Introduction
International Recognition of Australian Family
Court Decisions
International Conventions
provides for official machinery to take action
to secure the return to her or his home country of an abducted child;
establishes a special legal regime to deal
with these children, independently of the domestic law of member countries
for the ordinary enforcement of custody or access order.
Concerns arising from the operation of The
Hague Convention
International Child Abduction Outside the Convention
Australian Government Assistance
Issues on Child Custody
Mrs Jacqueline Gillespie
Two children abducted to Indonesia
Conclusions
9.1 Child abduction is a growing problem in the world. Modern
technology and transport systems have dramatically increased people's
mobility. As a result, there is an increasing number of international
marriages, marriage breakdowns and child custody disputes.
9.2 Child custody is by its very nature an emotive issue. When an international
marriage fails, a spouse may be tempted to seize the children and bolt
for 'home'. This temptation may be greater if the parties are from widely
different cultures and ethnic backgrounds. In particular, parents, who
anticipate or are disappointed by an adverse verdict in the courts of
one country, may resort to abducting their child(ren) in the belief that
a court in another country will be more sympathetic or that this action
will end the dispute.
9.3 Australia is not insulated from the growing problem of international
child abduction. International child abduction is a complicated issue,
despite international conventions aimed at dealing with cross-border abductions.
Differences in legal systems and lack of enforcement have resulted in
lengthy and costly legal battles for parents and sometimes years of separation
from their children.
9.4 This Chapter identifies and examines custody issues involving Australian
children and provides a brief overview of international conventions and
international recognition of the decisions of the Australian Family Court.
9.5 The custody of children within Australia is the prerogative of the
Family Court and other courts (such as magistrates' courts) exercising
jurisdiction under the Family Law Act 1975. This legislative support
enables the registration and enforcement in Australia of certain 'overseas
custody orders'. These are defined as custody orders made by a court of
a 'prescribed overseas jurisdiction'.
9.6 Australia has established agreements with some other countries (Austria,
New Zealand, Papua New Guinea, Switzerland and 48 states of the United
States) for reciprocal recognition of Australian Family Court decisions.
However, when Australian children are resident in other countries, custody
will normally be decided by the courts which have jurisdiction in child
custody matters. These could be civil or religious courts and the principles
on which these courts base their decisions may be very different from
the principles on which the Australian Family Court bases its decisions.
9.7 The Hague Convention on the Civil Aspects of International Child
Abduction was established in 1980. Australia has acceded to the Convention,
the provisions of which became effective in Australia on 1 January 1987.
At the present time 45 countries, mostly in Europe or the Americas, have
acceded to the Convention. Australia has been encouraging regional countries
to accede to the Convention. This action is described in Chapter 2.
9.8 The Hague Convention:
The Convention only applies to children under the age of 16 years. The
citizenship of the child is not an element to be taken into account under
the Convention, rather the guiding principle of the Convention is that
child custody disputes should be settled in the courts of the country
in which the child is habitually resident immediately before any breach
of custody or access rights occurred.
9.9 An Australian parent normally resident in a Convention country may
bring a child to Australia believing that the Australian courts will be
likely to grant him or her custody. However, under the Convention the
Australian court must, subject to limited exception, order the child to
be returned to the child's usual country of residence for the dispute
to be settled in that country. Similarly, if a child habitually resident
in Australia is taken out of Australia to another country which is party
to the Convention, the courts in that country are expected to order the
child to be returned to Australia.
9.10 Under the Convention, Central Authorities are established by each
member country. The function of the Central Authority is to act, whether
administratively or by an application to a court as necessary, on behalf
of the person seeking the return of an abducted child. The Secretary of
the Attorney-General's Department is the Federal Central Authority. Central
Authorities have also been appointed in each State and Territory for the
purposes of taking proceedings for the location and return of an abducted
child.
9.11 The number of child abduction cases dealt with since Australia became
a party of The Hague Convention are shown in the following table: Table
9.1: Child Abductions to and from Australia
|
July 1988- June 1989
|
July 1989- June 1990
|
July 1990- June 1991
|
July 1991- June 1992
|
July 1992- June 1993
|
July 1993-June 1994
|
July 1994- June 1995
|
Abduction to Australia
|
28
|
13
|
37
|
37
|
27
|
39
|
42
|
Abduction from Australia
|
27
|
17
|
28
|
39
|
69
|
49
|
61
|
Source: Attorney-General's Department submission, p.5. 9.12 During
the 1994-95 financial year, there were 42 applications in relation to
children abducted to Australia, of which 24 children were returned, seven
applications were withdrawn and ten applications were still pending at
the end of the financial year. In one case an application was rejected
because the children were not habitually resident overseas. Out of the
61 applications lodged concerning children abducted from Australia, children
had been returned in 16 cases, 12 applications were withdrawn and 30 applications
were still pending. There were three cases rejected by overseas authorities
on the grounds that children objected to being returned; the children
had settled in the foreign country; or the foreign country had not enacted
necessary legislation.[1]
9.13 The Attorney-General's Department submitted that in general, The
Hague Convention is an effective means of securing the return of abducted
children. The Convention assumes that the best interests of the child
are served by an early return to the home country to permit the proper
resolution of a custody dispute in that country's domestic forum. A further
advantage of the Convention is that it requires Central Authorities to
be established in each member country to take responsibility for returning
children. The intention of the Convention is to remove the need for parents
to engage local lawyers and to address the problem of attempting to resolve
custody disputes through diplomatic channels.
9.14 While The Hague Convention is seen as effective, there have been
some concerns raised about its operation. The Convention states that
'the interests of children are of paramount importance in matters relating
to their custody'. However, Mr Brian Davis, writing in the Australian
Journal of Family Law has stated:
The principles of the Convention and the Regulations are the principles
of comity and forum convenience. The welfare of the child is
not the paramount consideration or, indeed, a consideration at all,
save to the very limited extent provided for by Art. 13 of the Convention
... The philosophy behind this is that it will almost always be in the
child's interests to avoid prolonged ligation in the courts of different
countries, leaving the child in limbo, his or her future undecided and
unsettled.[2]
9.15 A further matter is that courts in the requested country cannot
take into account the likely outcome of the custody case in the country
of habitual residence, even in cases where the returning parent would,
in all likelihood be awarded custody. Secondly there are often disparities
among legal systems. For example, Spain and Greece have only limited legal
aid, while Italy has none. In most American states there is no legal aid
for returning parents to fight custody. If they are without adequate insurance
to cover legal bills, they must find the funds themselves in the hope
that if they win they will be reimbursed their costs.[3]
9.16 Another concern is that the removal or retention of a child, which
makes it impossible for access to occur, is not wrongful under the Convention.
No obligation is imposed on Central Authorities to institute proceedings
in support of a parent whose access rights have been breached by the
removal of a child to another jurisdiction:
They [the Central Authorities] have an obligation to remove obstacles
to the exercise of such rights as far as possible, but that is all.
They may institute proceedings if they see fit.[4]
9.17 The British Government has also voiced concerns with the operation
of the Convention. In September 1996, the then Parliamentary Secretary
to the Lord Chancellor's Department issued a government consultation paper
on child abduction. While noting that the Convention had made a difference,
the paper canvassed topics concerning the operation of the Convention.
These included the extent to which the wishes of the children themselves
should be taken into account; the lack of enforcement of access orders;
the availability of legal aid for parents in countries participating in
the Convention; the need for independent professional advice; and the
establishment of an international panel of arbiters to resolve disputes.[5]
9.18 The Convention provides for a review of the Convention's effectiveness
in addressing international child abduction issues. The process allows
the Contracting States to put forward topics for review. The latest
review was undertaken at the Special Commission of The Hague Conference
held in March 1997. The meeting discussed the effectiveness of, and
problems with, all the major operational Articles of the Convention.
An Australian delegate attended the meeting.
9.19 DFAT submitted that one issue raised by Australia and others was
the inadequacy of measures taken by some Contracting States to implement
properly the Convention. This includes the lack of implementing legislation
in some countries; the lack of sufficient resources in some Central
Authorities; and the lack of knowledge of the Convention by some foreign
courts.
9.20 DFAT reported that many countries expressed similar concerns and
supported suggestions put forward by the Australian delegate that more
information be disseminated to new countries. In response, the Chairman
pointed out that while the Permanent Bureau already provides information
on request to countries intending to join the Convention, the Permanent
Bureau would try to develop a document along the lines suggested, but
within the limits of the Bureau's role.[6]
9.21 The Attorney-General's Department noted that in Australia, 'consular
assistance is mainly an issue in custody cases involving Australian children
where there are no treaty arrangements in place to resolve disputes as
to jurisdiction in custody disputes'.[7]
9.22 If a child is abducted from Australia to a non-convention country,
the situation can be very difficult. The parent seeking return of the
child may become involved in complicated and lengthy court proceedings.
For example:
The following description, taken from an American context ... still
applies where a child is abducted to a non-convention country - Most
(people) who experience the abduction of a child across international
frontiers are at a complete loss about what to do and where to turn.
There is no office in this country that is equipped to give them the
necessary aid and direction. If they travel to the country where they
presume the child to be, seeking help from the authorities, they find
themselves shunted from one agency to another with no one office charged
with responsibility to help them. Attorneys in both countries run into
the same difficulties, especially where the whereabouts of the abductor
and the child are unknown. They can attest to the enormous expenditures
for travel, detective services, and other costs incurred by their clients
in foreign abduction cases, not to speak of the emotional stress and
strain involved.[8]
9.23 As the Mr J McGinness, Assistant Secretary, Attorney-General's Department,
pointed out in these circumstances 'The parent is effectively left with
going to that country and fighting custody proceedings in that country'.[9]
As the next section explains, in specific circumstances, financial assistance
is made available to enable this to occur.
9.24 In instances where a decision has been reached by the Australian
Family Court in favour of the parent seeking the return of their children,
diplomatic approaches to the country concerned can be made by the consular
officer on their behalf. However, success may depend on whether or not
the parent can obtain a court order in the foreign jurisdiction where
the child is held. As already noted, the principles on which these courts
base their decisions may be very different from the principles on which
the Australian Family Court bases its decisions.
9.25 Australia and New Zealand are currently the only signatories to
the Convention in the Asia Pacific region. As Mr McGinness stated many
countries in this region have real difficulties:
Many of these governments have problems in signing any international
treaty, let alone one that deals with a possibly controversial subject
like family law. Some countries have religious problems with the notion
of sending a child back to a country where decisions will be made on
a civil basis rather than on a religious basis.[10]
9.26 The policy of the Government is to promote the benefits of accession
to the Convention to countries in the Asia Pacific region to ensure
the widest possible spread of Convention protection for children abducted
to other countries.
9.27 In the event of a child abduction, the Australian Federal Police
(AFP) has the responsibility for executing Recovery Orders issued by
Family Courts under the Family Law Reform Act 1995. In cases
where it is suspected that a child, who is subject of a Recovery Order,
may be taken from Australia, there are two courses of action open:
- the applicant parent can request the AFP to raise a passenger alert
for the child; or
- the Court can issue a Child Restraining Order where the child named
in the order is placed on a passenger alert by the AFP.
9.28 Both practices have been instrumental in restricting the abduction
of children from Australia.[11]
This preventative action has been widely adopted by many parents involved
in custody disputes. As at September 1996, 7,334 childrens' names were
placed on the passenger alert system as a result of some actions being
taken by one or both parents under the Family Law Act 1975.
9.29 Where a child has been abducted from Australia to a Convention
country, the Federal Central Authority will contact the Central Authority
in the contracting country where the child is thought to be.
9.30 The Australian Government also provides assistance with the financial
costs involved in recovering an abducted child from other countries. Through
the Overseas Custody (Child Removal) Scheme financial assistance may be
provided in hardship cases where parents seek the return of a child. The
Scheme is administered by the Attorney-General's Department. It is not
limited to children held in Convention countries and assistance is provided
for reasonable overseas legal and travel costs. As from 15 October 1996,
one-off assistance is available to parents who have to employ private
investigators to locate abducted children overseas.[12]
9.31 The Department advised that:
Under that scheme we provide the cost of a return economy airfare to
enable the applicant to attend a custody proceeding. But there is a
requirement that the applicant be required in that country for the proceedings.
In addition to that there is the cost of a single economy airfare for
return of the child on successful completion of the proceedings. Living
expenses are also allowed, and the benchmark we use is the sole parent
pension in Australia.[13]
The Department added that approval of an application under the scheme
is subject to both a hardship test and reasonable prospects of success.[14]
9.32 The Department told the Committee that, under the Scheme, it had
received:
... 48 applications, of which 28 were approved. Going back to previous
years, in 1994 - 1995 we had 22 applications, with 15 approved; in 1993-1994,
22 and 14 were approved; and in 1992-1993, 22 and 14 were approved.
So we see a trend of some 20 applications which nearly doubled in 1995-1996.[15]
9.33 Apart from financial assistance the Attorney-General's Department
stated that legal information and procedures to assist parents in dealing
with child custody have been circulated around Australia to various social
security offices and legal aid centres.[16]
9.34 In relation to the welfare of a child overseas, DFAT submitted
that:
Under the Vienna Convention on Consular Relations governments have
a special responsibility for the welfare of their minor citizens abroad.
However, since the child is usually with a parent who may have legal
custody under the law of the other country, this clause can be very
rarely, if ever, invoked in child custody cases. Additionally, the child
may also have the citizenship of the other country and government authorities
there may consider that the child's welfare, if it is not being met
by the parent, is the concern of the local child welfare authorities
rather than of the Australian Government.[17]
9.35 In this situation the Australian mission, if requested by the Australian
parent, can try to establish the child's welfare by contact with the child's
other parent or the local child welfare authorities. However, the Australian
consular officers cannot demand access to the children and they do not
have the right to enter homes in other countries to inspect children who
have been abducted. As DFAT noted, the Australian Government would not
demand of an Australian parent that they permit access to their children
by consular officials from a foreign mission in Australia, even if the
children had been brought to Australia in defiance of a foreign court
order. Nor is any foreign government likely to permit Australian officials
overseas to enter private homes in their country uninvited, even if there
were Australian children living there.[18]
9.36 DFAT indicated that in most international child custody cases,
dual or plural nationality adds additional layers of complexity and
is often an important factor. Many Australian children have another
nationality. They may have inherited the right to another nationality
through one or both parents. They may also have been born in a foreign
country that grants citizenship to anyone born in that country to legal
residents and have obtained their Australian citizenship by descent
through an Australian parent, or by naturalisation after arrival in
Australia.
9.37 In many cases, the abducting parent will take the child to a country
in which he or she holds citizenship and the child will often also be
a citizen of that country. Courts of countries which uphold the Convention
will generally order the child be returned to the country of habitual
residence. However, DFAT stated the child's local citizenship may be taken
into account in their actions and this may hinder the execution of the
court order. DFAT reported a recent case in Denmark, where 'local social
welfare personnel appeared to be assisting a Danish parent to keep a child
in Denmark in defiance of an order under The Hague Convention to return
the child to Australia. The Australian Embassy in Copenhagen has been
active in pressuring the relevant Danish authorities to adhere to Denmark's
obligations under the Convention.'[19]
9.38 DFAT stated that child custody cases have a tendency to attract
media attention, often at the request of parents. Unfortunately, public
comments by a parent often focus on a single aspect of a complicated
case and tend to misrepresent the scope of action that might be available
to the Australian Government. Below are recent cases concerned with
custody of Australian children. They illustrate the extent of the complexities
associated with international child abduction.
9.39 In 1992, Mrs Jacqueline Gillespie's two children were abducted
from Australia in defiance of an Australian Family Court custody order.
The children's father smuggled the children out of Australia on a
small boat back to Malaysia.
9.40 Malaysia is not a party to The Hague Convention on the Civil
Aspects of International Child Abduction. Therefore, the Convention
could not be used to return the children to Australia on the grounds
of their habitual residence in Australia.
9.41 Both children have dual nationality. They obtained Malaysian
nationality by birth and acquired Australian nationality by descent
from their Australian mother on registration at the Australian High
Commission in Kuala Lumpur.
9.42 The children's father had obtained custody orders from the Islamic
religious court in his home state in Malaysia before coming to Australia
to abduct the children. Under the Malaysian law, the father had legal
custody of the children. It was open to Mrs Gillespie to challenge
the custody orders in the Malaysian courts, but she decided not to
proceed. Lawyers for the Australian High Commission advised that such
a challenge would have been a test case for Malaysian law on the question
of whether the civil or the religious courts have jurisdiction in
custody cases involving religiously mixed marriages. The Australian
Government, through the Attorney-General's Department, offered Mrs
Gillespie financial assistance so that she could obtain legal advice
in Malaysia on the prospects of legal action in the Malaysian courts
to obtain the return of the children.
9.43 Because the children are Malaysian citizens and living with
their father, the Australian High Commission had no legal grounds
to request access to the children to determine their welfare. However
information about the children gained by the High Commission has been
relayed to Mrs Gillespie through DFAT.
9.44 The Australian Government requested the extradition of the children's
father to face charges in Australia relating to his breach of the
Family Court orders. The Malaysian Government refused that request,
on the grounds that his action did not constitute a crime in Malaysian
law. As noted in paragraph 6.129, 'the 'dual criminality test' is
standard procedure in extradition cases.
9.45 DFAT submitted that this case illustrated how different legal systems
can give different verdicts in custody cases and the importance of The
Hague Convention to enable return of children to their normal place of
residence. It further illustrates the Government's inability to intervene
in private legal disputes and where dual nationality is involved.[20]
9.46 DFAT also supplied details of a case involving a mother and
two men who were arrested by Indonesian authorities while attempting
to bring her two Australian children back to Australia. The children
had previously been taken out of Australia (legally) by their father,
a dual British-Australian passport holder, three years earlier.
Although the elder child's Australian passport had since expired,
the children may have had a British passport or were included on
their father's British passport. Instead of pursuing custody through
the Indonesian legal system, the mother and two accomplices seized
the children and attempted to fly to Australia but were detained
by the Indonesian authorities at the airport.
9.47 After this event, the mother (a German national) approached
the Australian Consulate in Bali to request the issue of replacement
Australian passports for her two Australian-born sons. She had with
her German identity documents for the two boys and their Australian
birth certificates. As the passports were for minors, the consular
officer was required to obtain written consent of all persons who
had custody, guardianship or access rights for the boys. The mother
had ex parte Australian court orders, but these had expired. This
information and the mother's intention of regaining the children,
came to light when the mother was asked to obtain the father's consent
on the passport application form. The mother was advised by the
Consulate to be careful not to breach Indonesian law.
9.48 When the mother returned to Australia she obtained new court
orders from the Family Court giving her sole custody. She also had
the younger child's Australian passport replaced with another containing
an updated photograph of the child. In this circumstance written
consent of both parents is not required. Another Australian passport,
to replace the expired one, was issued to the elder child under
section 7A(2)(c) of the Passport Act as a declaration of the Family
Court of Western Australia was provided stating that the child's
mental and physical welfare would be affected if a passport was
not issued. In this circumstance, the father's written consent was
not required.
9.49 The children were returned to their father by the Indonesian authorities
who also arranged regular access by the mother to the children. In the
following weeks, however, the father took the children to Vietnam, which
again, like Indonesia, is not a party to The Hague Convention. The Consulate
in Ho Chi Minh City was instructed to try to establish the children's
welfare and whereabouts, on the basis of their Australian citizenship.
Once again, there was no avenue that the Australian Government could take
to enforce the Australian court order to return the children to their
habitual residence.[21]
9.50 DFAT indicated that the Indonesia case illustrates the link
between passport issue and child custody. It stressed the need for
care in the issue of passports to minors. More importantly, because
of the special requirements of the Passports Act to prevent child
abduction, passport applications for all Australian children are
subject to a special regime of verification.
9.51 While it was noted that parents who fear abduction can lodge
a request that travel documents not be issued to their children,
there are other avenues for the issue of a passport to a minor which
do not require the consent of the other parent. The Indonesia case
is a clear illustration that the mother of two children managed
to have her children's passports issued without the other parent's
written consent. DFAT also pointed out that other countries often
issue travel documents at the request of one parent only, or include
children on a parent's passport.
9.52 Unfortunately, the Committee received only one submission
in relation to child abduction. Therefore the Committee could not
pursue this matter to the extent it would have liked. However, the
Committee makes the following general observations.
9.53 First, the benefits of The Hague Convention are clear but
a major weakness of the Convention lies in the limited number of
countries which have so far acceded to it. Although the Committee
is pleased that South Africa, Belgium and the Czech Republic have
announced that they expect to ratify the Convention by the end of
1997, more countries in our region and the countries that are major
migrant sources need to accede to the Convention. It is only when
this occurs that there will be an effective and quick means of returning
Australian children who have been abducted overseas.
9.54 The Committee recommends also that Australia continue to
urge regional countries to accede to The Hague Convention.
9.55 Secondly, the Committee believes that the Australian Government
should continue to raise matters to improve the effectiveness of
the major operational Articles of the Convention. In particular,
it should seek to ensure that all Contracting States properly implement
the Convention including that appropriate legislation is put in
place and that the Contracting States make available adequate funds
for Central Authorities.
9.56 Finally, the Committee welcomes the Attorney-General's announcement
of 15 October 1996 that parents will be able to seek some one-off
financial assistance to employ private investigators to locate abducted
children overseas.
Senator Michael Forshaw
Chairman
Footnotes:
[1] Attorney-General's Department
submission, p. 5.
[2] Mr Brian Davis, The New
Rules on International Child Abduction, Australian Journal of Family
Law, Vol. 4, March 1990, p. 34.
[3] Daily Telegraph, UK,
4 September 1995.
[4] Mr Brian Davis, op cit, p.
50.
[5] Reuters News, UK, 17
September 1996.
[6] DFAT answers to questions on
notice, 1 May 1997.
[7] Attorney-General's Department
submission, p. 4.
[8] Quoted in Lindsay Curtis, The
Hague Convention on the Civil Aspects of International Child Abduction:
the Australia experience', Commonwealth Law Bulletin, April
1989, p. 627.
[9] Committee Hansard, p.
76.
[10] Committee Hansard,
p.74.
[11] AFP submission, p. 4.
[12] Attorney-General and Minister
for Justice, Family law: future directions, press release 15 October
1996.
[13] Committee Hansard,
p. 75.
[14] Committee Hansard,
p. 77.
[15] Committee Hansard,
p. 75.
[16] Committee Hansard,
p.73.
[17] DFAT submission, p.47.
[18] DFAT submission, p. 47.
[19] DFAT submission, p. 47.
[20] DFAT submission, p. 48.
[21] DFAT submission, p. 49.