It is important to prepare your response documents in a professional manner and to focus on the issues, which are relevant to your application.
You need to keep in mind that the judge will not be deciding whether the children will live with you or the other parent. The judge will be deciding the following issues:
- Is this a wrongful removal or retention of the child? To answer this question the Judge will look at the following factors.
- Is the country from which the child has come a party to the Hague Convention on the Civil Aspects of International Child Abduction? Click on the link below to see the list of countries Family Law (Child Abduction Convention) Regulations 1986 Schedule 2 Convention Countries
- Does the person seeking the return of the child have rights of custody?
- Was the removal of the child to Australia in breach of the rights of custody of the person seeking the return of the child? For example rights of custody would not be breached if a court in the country where the child was previously living had made an order permitting the child to relocate to Australia.
- Is the child under 16 years of age?
- Has the application seeking the return been filed in the Australian court within 12 months of the date on which the child was wrongfully removed from the country in which they previously lived or within 12 months after they were retained in Australia contrary to an agreement with the other parent.
If all these matters are satisfied the judge may find that the child has been wrongfully brought to Australia and in that case the judge will order that the child return to their previous country of residence unless one of the following defences can be established:
- The person seeking the return of the child
- was not actually exercising their rights of custody or
- consented to the child coming to live in Australia or
- knew that the child was coming to live in Australia and chose to do nothing to prevent that happening or
- did not consent to the child coming to live in Australia but once the child arrived in Australia agreed that the child could remain living in Australia.
- There is a grave risk that returning the child to the country in which they previously lived would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.
- The child objects to returning to the country in which they were previously living and the child has reached an age and degree of maturity where it is appropriate to take account of the child’s views.
- Returning the child would not be permitted by the fundamental principles of Australia relating to the protection of human rights and fundamental freedoms.
If you are able to establish one of these defences then the judge has a discretion to refuse to order the return of the child to the country from which she was taken or retained.
The court will also not order the return the child where
- the application seeking the return is filed more than 12 months after the child was wrongfully removed from the country in which they were previously living AND
- the parent who removed the child can prove that the child is now settled in their new environment.
Please note that if the child was brought to Australia for a holiday and the parent who brought the child here decides not to return the child the relevant date for the 12 months will be usually be calculated from the date on which the other parent became aware that the child would not be returning.
Australian Central Authority
International Family Law Section
Robert Garran Offices
3-5 National Circuit
BARTON ACT 2600
4 National Circuit
BARTON ACT 2600
Tel. +61(0)2 6141 6666