made;81 and the application (or, if Regulation 28 applies, the original application within the meaning of that regulation) is filed within one year after the child’s removal or retention;82 and the responsible Central Authority or Article 3 applicant satisfies the court that the child’s removal or retention was wrongful under sub-regulation (1A);83 the court must, subject to sub-regulation (3), make the return order.’
of the Hague Convention.92 The case of State Central Authority and Ayob (1997) FLC 92-746 provides that Regulations 3 and 4 are of particular relevance in determining removal in regards to custody rights.93 Therefore in order for there to be a wrongful removal or retention, the requirements indicated in paragraph [1] above must be satisfied.94
[3] The case of Marriage Of: Hanbury-Brown and Hanbury-Brown and Director General of Community Services (Central Authority) [1996] FamCA 23 (14 March 1996) held:95
‘Regulation 2(1) defines "removal" in relation to a child, for the purposes of the Regulations, as meaning the
"wrongful removal or retention" of the child "within the meaning of the Convention", and Regulations 13, 15 and 16 all refer either to a child who has been "removed" to Australia, or to circumstances involving the "removal" of a child to Australia, it is necessary, in applying the Regulations, to construe the Articles of the Convention which define or give meaning to the expression "wrongful removal".’
It was also held that:
‘its purpose and effect is to ensure only that the question of the wrongfulness or otherwise of a particular removal or retention of a child is to be determined by the law of the place of the child's habitual residence immediately before the removal or retention, and not by the law of any other place such as the country to which the removing parent may choose to take the child.’96
Therefore the Hague Convention protects custodians from choosing the forum to determine the disputes as a result of the wrongful act of another person, even though they may possess equal custodial rights.97 [4] Regulation 17 refers to a declaration that a removal or retention was wrongful, which a court may by order declare in regards to a removal of a child from Australia to another Convention country;98 or that the retention was wrongful within the meaning of Article 3 of the Hague Convention.99 In terms of Regulation 17(2), the court may also ask the Central Authority to obtain a court order, or a decision of a competent authority of the child’s country of habitual residence, declaring that the removal or retention
92 Regulation 2(2) in Part 1 of the Family Law (Child Abduction Convention) Regulations, 1986; Murray v Director, Family Services A.C.T supra (n50); Young & Monahan (2009) op cit (n9) 345.
93 State Central Authority and Ayob (1997) FLC 92-746; 21 Fam LR 567.
94 Curtis op cit (n17) 628.
95 Marriage Of: Hanbury-Brown and Hanbury-Brown and Director General of Community Services (Central Authority) [1996] FamCA 23 at para [5.3].
96 Ibid at para [5.4].
97 Loc cit. This case confirmed that the meaning of the words ‘removal’ and ‘retention’ were to be construed in terms of the Hague Convention’s context, at paras [5.26]–[5.29]; Bowie op cit (n22) 12.
98 Regulation 17(1)(a) of the Family Law (Child Abduction Convention) Regulations, 1986.
99 Regulation 17(1)(b) of the Family Law (Child Abduction Convention) Regulations, 1986; Brown & Burke [2007] FamCa 1421 at para [50].
was wrongful within the meaning of Article 3 of the Hague Convention. Regulations 16 and 17 provide that which requires satisfaction. The case of Brown & Burke [2007] FamCa 1421 involved a declaration in terms of Regulation 17.100 Article 15 of the Hague Convention is the corresponding provision to Regulation 17.101 A Regulation 17 declaration however does not bind another Convention court102 and is a summary proceeding.103 This is because,
‘… ordinary procedures can be used to undermine the objectives of any international treaty with important benefits for Australia, to frustrate the will of the parliament that Australia should enjoy and reciprocate those benefits and to defeat the application of valid Regulations which contemplate that Australian courts will deal with such cases quickly and accurately.’104
[5] The appeal case of Murray v Director, Family Services A.C.T105 considered when wrongful removal or retention should be determined. It is clear that the Hague Convention treats removal and retention as separate concepts.106 Regulation 2(1) defines ‘removal’ as the ‘wrongful removal and retention of a child within the meaning of the [Hague] Convention’ which indicates that both concepts are encompassed.107 The court in Murray agreed that the terms ‘removal’ and ‘retention’ were alternative and past events for the purposes of the Hague Convention.108 This case further agreed with the English decision of Re H and S (1991) 3 All ER 230 where it was held that Article 12 of the Hague Convention refers to the time period (one year) running from the date of wrongful removal or retention and thus both removal and retention were to be regarded as specific events occurring on a specific occasion as otherwise the time period would be difficult to determine.109 Therefore as retention refers to a specific event, removal and retention are mutually exclusive concepts:
‘For the purposes of the Convention, removal occurs when a child, which has previously been in a state of habitual residence, is taken away across the frontier of that state, whereas retention occurs where a child, which has
100 Brown & Burke supra (n99) at para [1].
101 Ibid at paras [37]-[38].
102 Ibid at para [45]; Resina v Resina (unreported, Family Court of Australia, Barblett ACJ, Fogarty and Anderson JJ, 22 May 1991), in particular per Fogarty J).
103 Brown & Burke supra (n99) at para [46].
104 Ibid at para [47]; De L v Director-General Department of Community Services supra (n23) at 690.
105 Murray v Director, Family Services A.C.T supra (n50): This case involved three children who had been brought to Australia by their mother from New Zealand in 1993. The parents were married in 1993 and after this the mother brought them to Australia.
106 Murray v Director, Family Services A.C.T supra (n50); Barraclough and Barraclough (1987) FLC 91-838.
107 Murray v Director, Family Services A.C.T supra (n50).
108 Loc cit. This approach was also taken by the House of Lords in the case of Re H and S (1991) 3 All ER 230, to which the court in Murray refers.
109 Murray v Director, Family Services A.C.T supra (n50).
previously been for a limited period of time outside the state of its habitual residence, is not returned to that state at the expiry of such limited period’110
Thus the Australian courts are required to initially examine when the removal occurred and then when the retention occurred.111
[6] If there is inconsistency between the Hague Convention and the Regulations, as long as this does not place the Regulations outside the scope of the Commonwealth’s powers to make such regulations, the duty of the Australian courts is to comply with the plain language of valid Australian law and thus to rely on the Regulations rather than the Hague Convention; however the term ‘Convention’ is defined in terms of the text of Schedule 1 of the Regulations and thus these provisions must be read with those of the Hague Convention.112 Therefore it is evidenced as to what is considered wrongful removal and retention in terms of the Australian law.