Up until now, it has not been possible for the Australian Courts to take adequate account of family and domestic violence that has occurred in International Child Abduction cases. The Federal Government has recently announced a bill to change the law with respect to how the Australian Courts deal with international child abduction cases where a parent flees the country as a result of domestic violence. Upon the passing of the bill, the Australian courts will be required to consider family violence in Hague convention cases before return orders are made.
The Family Law (Child Abduction Convention) Amendment (Family Violence) Regulations 2022, which are currently before Parliament, will provide additional safeguards to parents and children fleeing from domestic violence when Australian courts consider cases brought under the Hague Convention on the Civil Aspects of International Child Abduction.
Under Regulation 16(3)(b) of the Regulations, even if the elements necessary for a return order to be made are satisfied, there are 6 grounds upon which the Court has discretion to refuse to order the return of a child to his/her home country even though the child has been wrongly removed/retained in Australia. One of those grounds is the Grave Risk defence, that is, that the return of the child would expose the child to physical/psychological harm or place the child in an intolerable situation.
The new regulations, when passed, make clear that family and domestic violence is a relevant consideration under the ‘grave risk’ defence and a court does not need to be satisfied that such violence has occurred or will occur before it is taken into account.
The regulations will also make it clear that:
- conditions can be included on a return order to protect a child from exposure to family and domestic violence even if the court is not satisfied that such violence has occurred or will occur; and
- courts must consider proposed conditions that are put forward by a party in the proceedings.
For more information on unilateral relocation & Hague Convention proceedings, click the link to read our Parental Child Abduction page.
Seek urgent legal advice regarding family violence in Hague convention cases
Family Violence is a recurring theme in most family law related matters, including Hague Convention proceedings.
When the new regulations are passed, it will undoubtedly make it more difficult for a parent to succeed in having their child returned to his or her home country, if the child has been wrongfully removed/retained in Australia.
If you are the fleeing parent or the parent left behind, it is very important, in order to maximise the prospects of a positive outcome, that you seek urgent legal advice from one of our experienced Brisbane Family Lawyers, about your rights and obligations under the Hague convention and related regulations.
If you would like more information and advice in relation to your specific circumstances, contact us to book a reduced rate consultation with one of our experienced Brisbane Family Lawyers. We will provide you with advice and a plan in order to maximise the prospects of you achieving the best practical outcome for you and your family.
