CHAPTER 6
Committee view and recommendations
6.1
On balance, the committee agrees with the assessment that Australia is
meeting its obligations under the Hague Convention.[1]
However, evidence presented to the committee indicates that there are a number
of areas in which current practices in both Convention and non-Convention
matters could feasibly be improved. In the committee's view, the proposed
reforms announced by the Australian Government on 19 September 2011
are a starting point in addressing the concerns raised in this inquiry.
6.2
The committee notes that assistance and support is available to families
affected by both Convention and non-Convention abductions. The committee
believes that there is scope to increase awareness about the assistance and
support available, as well as to provide more information on international
parental child abduction, in a more accessible manner, to assist parents who
believe that their children may be at risk of abduction.
Proposed legislative amendments
6.3
The committee is encouraged by the Australian Government's proposed
legislative amendments to strengthen the legal response to international
parental child abduction. Submitters and witnesses to the inquiry raised
concerns about several of the issues to which the proposed reforms are
directed. Accordingly, the committee welcomes the government's stated
commitment to addressing them.
6.4
The committee further notes the advice of the Attorney-General's
Department (Department) that the details of the proposed amendments are under
development, and that the Department intends to undertake further consultations
with relevant stakeholders as part of the legislative development process.[2]
Proposed amendments to the Family
Law Act offences
6.5
The committee endorses the view of the Family Law Council that the wrongful
removal offences in sections 65Y and 65Z of the Family Law Act (Family Law Act
offences) should be extended to wrongful retentions. Indeed, it appears to the
committee that the current limitation of these offences to wrongful removals is
a significant gap in their coverage; therefore, the committee supports the
government's proposed reforms in this regard.
6.6
The committee also supports the government's intention to introduce
additional safeguards to the Family Law Act offences—including a prosecutorial
consent requirement, and specific defences under the Family Law Act,[3]
which would be additional to those available under the Commonwealth Criminal Code.[4]
The committee believes that this reform will make it easier to resolve some international
parental child abduction cases and enable the return of children to Australia.
6.7
However, the committee notes that the government's proposed
prosecutorial consent requirement in respect of the Family Law Act offences
appears to diverge from the Family Law Council's preferred approach. Whereas
the Family Law Council recommended that the Attorney-General should be required
to consent to prosecutions,[5]
the government's proposed reforms would require the Commonwealth Director
of Public Prosecutions (CDPP) to provide consent.[6]
6.8
The committee observes that the Family Law Council's preference for the
Attorney-General's consent appears to have been motivated by a desire to
maximise the persuasiveness of non-prosecution guarantees to overseas
courts which are determining applications under the Convention for the return
of children to Australia. In its March 2011 advice to the Attorney-General, the
Family Law Council noted that, if the Attorney-General were responsible for providing
prosecutorial consent, he or she would also be in a position to provide a
non-prosecution guarantee to the overseas court. This guarantee may then
encourage the overseas court to order the return of the child.[7]
In addition, the Family Law Council noted that, in the past, the CDPP has
declined to provide non-prosecution undertakings when requested by overseas
authorities.[8]
6.9
In light of these issues, the committee considers that the appropriate
person to provide prosecutorial consent should be examined in further detail in
the development of the proposed legislation, in consultation with the CDPP and
other relevant stakeholders.
6.10
As an additional point, the committee advocates the development of a specific
prosecution policy in respect of the existing and proposed additional Family
Law Act offences, in order to guide decision-making about the initiation and
conduct of international parental child abduction prosecutions. In the
committee's view, such a policy would serve as an additional procedural
safeguard in cases where non-prosecution undertakings are not provided, and would
also enhance transparency and consistency in prosecutorial decision-making. As
a result, overseas courts might be encouraged to order the return of abducted
children to Australia.
Recommendation 1
6.11 The committee recommends that the Australian Government should develop a
specific prosecution policy for the offences in sections 65Y and 65Z of the Family
Law Act 1975; and update the policy as necessary to include guidance on any
future amendments to the Family Law Act (including the proposed extension of
the offences to wrongful retention and participation in family dispute
resolution).
Application of Family Law Act
offences to family dispute resolution
6.12
The committee generally supports the proposed extension of the wrongful
removal offences to where the relevant parties are participating in family
dispute resolution. The committee agrees that there is logic in the Family Law Council's
opinion that parties who participate, or who are invited to participate, in family
dispute resolution should be aware of their obligations under the Family Law Act
once parenting proceedings are on foot or are pending. This is so because participation
in family dispute resolution is generally a prerequisite to the filing of an
application seeking contested parenting orders under the Family Law Act.[9]
6.13
However, the committee notes the concerns raised by Women's Legal
Services Australia in its evidence to the inquiry about the potentially limited
effectiveness of such an offence. This is because it may be impossible to
prove, to the criminal standard, that a party has received an invitation to
participate in family dispute resolution (since invitations do not require
formal service).[10]
6.14
Accordingly, the committee welcomes the Department's assurance that it
will consult relevant stakeholders on this matter throughout the legislative
development process.[11]
Proposed amendments to child
support and maintenance obligations
6.15
The committee supports, in principle, the government's proposed amendments
to the child support and maintenance obligations of left-behind parents, based
on the Family Law Council's advice dated 5 August 2011. In the committee's
view, these proposed amendments may go some way towards addressing the
difficulties identified or experienced by some submitters and witnesses to the
inquiry.[12]
6.16
The committee particularly acknowledges two aspects of the approach to
the proposed reforms. First, the committee agrees that it is appropriate that
any decisions to suspend child support or maintenance obligations in the event
of international parental child abduction are the subject of judicial rather
than administrative determination. Second, the committee endorses the proposed
inclusion of an overarching requirement that the court must be satisfied that
the suspension of child support or maintenance payments would be in the child's
best interests. The committee considers that this requirement would help ensure
the child's welfare overseas, while also providing an incentive to taking-parents
to return the child to Australia.
6.17
The committee also notes the importance of facilitating access to
justice in the implementation of these proposed reforms. In particular, the
committee encourages the Attorney-General's Department and agencies within the Commonwealth
Human Services portfolio—especially the Child Support Agency—to ensure
that left-behind parents and their legal representatives are made aware
of their entitlement to seek a suspension of their child support or maintenance
liability.
6.18
The committee encourages the Family and Federal Magistrates Courts to
consider strategies to ensure that applications are heard and determined as
efficiently as possible, having regard to the substantial financial burden
placed upon many left-behind parents in attempting to locate and recover
their children.
Other proposed measures
6.19
The committee also notes the advice of departmental officers that the
government has partially accepted other recommendations of the Family Law Council
in its March 2011 advice, including the Family Law Council's
recommendation for further complementary legislative and non-legislative
measures to assist in international parental child abduction cases (such as
information-gathering powers, mediation and publicity about the Hague Convention).[13]
No necessity for a stand-alone criminal offence at the current time
6.20
The committee heard strong and credible arguments both in support of, and
in opposition to, the enactment of a stand-alone criminal offence in respect of
international parental child abduction. Advice from the Department indicates that
the Australian Government has 'implicitly accepted' the recommendation of the Family Law Council
against this course.[14]
6.21
After careful consideration, the committee also concludes that it would
be premature to recommend the introduction of a stand-alone criminal offence in
respect of international parental child abduction. It appears to the committee
that the fundamental issue underlying the criminalisation debate is identification
of the best way of leveraging an effective law enforcement response to international
parental child abduction: the key question is whether or not a stand-alone
criminal offence is the preferable means of achieving this outcome.
6.22
The committee considers that, at the present time, the preferable
approach is to focus on the improvement of existing prevention, deterrence and
dispute resolution mechanisms. In the committee's view, however, the Australian
Government must closely monitor the implementation and effectiveness of the
proposed amendments to sections 65Y and 65Z of the Family Law Act, and the
extension of the offences to parties who are participating in family dispute
resolution. If the proposed amendments do not have the desired effect of
deterring parents from committing international parental child abduction, the
committee believes that the need for the introduction of stronger measures
should be considered, including the possible enactment of a stand-alone
criminal offence.
Recommendation 2
6.23 The committee recommends that the Australian Government should maintain
a 'watching brief' on the implementation and impacts of the proposed amendments
to the offences in sections 65Y and 65Z of the Family Law Act 1975, and
the extension of the offences to parties who are participating in family
dispute resolution. In the event that the proposed amendments do not achieve
their intended objective, the committee recommends that the Australian Government
should reassess the need for the introduction of stronger measures, including the
possibility of a stand-alone criminal offence for international parental child
abduction.
Increasing awareness and prevention of international parental child
abduction
6.24
The committee believes that there is significant benefit in enhancing international
parental child abduction awareness and prevention initiatives, which may help avert
the need for criminal law responses (including a new, stand-alone offence). The
committee agrees with the Family Law Council, the Law Council of Australia, and
others, who argued that greater public awareness of the Family Law Act offences
(including the proposed amendments, if enacted) could deter some parents from
committing international parental child abduction.[15]
In particular, the committee endorses the specific suggestions made by the Law
Council of Australia in that regard.[16]
6.25
The committee also supports practical international parental child
abduction prevention measures, which may further avert the need for criminal
law responses. In this regard, the committee notes the proposals of ISS
Australia for international parental child abduction screening and
risk-assessment measures at key stages of a party's post-separation engagement
with the family law system (for example, at the commencement of family dispute
resolution or alternative dispute resolution processes).[17]
Recommendation 3
6.26 The committee recommends that the Australian Government should give
consideration to strategies to improve public awareness of the offences in
sections 65Y and 65Z of the Family Law Act 1975, including:
- a standard notice in all orders made under Part VII of the Family Law Act
about the existence and effect of the offence provisions;
- information about the offences being included in existing
Australian Government guidance materials (for example, the Travel Smart
booklet published by the Department of Foreign Affairs, and Trade, and in the
passport application and renewal process);
- conspicuous signage at international departure points (such as
airports and sea ports) about the offence provisions; and
- information materials about the offences being made available
at community legal centres, legal aid offices, family relationship centres,
international departure points and government shop-fronts.
Recommendation 4
6.27
The committee recommends that the Australian Government should
investigate the feasibility of incorporating international parental child
abduction screening and risk-assessment processes into key stages of a family's
post-separation engagement with the family law system.
Law enforcement and response powers
6.28
The committee notes evidence to the inquiry about limitations in law
enforcement powers regarding international parental child abduction. In
particular, the committee acknowledges the following concerns:
- the absence of telecommunication interception and information-gathering
powers in international parental child abduction matters;[18]
and
- problems in the execution and enforcement of orders granted by
Australian family law courts, inclusion of children on the AFP's Watch List,
and cancellation of children's passports.[19]
6.29
The committee therefore strongly supports the establishment of the
working group between the Family Court, the Federal Magistrates Court and the
AFP to further examine issues such as these.
Alternative dispute resolution
6.30
The committee endorses calls by stakeholders for the greater use of
alternative dispute resolution in international parental child abduction
matters. In particular, the committee recognises the significant benefits of
cross-border mediation as articulated by the Chief Justice of the Family Court,[20]
and supports its use in appropriate cases.
6.31
The committee welcomes the advice of the officers from the Department
that Australia is well-placed to become a regional centre for the cross-border
mediation of international parental child abduction matters, and that a pilot online
dispute resolution project is underway in partnership with Family Relationship
Services Queensland.[21]
The committee is interested in the outcomes of this trial, and in broader
progress towards the establishment in Australia of a regional mediation framework
to deal with issues relating to international parental child abduction. The
committee also commends those who have provided or contributed to successful
mediations concerning abductions to and from Australia—including the Family
Court, state and territory legal aid commissions, ISS Australia and
Reunite International (UK).
6.32
The committee emphasises the importance of addressing the following
matters in the development of a mediation framework:
- provision of appropriate resourcing for mediation services,
including specific training for mediators and other persons (such as legal
practitioners) participating in mediations,[22]
as well as associated funding;[23]
and
-
identification of an appropriate mediation model—for example, in
her submission to the inquiry, the Chief Justice of the Family Court supported
counsel-assisted mediation on the proviso that it does not result in any delay
to Convention proceedings.[24]
6.33
The committee encourages the Australian Government to consider these
matters in detail, in close consultation with relevant stakeholders (in
particular the Family Court and legal aid commissions), as part of its work
towards developing a framework for the use of alternative dispute resolution in
international parental child abduction matters.
Communication and information-dissemination practices
6.34
The committee shares the view of some submitters and witnesses that
there is scope for improvements to the communication and information-dissemination
practices of the Commonwealth Central Authority (CCA).
Communication between Central Agencies
and applicants
6.35
In the committee's view, there is considerable merit in ensuring that communication
arrangements between Central Agencies and applicants are sufficiently flexible so
that they can be adapted to meet the circumstances of individual cases, and are
conducive to the provision of timely information to applicants about the
progress of their cases (to the greatest extent possible, within operational
requirements).
6.36
In supporting improvements to communication arrangements with
applicants, the committee acknowledges that the primary responsibility of the
CCA is to secure the return of abducted children in Convention matters and, as
such, the CCA does not have a formal lawyer-client relationship with
applicants. In addition, the committee is mindful of the need for confidentiality
at certain points in the process—for example, while overseas Central Authorities
are engaged in the process of confirming the child's location. The committee
also acknowledges that the CCA operates within a finite resource allocation.
6.37
Nonetheless, the committee considers that a strategic investment in relationship
management with applicants could help improve public confidence in the
operation of the Convention. Timely communication with individual applicants,
in a manner that is meaningful to them, could also provide valuable assurance about
the progress of their cases.
Recommendation 5
6.38
In consultation with State Central Authorities, the committee recommends
that the Attorney-General's Department should adopt a coordinated strategy for
communications between Australian Central Authorities and applicants in Hague
Convention proceedings. The strategy should include provision for the following
measures:
- flexible, case-specific communication arrangements, such as
enabling applicants to contact the Commonwealth Central Authority directly,
rather than the relevant State Central Authority; and
- routine progress updates (such as periodic teleconferences
between applicants and case officers in the relevant Australian Central Authority).
Dissemination of public information
6.39
The committee further supports targeted improvements to the
dissemination of public information about international parental child
abduction. The evidence of several submitters to the inquiry indicated that
left-behind parents have experienced difficulties in accessing information
relevant to the operation of the Convention, and complementary prevention and
response measures. In particular, some submitters raised concerns that left-behind
parents have been unable to readily access comprehensive, practical information
about the steps they need to take in the event of actual or apprehended international
parental child abduction, and at the post-return stage.[25]
6.40
While the committee is aware that Australian Government
agencies—including the Attorney-General's Department, the Family Court and the
AFP—have published materials related to international parental child abduction
on their respective websites, the information may be difficult to locate unless
the user knows what he or she is looking for. In this context, the committee points
to the evidence of Reunite International (UK) that it is contacted regularly by
Australian left-behind parents who seek support in cases involving abductions
to countries other than the United Kingdom.[26]
This suggests that such parents have been unable to locate information within
Australia about domestically-available support services.
6.41
Although anecdotal, such evidence is concerning given the time-critical
nature of international parental child abduction prevention and response
measures. The committee is aware that the Australian Government maintains
stand-alone, whole-of-government web portals in various other policy areas,[27]
and considers that there would be significant merit in considering a similar
initiative for international parental child abduction. Such a portal could
provide members of the public with a readily accessible 'one-stop shop' for information,
resources and contacts about international parental child abduction prevention,
responses, dispute resolution and post-return matters, in both Convention and
non-Convention cases.
6.42
The committee also notes evidence from members of the legal profession
that there are gaps in the resources available to legal practitioners engaged
in Convention matters. For example, the Law Council of Australia supported the
reinstatement of the CCA's previous series of publications about the operation
of the Convention between Australia and other contracting states, and the
performance history of those states.[28]
The committee encourages the Department to liaise with representatives from the
legal profession to resolve these concerns. One option may be a partnership
arrangement between representatives of the legal profession and the CCA for the
publication of additional resources, or the revision of existing materials to
address identified information gaps.
Recommendation 6
6.43 The committee recommends that the Australian Government should develop a
specific and comprehensive online information portal about international
parental child abduction to and from Australia.
Recommendation 7
6.44 The committee recommends that the Australian Government should, in
consultation with relevant stakeholders in the legal profession, re-instate and
update international parental child abduction resources for legal
practitioners, particularly in respect of Hague Convention matters.
Complementary support services
6.45
The committee notes the strong stakeholder support expressed for the work
of ISS Australia in both Convention and non-Convention matters to and from
Australia.[29]
The committee notes, however, evidence suggesting two key limitations in ISS Australia's
capacity to deliver social support services to persons affected by international
parental child abduction, namely: the work of ISS Australia depends largely
upon referrals from Australian Central Authorities, which means that people
affected by international parental child abduction may not necessarily be aware
of its services;[30]
and the role of ISS Australia is more limited than that of overseas non-government
organisations involved in supporting persons affected by international parental
child abduction.[31]
6.46
In response to the first identified limitation, the committee encourages
Australian Central Authorities, other supporting agencies and legal service
providers, to provide information about the services available from ISS
Australia, and to ensure that this information is prominently displayed and
easily accessible.
6.47
In respect of the second limitation, the committee acknowledges the
potential benefits in expanding the reach of ISS Australia so that it operates
on a similar scale to overseas non-government organisations such as Reunite
International (UK). The committee emphasises the importance of ensuring that
ISS Australia continues to receive adequate resourcing in the future, given its
important role in helping to prevent and respond to international parental
child abduction; and encourages the Australian Government to engage in
regular dialogue with ISS Australia about its resourcing levels and
funding arrangements.
6.48
The committee further notes evidence suggesting that there is scope to
improve the coordination and delivery of post-return support services to
children and families affected by international parental child abduction.[32]
In the committee's view, there would be significant merit in the further
investigation of this matter by the Australian Government. The publication and
dissemination of fact sheets in the nature of 'checklists' for returning and
left-behind parents may be a simple and effective means of providing the
necessary information. The committee notes that the Department has prepared
jurisdiction-specific checklists for returning parents, which are published on
its website.[33]
The development of corresponding guidance materials for left-behind parents, and
the widespread dissemination of these materials, may provide further coverage.
6.49
The committee also notes the suggestion of Mr Michael Nicholls QC, the
former head of the UK Child Abduction Unit, for a program of periodic
whole-of-government (or potentially sector-wide) meetings of relevant agencies
and organisations to ensure the coordinated delivery of services, and to identify
and address common issues.[34]
Recommendation 8
6.50 The committee recommends that the Australian Government should, in
consultation with relevant stakeholders such as International Social Service
Australia, investigate strategies to improve the availability and coordinated
delivery of support services in international parental child abduction cases,
including post-return services.
Australia's role in international engagement
6.51
The committee acknowledges the deep frustration and anxiety experienced
by many left-behind parents in attempting to recover their children,
particularly in
non-Convention matters, and endorses a policy approach that encourages greater
accession to the Convention and supports the implementation-related work
priorities of the Hague Conference. A recent example of the success of
international engagement was the involvement of the Australian Government and
the Family Court in securing the commitment of Japan to accede to the
Convention.[35]
6.52
The Chief Justice of the Family Court expressed concern that some
contracting states to the Convention—including those states whose accessions
Australia has accepted—have failed to uphold their obligations under the
Convention.[36]
The committee encourages the Australian Government to give consideration to the
Chief Justice's evidence, both in the context of international engagement with
non-compliant countries through the Hague Conference, and the application
of national standards for the acceptance of new accessions.
6.53
The committee recognises that bilateral agreements between countries
will not always be an effective substitute for the Hague Convention as a means
of responding to international parental child abduction. However, the committee
is persuaded that bilateral agreements between Australia and non-Convention
countries may be of assistance where the non-Convention country does not wish
to become a party to the Convention.
6.54
The committee also notes the effectiveness of the International Hague
Network of Judges, and commends the Family Court on its active and constructive
participation in this forum.
Recommendation 9
6.55 The committee recommends that the Australian Government should continue
to:
- encourage non-contracting states to accede to the Hague
Convention;
- support new and existing contracting states to implement the
Hague Convention effectively; and
- pursue bilateral agreements, where appropriate, with countries
which have not acceded to the Hague Convention, and which are unlikely to do so
in the foreseeable future.
Data capture
6.56
The arguments raised by submitters and witnesses to the inquiry in
support of increased data capture with respect to international parental child
abduction are, in the committee's view, compelling.
6.57
In particular, the committee agrees that the collection of accurate
statistics on the occurrences of international parental child abduction from
Australia—including the characteristics of taking-parents—is necessary to help
quantify the problem, and inform evidence-based policy responses.[37]
In the committee's view, the absence of quantitative data about the following matters
is especially problematic:
- the number of abductions from Australia to non-Convention
countries, and the non-Convention countries to which children are taken (for
example, based on requests for consular assistance made to DFAT);
- the number of Convention abductions in respect of which CCA
assistance was not sought (for example, by making collection arrangements with
relevant legal professional bodies, such as law societies);
- in all types of abduction, data on the taking-parent, including
gender, nationality, any reasons for the abduction, and the number of children abducted;
- in all types of abduction, data on the abducted children,
including age and gender; and
- in all types of abduction, data on the commission of abductions
in breach of parenting orders made by the Family Court.[38]
6.58
The committee considers that information about these matters would
provide a valuable evidence base for the following policy issues:
-
identification of non-Convention countries with whom to engage in
discussions about accession to the Convention or entry into bilateral
agreements;
- development of targeted prevention measures, including risk
assessment tools, based on the profile of taking-parents and abducted children;
- quantification of whether or not—and, if so, to what extent—the
contemporary profile of Australian taking-parents has deviated from the profile
contemplated when the Convention was drafted (and examination of how the
Australian experience compares to that of other contracting states); and
- analysis of the effectiveness of the Family Law Act offences in
responding to international parental child abduction.[39]
6.59
The committee acknowledges the Department's evidence that some data is
periodically provided to, and is analysed by, the Permanent Bureau.[40]
However, as the data about Australia is provided by the CCA, the Permanent
Bureau figures replicate limitations in the availability of CCA data.
6.60
The CCA does not collect additional data because its role is to assess
and action applications for assistance in Hague Convention matters.[41]
Nevertheless, the committee considers that there is merit in investigating the
feasibility of expanded domestic data capture arrangements, including the
identification of potential strategies for the collection of such data, and an
appropriate agency to perform that role.
Recommendation 10
6.61 The committee recommends that the Australian Government should
investigate strategies for the periodic collection and analysis by an
appropriate government agency, or agencies, of comprehensive statistical data
on international parental child abduction to and from Australia.
Appointment of Independent Children's Lawyers
6.62
As a final point, the committee notes that the Chief Justice of the
Family Court advanced an argument for reassessing the requirement in the Family Law
Act that the court may only appoint an Independent Children's Lawyer in
Convention proceedings where it is satisfied that there are exceptional
circumstances. The committee notes the evidence of Chief Justice Bryant that
Convention applications do not always proceed in the summary nature which was
originally contemplated by the Family Law Act.[42]
Accordingly, the committee considers that there would be merit in a review of
the continuing appropriateness of this requirement.
Recommendation 11
6.63 The committee recommends that the Australian Government should review
the continuing appropriateness of the exceptional circumstances requirement in subsection
68L(3) of the Family Law Act 1975, in respect of the appointment of the
Independent Children's Lawyer in Hague Convention proceedings before the Family
Court of Australia.
Senator Gary
Humphries
Chair
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