To what extent can the Hague Convention and the Family Law (Child Abduction Convention) Regulations 1986 be relied upon to seek the return of a child by a parent who contends that that child was "abducted" by the other parent?
In a decision delivered by His Honour Justice Le Poer Trench in the Family Court of Australia on 1 May 2013, the Court dismissed an Application by the Secretary of the Attorney- General's Department on behalf of the Central Authority seeking the return of two children who were brought to Sydney by their mother following the 2011 Christchurch earthquakes without the knowledge or consent of their father or New Zealand authorities.
The mother claimed she relocated to Sydney in July 2011 with the two children, aged 10 and 12 at the time of the hearing, as the children became significantly traumatised as a result of the events which ensued following the devastating earthquakes. The mother claimed this included their home being rendered uninhabitable, and thereafter looted, and losing her job after her employer went out of business. She claimed that the children were now living a stable and happy life in Sydney, having settled into new schools and having built strong relationships with friends and counsellors.
The Application for the boys' return was filed more than 12 months after the children were removed from New Zealand. His Honour was of the view that this created the most significant issue in the case. Also, the issue of whether the children were now "settled" in Australia was a matter of intense debate in the proceedings, with each party promoting a different interpretation of the term.
Another factor taken into account by His Honour was the children's relationship with their father and a history of domestic violence which led to the Father being convicted in a New Zealand Court in mid 2005 and a number of protection orders which were granted following applications made by the Mother. Additionally, the Father had had very little contact with both children for some three years, namely from January 2007 until January 2010. At the time the children left New Zealand with their Mother in July 2011, the children were spending supervised time with their Father for a period of three hours per month.
His Honour accepted that the children were now settled in Australia and that they would be further traumatised if they were ordered to return home. The Application for the children to be returned was therefore rejected.
You can view the full judgement in this matter here.