[1] Australia ratified the Hague Convention on the 29th October 198622 in order to control the problem of international parental child abduction. It entered into force in Australia on the 1st January 198723 and to give effect to this ratification and the obligations of the Hague Convention, section 111B was inserted into the FLA providing for the making of regulations ‘to enable the performance of the obligations of Australia [and] to obtain for Australia any advantage or benefit under [the Convention].’24
18 Nicholson op cit (n4) 24; Part 4 of Division 3 of the Family Law Act, 1975 (Cth). The Family Court is a specialist court however its powers do not cover some instances and areas which, many agree, actually fall within the ambit of family law (Nicholson at 22).
19 Nicholson op cit (n4) 27.
20 Loc cit.
21 DP and Commonwealth Central Authority; JLM and Director-General New South Wales Department of Community Services [2001] 206 CLR 401 at para [25]. Australia is a state party to the Hague Convention: Fehlberg & Behrens op cit (n7) 67.
22 M Kirby ‘Children caught in conflict – the Child Abduction Convention and Australia’ (Autumn 2010) 21(1) Australian Family Lawyer 3; M Nicholls QC ‘International child abduction: Australian law, practice and procedure’ (July 2010) 2, this paper was based on a presentation given by the author in London for the Centre for Family Law and Practice’s Conference on international child abduction. The author of this study received a copy of this personally from the author during a visit to Perth, Western Australia in June 2011 (Received 17th June 2011); KM Bowie ‘International application and interpretation of the Convention on the Civil Aspects of International Child Abduction’ (March 2001) [1980] FamCA Federal Judicial Scholarship 2, available at http://www.austlii.edu.au/cgi-bin/sinodisp/au/journals/FedJSchol/1980/1.html?stem=0&synonym s=0&query=International%20child%20abduction, accessed on 3rd October 2011. The Hague Convention is an international treaty in terms of which arrangements can be made for the child’s return if they have been wrongfully removed or retained outside of their country of habitual residence: see Australian Government Attorney-General’s Department International Child Abduction, available at http://www.ag.gov.au/childabduction, accessed on 31st March 2011.
23 Australian Central Authority, Australia Attorney-General’s Department, Canberra ‘Hague Child Abduction Convention:
Information for Parents of Abducted Children’ (November 2001) 1, available at http://www.ag.gov.au/agd/WWW/rwpattach .nsf/viewasattachmentpersonal/(C99C9C662AE008709B6A1B06BCF8E5CF)~parentsofabducted+childrenNov01.pdf/$file/p arentsofabducted+childrenNov01.pdf, accessed on 8th July 2011; Curtis op cit (n17) 627; Young & Monahan (2009) op cit (n9) 344; De L v Director-General, NSW Department of Community Services [1996] 187 CLR 640 at 673; DP and Commonwealth Central Authority; JLM and Director-General New South Wales Department of Community Services supra (n21) at para [23]. The Regulations required consequential amendments after the enactment of the Family Law (Amendment) Act 2000 (Cth) and the necessary amendments were effected by the Family Law Amendment Regulations of 2004 and these subsequently remedied any defects in the regulations which became apparent. See Young & Monahan (2009) op cit (n9) 344.
24 Kirby op cit (n22) 3. For further information regarding the history of the Hague Convention and the Australian law, see De L v Director –General NSW Department of Community Services supra (n23) at 671; Bowie op cit (n22) 2.
[2] These Regulations are referred to as the Family Law (Child Abduction Convention) Regulations, 198625 which also came into force and effect on the 1st January 1987 and which provide the legislative structure for the application of the Hague Convention as a part of the Australian law.26 Schedule One of the Regulations contains the Hague Convention which is included for the purposes of interpreting the Regulations and ascertaining the position in terms of the law where the Regulations are otherwise silent.27 Schedule 2 incorporates a list of all the Hague Convention countries.28 The Regulations provide the procedure for launching applications in terms of the Hague Convention as well as set out the powers of the courts and functions of the Central Authorities.29 When a child is abducted to, or removed from Australia, the principles which are to be applied are dependant on whether or not the country to which the child is removed to or retained has signed and ratified the Hague Convention.30
[3] In terms of section 111B(1) of the FLA it is provided that the Regulations may make such provision as is necessary or convenient in order to enable Australia to perform its obligations under the Hague
25 Regulation 1 of the Family Law (Child Abduction Convention) Regulations, 1986; C Nicholson ‘Introduction to the Hague Convention on the Civil Aspects of International Child Abduction’ in CJ Davel (Ed) Introduction to Child Law in South Africa (2000) at 233 & 233 fn8.
26 Living in Limbo op cit (n1) 17 and Nicholls op cit (n22) 2-3; De L v Director-General, NSW Department of Community Services supra (n23) at 673. The purpose and effect of the Hague Convention and its regulations is succinctly described in the case of In the Marriage of Emmett and Perry (1995) 20 Fam LR 380 at 383. In terms of the Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (Hague Child Protection Convention, 1996), available at http://www.hcch.net/upload /conventions/txt34en.pdf, accessed on 4th October 2011 the Family Law Amendment (Child Protection Convention) Act 2002, which entered into force and effect within Australia on the 1st August 2003, regulated by the Family Law (Child Protection Convention) Regulations, 2003 ensure the applicability of the Hague Child Protection Convention, 1996 which assists and is beneficial to the control and adjudication of the concept of international parental child abduction. This Convention however is not applicable within South Africa and despite it being of assistance with Australia, it shall not be considered in further detail within this Study.
27 Schedule One of the Family Law (Child Abduction Convention) Regulations, 1986; McCall and State Central Authority (1995) FLC 92-552 at para [19]; Kirby op cit (n22) 4. The Hague Convention is however not in force between all signatory countries as there are sub-requirements which need to be satisfied in order to bring it into force between them all: (Kirby at 4)
& Regulation 10 of the Family Law (Child Abduction Convention) Regulations, 1986 which states the following in this regard: ‘Subject to Article 40 of the Convention, each of the following countries is a convention country: (a) a country specified in Schedule 2, being a country: (i) as between Australia and which the Convention entered into force on the date specified in column 2 in relation to that country; and (ii) that has acceded to the Convention with reservations in accordance with Article 42 of the Convention in respect of any provisions specified in column 3 in relation to that country; (b) any other country in respect of which the Convention has entered into force for Australia.’ See also Articles 35, 37-40, 43 & 44 of the Hague Convention on the Civil Aspects of International Child Abduction, 1980 for further information herein. See also Living in Limbo op cit (n1) 17. The Regulations express what the governing law of the country is: MW v Director-General, Department of Community Services [2008] HCA 12 at para [145].
28 Article 24 and 26 (3rd paragraph) of the Hague Convention on the Civil Aspects of International Child Abduction, 1980 provisions apply.
29 Living in Limbo op cit (n1) 19.
30 Fehlberg & Behrens op cit (n7) 67.
Convention.31 Section 111B[1A] also provides guidelines regarding what the Regulations should or should not contain:
‘In relation to proceedings under regulations made for the purposes of subsection (1), the regulations make provisions: (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.’32
In Australia, if the Hague Convention applies, the route to recover the child will follow in light of the Hague Convention. However, if it does not apply then an application can be made in terms of the FLA and this shall be dealt with as a non-convention country proceeding.33 Referral is initially made to the Regulations in regards to international parental child abduction; however, if the Regulations are unclear, then it is acceptable to refer to the Hague Convention in order to assist in determining how the matter should be dealt with.
[4] There are three significant legislative provisions in Australia which assist in dealing with international child abduction and these were all enacted by the Commonwealth Parliament34 and have together brought the 1996 Hague Protection Convention into effect in Australia.35 In December 2004 the Regulations were amended in order to clarify that their purpose was to give effect to section 111B of the FLA and that they were intended to be construed as having regard to the objects and principles of the Hague Convention.36
[5] The International Family Law Section of the Commonwealth Attorney-General’s Department of Australia is responsible for the co-ordination and implementation of the Hague Convention in Australia
31 Nicholls op cit (n22) 2-3; Section 111B of the Family Law Act, 1975 (Cth) provides the Regulations which give effect to the Hague Convention and are subsequently authorised by this section: Curtis op cit (n17) 629.
32 Nicholls op cit (n22) 3.
33 Loc cit. Non-convention countries and the approach adopted by the Australian courts are discussed in Chapter [1] at point [7] of this Study.
34 The return of children in terms of the Hague Convention is provided for in Part XIIIAA, Division 2, section 111B of the FLA and the Family Law (Child Abduction Convention) Regulations, 1986. The recognition of overseas orders relating to children made in overseas jurisdictions is provided for in Part VII, Division 13, Subdivision C of the FLA; and jurisdiction, recognition and enforcement of orders which are provided for in Part XIIIAA, Division 4, section 111CA of the FLA and the Family Law (Child Protection Convention) Regulations, 1986: Nicholls op cit (n22) 1-2.
35 Nicholls op cit (n22) 2.
36 Ibid at 4; Regulation 1A of the Family Law (Child Abduction Convention) Regulations, 1986.
and carries out the function of the Commonwealth Central Authority (CAA) for Australia.37 Having signed and ratified the Hague Convention, Australia has undertaken to preserve international comity and recognise the authority of the systems of law of other Convention countries. Proceedings instituted under the Regulations are to be heard in a prompt and summary way and only in exceptional circumstances may a court give consideration to the child’s return.38 Therefore the objects of the Hague Convention remain unchanged within Australia and the role of the court to secure the child’s prompt return remains paramount.