By Emily Austin

Although the unilateral relocation of a child without the consent of the other parent is prohibited by the Family Law Act, it does little to assist in efforts to have a child returned to Australia.

The current avenue through which parents can apply to the Court to have children returned to Australia is dictated by the Hague Convention which, put simply, permits member states to enforce a recovery order made by another member state.

Although there has been great success using the Hague Convention, criticism has been drawn in the context of parents who are fleeing family violence and unsafe households with their children. Research indicates that a vast majority of the “taking” parent are those seeking to escape forms of family violence in the home. The current framework does have scope to analyse for circumstances where “there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.”

There has been minimal success in Australia where a “grave risk” defence has been used in situations of fleeing family violence. Case law reveals a tendency for Courts to adopt a restrictive interpretation with inconsistent application. This is notwithstanding High Court authority in DP v Commonwealth Central Authority that says the establishment of “grave risk” does not warrant a narrow interpretation.

New Regulations

To combat this, new regulations introduced in December 2022 include additional safeguards for parents who are fleeing family violence. These regulations take form in the Family Law (Child Abduction Convention) Amendment (Family Violence) Regulations 2022.

The takeaway from these regulations is that it expressly mandates the Court to consider family violence as a relevant consideration under the current grave risk defence.

In addition, the amended regulations make clear that:

  • conditions can be included on a return order that protects a child from exposure to family violence, even where a court is not yet 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.

International abduction cases are amongst the most distressing, and most nuanced areas facing both family lawyers and parents alike.

If you would like advice in relation to international relocation or abduction, please contact us.

If you have serious fears for your welfare and safety, we urge you to contact the police.

Tiyce & Lawyers, we’re here when you need us.