Child Abduction Update
Legal16/03/2021 12:00:00 AM

Child abduction update

By Sally Nicholes, Managing Partner and Keturah Sageman, Senior Partner of Nicholes Family Lawyers

The following article outlines recent significant updates and commentary that have arisen in relation to the Family Law (Child Abduction) Regulations 1986, (the Regulations) which give effect to the Hague Convention on the Civil Aspects of International Child Abduction (the Hague Abduction Convention) in Australia. Key highlights are outlined below.

International child abduction cases 

The Hague Abduction Convention provides that a child wrongfully retained or removed from his or her country of “habitual residence” ordinarily must be returned to that country.

In Australia, the leading case on the law of habitual residence is the High Court case of LK v Director-General, Department of Community Services (2009) FLC 93-397. The High Court accepted that the inquiry into habitual residence involves a ‘broad factual inquiry’.

“Such an inquiry should take into account all relevant factors, including settled purpose, the actual and intended length of stay in a state, the purpose of the stay, the strength of ties to the state and to any other state (both in the past and currently), the degree of assimilation into the state, including living and schooling arrangements, and cultural, social and economic integration…”

The law in Australia and internationally on habitual residence is shifting away from concepts of settled purpose of the parents being a necessary finding, to the Court engaging in a broader inquiry.

In keeping with the High Court’s factual inquiry approach, Justice Bennett in State Central Authority & Metin [2020] FamCA 535 stated that habitual residence will not change by virtue of parental intention alone, but may change in accordance with the child’s lived experience of integration in the new residence.

Where the 12-month Rule Applies

Under the Regulations, if the application for return of a child has been made more than one year after the date the child was first removed to, or retained in Australia, and the person opposing the return has established that the child is settled in his/her new environment, then Australian jurisprudence provides that the Regulations do not apply and the summary return mechanisms are not available. Thus, it is not a discretionary matter for the court to order a return where those conditions are met, and the application must be dismissed: Secretary, Department of Family and Community Services v Magoulas (2018) FLC 93-856.

Repudiatory Retention

In Handbury & State Central Authority and Anor (2020) FLC 93-937, the Full Court of the Family Court approved the principle of law applying to the repudiatory retention of a child in Australia as identified by the trial judge. The principle of repudiatory retention was articulated by Justice Bennett as follows: 

“Repudiatory retention occurs when a retaining parent forms a subjective intention … not to return the child to the state of habitual residence at the expiration of the period which was agreed between the parties as the date upon which the child would be returned.” 

In the case, the requirement for active steps taken, in addition to subjective intention, to change the child’s habitual residence before there can be an objectively identifiable act of repudiation was rejected. 

The Full Court also found that conversations between the parties, and statements made by either parties can constitute a clearly objectively identifiable act of unilateral repudiation of a prior agreement.

In relation to the rights of custody of the other parent, The Full Court found it axiomatic that a repudiation by a parent of an agreement for a temporary stay constitutes a breach, notwithstanding they were an intact family and continued to live together with the child.

Government agencies as model litigants

In Walpole & Secretary, Department of Communities and Justice (2020) FLC 93-950 (25 March 2020), Justices Ryan and Aldridge highlighted the need for government agencies to act with complete propriety and in accordance with the highest professional standards. This obligation includes not requiring opposing parties to prove matters in situations where government agencies such as the Central Authority know those matters to be true.

In this case, the Central Authority was criticised for failing to disclose certain information about the parties of which it was aware. The result of the non-disclosure was the Appellant mother was required to obtain the information from an overseas location in otherwise difficult circumstances.

In this regard, the Court has emphasised the obligation of Government agencies to act as model litigants, extending this obligation to minimising costs by not requiring opponents to prove matters which the Central Authority knows to be true. 

Click here to read more on these changes.