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The Hague Convention and Case Study: Commonwealth Central Authority & Cavanaugh

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Going through a separation can be very difficult and emotionally fraught, particularly where there are children of the relationship involved. However, when separation occurs across international borders, the disputes and difficulties which parents face can be much more challenging and complex. For example – in which country will the child live, or what happens when a parent refuses to allow a child to return to their home country?

It was the latter question that set the scene for the case of the Commonwealth Central Authority & Cavanaugh [2015] FamCAFC 233 a decision of the Family Court of Australia involving an application under the Hague Convention for the return of three children back to Finland after the father retained their passports and refused to allow them to travel back to Finland. This article discusses the Hague Convention’s protections against international child abduction, and provides a case study of its real-world operation.

The Hague Convention

The Hague Convention on the Civil Aspects of International Child Abduction (“the Convention”) is a multilateral treaty that governs the law relating to the return of abducted children to their home country. Both Australia and Finland are party to the Convention, as are other countries such as the United States of America, United Kingdom and New Zealand.

The Convention provides for international cooperation and a lawful means of arranging for the prompt return of an abducted child to their home country, as well as providing assistance to parents in obtaining contact or access to children who have been taken overseas.

Eligibility to Make an Application

Elements must be satisfied before a parent can make an application to have their child returned to Australia. The child must be:

  1. Abducted; or
  2. Kept overseas for a longer period of time than agreed; and
  3. Be in a convention country.

Usually, a Central Authority of a State or Territory of Australia (but normally the Commonwealth Attorney-General) will exercise their power to notify the other convention country and make the application in a local court for the return of a child to Australia under the terms of the Convention if there is reason to believe that the child is in the other convention country. However, an individual parent can also make the application.

The Central Authority is required to take all reasonable steps to secure the prompt return of the child, by taking steps such as:

  • Discovering the child’s whereabouts;
  • Exchanging information about the child; and
  • Initiating or facilitating proceedings where it is appropriate to do so.

Making the Order

If your child is taken abroad, a Court can make an order for the return of your child to Australia if you can establish that:

  • your child is under 16 years of age;
  • you, as a parent or carer, have parental responsibility of the child, unless your parental responsibility no longer exists by way of a Court Order being made;
  • you, as a parent or carer, were exercising your parental responsibility at the time your child was removed from Australia;
  • your child ordinarily resides in Australia and was so, immediately before he or she was removed from Australia;
  • your child has been removed to, or kept in, a convention country; and
  • you did not consent to the child being taken to, or kept in, the convention country.

However, the respondent might successfully oppose your application if they can establish that:

  • more than one year has passed since you made your application, and the child is now settled in their new country;
  • you do not, and did not, have parental responsibility for the child;
  • you were not exercising parental responsibility for the child at the relevant time;
  • there is a grave risk of physical or psychological harm to the child, or your child would be placed in an intolerable situation if he or she was returned to Australia to live with you;
  • the child does not wish to return to Australia and is of an age (or maturity level) which entitles the Court to consider the child’s views. However, there must be a genuine reason for the child’s views that he or she does not wish to return home, rather than mere expression of their preference, or threats of misbehaviour if forced to return[1]; or
  • returning the child would result in the child being denied fundamental human rights and freedoms.

International Access

The Hague convention also provides a means for parents to obtain international child access by providing a procedure through which a parent can seek Court Orders in the child’s home country that allow the parent to have access to their child (for example, through travel arrangements, telephone calls, email or video chats).

CASE STUDY: Commonwealth Central Authority & Cavanaugh [2015] FamCAFC 233

Background

The mother and father married in Finland in 1996. The mother was a dual citizen of Australia and Finland and the husband was an Australian citizen. The couple moved to the United Kingdom in the same year they married. Following the birth of their first child, the family briefly returned to Finland before moving to Australia where they lived from 2002 to 2008. Their second child was born in 2004 and their third in 2008.

In 2014 the family relocated to Finland and agreed to live there for at least one year. In 2015 the family flew back to Australia to attend a family wedding. The family had return tickets to Helsinki for 31 March 2015. 2 days before the family was set to return to Helsinki, the mother and father separated. Whilst the children remained with their mother, the father retained their passports preventing them from returning to Finland. The mother returned to Finland and on 3 April 2015 commenced proceedings in the Helsinki District Court for divorce, interim sole custody, and the immediate return of the children to Finland.

The Issue

The main issue in this case was whether the children had habitual residence in Finland. If the children were habitual residents of Finland then it would follow that they were being improperly and wrongfully detained by their father in Australia, and should be returned to Finland.

Trial Decision

The trial judge found that at the time of the proceedings the children had no habitual residence. That is, the mother and father had abandoned their habitual residence in Australia when they moved to Finland but had not yet found habitual residence elsewhere. This was because the parents had differing intentions about where they were going to live beyond their agreement to live in Finland for 1 year. In the absence of a common intent, the family had not yet acquired habitual residence in Finland and the children could not be returned.

Appeal Decision

The Commonwealth Central Authority appealed the trial judge’s findings on 3 grounds:

1. That the trial judge did not give sufficient weight to the fact that the Hague Convention Regulations tend to favour a finding that a child has habitual residence so that they can be protected from abduction;

2. That the trial judge gave:

a. excessive weight to the absence of a common intention of the parents to remain in Finland beyond one year; and

b. insufficient weight to the common intention of the parents to remain in Finland for at least one year; and

3. The trial judge failed to take into account the children’s ties to Finland.

The Court explained that determining a child’s habitual residence requires an inquiry into a number of factors including:

  • Settled purpose;
  • Actual and intended length of stay;
  • Purpose of the stay;
  • Strength of ties to the Contracting State (i.e. Finland or Australia);
  • Degree of assimilation into a Contracting State including living and schooling arrangements; and
  • Degree of cultural, social and economic integration.

Taking into account these factors, the court found that the trial judge did give excessive weight to the absence of a common intention for the children to remain in Finland beyond 1 year. The children had Finish citizenship, were attending school in Finland and had significant family connections in Finland. In addition, both the mother and father had employment in Finland and were receiving Child Benefits and health care from the Finnish government.

The trial judge also erred in considering that living in Finland for one year did not amount to a habitual residence, as one year could amount to a habitual residence.

The court did not agree with the third ground of appeal and found that the trial judge did undertake a consideration of the parties’ circumstances in Finland.

Finding that the first two grounds had been made out, the Court found that the children were habitual residents of Finland and were therefore being improperly retained in Australia. The Court ordered that the children be returned to Finland where further custody proceedings would take place according to the laws of Finland.

Lessons

International family law disputes are often complicated and intricate. If you have a child who has been removed from Australia or is at risk of removal from Australia, or if your child has not been returned to you within the time stipulated by you and the child’s other parent, it is highly recommended that you seek immediate independent legal advice as to what your legal rights and options are in the circumstances.

The Family Law team at Corney & Lind Lawyers can help you in a way that is both compassionate and professional. Contact us today on (07) 3252 0011 or email enquiry@corneyandlind.com.au to book an appointment.

References

[1] Re F (Hague Convention: Child’s Objections [2006] FamCA 685 at [31].