CHAPTER 4
Role of key government agencies
4.1
Certain Australian Government agencies play a role in providing services
to support efforts to return children abducted to or from Australia. This
chapter considers:
- the AFP's investigation and law enforcement powers with respect
to international parental child abduction;
- DFAT's provision of consular assistance to Australian persons
involved in international parental child abduction matters;
- the role of the Australian Passport Office in the issuing and
cancellation of passports to Australian children;
- the practices and procedures of the Commonwealth Central Authority
(CCA) in implementing the process under the Hague Convention to secure the
return of abducted children;
- the provision of financial and legal assistance by the
Attorney-General's Department to persons involved in international parental
child abduction matters;
- the CCA's information-gathering powers and its collection of data
relating to international parental child abduction; and
- child support arrangements and the Child Support Agency's role in
the event of international parental child abduction from Australia.
AFP's role
4.2
The AFP is the primary Australian law enforcement and investigative agency
involved in international parental child abduction matters. Its role relates
principally to the enforcement of court orders relevant to international
parental child abduction, and includes:
- prevention of the overseas abduction of Australian children who
are the subject of court orders which prohibit their removal from Australia;
and
- interception of persons who are abducting children to Australia,
where such children are the subject of overseas family law orders that prevent
removal from their jurisdiction of habitual residence, or where such children
are the subject of international policing alerts.[1]
4.3
Several submitters commented on the nature and exercise of the AFP's investigation
and enforcement powers, with some supporting targeted reforms.
AFP's Watch List
4.4
The AFP maintains a Watch List at all Australian international airports
and sea ports. The list is designed to identify and intercept children who are
the subject of a court order preventing their removal from Australia. An alert
is triggered when a person whose name is included on the Watch List presents
his or her passport at an airport or sea port. When an alert is triggered, the
AFP is required to determine whether or not the child may travel.[2]
4.5
Children who are the subject of a court order prohibiting their removal
from Australia are not included automatically on the Watch List. The AFP's
policy is that a child can be placed on the list only if there is a court order
directing the AFP to include his or her name on the list, or if an application
for such an order is pending.[3]
4.6
Contributors to the inquiry were generally supportive of the Watch List
as a preventative measure in respect of outgoing abductions. Several
submitters, however—including the AFP—identified various operational issues:
- the triggering of out-of-date alerts (for example, those upwards
of 5-10 years old) because court orders for the inclusion of a child's name on
the list are not time-limited;[4]
- ambiguity in the provisions of some court orders for inclusion on
the Watch List—for example, imprecise descriptions of particular
circumstances in which a child is able to be removed from Australia, and
inconsistencies between various clauses contained in court orders;[5]
- the fact that, at the time of abduction, many left-behind parents
are unaware of preventative remedies available to them, including the existence
of the Watch List;[6]
- difficulties encountered by parents who suspect that their child
is at risk of international parental child abduction in ensuring their child is
listed on the Watch List in a timely fashion;[7]
and
- the malicious or vexatious use of Watch Lists by some parents who
may seek to prevent the other from taking the child overseas for permitted
purposes (for example, on holidays while the child is living with that parent).[8]
4.7
The AFP advocated various proposals to address these issues, in
particular, the use of standardised wording and sunset clauses in Watch List
orders.[9]
Another submitter supported the automatic inclusion of children on the Watch
List, or in other databases (such as those operated by the Department of
Immigration and Citizenship), when parenting orders are made or when proceedings
for such orders are on foot.[10]
4.8
The committee was informed that the Family Court, the Federal
Magistrates Court and the AFP are already examining options to improve the
operation of the Watch List, and that the AFP has published a preferred form of
wording for Watch List orders on its website.[11]
The AFP also indicated that it has held discussions with the Family Court and
the Family Court of Western Australia. In addition, the committee understands
that the Family Court and the Federal Magistrates Court established a working
group in August 2011 to consider procedural reform options, in consultation
with the AFP. The Chief Justice of the Family Court, the Hon Diana Bryant,
indicated that time-limited orders and automatic listings are under
consideration by that working group, as well as other matters concerning the
clarity and standardisation of orders.[12]
Execution of recovery orders and
warrants
4.9
The AFP executes recovery orders and warrants made under the Family Law Act
and the Regulations by Australian family courts, in respect of children who have
been wrongfully removed from Australia or retained by one parent within
Australia.[13]
Under the Family Law Act, family courts are empowered to grant recovery orders
where a child has been removed in breach of a parenting order or otherwise in
breach of another person's parental responsibility rights (for example, where
there is no parenting order in place).[14]
4.10
In the context of international parental child abduction, recovery
orders may be relevant in:
- outgoing matters, where a child has been wrongfully removed or
retained within Australia by an abducting-parent who then intends to remove the
child overseas; and
- incoming matters, where Hague Convention proceedings have been commenced
for the return of the child to his or her country of habitual residence, and
the CCA applies to the Family Court for a warrant to find and recover the
child, to ensure that he or she is not removed from Australia while the Convention
proceedings are in progress.[15]
4.11
Recovery orders and warrants under the Regulations may authorise or
direct the AFP (or other specified law enforcement agencies) to enter premises,
and stop vehicles, vessels or aircraft, in order to search for a child, recover
him or her, and place him or her in the care of persons specified in the order.
4.12
The AFP submitted that its ability to execute recovery orders is often
limited because the orders contain insufficient detail about the specific
actions it is required to take. In such cases, it is necessary to clarify the
intended action with the court, which may delay execution.[16]
The AFP noted that, prior to 2005, the Family Law Rules contained a standard
form of wording for recovery orders, and that subsequent removal of this
wording has reduced the clarity of recovery orders.[17]
4.13
The AFP also identified limitations in its investigation and enforcement
powers more broadly, such as an inability to exercise telecommunications
interception powers to locate an abducted child, and an inability to exercise
coercive information‑gathering powers in relation to private individuals
and organisations.[18]
This is so even with respect to offences under the Family Law Act concerning
the removal of a child in breach of parenting orders.[19]
These powers would be of significant utility in the law enforcement response to
international parental child abduction, in particular to ascertain a child's
overseas location—for example, by intercepting phone conversations between the
abducting parent and relatives in Australia, or by examining financial transaction
records.[20]
International policing assistance
4.14
The AFP participates in international policing arrangements coordinated through
Interpol. The National Central Bureau within the AFP is the Australian contact
point for Interpol matters. The AFP is able to respond to requests for
international policing assistance where children are abducted to Australia.
Similarly, it is able to seek international policing assistance where an
Australian child has been wrongfully removed or retained overseas.[21]
4.15
The AFP issues Interpol notices in respect of children abducted from
Australia, both on its own initiative and at the request of the CCA.[22]
Interpol notices are graded into seven colour-coded categories according to the
policing response required.[23]
The AFP advised that it issues Yellow Notices in respect of children who have
been abducted overseas.[24]
These notices seek assistance in the location of missing persons, often minors,
or in helping to identify persons who are unable to identify themselves. Yellow
Notices effectively request information about a person's location and cannot
support an exercise of coercive power.[25]
The AFP can issue notices at the request of the CCA, and such notices can be
issued to multiple or individual countries.
4.16
The AFP informed the committee that it gives consideration to issuing
Red Notices—which require the arrest or provisional arrest of a person
pending his or her extradition—where international parental child abduction has
enlivened the offence provisions in sections 65Y and 65Z of the Family Law Act
(that is, where the child is removed overseas in breach of a parenting order,
or where proceedings for such an order are on foot).[26]
Two submitters to the inquiry indicated that the AFP has also issued Blue
Notices in respect of abducted children, which request the collection of
information about a person's identity or their activities, often in relation to
a crime.[27]
4.17
While broadly supportive of Interpol as a mechanism for locating and
recovering abducted children, submitters identified some operational issues. For example,
it was argued that the Interpol alert system is presently of limited use in
outgoing international parental child abduction cases because these matters are
not usually criminal offences unless the removal is committed in contravention
of sections 65Y and 65Z of the Family Law Act. Consequently, it is
generally not possible to detain abducting parents and compel their return to
Australia via a Red Notice.[28]
Consular assistance by DFAT
4.18
As noted in chapter 2, DFAT's role in supporting Hague Convention and
non‑Convention matters includes the provision of consular assistance to
Australian children and their families. DFAT advised the committee that, in
many international parental child abduction matters, it is 'dealing with
potentially three consular clients because both parents have their claims'.[29]
Consular assistance provided to each party focuses on the welfare aspects of
the case, and can include providing lists of local lawyers and other support
service providers to either or both parents; taking steps to ensure the welfare
of abducted children; and assisting in making arrangements for the child's
return to Australia.[30]
4.19
Consular assistance does not extend to intervention in custody or other
legal proceedings, and is subject to privacy and confidentiality restrictions.
This means that certain information cannot be communicated to the left-behind
parents and families of abducted children. DFAT noted that the ability of
consular staff to monitor the wellbeing of abducted children often depends on
the agreement of the abducting-parent.[31]
Some consular services—generally notarial services such as the witnessing of
documents—are charged on a fee-for-service basis. DFAT emphasised, however,
that welfare checks and guidance do not attract a fee, and that the fees
charged for notarial services are substantially smaller than commercial rates.[32]
4.20
Submitters to the inquiry were generally supportive of the consular
services provided in international parental child abduction matters. However, one
submitter suggested that all consular services provided in these matters should
be exempt from fees, in order to reduce the cost burden on parties (particularly
left-behind parents who have been unable to obtain financial assistance under
the Overseas Custody Scheme).[33]
Australian Passport Office's role
4.21
DFAT administers the Passports Act and the Australian Passports
Determination 2005, which govern the issuing of Australian passports to
children, and their cancellation in certain circumstances, and contain
provisions relevant to the prevention of, and response to, international
parental child abduction. Such provisions include:
- prescribing full parental consent or a court order (of the Family
Court or an overseas court of a Convention country) as a prerequisite to the
issuing of Australian travel documents to a child;
- where full parental consent is not possible for reasons falling
within the exceptional circumstances set out in the Passports Act, enabling the
Minister's delegate to issue a passport to the child on the application of one
parent;
- enabling parents who are concerned that their children are at
risk of abduction to raise a 'child alert' with DFAT; and
- in very limited circumstances, cancelling the passport of a
child—generally on the order of an Australian court, or if DFAT becomes aware
of information which, if known at the time of the application, would have
resulted in refusal to issue the passport at that time.[34]
4.22
DFAT emphasised that, in regulating the issuing of passports, it must
balance the interests of preventing and responding to international parental
child abduction with concerns about the welfare of the child. In some cases, a
passport is necessary to ensure the child's welfare overseas—for example, it
may be necessary for the child to hold an Australian passport to remain
resident in the overseas country, or receive essential services.[35]
In addition to its regulatory functions, DFAT also issues public guidance
materials relevant to travelling with children.[36]
4.23
Submitters identified various operational issues in relation to the
issuing and cancellation of passports in international parental child abduction
matters, including the following:
- ambiguity in the terms of court orders placing restrictions upon
the overseas travel of children (including conditions upon the issuing of
passports), which creates difficulties for DFAT in attempting to interpret
orders when processing passport applications;[37]
- limitations on the power to administratively cancel passports, in
particular that DFAT cannot unilaterally cancel a child's current passport on
notification of actual or apprehended international parental child abduction
unless it is provided with:
- a court order requiring cancellation; or
- information that, if known at the time the passport was issued,
would have resulted in a refusal of the application;[38] and
- onerous evidentiary requirements for the issuing of a temporary
passport to children who are abducted overseas, to enable their return to
Australia where, for example, their passports have expired subsequent to their
abduction.[39]
4.24
Submitters proposed a range of measures to address their concerns. In
particular, DFAT supported the use of standardised court orders for the
cancellation of passports.[40]
It also noted that there is scope for flexibility in managing individual
applications for the issuing of temporary passports to abducted children.[41]
Chief Justice Bryant advised the committee that the court working group
established to consider Watch List orders, in consultation with the AFP, will
also examine these matters.[42]
4.25
Mr Ken Thompson indicated his support for an expanded administrative
power of cancellation, whereby the Australian Passport Office is required to
cancel a child's passport upon proof of international parental child abduction.[43]
DFAT did not support this measure because its view is that courts are better
equipped to make determinations about the rights and interests of a child whose
passport is being cancelled.[44]
4.26
Other potential preventative measures included DFAT's proposal for the
routine judicial consideration of any restrictions to be placed upon a child's
passport in parenting proceedings before the Family Court (for example, in
applications for parenting orders post-separation).[45]
Some witnesses, however, did not support such pre-emptive action. For example, Mr
Norman Reaburn from National Legal Aid commented that it is appropriate that
family courts do not 'assume that in the future parties will not behave in
accordance with the decision that has been reached' in respect of custody and
access arrangements.[46]
Chief Justice Bryant commented that such an approach may not be appropriate
because 'the orders pronounced by the court are dependent on the facts of a
given parenting matter and the issues in dispute between the parties'.[47]
Commonwealth Central Authority's communication and
information-dissemination practices
4.27
While many submitters indicated that, overall, Australian Central
Authorities are upholding Australia's obligations under the Hague Convention,[48]
some concerns were raised during the course of the inquiry. Submitters and
witnesses identified two specific issues relating to communication and
information-dissemination by Central Authorities.
Liaison with applicants in Hague Convention
matters
4.28
In outgoing matters under the Hague Convention, on acceptance of a
compliant application (generally from a left-behind parent or family member of
the abducted child), the relevant State Central Authority (SCA) and the CCA
commence the process to secure the child's return to Australia. The CCA will
transmit the application to the Central Authority in the country to which the child
has been taken, and seek its assistance in locating the child and facilitating
his or her return to Australia.[49]
4.29
Some submitters expressed concern about communication and liaison
arrangements between themselves, as applicants, and Australian Central
Authorities. They argued that there is an overly bureaucratic chain of
communication between overseas Central Authorities, the CCA, SCAs, and
applicants, which causes delays in relaying information to applicants about the
progress of their cases.[50]
A particular problem appears to be the communication of information about a
child's location.[51]
4.30
Mr Lauchlan Leishman described his experience as an applicant dealing
with the CCA and an SCA as akin to being 'kept in the corner in the dark'.[52]
He stated:
I deal with someone in Brisbane [at the Queensland SCA], who
deals with someone in Canberra [at the CCA], who deals, hopefully, with the
person where my child has been taken overseas [at the overseas Central
Authority]. To me that is illogical. I should be able to talk directly to the
person who is dealing with the person overseas.[53]
4.31
Mr Leishman indicated that he has recently negotiated individual
arrangements with the CCA and the Queensland SCA to enable him to liaise
directly with the CCA.[54]
ISS Australia supported regular communication between Australian Central
Authorities and applicant parents on matters such as 'the progress of their
cases, dates and outcomes of any hearings that might take place, and reasons
for any delays if they occur'.[55]
4.32
In addition, other submitters, including the Attorney-General's Department
(Department), acknowledged the potential for duplication between the work of
the CCA and the SCA in some instances.[56]
The committee was informed that some progress has been made towards a formal Memorandum
of Understanding between the CCA and SCAs, which would document the division of
responsibilities between them.[57]
Information-dissemination and
public outreach
4.33
The committee notes that the Department publishes information about international
parental child abduction on its website. This includes:
- contact details for the CCA, SCAs and non-government social
support service providers;
- application forms for CCA assistance in Convention matters and
for financial assistance under the Overseas Custody Scheme;
-
lists of frequently asked questions, which provide procedural
information about preventing and responding to international parental child
abduction; and
- periodic publications of statistical information in respect of Hague Convention
abductions to and from Australia.[58]
4.34
The Department also operates a telephone advice hotline and a central
CCA email address. Supporting agencies, including the AFP and DFAT, also
publish guidance materials on matters within their responsibilities.[59]
Other non-government agencies have also produced various resources on international
parental child abduction.[60]
4.35
Several submitters, including legal practitioners and social service
providers, argued that there is scope to improve existing information-dissemination
and public education practices.[61]
Some expressed concern that public awareness and understanding of international
parental child abduction, and its legal and social consequences, remain
limited. In particular, some submitters argued that public awareness is a
crucial prevention strategy because an understanding of the Hague Convention
may dissuade some abducting parents from removing their children, and enable
left-behind parents to instigate prompt preventative or remedial action.[62]
4.36
Submitters suggested a range of improvements to existing information-dissemination
and public outreach measures, including the following initiatives:
- the development of a comprehensive international parental child
abduction web portal, maintained by the Australian Government, which provides
members of the public and professional service providers with a specific and
comprehensive access point for resources about prevention and response,
including referrals to relevant non-government support service providers;[63]
- updating existing guidance materials produced by the CCA for
legal practitioners engaged in Convention proceedings;[64]
- resuming the former series of CCA publications on individual
Convention countries, which detailed the number of incoming abductions and
average return rates, the average length of time for the determination of
applications, and the financial and legal assistance available to applicants
and respondents in the relevant country; [65]
and
- leveraging existing public engagement opportunities and events,
such as International Missing Children's Day, to raise awareness and to engage
the broader community in the implementation and continuous improvement of
prevention and early response strategies.[66]
Financial and legal assistance schemes administered by the
Attorney-General's Department
4.37
The committee received evidence relating to the provision of financial
and legal assistance to applicants and respondents in Convention and
non-Convention proceedings.
Financial assistance—outgoing
matters
4.38
Several submitters commented that financial assistance granted under the
Overseas Custody Scheme does not provide adequate support to left‑behind
parents. Concerns were expressed about the application of the means test, and
the limited purposes for which financial assistance is available.[67]
4.39
Applications under the scheme appear to be assessed according to a
standardised means test, which is applied to all financial assistance schemes
administered by the Attorney-General.[68]
Two submitters argued that the assessment of an applicant's assets under this
test may not reflect the circumstances of international parental child
abduction cases, namely that:
- an applicant may need to liquidate his or her assets quickly if
financial assistance is not provided, as time is of the essence (consequently,
the applicant may realise only a small fraction of the market value of the
assets);[69]
and
- it is likely that an applicant would, in any event, be using
these assets to finance his or her case.[70]
4.40
The Queensland Law Society (QLS) criticised the application of the means
test in non-Convention matters, in circumstances where an applicant is required
to obtain a legal opinion from a lawyer in the jurisdiction to which the child
has been taken, as to the merits of his or her case.[71]
Although the Department indicated that it may provide a small grant of
financial assistance specifically for this purpose,[72]
the QLS expressed concern that such assistance may also be means tested.
It argued that this could have the effect of 'delaying or deterring
applications for which time is of the essence'. The QLS submitted further that
there should be no means test applied at the initial stage of obtaining
overseas legal advice, and a merits test applied at this stage should '[take]
into account the gravity of the situation, including any child safety issues'.[73]
4.41
Submitters also expressed concern that the Overseas Custody Scheme does
not apply in respect of domestic legal expenses in outgoing matters: for
example, the costs associated with obtaining relevant orders under the Family Law
Act;[74]
orders for the cancellation of a child's passport; and subpoenaing various
records which may disclose information about the child's location, such as
documents held by financial institutions, telecommunications providers and
airlines.[75]
According to one witness, domestic legal costs in the range of $50,000-$100,000
are not unusual for such orders.[76]
4.42
The committee also heard that, in some Convention matters, these orders
may be necessary to establish the overseas location of a child so that an
application can be accepted by an overseas Central Authority, and to enable a
law enforcement response.[77]
In non-Convention matters, these orders may be the primary means of locating a
child. As noted earlier in this report, although left-behind parents may apply
for legal aid in respect of domestic legal action taken in international
parental child abduction matters, such assistance is means-tested.[78]
Legal assistance—outgoing and
incoming matters
4.43
Some submitters emphasised the importance of ensuring that all parties
to return proceedings are able to obtain legal representation, including
applicants (or interveners) and respondents. Reunite International (UK)—a United
Kingdom-based non-profit organisation which provides social support services in
international parental child abduction matters—submitted that, in its
experience of abductions from Australia to the United Kingdom, inadequate or no
representation for respondents (abducting-parents) is creating an imbalance
between parties to return proceedings.[79]
Women's Legal Services Australia expressed similar concerns with respect to
respondents involved in proceedings in the Family Court which relate to
incoming abductions, and in the mediation of such cases.[80]
4.44
Other submitters identified problems encountered by applicants or
interveners in outgoing matters (that is, left-behind parents whose children
are abducted overseas). Mr Craig Cannock, a father whose children were abducted
to Canada, provided information about the significant difficulties and delays
he encountered in securing overseas legal aid to commence return proceedings in
Canada.[81]
4.45
Reunite International (UK) identified a further potential cost barrier
encountered by Australian left-behind parents who are involved in return order
proceedings in the United Kingdom, advising that such parties often instruct
Australian legal representatives, who then brief overseas legal teams. This
practice can unnecessarily duplicate expenses when there are no language or
cultural barriers to the parent instructing directly his or her overseas legal
representatives.[82]
4.46
In addition, the Chief Justice of the Family Court, the Hon Diana
Bryant, commented on the limited circumstances in which the court may appoint
an Independent Children's Lawyer to represent the interests of an abducted
child in Convention proceedings. In particular, Chief Justice Bryant argued
that the statutory criteria in the Family Law Act for the appointment of an Independent
Children's Lawyer may now be too restrictive.[83]
Information-gathering by the Commonwealth Central Authority
4.47
An officer from the Department advised the committee that the overseas
location of an abducted child is often known to the applicant parent, or is
readily ascertainable because abducting-parents frequently return to their
country of nationality, or to a country in which they have family, friends or
other support networks.[84]
However, the committee received anecdotal evidence suggesting that complexities
can arise where the overseas location of a child is uncertain.
4.48
Some witnesses indicated that overseas Central Authorities may not
accept applications where the location of a child is uncertain, because these
Central Authorities are unable to establish their jurisdiction in the
matter.[85]
Further difficulties may arise where the abducting-parent moves between several
countries, especially where entry barriers are relatively minimal, as is the
case between member states of the European Union.[86]
4.49
Officers from the Department informed the committee that, in its
capacity as the CCA in Hague Convention matters, it engages various strategies
to locate children in such cases. For example, it can make requests to multiple
overseas Central Authorities to seek their assistance in locating the
child.[87]
The Department may also request the AFP, as the Australian Interpol National
Central Bureau, to issue diffusion notices seeking the policing assistance of
multiple countries.[88]
Overseas Central Authorities are then able to make inquiries of other agencies
in their jurisdictions to obtain information about the child's location.[89]
4.50
A departmental officer also informed the committee that the Department
has recourse to various domestic information-sharing mechanisms to locate
abducted children. These include arrangements with the Department of
Immigration and Citizenship to cross-check records of a child's travel
movements, a Memorandum of Understanding with Centrelink for the provision of
information relevant to a child's location, and the ability to apply to the
Family Court for Commonwealth Information Orders under the Family Law
Act to seek similar information from other Commonwealth agencies.[90]
4.51
The Family Law Council also identified an area of uncertainty in respect
of the CCA's information-gathering powers. In its advice to the Attorney‑General
of March 2011, the Family Law Council stated that it was unclear on the face of
the Family Law Act whether the CCA has standing to seek location orders, which
would require private individuals or organisations to furnish the Family Court
with information concerning the location of the child.[91]
4.52
The proposed reforms announced by the Australian Government on
19 September 2011 include amendments to expand the information-gathering
powers of the CCA in locating abducted children.[92]
Officers from the Department informed the committee that these amendments will
enable the CCA to apply to the court to seek additional information from
individuals and entities which may disclose the location of the child—for
example, travel records and the financial transaction records of the abducting
parent. The committee was also advised that the proposed amendments are
intended to enhance the CCA's ability to identify and contact the appropriate
overseas central authorities in order to secure a child's return to Australia.[93]
Commonwealth Central Authority's capture of data
4.53
Some submitters expressed concern that the CCA's collection of data with
respect to international parental child abduction is incomplete. In particular,
the CCA does not keep records of abductions to and from non-Convention
countries or Convention abductions in which CCA assistance is not sought; nor
does the CCA keep statistical information on the motivations of abducting
parents in either category of case, or information on the number of abductions
committed in breach of family law orders.[94]
Some submitters argued that greater domestic data capture and analysis could
aid the continuous improvement of Australian policies and practices, by
providing a clear profile of the nature and magnitude of the problem.[95]
4.54
The Department advised that it does not routinely capture this data
because its role as the CCA is limited to processing applications for
assistance in Convention matters. As such, it is not concerned with the
substantive merits or motivating factors present in individual cases, and it
does not have visibility of matters which are not the subject of an application
made to it. A departmental officer noted that the Permanent Bureau
periodically collates data from member states, and commissions its analysis to
identify international and country-based trends.[96]
The Department advised that it does not keep statistics on the number of
abductions committed in breach of family law orders because such information is
often only incidental to an application to the CCA.[97]
Child support arrangements in the event of international parental child
abduction
4.55
Submitters to the inquiry raised concerns about child support and
maintenance arrangements in the event of international parental child
abduction.[98]
Some left-behind parents submitted that they have experienced difficulties in
obtaining an adjustment of their liability following the overseas abduction of
their children, notwithstanding that the overseas location of the abducting
parent may be unknown.[99]
International Social Service (ISS) Australia asserted that the
continued liability of a left-behind parent to make child support or
maintenance payments where the location of a child is unknown is an 'enormous
injustice' which can fuel resentment on the part of the left-behind parent.[100]
4.56
Some left-behind parents submitted that the Child Support Agency (CSA)
had not informed them of their right to seek a variation on their child support
liability, or had provided incomplete or incorrect advice when notified that
international parental child abduction had occurred and advice was sought about
future child support obligations.[101]
Mr Ken Thompson proposed the extension of the CSA's statutory powers
to administratively vary a left-behind parent's liability, so that he or she is
not required to seek a court order to suspend or vary child support payments in
the event of international parental child abduction.[102]
4.57
In relation to whether information held by the CSA might be used to help
locate a child who has been abducted overseas to an unknown location, the
Department advised the committee that the CSA is not included in the
information-sharing protocol between the CCA and other Australian Government
agencies (which includes Centrelink). The Department noted, however, that the
CCA or individual parents are able to apply to the Family Court for a
Commonwealth Information Order under the Family Law Act, which would require
the CSA to disclose to the court certain information concerning the child's
overseas location.[103]
4.58
ISS Australia also queried whether limited information from child
support records could be provided to left-behind parents to enable them to
commence proceedings for the return of their child, without disclosing the
specific location of the abducting-parent.[104]
Family Law Council advice and
proposed legislative amendments
4.59
Departmental officers informed the committee that, in August 2011, the
Attorney-General and the Minister for Families, Housing, Community Services and
Indigenous Affairs sought advice from the Family Law Council on whether
Australian family law courts should be able to suspend the requirement for
left-behind parents to pay child support or maintenance in the event of international
parental child abduction; and what circumstances should apply to subsequently reinstate
the obligation to pay child support.[105]
4.60
The Family Law Council provided its advice to the government on 5 August 2011,
recommending legislative amendments to enable the Family Court to suspend child
support or maintenance obligations, where it has found that a child has been
wrongfully removed from, or retained outside, Australia. The
Family Law Council considered that this power should apply equally to
Convention and non-Convention matters, and recommended that a removal or
retention should not be deemed wrongful in circumstances broadly analogous to
the matters falling within the exceptions in the Hague Convention (set out in
Article 13). The Family Law Council also stated that, in determining whether
the removal or retention is wrongful, the court should also have regard to
whether:
- the taking-parent was fleeing from violence;
- the child objects to returning to Australia; and
- any other factors it considers relevant.[106]
4.61
The Family Law Council also recommended that the obligation to pay child
support or maintenance should be reinstated in the following circumstances:
- upon agreement by the parties;
- by the return of the child to Australia; or
- by declaration of the Family Court upon application by either
party, including in circumstances where an application for a relocation order
is subsequently made by one party which seeks permission to relocate the child
to another country.[107]
4.62
Officers from the Department advised the committee that the government
has announced its support for these proposals. Details of the proposed
amendments are currently under development and the government intends to
introduce legislative reforms in the first half of 2012.[108]
In addition to the specific matters in the Family Law Council's
recommendations, the government has announced that the proposed reforms will
include an overarching requirement that the court must be satisfied that the
suspension of child support or maintenance obligations would be in the best
interests of the child.[109]
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