Stolen Children – Custody And International Child Abduction

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Family law disputes often involve haggling over tens or hundreds of millions of dollars’ worth of property, sometimes even more. With that much money at stake, things can get nasty.

But without doubt the most bitter family law battles of all invariably are not the ones that concern dollars and cents, but the ones that revolve around custody and access to the children of the marriage. In the context of marriage breakdown the most terrifying prospect for any parent is the threat of international child abduction by a spouse and unfortunately, in recent decades, Australia has witnessed an alarming rise in the incidence of such abductions, spawned by the growing ease and affordability of international travel, the increasing proliferation of bi-cultural marriage, and the rapid escalation of the divorce rate.

Photo: Victor Chaidez

Source: Unsplash

The Convention on the Civil Aspects of International Child Abduction (“The Hague Convention”) combats parental child abduction by co-operation between contributing countries by facilitating access overseas by parents to their abducted children, and providing prompt procedures for the repatriation of such children to the country of the their habitual residence, unless exceptional circumstances apply. The various countries that are signatories of the Hague Convention, including Australia, appoint a Central Authority to oversee the process, and in Australia, that Central Authority is the Australian Government Attorney-General’s Department.

In November last year the Full Court of the Family Court brought down a land-mark decision on the repatriation of a child abducted to Australia by his Australian mother. The mother met the child’s father, a Norwegian citizen, while he was working in Australia. The couple later moved to Norway where the child was born a Norwegian citizen in 2013. The family visited Australia for Christmas in 2014, but then returned to Norway, whereupon the couple ultimately split, and the wife commenced family law proceedings in the Norwegian courts.

In May 2015, the mother secretly left Norway with the child and returned to Australia where, without consulting her former spouse, she applied for and obtained Australian citizenship for their son.

>On the father’s petition the Central Authority in Australia commenced proceedings seeking the return of the child to Norway. The mother countered by relying on Regulation 16(3)(b) of the Family Law (Child Abduction Convention) Regulations 1986 which provides a court may refuse to repatriate an abducted child if there is a grave risk that “would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.”

She adduced evidence that she suffered from anxiety and depression of a significant order, and argued that if her son was returned to Norway he would be exposed to a grave risk of physical and psychological harm because of the likely resultant deterioration of his mother’s mental health, as she was likely to become suicidal as a result.

Unfortunately for her, while the court was satisfied there was a grave risk of psychological harm to the child if the mother’s mental health deteriorated to the point where she became suicidal, it was not satisfied the risk of such deterioration was sufficiently made out on the evidence to establish a Regulation 16(3)(b) defence. The mother’s psychologist did not suggest even a remote risk of suicide in her report, and nor did those with whom the mother consulted in Norway. Accordingly the Full Court concluded the possibility was no more than mere speculation, and therefore the mother had failed to establish on the evidence that there was, as required by Regulation 16 (3)(b), a grave risk of psychological harm to the child in the event of his return to Norway.

The appeal was dismissed, and the child was ordered to be returned to Norway forthwith.

Gisele Reid

Family Lawyer

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