The Hague Convention on the Civil Aspects of International Child Abduction is a treaty that establishes procedures for returning children who have been wrongfully taken from one country to another by a parent or guardian. Under the Family Law Act 1975, the Family Court of Australia has the power to make orders for the return of a child to their country of habitual residence if they have been wrongfully removed or retained. Australia joined the Hague Convention on October 25, 1980, along with 23 countries.
However, there have been instances where the Convention has been exploited by people who use family or domestic violence in Australia to maintain control over their victims.
Perpetrators may accuse their partners of taking the children overseas without consent in order to force them to return and to continue the cycle of abuse. These false allegations can cause significant harm to the victim, including emotional distress and financial burden.
Mira is an Australian Citizen, and all her family are here. She moved to Poland for work. She married ‘Steven’ and they had a child together. However, after they were married, Steven began using coercive control and family violence. Mira and Steven were separated, and Mira’s daughter lived with her. The daughter did not have a strong relationship with Steven.
In February 2022 Mira relocated from Poland to Australia with her 15-year-old daughter. Mira wanted to escape proximity to the war in Ukraine. At the time of relocation, family law proceedings in Poland had yet to be finalised. Her child hadn’t seen the father for 6 years and wished to stay in Australia – the child threatened suicide if she was returned to Poland. Mira disclosed extensive allegations of family violence, coercive control and systems abuse – none of which appears to be being taken seriously by the Polish legal system.
Mira sought an order under Section 102NA of the Family Law Act 1975. This is a section banning direct cross-examination in family law matters in circumstances of family violence and, if a Section 102NA order is made, an unrepresented litigant will be ordered to have legal aid-funded representation at Trial. However, the Judge declined to make the order on the basis that Steven was not technically a party to the proceedings. Even though Steven applied to have Mira’s daughter returned to Poland, Steven was not a party to the case – the case was between Mira and the Department of Families, Fairness and Housing. This left Mira with two options: she could represent herself against a well-resourced government agency; or she could pay for a private lawyer. Mira chose the latter. Mira estimates that her total legal costs in this matter were close to $150,000.00, most of which was sourced through donations from family and friends.
Mira lost her court case and unfortunately, final orders were made that the child be returned to Poland in January 2023, despite the child turning 16 in April 2023 (the age at which the Convention ceases to apply). Mira appealed the decision – and lost again. After Mira lost the appeal DFFH made an urgent application to enforce the return order. The court made orders that Steven be allowed to accompany Mira’s daughter back to Poland. These orders were made two days before Mira’s daughter turned 16 years old – the age at which the Hague Convention stops applying. However, Steven was not even in Australia and did not arrive in Australia before Mira’s daughter turned 16. Mira and her daughter remained in Australia but only after a lengthy court case that cost both Mira and the Department hundreds of thousands of dollars.
A research study conducted in 2015 into the 1980 Hague Convention found that 73% of taking persons in Hague Convention cases were mothers. This represented an increase from previous statistics recorded in 1999 (69%), 2003 (68%), and 2008 (69%).
Globarrk is a charity that provides support to parents who are “stuck” in a foreign country with their child after an international residence or custody dispute. According to their research, a significant majority of international child abductions under the Hague Convention involve mothers, with around 90% of these cases involving family violence.
These statistics highlight the disproportionate impact that Hague Convention cases can have on mothers who have been victims of family violence. Mothers who flee with their children due to family violence may face legal and practical barriers to returning to their country of habitual residence, even if they have a legitimate fear for their safety and the safety of their children.
Last year in December, the Australian Government introduced an amendment in the form of safeguards for parties relating to family and domestic violence issues.
Under the amendment, the Federal Circuit and Family Court of Australia is required to consider the risk of family violence when making orders for the return of a child under the Hague Convention. This includes considering whether there is a grave risk that the child would be exposed to physical or psychological harm or otherwise be placed in an intolerable situation if they were to be returned to their country of habitual residence.
The amendment also clarifies that family violence includes not only physical violence but also emotional, psychological, and economic abuse.
Overall, the amendment was a significant step towards ensuring that the Hague Convention is not used to further harm victims of family and domestic violence and that the safety and well-being of children are prioritised in all Hague Convention cases.
It is important to ensure that appropriate safeguards are in place for parents or caregivers who flee violence with their children across international borders. Consultation with experts in sexual, domestic, and family violence and abuse, as well as legal experts, can provide valuable insights on how to improve the current Child Abduction Regulations.
Potential amendments could include strengthening the criteria for determining whether a child is at risk of harm if returned to their country of habitual residence, taking into account the history of domestic violence or abuse. Other potential amendments could include improving the availability of legal aid and support for parents or caregivers who have fled violence with their child and ensuring that their voices are heard and taken into account throughout the legal process.
Section 102NA of the Family Law Act could be amended to extend the ban on cross-examination so that unrepresented litigants are not forced to potentially cross-examine their abuser in a Hague Convention matter. The current state of the law leaves victims of family violence ineligible for legal aid funding while having to defend their case against a well-resourced government agency. Relocating parents may also face significant language and cultural barriers, making it even harder to represent themselves in a complex family law case.
It is crucial to prioritise the safety and well-being of children and their caregivers in cases involving international child abduction and to ensure that appropriate protections are in place to address situations involving domestic violence or abuse.
There is often a significant inequality in legal representation for taking mothers and left-behind fathers in Hague Convention cases. This can result in an imbalance of power and may contribute to inappropriate returns of children to their country of habitual residence.
It is essential that both parents have access to legal representation and support to ensure that they are able to present their case effectively and have their rights and the best interests of the child taken into account. This is not only a matter of equity but also a matter of ensuring that the legal system operates fairly and effectively.
Furthermore, providing support and resources to both parents can help reduce the trauma experienced by children and may prevent inappropriate returns that could harm their well-being. It is important to consider the motivations and circumstances of both parents when making decisions about the return of children under the Hague Convention.
The current arrangement can result in a state-sanctioned system of abuse where the motivations of the taking parent are ignored and the abusive motivations of the left-behind parent are not adequately addressed. It is crucial that the legal system works to prevent and address family and domestic violence, including by providing support and resources to victims and their children.
Even with the new amendments to the domestic Hague Convention law, Australia is still a standalone member amongst the other countries who have opted to be a part of the Convention. Through this action, Australia may evidently have raised above the occasion in shedding light into the need for aiding and providing protection to mothers and children fleeing abuse. While this could potentially lead to a conflict of interest and internal disputes, it is a golden opportunity for Australia to further advocate the importance of victim protection, its no-tolerance policy to domestic abuse and the significance of child well-being.
We hope that Australia continues steadfast in its mission to create and offer itself as a safe haven for victims fleeing domestic abuse and for other Hague countries to reconsider the clauses in the Convention from the account of a family and domestic violence matter.
Family law dispute cases can often be complex and intricate. To book a free and confidential appointment with us about family law issues, please contact us on 9545 7400.
