Family Court allowed mother and child who had returned from Canada to stay in Australia – Father’s Hague Convention application

01/10/2015

Watson & Watson received instructions to act for the mother of two children.

An application was made by the father of two young children to be returned to Canada through the Central Authority pursuant to the Family Law (Child Abduction Convention) Regulations 1986.

The father was originally from Canada and met the mother and lived in Sydney for some time.  Thereafter the father returned to Canada and after the birth of their first child the mother and the child moved to Canada to live with the father.  The second child was born in Canada.  Shortly thereafter the mother returned to Sydney with the two children. 

The Canadian Court made orders that the father have sole custody of the children.

The father bought an application to have the children returned to Canada.  This was by way of an application under the Hague Convention.

Under the Family Law (Child Abduction Convention) Regulations 1986 the Court is to consider:

“16.     (1A)     For subregulation (1), a child's removal to, or retention in, Australia is wrongful if:

(a)       the child was under 16; and

(b)       the child habitually resided in a convention country immediately before the child's removal to, or retention in, Australia; and

(c)        the person, institution or other body seeking the child's return had rights of custody in relation to the child under the law of the country in which the child habitually resided immediately before the child's removal to, or retention in, Australia; and

(d)       the child's removal to, or retention in, Australia is in breach of those rights of custody; and

(e)       at the time of the child's removal or retention, the person, institution or other body:

(i)         was actually exercising the rights of custody (either jointly or alone); or

(ii)        would have exercised those rights if the child had not been removed or retained.”

The matter is dealt with based on the evidence in the appropriate form filed with the Family Court.  It is critical that there be proper consideration and presentation of the evidence. 

At first instance the father was unsuccessful in obtaining an order for the return of the children to Canada.

The father appealed. 

The mother sought advice from Richard Watson and Dennis Grant of Watson & Watson in relation to the Appeal and we received instructions to act on behalf of the mother in relation to the Appeal.

The mother was successful in the Appeal. 

Various issues arose in the Appeal including:

1.         Whether the father had authority to appeal as he was not the applicant in the original case.  The Applicant in the original case was General Department of Human Community Services as the NSW Central Authority as is usual in abduction cases.  The father had a right to Appeal.

2.         Further issues related to:

(a)       the extent to which the mother could rely on the evidence presented at the initial trial;

(b)       whether the father had consented in terms of the regulations for the children to be kept in Australia by the mother; and

(c)        whether there was a great risk that the return of the children under the Convention would expose the children to physical or psychological harm or otherwise and place them in an intolerable situation within the meaning of the relevant Regulations.

Following the hearing the Court allowed the mother to keep the children in Australia notwithstanding the Court Order in Canada that the father had custody of the children.

This case makes it clear that any evidence that is available and is relevant should be utilised in the initial application.  If the application is being made for the return of a child/children taken from another country and returned to Australia there will be a need to act quickly once the application is made as the Central Authority is required to deal with the application to return the child/children expeditiously. 

There are certain circumstances where fresh evidence would be available for an Appeal, however, one should not rely upon that avenue or success. 

The matter referred to above is a case which the Court has authorised application under the pseudonym Harries v Harries pursuant to s.121(9)(g) of the Family Law Act 1975. 

Watson & Watson have acted on numerous occasions in an application for the return of a child who has been taken overseas without the consent of the parent in Australia. 

In circumstances where there is any risk of a child/children being taken overseas without your consent urgent action is required as it is easier to obtain an order restricting the child/children travelling overseas than to obtain an order for the return of the child/children unlawfully taken. 

If you have any fears or concerns please contact Richard Watson or Dennis Grant to obtain advice as to what is best course for the protection of the children against being taken without your consent.

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