Contracting State and inform the requesting Central Authority, or the applicant, as the case may be.
Article 10
The Central Authority of the State where the child is shall take or cause to be taken appropriate measures in order to obtain the voluntary return of the child.
Article 11
The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children.
If the judicial or administrative authority concerned has not reached a decision within six weeks from the date of commencement of the proceedings, the applicant or the Central Authority of the requested State, on its own initiative or if asked by the Central Authority of the requesting State, shall have the right to request a statement of the reasons for the delay. If a reply is received by the Central Authority of the requested State, that Authority shall transmit the reply to the Central Authority of the requesting State, or to the applicant, as the case may be.
Article 12
Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.
The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.
Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child.
Article 13
Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that--
a the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or
b there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.
The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.
In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child's habitual residence.
Article 14
In ascertaining whether there has been a wrongful removal or retention within the meaning of Article 3, the judicial or administrative authorities of the requested State may take notice directly of the law of, and of judicial or administrative decisions, formally recognized or not in the State of the habitual residence of the child, without recourse to the specific procedures for the proof of that law or for the recognition of foreign decisions which would otherwise be applicable.
Article 15
The judicial or administrative authorities of a Contracting State may, prior to the making of an order for the return of the child, request that the applicant obtain from the authorities of the State of the habitual residence of the child a decision or other determination that the removal or retention was wrongful within the meaning of Article 3 of the Convention where such a decision or determination may be obtained in that State. The Central Authorities of the Contracting States shall so far as practicable assist applicants to obtain such a decision or determination.
Article 16
After receiving notice of a wrongful removal or retention of a child in the sense of Article 3, the judicial or administrative authorities of the Contracting State to which the child has been removed or in which it has been retained shall not decide on the merits of rights of custody until it has been determined that the child is not to be returned under this Convention or unless an application under this Convention is not lodged within a reasonable time following receipt of the notice.
Article 17
The sole fact that a decision relating to custody has been given in or is entitled to recognition in the requested State shall not be a ground for refusing to return a child under this Convention, but the judicial or administrative authorities of the requested State may take account of the reasons for that decision in applying this Convention.
Article 18
The provisions of this Chapter do not limit the power of a judicial or administrative authority to order the return of the child at any time.
Article 19
A decision under this Convention concerning the return of the child shall not be taken to be a determination on the merits of any custody issue.
Article 20
The return of the child under the provisions of Article 12 may be refused if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms.
CHAPTER IV--RIGHTS OF ACCESS
Article 21
An application to make arrangements for organizing or securing the effective exercise of rights of access may be presented to the Central Authorities of the Contracting States in the same way as an application for the return of a child.
The Central Authorities are bound by the obligations of co‑operation which are set forth in Article 7 to promote the peaceful enjoyment of access rights and the fulfilment of any conditions to which the exercise of those rights may be subject. The Central Authorities shall take steps to remove, as far as possible, all obstacles to the exercise of such rights.
The Central Authorities, either directly or through intermediaries, may initiate or assist in the institution of proceedings with a view to organizing or protecting these rights and securing respect for the conditions to which the exercise of these rights may be subject.
CHAPTER V--GENERAL PROVISIONS
Article 22
No security, bond or deposit, however described, shall be required to guarantee the payment of costs and expenses in the judicial or administrative proceedings falling within the scope of this Convention.
Article 23
No legalization or similar formality may be required in the context of this Convention.
Article 24
Any application, communication or other document sent to the Central Authority of the requested State shall be in the original language, and shall be accompanied by a translation into the official language or one of the official languages of the requested State or, where that is not feasible, a translation into French or English.
However, a Contracting State may, by making a reservation in accordance with Article 42, object to the use of either French or English, but not both, in any application, communication or other document sent to its Central Authority.
Article 25
Nationals of the Contracting States and persons who are habitually resident within those States shall be entitled in matters concerned with the application of this Convention to legal aid and advice in any other Contracting State on the same conditions as if they themselves were nationals of and habitually resident in that State.
Article 26
Each Central Authority shall bear its own costs in applying this Convention.
Central Authorities and other public services of Contracting States shall not impose any charges in relation to applications submitted under this Convention. In particular, they may not require any payment from the applicant towards the costs and expenses of the proceedings or, where applicable, those arising from the participation of legal counsel or advisers. However, they may require the payment of the expenses incurred or to be incurred in implementing the return of the child.
However, a Contracting State may, by making a reservation in accordance with Article 42, declare that it shall not be bound to assume any costs referred to in the preceding paragraph resulting from the participation of legal counsel or advisers or from court proceedings, except insofar as those costs may be covered by its system of legal aid and advice.
Upon ordering the return of a child or issuing an order concerning rights of access under this Convention, the judicial or administrative authorities may, where appropriate, direct the person who removed or retained the child, or who prevented the exercise of rights of access to pay necessary expenses incurred by or on behalf of the applicant, including travel expenses, any costs incurred or payments made for locating the child, the costs of legal representation of the applicant, and those of returning the child.
Article 27
When it is manifest that the requirements of this Convention are not fulfilled or that the application is otherwise not well founded, a Central Authority is not bound to accept the application. In that case, the Central Authority shall forthwith inform the applicant or the Central Authority through which the application was submitted, as the case may be, of its reasons.
Article 28
A Central Authority may require that the application be accompanied by a written authorization empowering it to act on behalf of the applicant, or to designate a representative so to act.
Article 29
This Convention shall not preclude any person, institution or body who claims that there has been a breach of custody or access rights within the meaning of Article 3 or 21 from applying directly to the judicial or administrative authorities of a Contracting State, whether or not under the provisions of this Convention.
Article 30
Any application submitted to the Central Authorities or directly to the judicial or administrative authorities of a Contracting State in accordance with the terms of this Convention, together with documents and any other information appended thereto or provided by a Central Authority, shall be admissible in the courts or administrative authorities of the Contracting States.
Article 31
In relation to a State which in matters of custody of children has two or more systems of law applicable in different territorial units--
a any reference to habitual residence in that State shall be construed as referring to habitual residence in a territorial unit of that State;
b any reference to the law of the State of habitual residence shall be construed as referring to the law of the territorial unit in that State where the child habitually resides.
Article 32
In relation to a State which in matters of custody of children has two or more systems of law applicable to different categories of persons, any reference to the law of that State shall be construed as referring to the legal system specified by the law of that State.
Article 33
A State within which different territorial units have their own rules of law in respect of custody of children shall not be bound to apply this Convention where a State with a unified system of law would not be bound to do so.
Article 34
This Convention shall take priority in matters within its scope over the Convention of 5 October 1961 concerning the powers of authorities and the law applicable in respect of the protection of minors, as between Parties to both Conventions. Otherwise the present Convention shall not restrict the application of an international instrument in force between the State or origin and the State addressed or other law of the State addressed for the purposes of obtaining the return of a child who has been wrongfully removed or retained or of organizing access rights.
Article 35
This Convention shall apply as between Contracting States only to wrongful removals or retentions occurring after its entry into force in those States.
Where a declaration has been made under Article 39 or 40, the reference in the preceding paragraph to a Contracting State shall be taken to refer to the territorial unit or units in relation to which this Convention applies.
Article 36
Nothing in this Convention shall prevent two or more Contracting States, in order to limit the restrictions to which the return of the child may be subject, from agreeing among themselves to derogate from any provisions of this Convention which may imply such a restriction.
CHAPTER VI--FINAL CLAUSES
Article 37
The Convention shall be open for signature by the States which were Members of the Hague Conference on Private International Law at the time of its Fourteenth Session. It shall be ratified, accepted or approved and the instruments of ratification, acceptance or approval shall be deposited with the Ministry of Foreign Affairs of the Kingdom of the Netherlands.
Article 38
Any other State may accede to the Convention.
The instrument of accession shall be deposited with the Ministry of Foreign Affairs of the Kingdom of the Netherlands.
The Convention shall enter into force for a State acceding to it on the first day of the third calendar month after the deposit of its instrument of accession.
The accession will have effect only as regards the relations between the acceding State and such Contracting States as will have declared their acceptance of the accession. Such a declaration will also have to be made by any Member State ratifying, accepting or approving the Convention after an accession. Such declaration shall be deposited at the Ministry of Foreign Affairs of the Kingdom of the Netherlands: this Ministry shall forward, through diplomatic channels, a certified copy to each of the Contracting States.
The Convention will enter into force as between the acceding State and the State that has declared its acceptance of the accession on the first day of the third calendar month after the deposit of the declaration of acceptance.
Article 39
Any State may, at the time of signature, ratification, acceptance, approval or accession, declare that the Convention shall extend to all the territories for the international relations of which it is responsible, or to one or more of them. Such a declaration shall take effect at the time the Convention enters into force for that State.
Such declaration, as well as any subsequent extension, shall be notified to the Ministry of Foreign Affairs of the Kingdom of the Netherlands.
Article 40
If a Contracting State has two or more territorial units in which different systems of law are applicable in relation to matters dealt with in this Convention, it may at the time of signature, ratification, acceptance, approval or accession declare that this Convention shall extend to all its territorial units or only to one or more of them and may modify this declaration by submitting another declaration at any time.
Any such declaration shall be notified to the Ministry of Foreign Affairs of the Kingdom of the Netherlands and shall state expressly the territorial units to which the Convention applies.
Article 41
Where a Contracting State has a system of government under which executive, judicial and legislative powers are distributed between central and other authorities within that State, its signature or ratification, acceptance or approval of, or accession to this Convention, or its making of any declaration in terms of Article 40 shall carry no implication as to the internal distribution of powers within the State.
Article 42
Any State may, not later than the time of ratification, acceptance, approval or accession, or at the time of making a declaration in terms of Article 39 or 40, make one or both of the reservations provided for in Article 24 and Article 26, third paragraph. No other reservations shall be permitted.
Any State may at any time withdraw a reservation it has made. The withdrawal shall be notified to the Ministry of Foreign Affairs of the Kingdom of the Netherlands.
The reservation shall cease to have effect on the first day of the third calendar month after the notification referred to in the preceding paragraph.
Article 43
The Convention shall enter into force on the first day of the third calendar month after the deposit of the third instrument of ratification, acceptance, approval or accession referred to in Articles 37 and 38.
Thereafter the Convention shall enter into force--
1 for each State ratifying, accepting, approving or acceding to it subsequently, on the first day of the third calendar month after the deposit of its instrument of ratification, acceptance, approval or accession;
2 for any territory or territorial unit to which the Convention has been extended in conformity with Article 39 or 40, on the first day of the third calendar month after the notification referred to in that Article.
Article 44
The Convention shall remain in force for five years from the date of its entry into force in accordance with the first paragraph of Article 43 even for States which subsequently have ratified, accepted, approved it or acceded to it. If there has been no denunciation, it shall be renewed tacitly every five years.
Any denunciation shall be notified to the Ministry of Foreign Affairs of the Kingdom of the Netherlands at least six months before the expiry of the five year period. It may be limited to certain of the territories or territorial units to which the Convention applies.
The denunciation shall have effect only as regards the State which has notified it. The Convention shall remain in force for the other Contracting States.
Article 45
The Ministry of Foreign Affairs of the Kingdom of the Netherlands shall notify the States Members of the Conference, and the States which have acceded in accordance with Article 38, of the following--
1 the signatures and ratifications, acceptances and approvals referred to in Article 37;
2 the accessions referred to in Article 38;
3 the date on which the Convention enters into force in accordance with Article 43;
4 the extensions referred to in Article 39;
5 the declarations referred to in Articles 38 and 40;
6 the reservations referred to in Article 24 and Article 26, third paragraph, and the withdrawals referred to in Article 42;
7 the denunciations referred to in Article 44.
Key Legal Topics
Areas of Law
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Family Law
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Statutory Interpretation
Legal Concepts
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Jurisdiction
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Standing
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Statutory Construction
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Remedies
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