CHAPTER 6


CHAPTER 6

Committee view and recommendations

6.1        On balance, the committee agrees with the assessment that Australia is meeting its obligations under the Hague Convention.[1] However, evidence presented to the committee indicates that there are a number of areas in which current practices in both Convention and non-Convention matters could feasibly be improved. In the committee's view, the proposed reforms announced by the Australian Government on 19 September 2011 are a starting point in addressing the concerns raised in this inquiry.

6.2        The committee notes that assistance and support is available to families affected by both Convention and non-Convention abductions. The committee believes that there is scope to increase awareness about the assistance and support available, as well as to provide more information on international parental child abduction, in a more accessible manner, to assist parents who believe that their children may be at risk of abduction.

Proposed legislative amendments

6.3        The committee is encouraged by the Australian Government's proposed legislative amendments to strengthen the legal response to international parental child abduction. Submitters and witnesses to the inquiry raised concerns about several of the issues to which the proposed reforms are directed. Accordingly, the committee welcomes the government's stated commitment to addressing them.

6.4        The committee further notes the advice of the Attorney-General's Department (Department) that the details of the proposed amendments are under development, and that the Department intends to undertake further consultations with relevant stakeholders as part of the legislative development process.[2]

Proposed amendments to the Family Law Act offences

6.5        The committee endorses the view of the Family Law Council that the wrongful removal offences in sections 65Y and 65Z of the Family Law Act (Family Law Act offences) should be extended to wrongful retentions. Indeed, it appears to the committee that the current limitation of these offences to wrongful removals is a significant gap in their coverage; therefore, the committee supports the government's proposed reforms in this regard.

6.6        The committee also supports the government's intention to introduce additional safeguards to the Family Law Act offences—including a prosecutorial consent requirement, and specific defences under the Family Law Act,[3] which would be additional to those available under the Commonwealth Criminal Code.[4] The committee believes that this reform will make it easier to resolve some international parental child abduction cases and enable the return of children to Australia.

6.7        However, the committee notes that the government's proposed prosecutorial consent requirement in respect of the Family Law Act offences appears to diverge from the Family Law Council's preferred approach. Whereas the Family Law Council recommended that the Attorney-General should be required to consent to prosecutions,[5] the government's proposed reforms would require the Commonwealth Director of Public Prosecutions (CDPP) to provide consent.[6]

6.8        The committee observes that the Family Law Council's preference for the Attorney-General's consent appears to have been motivated by a desire to maximise the persuasiveness of non-prosecution guarantees to overseas courts which are determining applications under the Convention for the return of children to Australia. In its March 2011 advice to the Attorney-General, the Family Law Council noted that, if the Attorney-General were responsible for providing prosecutorial consent, he or she would also be in a position to provide a non-prosecution guarantee to the overseas court. This guarantee may then encourage the overseas court to order the return of the child.[7] In addition, the Family Law Council noted that, in the past, the CDPP has declined to provide non-prosecution undertakings when requested by overseas authorities.[8]

6.9        In light of these issues, the committee considers that the appropriate person to provide prosecutorial consent should be examined in further detail in the development of the proposed legislation, in consultation with the CDPP and other relevant stakeholders.

6.10      As an additional point, the committee advocates the development of a specific prosecution policy in respect of the existing and proposed additional Family Law Act offences, in order to guide decision-making about the initiation and conduct of international parental child abduction prosecutions. In the committee's view, such a policy would serve as an additional procedural safeguard in cases where non-prosecution undertakings are not provided, and would also enhance transparency and consistency in prosecutorial decision-making. As a result, overseas courts might be encouraged to order the return of abducted children to Australia.

Recommendation 1

6.11      The committee recommends that the Australian Government should develop a specific prosecution policy for the offences in sections 65Y and 65Z of the Family Law Act 1975; and update the policy as necessary to include guidance on any future amendments to the Family Law Act (including the proposed extension of the offences to wrongful retention and participation in family dispute resolution).

Application of Family Law Act offences to family dispute resolution

6.12      The committee generally supports the proposed extension of the wrongful removal offences to where the relevant parties are participating in family dispute resolution. The committee agrees that there is logic in the Family Law Council's opinion that parties who participate, or who are invited to participate, in family dispute resolution should be aware of their obligations under the Family Law Act once parenting proceedings are on foot or are pending. This is so because participation in family dispute resolution is generally a prerequisite to the filing of an application seeking contested parenting orders under the Family Law Act.[9]

6.13      However, the committee notes the concerns raised by Women's Legal Services Australia in its evidence to the inquiry about the potentially limited effectiveness of such an offence. This is because it may be impossible to prove, to the criminal standard, that a party has received an invitation to participate in family dispute resolution (since invitations do not require formal service).[10]

6.14      Accordingly, the committee welcomes the Department's assurance that it will consult relevant stakeholders on this matter throughout the legislative development process.[11]

Proposed amendments to child support and maintenance obligations

6.15      The committee supports, in principle, the government's proposed amendments to the child support and maintenance obligations of left-behind parents, based on the Family Law Council's advice dated 5 August 2011. In the committee's view, these proposed amendments may go some way towards addressing the difficulties identified or experienced by some submitters and witnesses to the inquiry.[12]

6.16      The committee particularly acknowledges two aspects of the approach to the proposed reforms. First, the committee agrees that it is appropriate that any decisions to suspend child support or maintenance obligations in the event of international parental child abduction are the subject of judicial rather than administrative determination. Second, the committee endorses the proposed inclusion of an overarching requirement that the court must be satisfied that the suspension of child support or maintenance payments would be in the child's best interests. The committee considers that this requirement would help ensure the child's welfare overseas, while also providing an incentive to taking-parents to return the child to Australia.

6.17      The committee also notes the importance of facilitating access to justice in the implementation of these proposed reforms. In particular, the committee encourages the Attorney-General's Department and agencies within the Commonwealth Human Services portfolio—especially the Child Support Agency—to ensure that left-behind parents and their legal representatives are made aware of their entitlement to seek a suspension of their child support or maintenance liability.

6.18      The committee encourages the Family and Federal Magistrates Courts to consider strategies to ensure that applications are heard and determined as efficiently as possible, having regard to the substantial financial burden placed upon many left-behind parents in attempting to locate and recover their children.

Other proposed measures

6.19      The committee also notes the advice of departmental officers that the government has partially accepted other recommendations of the Family Law Council in its March 2011 advice, including the Family Law Council's recommendation for further complementary legislative and non-legislative measures to assist in international parental child abduction cases (such as information-gathering powers, mediation and publicity about the Hague Convention).[13]

No necessity for a stand-alone criminal offence at the current time

6.20      The committee heard strong and credible arguments both in support of, and in opposition to, the enactment of a stand-alone criminal offence in respect of international parental child abduction. Advice from the Department indicates that the Australian Government has 'implicitly accepted' the recommendation of the Family Law Council against this course.[14]

6.21      After careful consideration, the committee also concludes that it would be premature to recommend the introduction of a stand-alone criminal offence in respect of international parental child abduction. It appears to the committee that the fundamental issue underlying the criminalisation debate is identification of the best way of leveraging an effective law enforcement response to international parental child abduction: the key question is whether or not a stand-alone criminal offence is the preferable means of achieving this outcome.

6.22      The committee considers that, at the present time, the preferable approach is to focus on the improvement of existing prevention, deterrence and dispute resolution mechanisms. In the committee's view, however, the Australian Government must closely monitor the implementation and effectiveness of the proposed amendments to sections 65Y and 65Z of the Family Law Act, and the extension of the offences to parties who are participating in family dispute resolution. If the proposed amendments do not have the desired effect of deterring parents from committing international parental child abduction, the committee believes that the need for the introduction of stronger measures should be considered, including the possible enactment of a stand-alone criminal offence.

Recommendation 2

6.23      The committee recommends that the Australian Government should maintain a 'watching brief' on the implementation and impacts of the proposed amendments to the offences in sections 65Y and 65Z of the Family Law Act 1975, and the extension of the offences to parties who are participating in family dispute resolution. In the event that the proposed amendments do not achieve their intended objective, the committee recommends that the Australian Government should reassess the need for the introduction of stronger measures, including the possibility of a stand-alone criminal offence for international parental child abduction.

Increasing awareness and prevention of international parental child abduction

6.24      The committee believes that there is significant benefit in enhancing international parental child abduction awareness and prevention initiatives, which may help avert the need for criminal law responses (including a new, stand-alone offence). The committee agrees with the Family Law Council, the Law Council of Australia, and others, who argued that greater public awareness of the Family Law Act offences (including the proposed amendments, if enacted) could deter some parents from committing international parental child abduction.[15] In particular, the committee endorses the specific suggestions made by the Law Council of Australia in that regard.[16]

6.25      The committee also supports practical international parental child abduction prevention measures, which may further avert the need for criminal law responses. In this regard, the committee notes the proposals of ISS Australia for international parental child abduction screening and risk-assessment measures at key stages of a party's post-separation engagement with the family law system (for example, at the commencement of family dispute resolution or alternative dispute resolution processes).[17]

Recommendation 3

6.26      The committee recommends that the Australian Government should give consideration to strategies to improve public awareness of the offences in sections 65Y and 65Z of the Family Law Act 1975, including:

  • a standard notice in all orders made under Part VII of the Family Law Act about the existence and effect of the offence provisions;
  • information about the offences being included in existing Australian Government guidance materials (for example, the Travel Smart booklet published by the Department of Foreign Affairs, and Trade, and in the passport application and renewal process);
  • conspicuous signage at international departure points (such as airports and sea ports) about the offence provisions; and
  • information materials about the offences being made available at community legal centres, legal aid offices, family relationship centres, international departure points and government shop-fronts.

Recommendation 4

6.27      The committee recommends that the Australian Government should investigate the feasibility of incorporating international parental child abduction screening and risk-assessment processes into key stages of a family's post-separation engagement with the family law system.

Law enforcement and response powers

6.28      The committee notes evidence to the inquiry about limitations in law enforcement powers regarding international parental child abduction. In particular, the committee acknowledges the following concerns:

  • the absence of telecommunication interception and information-gathering powers in international parental child abduction matters;[18] and
  • problems in the execution and enforcement of orders granted by Australian family law courts, inclusion of children on the AFP's Watch List, and cancellation of children's passports.[19]

6.29      The committee therefore strongly supports the establishment of the working group between the Family Court, the Federal Magistrates Court and the AFP to further examine issues such as these.

Alternative dispute resolution

6.30      The committee endorses calls by stakeholders for the greater use of alternative dispute resolution in international parental child abduction matters. In particular, the committee recognises the significant benefits of cross-border mediation as articulated by the Chief Justice of the Family Court,[20] and supports its use in appropriate cases.

6.31      The committee welcomes the advice of the officers from the Department that Australia is well-placed to become a regional centre for the cross-border mediation of international parental child abduction matters, and that a pilot online dispute resolution project is underway in partnership with Family Relationship Services Queensland.[21] The committee is interested in the outcomes of this trial, and in broader progress towards the establishment in Australia of a regional mediation framework to deal with issues relating to international parental child abduction. The committee also commends those who have provided or contributed to successful mediations concerning abductions to and from Australia—including the Family Court, state and territory legal aid commissions, ISS Australia and Reunite International (UK).

6.32      The committee emphasises the importance of addressing the following matters in the development of a mediation framework:

  • provision of appropriate resourcing for mediation services, including specific training for mediators and other persons (such as legal practitioners) participating in mediations,[22] as well as associated funding;[23] and
  • identification of an appropriate mediation model—for example, in her submission to the inquiry, the Chief Justice of the Family Court supported counsel-assisted mediation on the proviso that it does not result in any delay to Convention proceedings.[24]

6.33      The committee encourages the Australian Government to consider these matters in detail, in close consultation with relevant stakeholders (in particular the Family Court and legal aid commissions), as part of its work towards developing a framework for the use of alternative dispute resolution in international parental child abduction matters.

Communication and information-dissemination practices

6.34      The committee shares the view of some submitters and witnesses that there is scope for improvements to the communication and information-dissemination practices of the Commonwealth Central Authority (CCA).

Communication between Central Agencies and applicants

6.35      In the committee's view, there is considerable merit in ensuring that communication arrangements between Central Agencies and applicants are sufficiently flexible so that they can be adapted to meet the circumstances of individual cases, and are conducive to the provision of timely information to applicants about the progress of their cases (to the greatest extent possible, within operational requirements).

6.36      In supporting improvements to communication arrangements with applicants, the committee acknowledges that the primary responsibility of the CCA is to secure the return of abducted children in Convention matters and, as such, the CCA does not have a formal lawyer-client relationship with applicants. In addition, the committee is mindful of the need for confidentiality at certain points in the process—for example, while overseas Central Authorities are engaged in the process of confirming the child's location. The committee also acknowledges that the CCA operates within a finite resource allocation.

6.37      Nonetheless, the committee considers that a strategic investment in relationship management with applicants could help improve public confidence in the operation of the Convention. Timely communication with individual applicants, in a manner that is meaningful to them, could also provide valuable assurance about the progress of their cases.

Recommendation 5

6.38      In consultation with State Central Authorities, the committee recommends that the Attorney-General's Department should adopt a coordinated strategy for communications between Australian Central Authorities and applicants in Hague Convention proceedings. The strategy should include provision for the following measures:

  • flexible, case-specific communication arrangements, such as enabling applicants to contact the Commonwealth Central Authority directly, rather than the relevant State Central Authority; and
  • routine progress updates (such as periodic teleconferences between applicants and case officers in the relevant Australian Central Authority).

Dissemination of public information

6.39      The committee further supports targeted improvements to the dissemination of public information about international parental child abduction. The evidence of several submitters to the inquiry indicated that left-behind parents have experienced difficulties in accessing information relevant to the operation of the Convention, and complementary prevention and response measures. In particular, some submitters raised concerns that left-behind parents have been unable to readily access comprehensive, practical information about the steps they need to take in the event of actual or apprehended international parental child abduction, and at the post-return stage.[25]

6.40      While the committee is aware that Australian Government
agencies—including the Attorney-General's Department, the Family Court and the AFP—have published materials related to international parental child abduction on their respective websites, the information may be difficult to locate unless the user knows what he or she is looking for. In this context, the committee points to the evidence of Reunite International (UK) that it is contacted regularly by Australian left-behind parents who seek support in cases involving abductions to countries other than the United Kingdom.[26] This suggests that such parents have been unable to locate information within Australia about domestically-available support services.

6.41      Although anecdotal, such evidence is concerning given the time-critical nature of international parental child abduction prevention and response measures. The committee is aware that the Australian Government maintains stand-alone, whole-of-government web portals in various other policy areas,[27] and considers that there would be significant merit in considering a similar initiative for international parental child abduction. Such a portal could provide members of the public with a readily accessible 'one-stop shop' for information, resources and contacts about international parental child abduction prevention, responses, dispute resolution and post-return matters, in both Convention and non-Convention cases.

6.42      The committee also notes evidence from members of the legal profession that there are gaps in the resources available to legal practitioners engaged in Convention matters. For example, the Law Council of Australia supported the reinstatement of the CCA's previous series of publications about the operation of the Convention between Australia and other contracting states, and the performance history of those states.[28] The committee encourages the Department to liaise with representatives from the legal profession to resolve these concerns. One option may be a partnership arrangement between representatives of the legal profession and the CCA for the publication of additional resources, or the revision of existing materials to address identified information gaps.

Recommendation 6

6.43      The committee recommends that the Australian Government should develop a specific and comprehensive online information portal about international parental child abduction to and from Australia.

Recommendation 7

6.44      The committee recommends that the Australian Government should, in consultation with relevant stakeholders in the legal profession, re-instate and update international parental child abduction resources for legal practitioners, particularly in respect of Hague Convention matters.

Complementary support services

6.45      The committee notes the strong stakeholder support expressed for the work of ISS Australia in both Convention and non-Convention matters to and from Australia.[29] The committee notes, however, evidence suggesting two key limitations in ISS Australia's capacity to deliver social support services to persons affected by international parental child abduction, namely: the work of ISS Australia depends largely upon referrals from Australian Central Authorities, which means that people affected by international parental child abduction may not necessarily be aware of its services;[30] and the role of ISS Australia is more limited than that of overseas non-government organisations involved in supporting persons affected by international parental child abduction.[31]

6.46      In response to the first identified limitation, the committee encourages Australian Central Authorities, other supporting agencies and legal service providers, to provide information about the services available from ISS Australia, and to ensure that this information is prominently displayed and easily accessible.

6.47      In respect of the second limitation, the committee acknowledges the potential benefits in expanding the reach of ISS Australia so that it operates on a similar scale to overseas non-government organisations such as Reunite International (UK). The committee emphasises the importance of ensuring that ISS Australia continues to receive adequate resourcing in the future, given its important role in helping to prevent and respond to international parental child abduction; and encourages the Australian Government to engage in regular dialogue with ISS Australia about its resourcing levels and funding arrangements.

6.48      The committee further notes evidence suggesting that there is scope to improve the coordination and delivery of post-return support services to children and families affected by international parental child abduction.[32] In the committee's view, there would be significant merit in the further investigation of this matter by the Australian Government. The publication and dissemination of fact sheets in the nature of 'checklists' for returning and left-behind parents may be a simple and effective means of providing the necessary information. The committee notes that the Department has prepared jurisdiction-specific checklists for returning parents, which are published on its website.[33] The development of corresponding guidance materials for left-behind parents, and the widespread dissemination of these materials, may provide further coverage.

6.49      The committee also notes the suggestion of Mr Michael Nicholls QC, the former head of the UK Child Abduction Unit, for a program of periodic
whole-of-government (or potentially sector-wide) meetings of relevant agencies and organisations to ensure the coordinated delivery of services, and to identify and address common issues.[34]

Recommendation 8

6.50      The committee recommends that the Australian Government should, in consultation with relevant stakeholders such as International Social Service Australia, investigate strategies to improve the availability and coordinated delivery of support services in international parental child abduction cases, including post-return services.

Australia's role in international engagement

6.51      The committee acknowledges the deep frustration and anxiety experienced by many left-behind parents in attempting to recover their children, particularly in
non-Convention matters, and endorses a policy approach that encourages greater accession to the Convention and supports the implementation-related work priorities of the Hague Conference. A recent example of the success of international engagement was the involvement of the Australian Government and the Family Court in securing the commitment of Japan to accede to the Convention.[35]

6.52      The Chief Justice of the Family Court expressed concern that some contracting states to the Convention—including those states whose accessions Australia has accepted—have failed to uphold their obligations under the Convention.[36] The committee encourages the Australian Government to give consideration to the Chief Justice's evidence, both in the context of international engagement with non-compliant countries through the Hague Conference, and the application of national standards for the acceptance of new accessions.

6.53      The committee recognises that bilateral agreements between countries will not always be an effective substitute for the Hague Convention as a means of responding to international parental child abduction. However, the committee is persuaded that bilateral agreements between Australia and non-Convention countries may be of assistance where the non-Convention country does not wish to become a party to the Convention.

6.54      The committee also notes the effectiveness of the International Hague Network of Judges, and commends the Family Court on its active and constructive participation in this forum.

Recommendation 9

6.55      The committee recommends that the Australian Government should continue to:

  • encourage non-contracting states to accede to the Hague Convention;
  • support new and existing contracting states to implement the Hague Convention effectively; and
  • pursue bilateral agreements, where appropriate, with countries which have not acceded to the Hague Convention, and which are unlikely to do so in the foreseeable future.

Data capture

6.56      The arguments raised by submitters and witnesses to the inquiry in support of increased data capture with respect to international parental child abduction are, in the committee's view, compelling.

6.57      In particular, the committee agrees that the collection of accurate statistics on the occurrences of international parental child abduction from Australia—including the characteristics of taking-parents—is necessary to help quantify the problem, and inform evidence-based policy responses.[37] In the committee's view, the absence of quantitative data about the following matters is especially problematic:

  • the number of abductions from Australia to non-Convention countries, and the non-Convention countries to which children are taken (for example, based on requests for consular assistance made to DFAT);
  • the number of Convention abductions in respect of which CCA assistance was not sought (for example, by making collection arrangements with relevant legal professional bodies, such as law societies);
  • in all types of abduction, data on the taking-parent, including gender, nationality, any reasons for the abduction, and the number of children abducted;
  • in all types of abduction, data on the abducted children, including age and gender; and
  • in all types of abduction, data on the commission of abductions in breach of parenting orders made by the Family Court.[38]

6.58      The committee considers that information about these matters would provide a valuable evidence base for the following policy issues:

  • identification of non-Convention countries with whom to engage in discussions about accession to the Convention or entry into bilateral agreements;
  • development of targeted prevention measures, including risk assessment tools, based on the profile of taking-parents and abducted children;
  • quantification of whether or not—and, if so, to what extent—the contemporary profile of Australian taking-parents has deviated from the profile contemplated when the Convention was drafted (and examination of how the Australian experience compares to that of other contracting states); and
  • analysis of the effectiveness of the Family Law Act offences in responding to international parental child abduction.[39]

6.59      The committee acknowledges the Department's evidence that some data is periodically provided to, and is analysed by, the Permanent Bureau.[40] However, as the data about Australia is provided by the CCA, the Permanent Bureau figures replicate limitations in the availability of CCA data.

6.60      The CCA does not collect additional data because its role is to assess and action applications for assistance in Hague Convention matters.[41] Nevertheless, the committee considers that there is merit in investigating the feasibility of expanded domestic data capture arrangements, including the identification of potential strategies for the collection of such data, and an appropriate agency to perform that role.

Recommendation 10

6.61      The committee recommends that the Australian Government should investigate strategies for the periodic collection and analysis by an appropriate government agency, or agencies, of comprehensive statistical data on international parental child abduction to and from Australia.

Appointment of Independent Children's Lawyers

6.62      As a final point, the committee notes that the Chief Justice of the Family Court advanced an argument for reassessing the requirement in the Family Law Act that the court may only appoint an Independent Children's Lawyer in Convention proceedings where it is satisfied that there are exceptional circumstances. The committee notes the evidence of Chief Justice Bryant that Convention applications do not always proceed in the summary nature which was originally contemplated by the Family Law Act.[42] Accordingly, the committee considers that there would be merit in a review of the continuing appropriateness of this requirement.

Recommendation 11

6.63      The committee recommends that the Australian Government should review the continuing appropriateness of the exceptional circumstances requirement in subsection 68L(3) of the Family Law Act 1975, in respect of the appointment of the Independent Children's Lawyer in Hague Convention proceedings before the Family Court of Australia.

 

Senator Gary Humphries
Chair

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