New amendment to the law which upholds international obligations under the Hague Convention whilst providing safeguards to parents and children fleeing family and domestic violence.

On 12 December 2022, the Government announced changes to the Family Law (Child Abduction Convention) Regulation 1986 in an effort to demonstrate the Federal Government’s commitment “to an effective, accessible, fair and safe family law system that supports victim-survivors of family and domestic violence”.

Background

The Hague Convention is an international agreement between signatories of countries, including Australia. The international agreement provides a process for a parent to seek the return of their child/ren to their home country in cases of international parental child abduction.

Change to Child Abduction Law

The new regulations now provide Australian Courts the discretion to refuse to make a Return Order under the Hague Convention if the parent opposing the return can establish:

1. There is a grave risk that the return of the child would expose the child to physical or psychological harm; or
2. That the return of the child would place the child in an intolerable situation.

The new regulations also imposes an obligation on Australian Courts to consider proposed conditions that are sought to protect a child from exposure to family and domestic violence on a Return Order, regardless of whether the Court is satisfied family and domestic violence has occurred, or is likely to occur.

Conclusion

The new regulations which came into effect immediately have equipped Australian Courts with the ability to consider family and domestic violence risks when determining an Application for a Return Order under the Hague Convention.

The new amendments now provide for family and domestic violence to be a relevant defence to the making of a Return Order in certain circumstances, and require Australian Courts to consider whether conditions ought to be made to protect children if a Return Order is to be made.

If you have any questions about these amendments or your own personal circumstances please contact one of our experienced family lawyers on 07 5609 4933.