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Child Abduction and Hague Convention Applications

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If a child has been abducted from Australia without your consent, or has not been returned to Australia, an application can be made under the Hague Convention on the Civil Aspects of International Child Abduction. The Hague Convention is an international treaty that tries to ensure that children who are wrongfully removed or wrongfully retained by a parent, will be returned as quickly as possible to the country in which they habitually reside so that issues of parental responsibility can be resolved by the courts in that country.

Australia is a party to the Hague Convention and is therefore a Convention country. Not all countries are Convention countries. If your child is taken to a country which is not a party to the Hague Convention or a country in a bilateral agreement with Australia, then you may need to commence private legal proceedings in that country.
To ensure that your child can be returned from another Hague Convention Country the following requirements must be met:
  • Your child must be under 16 years old;
  • You must have "rights of custody" in relation to the child;
  • You must have been exercising rights of custody at the time your child was taken from Australia;
  • Your child must have been habitually resident in Australia immediately before your child was taken overseas;
  • Your child must have been taken to or retained in a country which is a party to the Hague Convention;
  • Your child must have been wrongfully removed from Australia or wrongfully retained in another Convention country without your prior consent or without a court order.
If you are worried that your child may be removed from Australia you can obtain a court order prohibiting the removal of the child from Australia. If you have a parenting order from an Australian court, or an order prohibiting the removal of your child from Australia, the Australian Federal Police can put the child’s name on the Airport Watch List. A copy of the original court order must be provided to the Australian Federal Police for the child’s name to be entered on the Airport Watch List. You can only remove a child’s name from the Airport Watch List with a court order. The details of a residence or contact order entered on the Airport Watch List must be renewed every six months to remain effective in preventing the child’s departure. You may be able to prevent your child from getting an Australian passport by raising a Child Alert on the passport system. You may also be able to prevent your child from getting a foreign passport for the child by contacting the relevant consular office in your State.
 
If you fear that your child has already been wrongfully removed from Australia or retained overseas, you can Contact the Australian Federal Police to request information on the airport arrival/departure details of the child. You will need to determine whether the overseas country your child has been taken to is a Convention country or a country in a bilateral agreement with Australia (for example Lebanon and Egypt). If you do not know where your child is, report your child as missing to your local law enforcement authority.
Once the application has been filed in the Family Court of Australia, the other party will be served with the application. Applicants are generally not required to attend the hearings. The Court will hand down its decision after the hearing. Depending on the outcome of the hearing, the appropriate return arrangements will be arranged via communication between the Australian Central Authority and the overseas Central Authority.
 
The abducting parent may oppose the return of the child for the following reasons:
  • The child is aged 16 or over;
  • The child has been outside Australia for over 12 months and is settled in his or her new environment;
  • The child was not habitually resident in Australia at the time of the removal or retention;
  • The applicant in Australia did not have rights of custody in relation to the child;
  • The applicant in Australia was not exercising rights of custody in relation to the child at the time of the removal;
  • The applicant gave prior consent to the permanent removal or retention of the child or subsequently acquiesced to the removal or retention of the child;
  • The child would be exposed to a grave risk of physical harm, psychological harm or some other intolerable situation if returned to Australia;
  • The child objects to being returned and is of an age and maturity to justify his or her views being taken into account;
  • The child's return would be a breach of his/her fundamental freedoms and human rights.

If you want to seek the return of your child, it is important to take action as soon as you discover that the child has been taken from Australia or retained overseas. Any delay may later be seen as a lack of concern about the child being overseas or that you consented to the child being overseas.

 
Call one of our Family Lawyers for free initial telephone advice on your circumstances on 95258688.

 

 

Key People

sutherland shire lawyer greg dicksonGreg Dickson 

primary area of practice is litigation. In 1993, he became one of the first solicitors in New South Wales to achieve Accreditation as a Specialist in Family Law and Property Relationships Act Law. Greg is the head of our Family Law Division but also practices extensively in commercial and general litigation ...read more

sutherland shire lawyer kevin dwyerKevin Dwyer 

can advise you upon and conduct all Family Law and De Facto Relationship matters in the Family Courts at Sydney, Wollongong and Parramatta. Kevin can also assist you in Criminal Law and appear in Local Courts all over New South Wales in AVO and criminal proceedings as well as ...read more

Amanda DoringAmanda Doring 

is a Family Law Accredited Specialist with extensive experience drafting binding financial agreements and conducting urgent applications in the Family Court and Federal Magistrate’s Court as well as De Facto proceedings in the Supreme, District and Local Courts ...read more

Lisa O'Leary 

operates predominantly in the area of Family Law and De Facto Relationship dispute resolution in the Family Court, the Federal Magistrates Court, the Local and Supreme Court or by alternative dispute resolution procedures ...read more 

Nicola Morgan 

Nicola joined Warren McKeon Dickson in January 2009 as the recipient of the Warren McKeon Dickson Work Integrated Learning Scholarship offered in conjunction with the University of Wollongong.  ...read more 

 

 

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