News

02 November 2018

New decision sheds light on international child abduction/ relocation

A recent decision of the Full Court of the Family Court of Australia has examined the application of the Family Law (Child Abduction Convention) Regulations 1986 (Cth), in the context of a child being abducted or unilaterally relocated from another country to Australia.

By way of background, the Family Law (Child Abduction Convention) Regulations 1986 (Cth) is the mechanism by which Australia’s obligations under the Convention on the Civil Aspects of International Child Abduction are enforced.

The case concerned a young boy who was born in the Ukraine in April 2009.  The child’s mother was a Ukraine Citizen and the father was an Australian Citizen.  The child grew up in the Ukraine with both parents until they separated in late 2015/early 2016.  The child then lived with his father in the Ukraine until September 2016 when the father relocated the child to Australia, without the mother’s consent.

There were various unsuccessful attempts by the mother, including with the assistance of police, to recover the child from the father while the child was living in the Ukraine. When the mother realised that the child had been relocated/abducted to Australia, she approached local agencies within the Ukraine seeking assistance to have the child returned.  Eventually in September 2017, the Ukraine Central Authority applied to the Commonwealth Central Authority in Australia seeking a return order be made under the Family Law (Child Abduction Convention) Regulations 1986 (Cth).  An application for the child’s return was subsequently filed by the Commonwealth Central Authority in Australia in December 2017.

The case focused centrally around the application of Regulation 16 which provides that,  if the application for the return of the child is made more than one year after the child was relocated, the court must make the relocation order, provided that the court is satisfied that the child has not settled into his or her new environment, and no other exception applies.

In these proceedings, the application was filed more than one year after the child’s abduction/relocation.  The father established that the child had settled into his environment in Australia and this was not challenged on appeal.  The Full Court of the Family Court of Australia held that in circumstances where the application is filed more than one year after the relocation/abduction and it is established that the child has settled into their new environment, the court must refuse to make the return order and that there is no discretion for the court to order the return of the child in those circumstances.

Importantly, the law is different with respect to applications filed within one year of the abduction/relocation, and the court is not required to satisfy itself that the child has not settled into his or her environment.  The outcome of this decision may have been different, had the application been filed within one year of the abduction/relocation.  This case serves as a timely reminder of the importance of filing an application with the court urgently after the unilateral relocation or abduction of a child.

If you require legal assistance with your family law matter, please do not hesitate to contact me to discuss your situation.

 

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