CHAPTER 5
Complementary support services, dispute resolution and international
engagement
5.1
In this chapter, the committee considers the role of complementary support
and dispute resolution services in respect of incoming and outgoing international
parental child abduction matters, as well as Australia's role in international
engagement on such matters.
Role of non-government support services
5.2
The committee received evidence highlighting the importance of social
support services to parents (both the abducting and the left-behind parent) and
to children in international parental child abduction matters. While Australian
governments do not directly provide social support services in international
parental child abduction matters, the Australian Government does provide
funding to ISS Australia, a non-government organisation, to deliver these
services in relation to both outgoing and incoming abductions.[1]
ISS Australia also receives partial funding from the Department of Family
and Community Services, New South Wales to deliver additional services in that
state.[2]
ISS Australia
5.3
ISS Australia is an independent member of an international network
which has representation in approximately 140 countries worldwide.
ISS Australia describes its role as 'specialising in the provision of
professional social work services to assist families and children separated
across national borders'.[3]
It is the only professional social work service in Australia focussing
specifically on families affected by international parental child abduction.[4]
5.4
In its submission, ISS Australia provided an outline of the
services that it provides to families who are affected by international
parental child abduction, including:
- provision of information and education to parents, as well as
professionals in community support and legal sectors, with respect to the
prevention of international parental child abduction;
- obtaining and forwarding information (in liaison with Central
Authorities) to clients regarding the progress of their Hague Convention
applications; and
- assistance in relation to return arrangements—for example,
mediation to develop these arrangements, assistance in transporting children to
the airport and/or facilitating the hand-over of children from one parent to
another, and arranging post-return support for the parent and child on arrival
in the child's place of habitual residence (including referrals to refuges and
family violence support services).[5]
5.5
ISS Australia provided the committee with the following snapshot of
its involvement in international parental child abduction cases:
In the 2010-11 financial year, for example, ISS Australia
responded to 130 short-term enquiries related to IPCA, and provided long-term
social work services in response to 40 new requests. Of new enquiries during
2010-11, 97 related to Hague Convention signatories, 63 related to non signatory
countries and 11 related to countries whose identity was unknown. Approximately
82 of the matters in which ISS Australia became involved concerned mothers and
70 concerned fathers. ISS Australia provided social work services to 11 taking
parents and 64 left-behind parents. Enquiries related to the prevention of IPCA
approximated 80.[6]
5.6
The committee heard that ISS Australia provides invaluable support
in cases of international parental child abduction. For example, Mr Craig
Cannock stated:
The International Social Service was very helpful and
provided me with actual real assistance, something I didn't get
elsewhere. They should be commended for their efforts and the government should
be funding them in a more appropriate manner.[7]
5.7
The Department of Family and Community Affairs NSW noted the good
working relationship that it, as the New South Wales Central Authority, has
with ISS Australia:
The NSW Central Authority also organises emotional support
for left behind parents to be provided by trained social work staff at [ISS Australia]...
...[This relationship] ensures that support is provided to
parents...The model allows for parents to have ready access to the Central
Authority lawyer dealing with the application and the support of ISS. The
Central Authority lawyer has regular communication with the ISS officer as a
result of the parent signing a letter of authorisation.[8]
5.8
Further, the Department of Family and Community Affairs NSW recommended
that all SCAs should establish a working relationship with ISS Australia so
that left-behind parents affected by international parental child abduction can
be provided with emotional support.[9]
5.9
ISS Australia noted that its capacity to assist in cases of international
parental child abduction generally depends on referrals from Central
Authorities or parents being aware of its services.[10]
Ms Helen Freris from ISS Australia suggested that ideally parents should
be referred as a matter of course:
Certainly a lot of our work has involved raising awareness of
our existence, including anywhere from central authorities to organisations in
what broadly can be termed the post-separation networks, all the family law
pathways organisations as well as private lawyers and Legal Aid Commissions. We
can do a lot of promotion work but we would very much appreciate and value
enormously awareness of us through organisations that can reach a lot of
parents—so central authorities, being the main ones—being aware and perhaps
referring people as a matter of course. Parents then have the choice as to
whether or not they seek us. This would also include family relationship
centres, Family Court registrars and even some of the organisations that work
with culturally and linguistically diverse populations—migrant resource
centres, for example—so that we can work with them before the problem really
starts to occur.[11]
Need for expanded support services
5.10
Although the work by ISS Australia is clearly of significant
assistance to families, submitters indicated that there remains scope for
non-government organisations to provide further support services to families
impacted by, or at risk of, international parental child abduction. In this
context, a number of submitters referred the committee to the work of Reunite
International (UK).[12]
5.11
Mr Ken Thompson noted the types of services that Reunite International
(UK) provides, such as:
- operation of a telephone advice line offering practical and
impartial advice, information and support to parents, family members and
guardians who have had their child abducted, as well as parents and guardians
who may have abducted their child; and
- close liaison with the Ministry of Justice, the Foreign and
Commonwealth Office and the Home Office, and provision of specialist training
for government departments, lawyers, academics, the police, and others who have
a professional interest in international parental child abduction.[13]
5.12
In the Australian context, Mr Thompson made the following suggestion:
There are several missing children organisations and
charities within Australia that could provide a similar [international parental
child abduction] Prevention and government liaison role to that performed by
Reunite UK.[14]
5.13
Reunite International (UK) indicated that parents in Australia are
already accessing its services, highlighting a need for a similar organisation
in Australia:
Whilst [Reunite International] is a UK based charity, our
advice line service is available for parents of any nationality, based in any
country across the world. We are regularly contacted by Australian nationals/
citizens based in Australia and whilst their case may involve an abduction/
retention in England, it can also involve an abduction from Australia to other
states such as India, Algeria, Germany. This indicates a need for an Australian
[non-government organisation] similar to [Reunite International].[15]
5.14
The Hon Diana Bryant, Chief Justice of the Family Court of Australia, stated
that there is no real equivalent to Reunite International in Australia: ISS
Australia's role, in comparison, is 'more...assistance and overseeing—just a
more limited role'.[16]
5.15
Mr Michael Nicholls QC suggested that mediation and research are areas
in which a non-governmental organisation may be able to provide additional
services to families.[17]
However, Mr Nicholls cautioned that such an organisation would need to stay
'within its boundaries' and remain at 'arm's length from anybody who is
providing legal services or anything for reward'.[18]
Coordinated agency arrangements for the return of abducted children
5.16
The Hague Convention requires contracting states to provide the
necessary administrative arrangements to secure the safe return of the child to
his or her jurisdiction of habitual residence.[19]
Some submitters expressed concern that arrangements for the return of children
to Australia are not always considered in a thorough or coordinated way.
Particular problems were identified in respect of logistical arrangements for
the child's return, and arrangements for post-return support services (including
social security, counselling, protective measures to ensure the child's safety
and welfare, and legal assistance in finalising parenting arrangements).[20]
The committee received anecdotal evidence suggesting that, in some cases, the
circumstances of some children's return to Australia, and the inadequacy of
post-return support arrangements, have had serious adverse psychological and
emotional effects.[21]
5.17
ISS Australia submitted that greater liaison is necessary between
Australian Government agencies, including the CCA, DFAT and Centrelink, to
'ensure thorough research is conducted into likely post-return conditions for
children and parents, so that resources can be put in place to ensure some
measure of financial and other support until such time as parenting
arrangements can be determined by the court'.[22]
Role of alternative dispute resolution
5.18
The Hague Convention requires contracting states to encourage the
resolution of international parental child abduction cases through voluntary
means wherever possible.[23]
In the context of Hague Convention applications, however, there are no
provisions in the Family Law Act, the Regulations or the Convention which
require compulsory mediation or conciliation.[24]
5.19
Accordingly, there is no formal framework in Australia, or internationally,
for the mediation of Hague Convention cases. Despite this being the case,
submissions to the inquiry indicated that mediations have been undertaken
privately with significant success. In some instances, Central Authorities have
referred parties to private dispute resolution service providers, such as ISS
Australia.[25]
The Attorney-General's Department (Department) informed the committee that
mediation of Convention matters is currently a work priority for the Hague
Conference on Private International Law.[26]
Benefits of mediation
5.20
A number of submitters supported mediation or conciliation initiatives
in respect of both Convention and non-Convention abductions.[27]
For example, Chief Justice Bryant summarised the benefits of mediation in
'appropriate' Convention cases:
Conciliation and mediation enables the parties to fashion an
agreed solution that:
- addresses their respective needs and those of the child or
children;
- provides the parents with responsibility for decision-making in
relation to the child or children;
- lays a foundation for parenting into the future as well as being
able to negotiation future parenting arrangements;
- reduces conflict between the parents and encourages a
child-focussed approach;
- reduces the costs borne by the parents and the delay associated
with litigation, particularly the litigation subsequent to the Hague
proceedings;
-
reduces the stress experienced by the parents and the child or
children; and
- reduces the potential for the child or children to be returned to
a Convention country only to be relocated to, say, Australia pursuant to
parenting orders made by a foreign court.[28]
5.21
The Department commented on the role Australia could play in mediation:
Australia is well placed to be a regional centre for
mediation of international family law matters, being able to build on the
domestic family dispute resolution services currently available to parents such
as the Telephone Dispute Resolution Service and Online Family Dispute
Resolution Service...
Establishing Australia as a regional centre for international
mediation would provide greater assistance to parents in the region seeking the
return of their children or settled custody and access arrangements in relation
to their children.[29]
5.22
Reunite International (UK) highlighted the success it has had using
mediation to resolve abduction cases:
[Reunite International (UK)] has mediated in six cases of
abduction from Australia and in all six cases the parents were able to reach
agreement, thus avoiding a court enforced decision and future litigation.[30]
5.23
Chief Justice Bryant acknowledged that there are cases where parties are
'completely polarised' and mediation would not be useful.[31]
However, the Chief Justice indicated that there are certain cases in which
mediation would be 'most efficacious':
Most of our cases are between Australia and New Zealand.
Sometimes you can look at an application and there is no doubt the child has to
be returned to the country of habitual residence. But you can see from the case
that it is highly likely that, once the court hears the case properly there,
they are going to be allowed to come back—and/or where, for the other parent,
it is really about contact and they are not really expecting that the child is
going to live with them. They are the kinds of cases where, if you have some
mediation, you can end up with a result which would be the final result but you
do not have to have children going back and forth. That is why it is
useful...[T]here are quite a lot where it is [useful], particularly between
Australia and New Zealand, where we are so culturally similar.[32]
5.24
The Department of Family and Community Services NSW also supported
mediation as an important tool, but outlined some limitations to the process:
Mediation has been used in New Zealand cases in NSW. The mediation
which has taken place has been by video link up. Where the respondent parent
has not been entitled to Legal Aid assistance, the costs have been a
deterrent...
Physical distance and different time zones present
difficulties in Hague cases, nevertheless, mediation is an important tool and
will become increasingly used in many jurisdictions.[33]
Mediation providers
5.25
Ms Alexandra Wearne from Legal Aid New South Wales believed that there
may be a role for legal aid commissions in mediation of Hague Convention
matters:
...[At] Legal Aid New South Wales our litigation intervention
mediators are all legally trained and it would certainly not be difficult for
us to have mediators specifically trained in Hague convention matters as well.
So I think the commission can offer a great deal around those issues...[34]
5.26
Mr Norman Reaburn of National Legal Aid indicated that the model of
mediation offered by legal aid commissions offers a further advantage, namely,
that it is specifically designed to address any imbalance between the parties.[35]
5.27
Chief Justice Bryant noted that the time it takes to set up mediation
through some services, such as those provided by Family Relationship Centres or
the Family Relationship Advice Line, may exceed the strict timeframes
applicable to Hague Convention applications.[36]
The Chief Justice cautioned that she would not support mediation in
circumstances which would result in delay or postponement of judicial
determinations of Hague Convention applications.[37]
Similarly, the Department of Family and Community Services NSW argued:
...[W]hen parents agree to use mediation, that process should
be set up in a timely way which does not delay the proceeding being heard given
that expediency is an important principle.[38]
5.28
Ms Wearne noted that legal aid commissions have the capacity to organise
mediations in a timely fashion, citing the example of a child abduction case
which was referred for mediation on 23 September, with the mediation occurring
on 1 October in the same year.[39]
5.29
Chief Justice Bryant noted that the Family Court does not have the
capacity to devote additional resources to private mediations or conciliations.
However, the Chief Justice proposed the expansion of the Child Dispute
Services section of the Family Court as a means of assisting those parties who
cannot afford private mediation. Such an expansion would enable appropriately trained
family consultants to be made available for the conciliation of Hague Convention
applications.[40]
5.30
In conclusion, Chief Justice Bryant summarised some improvements that
could be made in the conciliation of Hague Convention cases:
The [establishment of] a mediation or conciliation service...whereby
appropriately trained and skilled mediators are available to assist in
mediating or conciliating Hague cases (in appropriate circumstances) [would be
beneficial]. Ideally this service would be appropriately funded to enable mediation
or conciliation to be provided [in a manner which is] highly flexible,
available on short notice, unattended by many of the usual formalities and
capable of being conducted in person as well as electronically.
Allied to the above is the need to establish a mediation fund
so that, in appropriate cases, impecunious participants could have the cost of
mediation met in whole or in part.[41]
Australia's role in international engagement
5.31
The committee received evidence about Australia's role in international
engagement on international parental child abduction matters, in both
government-to-government and judicial settings.
Government-to-government engagement
5.32
Several submitters argued that Australia could take a more active role
in international government-to-government engagement on international parental
child abduction matters. These arguments arise from the general premise that
cooperation in the development and implementation of an international response
and prevention framework is the most effective way of managing international
parental child abduction.[42]
Encouraging accession to the
Convention and best practice in implementation
5.33
The principal suggestion advanced by submitters is that Australia should
sustain, if not increase, its efforts to encourage other countries to accede to
the Convention, especially its regional neighbours.[43]
As the Attorney-General's Department noted in its evidence to the committee,
encouraging accession to the Convention is a standing work priority of the
Hague Conference.[44]
Australia's recent dialogue with Japan in respect of that country's
ratification of the Convention is an instructive example of international
engagement.[45]
5.34
Submitters also suggested that Australia should continue to play an
active role in the work of the Hague Conference. This includes supporting the
development and adoption of good practice guides on aspects of the Convention;
encouraging contracting states to adequately resource their Central Authorities
and designated judicial or administrative decision-making authorities;
participating in initiatives to improve international interpretative
consistency; and supporting professional development opportunities for persons
who implement and apply the Convention.[46]
Compliance monitoring
5.35
Some submitters advocated a cautious approach to the negotiation and
acceptance of new accessions to the Convention, and argued that Australia
should adopt a more rigorous approach to compliance monitoring. For example,
Chief Justice Bryant suggested that there may be value in considering
a more stringent approach to Australia's acceptance of the accessions of new
contracting states, to ensure that they have the capacity to meet their
obligations under the Convention. Chief Justice Bryant also supported
Australia's participation in the development and implementation of an
international alert system for instances of non‑compliance with the
Convention, whereby breaches committed by one contracting state are reported to
the Permanent Bureau and notified to other contracting states.[47]
5.36
Another submitter, Mr Ken Thompson, supported the application of
punitive measures—including those in the nature of autonomous sanctions—against
Convention countries which frequently fail to discharge their obligations.[48]
Bilateral agreements
5.37
Opinions were divided on the desirability of bilateral agreements as a
mechanism for responding to, or preventing, international parental child
abduction to and from non-Convention countries. Reunite International (UK)
described such agreements as 'pale imitations' of the Convention, in that they
provide only a forum for dialogue and mutual assistance and do not mandate
comparable legal processes to those available under the Convention.[49]
5.38
Mr Michael Nicholls QC acknowledged that bilateral agreements 'have
something of a mixed success rate', but considered that they may assist where a
country does not wish to become a party to the Convention. He submitted that
Australia's policy should be to pursue bilateral agreements and protocols where
it is considered that they would assist.[50]
Diplomatic intervention in
non-Convention abductions
5.39
Some submitters—generally the left-behind parents of abducted
children—argued that the Australian Government should engage in diplomatic
intervention routinely, or at least more frequently, in individual
non-Convention matters. They argued that such intervention should include
government-to-government communication, and public censure of non-cooperative
countries.[51]
5.40
Conversely, Mr Nicholls submitted that calls for greater diplomatic
involvement in non-Convention abductions may reflect the fact that 'parents
have unrealistic expectations of what a government can do'.[52]
He commented further:
Demands for diplomatic intervention usually fail to
understand the limitations of a diplomatic demarche, or that many
countries operate (at least in theory) a doctrine of separation of powers.
There is also the understandable reluctance of any executive to become involved
in a family case, especially one involving children, where there may well be
contested allegations of violence, abuse and neglect. No sensible official,
appointed or elected, would want to become involved if they could possibly
avoid it.[53]
International judicial engagement
5.41
Established in March 2001, the International Hague Network of Judges (Hague
Network) can assist judicial officers in making decisions in Convention
proceedings. It enables a judge or decision-maker in one jurisdiction to contact
a liaison judge in another jurisdiction, and obtain advice about procedural
issues relevant to the administration of the Convention in their respective
jurisdiction.[54]
The Australian liaison judges on the Hague Network are the Chief Justice of the
Family Court, the Hon Diana Bryant, and the Hon Justice Victoria Bennett of the
Family Court.[55]
5.42
Chief Justice Bryant described the Hague Network as an 'important
strategy that enables Convention countries and judicial members of those
countries to understand the proceedings that may follow a return order in a
particular country'. The Chief Justice advised the committee that Australia has
played an active role in the Hague Network, including in encouraging the
accession of non-contracting states (such as Singapore, Indonesia and Japan)
and in attending periodic meetings of the Special Commission on the Practical
Operation of the 1980 and 1996 Hague Conventions. [56]
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