Footnotes
CHAPTER 1 - Introduction
[1]
Journals of the Senate, 11 May 2011, p. 896.
[2]
See, for example, Queensland Law Society, Submission 25, p. 4,
which referred to abductions committed in the course of other criminal offences
against children. See also,
ChilOut—Children Out of Immigration Detention, Submission 26, which
referred to an individual case concerning the deportation from Australia of an
asylum seeker child.
[3]
[1987] ATS 2 (entered into force generally on 1 December 1983).
[4]
The term 'parental responsibility' is defined in s 61B of the Family
Law Act 1975 (Cth) (Family Law Act), to mean 'all the duties,
powers, responsibilities and authority which, by law, parents have in relation
to children'.
[5]
See Part VII of the Family Law Act, especially Divisions 5 (parenting
orders) and 6 (parenting orders other than child maintenance orders).
[6]
This interpretation encompasses the definition of wrongful removal or
retention of a child in Article 3 of the Hague Convention on the Civil
Aspects of International Child Abduction (as implemented in Australia in
the Family Law (Child Abduction Convention) Regulations 1986 (Cth), reg
16(1A)), and the definition of 'parental child abduction' adopted by the Family
Law Council in Parental Child Abduction: a Report to the Attorney-General (January 1998),
[1.01].
[7]
See, for example, International Social Service Australia, Living in
Limbo: the Experience of International Parental Child Abduction—the call for a
National Support Service (February 2005), p. 3.
[8]
International Social Service Australia, Living in Limbo: the
Experience of International Parental Child Abduction—the call for a National
Support Service (February 2005), p. 5.
[9]
Nigel Lowe (for the Hague Conference on Private International Law), A
Statistical Analysis of Applications Made in 2008 Under the Hague Convention of
25 October 1980 on the Civil Aspects of International Child Abduction, Part
III: National Reports, pp 4, 5 and 11.
[10]
Mr Paul Hansen, Attorney-General's Department, Committee Hansard,
26 August 2011, p. 46.
[11]
International Social Service Australia, Living in Limbo: the Experience
of International Parental Child Abduction—the call for a National Support
Service (February 2005), pp 7-8. See also Women Everywhere Advocating
Violence Elimination, Submission 9, p. 6; Justice for Children, Submission
17, pp 1-2; Women's Legal Services Australia, Submission 33,
p. 7.
[12]
The Hon Robert McClelland MP, Attorney-General, and the Hon Jenny Macklin
MP, Minister for Families, Housing, Community Services and Indigenous Affairs,
'Stronger Laws to Deal With International Child Abduction', Joint Media
Release, 19 September 2011.
CHAPTER 2 - Regulatory and operational frameworks
[1]
Hague Conference on Private International Law, Status table: Members
of the Organisation (28 July 2011) http://www.hcch.net/index_en.php?act=conventions.status&cid=24
(accessed 17 August 2011).
[2]
Article 1.
[3]
Convention on the Rights of the Child, [1991] ATS 4 (entered into
force generally on 2 September 1990), Article 3.
[4]
See, for example, Director-General of Family & Community Services
v Davis (1990) 14 Fam LR 381, 383-384, (Nygh J).
[5]
Elisa Pérez-Vera,
Explanatory Report on the 1980 Hague Child Abduction Convention (1982),
[16], [23]-[25].
[6]
United Nations Committee on the Rights of the Child, Concluding
Observations, South Africa, 22 February 2000, CRC/C/15/Add.122, [40].
See further Convention on the Rights of the Child, [1991] ATS 4,
Articles 9.3, 10.2, 11, 35.
[7]
Mr Paul Hansen, Attorney-General's Department, Committee Hansard,
26 August 2011, p. 50.
[8]
These states are Ukraine, Albania, Seychelles, Morocco, Gabon,
Singapore, Andorra and the Russian Federation: see Hague Conference on Private
International Law, Status Table: Acceptance of Accessions (10 August
2011) http://www.hcch.net/index_en.php?act=conventions.publications&dtid=36&cid=24
(accessed 17 August 2011).
[9]
Article 4.
[10]
Article 3. Article 5 defines the term 'rights of custody and access' to
mean rights, whether joint or otherwise, under the law of the country in which
the child was habitually resident prior to the removal or the retention.
'Habitual residence' is not defined in the Convention and its meaning is uncertain
(a question of fact in individual cases).
[11]
Articles 12-20.
[12]
Articles 6-10 provide for administrative cooperation in locating the
child, achieving, if possible, a voluntary return of the child to his or her
country of habitual residence; initiating proceedings for the return of the
child; providing or arranging for the provision of legal assistance; making
administrative arrangements for the safe return of the child; and
information-sharing between contracting states.
[13]
Article 19.
[14]
Article 6.
[15]
Article 8. In Australia, the Commonwealth Central Authority is the
Attorney-General's Department, which is supported by state and territory
Central Authorities. Australian Central Authorities are discussed further
below.
[16]
Article 25.
[17]
For example, requiring the payment of expenses incurred in returning the
child, and making a declaration that the Central Authority is not bound to meet
the costs of legal representatives in Convention proceedings: Articles 26, 42.
[18]
Articles 9, 11, 12.
[19]
Articles 14-19.
[20]
See, especially, Articles 12, 13 and 20.
[21]
It should be noted that the establishment of an exception does not require
the refusal of an application and that, while a court may not be bound to order
a child's return, it should nonetheless afford weight to the principle of
prompt return: see, for example, In the Marriage of Gazi (1992) 111 FLR
425, approving In re A (Minors) (Abduction: Custody Rights) (No 2)
(1992) 3 WLR 538.
[22]
Article 12.
[23]
Article 13(a).
[24]
Article 13(a).
[25]
Article 13(b).
[26]
Article 13.
[27]
Article 20.
[28]
For example, the Brussels IIA Regulation (European Council
Regulation No 2001/2003, 27 November 2003) operates between member states
of the European Union (excluding Denmark). See further, Attorney-General's
Department, Submission 32, p. 6.
[29]
The Hague Conference is an international governmental organisation which
has been established to work towards the progressive unification of the rules
of private international law. As such, it is responsible for the international
oversight of the Convention, and other international treaties developed under
its auspices: Hague Conference on Private International Law Website, 'More
about HCCH', http://www.hcch.net/index_en.php?act=text.display&tid=4
(accessed 19 October 2011). The Permanent Bureau is the secretariat
for the Hague Conference: Hague Conference on Private International Law
Website, 'Frequently Asked Questions: What is the Permanent Bureau of the Hague
Conference', http://www.hcch.net/index_en.php?act=faq.details&fid=30
(accessed 19 October 2011).
[30]
Relevant educational and networking initiatives include the International
Centre for Judicial Studies and Technical Assistance, periodic judicial
seminars, and the Judges Newsletter on International Child Protection: Hague
Convention on Private International Law Website, Child Abduction Section, http://www.hcch.net/index_en.php?act=text.display&tid=21
(accessed 1 August 2011).
[31]
The text of the Convention is reproduced as Schedule 1 to the Regulations.
[32]
For a listing of SCAs, see Attorney-General's Department, Submission 32,
Attachment B.
[33]
See Part 1 of the Regulations, especially regs 5, 9.
[34]
Regulations 11, 13.
[35]
Regulation 14(1)(b).
[36]
Law Society of NSW, Submission 21, p. 1; Attorney-General's
Department, Submission 32, p. 3.
[37]
Attorney-General's Department, Submission 32, p. 3.
[38]
Attorney-General's Department, Submission 32, p. 3;
Department of Family and Community Services NSW, Submission 8, p. 2;
Department of Communities, QLD, Submission 24, p. 1. New South
Wales indicated that the hourly rate charged to the Commonwealth is $250.
[39]
Attorney-General's Department, Submission 32, p. 3.
[40]
Regulation 13.
[41]
Regulation 2 defines a court by reference to s 39 of the Family Law Act—that
is, the Family Court, Federal Magistrates' Court, the Family Court of
Western Australia and any state or territory court exercising federal
jurisdiction. However, the Family Court has a protocol for the transfer to it
of Convention applications filed elsewhere. The Chief Justice of the Family
Court indicated to the committee that the intention of the protocol is to
ensure that Convention proceedings are determined by a superior court of
specialist jurisdiction, as the decisions of such courts are regarded as more
persuasive by foreign courts: Submission 35, p. 5.
[42]
Department of Family and Community Services NSW, Submission 8, pp
1-2; Law Society of NSW, Submission 21, p. 1.
[43]
Attorney-General's Department, Submission 32, p. 3. However,
regulation 30 provides that a Central Authority may, in certain circumstances,
seek to recover specified costs against the abducting-parent.
[44]
The human services agencies provide support to abducted children and their
families upon the child's return to his or her jurisdiction of habitual
residence. Where the Family Court grants a Commonwealth Information Order under
the Family Law Act, Commonwealth agencies may also be required to provide
certain information to the court that is relevant to the location of an abducted
child: Family Law Act, s 67N.
[45]
Attorney-General's Department, Submission 32, p. 4.
[46]
Attorney-General's Department, Submission 32, p. 4.
[47]
Attorney-General's Department, Submission 32, pp 4-5.
[48]
The Hon Michael Kirby AC CMG, 'Children Caught in Conflict—the Child
Abduction Convention and Australia' (2010) 24(1) International Journal of
Law, Policy and the Family 95, p. 99. See further, Mr Michael Nicholls
QC, Submission 6, pp 2-3.
[49]
Thomson Reuters, The Laws of Australia, International Child Abduction,
[17.8.10], [17.8.30] (September 2008).
[50]
Thomson Reuters, The Laws of Australia, International Child
Abduction, [17.8.10] (September 2008); Attorney-General's Department, Submission
32, p. 4.
[51]
Family Law Act, s 70G.
[52]
Attorney-General's Department, Submission 32, p. 4.
[53]
Department of Foreign Affairs and Trade, Submission 34, p. 1.
[54]
Agreement between the Government of Australia and the Government of the
Arab Republic of Egypt Regarding Cooperation on the Welfare of Children
[2002] ATS 3 (entered into force on 1 February 2002); Agreement Regarding
Cooperation on Protecting the Welfare of Children with Lebanon [2010] ATS 14
(entered into force on 1 May 2010). See further, Attorney‑General's
Department, Submission 32, pp 4, 9.
[55]
There are no specific provisions in the Family Law Act on relocation
orders. Rather, such orders are made pursuant to the general parenting order
principles set out in Part VII of the Family Law Act. See further, Family
Law Council, Relocation: a Report to the Attorney-General (May 2006).
[56]
Family Law Act, ss 65Y, 65Z.
[57]
Family Law Act, s 67Q.
[58]
Family Law Act, s 67M.
[59]
Family Law Act, s 67N.
[60]
Family Law Act, s 121.
[61]
Family Law Act, s 70H.
[62]
Regulation 15. See further, the Hon Diana Bryant, Chief Justice, Family
Court of Australia, Submission 35, pp 6, 16.
CHAPTER 3 - Criminal law responses to international parental child abduction
[1]
For example, the AFP advised the committee that it was able to obtain a
telecommunications interception warrant in one international parental child
abduction matter, relying on the offence of child stealing in s 363 of the
Criminal Code 1899 (Qld): Submission 31, pp 7-8.
[2]
See further, Family Law Council, Parental Child Abduction: A Report
to the Attorney-General (January 1998), p. 23. This is consistent with the
child abduction-related provisions of the Commonwealth Model Criminal Code, see
Consolidated Model Criminal Code (1st ed, 28 May 2009), especially
clauses 5.1.33 (kidnapping) and 5.1.34 (child abduction). The model offence of
child abduction states that a person does not commit an offence under the
provision where he or she is the parent of the child (subclause 5.1.34(3)). The
model offence of kidnapping may apply to some international parental child
abduction matters, in that its parental defence provisions are limited to
persons who have lawful custody of the child, and who are not acting in
contravention of a court order (subclause 5.1.33(3)). See further,
Model Criminal Code Officers Committee of the Standing Committee of
Attorneys-General, Report on Chapter 5: Non Fatal Offences Against the
Person (September 1998), p. 89.
[3]
Family Law Council, Submission 13, Attachment 1, p. 3.
[4]
Submission 31, p. 9.
[5]
Submission 13, Attachment 1, p. 3.
[6]
Submission 13, Attachment 1, p. 7, recommendation 1.
[7]
Family Law Act, s 60I.
[8]
Submission 13, Attachment 1, pp 6-7, recommendation 2.
[9] Submission
13, Attachment 1, pp. 10-13, recommendation 5. Two submitters to the
committee's inquiry also supported specific family violence-related defences:
Women Everywhere Advocating Violence Elimination, Submission 9, pp
6-7; National Council of Single Mothers and Their Children, Submission 10,
p. 9, recommendation 1.
[10]
Submission 13, Attachment 1, pp 11-13, recommendation 6.
[11]
In particular, Ms Louise Glanville, Attorney-General's Department, advised
the committee that, of the Family Law Council's six recommendations in its
March 2011 advice, recommendations 1, 2, 3 and 5 have been accepted in
full, and recommendations 4 and 6 in part: Committee Hansard, 22 September
2011, p. 7.
[12]
The Hon Robert McClelland MP, Attorney-General, and the Hon Jenny Macklin
MP, Minister for Families, Housing Community Services and Indigenous Affairs,
'Stronger Laws to Deal With International Child Abduction', Media Release, 19
September 2011. See further, Ms Louise Glanville, Attorney‑General's
Department, Committee Hansard, 22 September 2011, p. 1.
Article 13(b) of the Convention provides that the judicial or administrative
authority of a requested state is not bound to return a child where there is a
'grave risk that his or her return would expose the child to physical or
psychological harm or otherwise place the child in an intolerable situation'.
[13]
The Hon Robert McClelland MP, Attorney-General, and the Hon Jenny Macklin
MP, Minister for Families, Housing Community Services and Indigenous
Affairs, 'Stronger Laws to Deal With International Child Abduction', Media
Release, 19 September 2011.
[14]
Ms Louise Glanville, Attorney-General's Department, Committee Hansard,
22 September 2011, pp 4, 7.
[15]
Ms Louise Glanville, Attorney-General's Department, Committee Hansard,
22 September 2011, p. 4
[16]
Women's Legal Services Australia, Submission 33, p. 10,
recommendation 9.
[17]
In the United Kingdom, the Child Abduction Act 1984 provides for an
offence of wrongful removal of a child from the United Kingdom; and, in the
United States, the Parental Kidnapping Act provides for
the offence of wrongful removal and retention: see Mr Michael Nicholls QC,
Submission 6, p. 5. See also, Family Law Council, Submission
13, Attachment 1, p. 18; Mr Ken Thompson, Submission 22,
pp 11, 16.
[18]
See, for example, Ms Robin Bowles, Submission 3, p. 2; Dads
on the Air, Submission 4, p. 3; Mr Lauchlan Leishman, Submission
7, p. 4; Mr Daniel Wass, Submission 15, p. 3;
Mr Ken Thompson, Submission 22, pp 10-16; Mr Ken Thompson and
Mr Lauchlan Leishman, Committee Hansard, 26 August 2011, pp 1-2,
6. See also, Ms Carolyn Smith, Submission 23, pp 1-2.
[19]
See, for example, Mr Michael Nicholls QC, Submission 6, p. 5;
International Social Service Australia, Submission 11, p. 7; Family Law
Council, Submission 13, Attachment 1, pp 5-6, recommendation 3; Law
Society of NSW, Submission 21, p. 4; Women's Legal Service Australia, Submission
33, p. 9, recommendation 8; Law Council of Australia, Submission 39,
Attachment 1, pp 1-2. See further, Mr Geoff Sinclair, Law Council of Australia,
Committee Hansard, 26 August 2011, p. 24; Mr Michael Nicholls QC,
Committee Hansard, 26 August 2011, pp 24-25; Hon Diana Bryant,
Chief Justice, Family Court of Australia, Committee Hansard, 26
August 2011, p. 32.
[20]
Ms Louise Glanville, Attorney-General's Department, Committee Hansard,
22 September 2011, p. 2.
[21]
Family Law Council, Submission 13, Attachment 1,
pp 18-20.
[22] Committee Hansard,
26 August 2011, p. 6. See further, Mr Lauchlan Leishman, Committee Hansard,
26 August 2011, p. 2.
[23]
Committee Hansard, 26 August 2011, p. 6; Submission 22,
pp 13-14.
[24]
Mr Lauchlan Leishman, Committee Hansard, 26 August 2011, pp
1-2; Mr Ken Thompson, Submission 22, p. 15; Ms Carolyn Smith, Submission
23, p. 2.
[25]
Mr Michael Nicholls QC, Submission 6, p. 5; Department of
Family and Community Services NSW, Submission 8, p. 7;
International Social Service Australia, Submission 11, p. 7;
Family Law Council, Submission 13, Attachment 1, p. 6; Law
Society of NSW, Submission 21, p. 4; Women's Legal Service
Australia, Submission 33, p. 9; Law Council of Australia, Submission
39, Attachment 1, pp 1-2. See further, Mr Geoff Sinclair, Law
Council of Australia, Committee Hansard, 26 August 2011, p. 24;
Mr Michael Nicholls QC, Committee Hansard, 26 August 2011,
pp 24-25.
[26]
See Mr Michael Nicholls QC, Submission 6, p. 5;
Mr Michael Nicholls QC, Committee Hansard, 26 August
2011, p. 24; the Hon Diana Bryant, Chief Justice, Family Court of Australia, Committee
Hansard, 26 August 2011, p. 32.
[27]
Mr Michael Nicholls QC, Submission 6, p. 5; Department of
Family and Community Services NSW, Submission 8, p. 7; International
Social Service Australia, Submission 11, p. 7; Family Law
Council, Submission 13, Attachment 1, pp 5-6; Law Society of NSW,
Submission 21, p. 4. See further, Ms Helen Freris, International
Social Service Australia, Committee Hansard, 26 August 2011, p. 11.
[28]
Mr Michael Nicholls QC, Submission 6, pp 5-6; Department of
Family and Community Services, NSW, Submission 8, p. 7; Family
Law Council, Submission 13, Attachment 1, p. 6; Law Society of
NSW, Submission 21, p. 4.
[29]
Committee Hansard, 26 August 2011, p. 32. See also Mr Michael
Nicholls QC, Committee Hansard, 26 August 2011, pp 24-25.
[30]
Submission 13, Attachment 1, p. 7, recommendation 3.
[31]
Family Law Council, Submission 13, Attachment 1, pp 8-9,
recommendation 4; Law Council of Australia, Submission 39, p. 3. See
further, Ms Alexandra Wearne, Legal Aid New South Wales, Committee
Hansard, 26 August 2011, p. 19.
[32]
International Social Service Australia, Submission 11, p. 6.
[33]
Ms Louise Glanville, Attorney-General's Department, Committee Hansard,
22 September 2011, p. 7 (referring to the partial acceptance of
recommendation 4 of the Family Law Council's advice).
[34]
Ms Louise Glanville, Attorney-General's Department, Committee Hansard,
22 September 2011, p. 4.
CHAPTER 4 - Role of key government agencies
[1]
Australian Federal Police, Submission 31, p. 2.
[2]
Australian Federal Police, Submission 31, pp 2-3.
[3]
Australian Federal Police, Submission 31, p. 2.
[4]
Australian Federal Police, Submission 31, pp 5-6.
[5]
Australian Federal Police, Submission 31, p. 4.
[6]
Department of Family and Community Services, Submission 8, p.
6; Mr Ken Thompson, Submission 22, p. 19.
[7]
Mr Ken Thompson, Submission 22, pp 19-20; Mr Daniel Wass, Submission
15, p. 1.
[8]
Australian Federal Police, Submission 31, pp 9-10.
[9]
Australian Federal Police, Submission 31, pp 4-7.
[10]
Mr Ken Thompson, Committee Hansard, 26 August 2011, p. 7.
[11]
Australian Federal Police, Submission 31, pp 4-5. See also
the AFP website: http://www.afp.gov.au/policing/family-law/family-law-kit.aspx
(accessed 27 October 2011).
[12]
Committee Hansard, 26 August 2011, p. 34. See further,
Chief Justice of the Family Court of Australia, response to questions on
notice, received 12 September 2011, pp 2-3.
[13]
Family Law Act, s 67Q.
[14]
Family Law Act, s 67Q; Regulation 31.
[15]
Regulations 14, 31.
[16]
Submission 31, p. 5.
[17]
Submission 31, p. 5.
[18]
Submission 31, p. 8.
[19]
Submission 31, pp 7-8. See further,
Assistant Commissioner Ramzi Jabbour, Australian Federal Police,
Committee Hansard, 26 August 2011, p. 48.
[20]
Submission 31, pp 7-8.
[21]
Australian Federal Police, Submission 31, p. 3.
[22]
Australian Federal Police, Submission 31, p. 3.
[23]
Interpol, Notices, http://www.interpol.int/INTERPOL-expertise/Notices
(accessed 27 October 2011).
[24]
Submission 31, p. 3.
[25]
Interpol, Notices, http://www.interpol.int/INTERPOL-expertise/Notices
(accessed 27 October 2011).
[26]
Submission 31, p. 3.
[27]
Mr Lauchlan Leishman, Submission 7, p. 3; Mr Ken Thompson, Submission
22, p. 2.
[28]
See, for example, Ms Robin Bowles, Submission 3, p. 2; Dads
on the Air, Submission 4, p. 3; Mr Lauchlan Leishman, Submission
7, pp 2‑3; Mr Ken Thompson, Submission 22, p. 2;
Ms Carolyn Smith, Submission 23, p. 2.
[29]
Ms Paula Ganly, Department of Foreign Affairs and Trade, Committee
Hansard, 26 August 2011, p. 44.
[30]
Department of Foreign Affairs and Trade, Submission 34, p. 1.
[31]
Submission 34, p. 1.
[32]
Ms Paula Ganly, Department of Foreign Affairs and Trade, Committee
Hansard, 26 August 2011, p. 50. See further, Department of
Foreign Affairs and Trade, Consular Handbook, Chapter 43.8 and Annex 43C
(Consular Fees), Additional Information, tabled by the Department of Foreign
Affairs and Trade, 26 August 2011.
[33]
Mr Ken Thompson, Submission 22, pp 3, 5.
[34]
Department of Foreign Affairs and Trade, Submission 34, pp
2-3.
[35]
Submission 34, p. 3.
[36]
See, for example, Australian Passport Office, Children and Parental
Consent, Additional Information, provided to the committee by Australian
Passport Office, Department of Foreign Affairs and Trade, 29 August 2011.
[37]
Department of Foreign Affairs and Trade, Submission 34, p.
2.
[38]
Mr Lauchlan Leishman, Submission 7, p. 4; Mr Ken Thompson, Submission
22, pp 3, 5. See also, Department of Foreign Affairs and Trade,
Submission 34, p. 2.
[39]
Department of Foreign Affairs and Trade, Submission 34, p.
3.
[40]
Submission 34, p. 2.
[41]
Submission 34, p. 3.
[42]
Response to questions on notice, received 12 September 2011, p. 2.
[43]
Submission 22, p. 5. Mr Thompson argued that this approach
would alleviate the burden on left‑behind parents who may not be aware
that they must seek a court order, and would enable a more timely response to
incidents of international parental child abduction.
[44]
Mr Dominic Trinidade, Department of Foreign Affairs and Trade, Committee
Hansard, 26 August 2011, p. 45.
[45]
Submission 34, p. 2.
[46]
Committee Hansard, 26 August 2011, p. 20. See also Ms
Alexandra Wearne, Legal Aid New South Wales, Committee Hansard, 26
September 2011, p. 20.
[47]
Response to questions on notice, received 12 September 2011, p. 3.
[48]
See, for example, Mr Michael Nicholls QC, Submission 6, p.
2; Reunite International (UK), Submission 12, p. 2; Northern
Territory Government, Submission 29, p. 1; Law Council of
Australia, Submission 39, p. 1.
[49]
Attorney-General's Department, Submission 32, p. 2; Ms
Louise Glanville, Attorney-General's Department, Committee Hansard, 26
August 2011, p. 41.
[50]
Mr Lauchlan Leishman, Submission 7, p. 2. See also, Mr Craig
Cannock, Submission 2, p. 2; Mr Ken Thompson, Committee
Hansard, 26 August 2011, pp 8-9.
[51]
Mr Ken Thompson, Committee Hansard, 26 August 2011, p. 9.
[52]
Committee Hansard, 26 August 2011, p. 4.
[53]
Committee Hansard, 26 August 2011, p. 3.
[54]
Committee Hansard, 26 August 2011, p. 3.
[55]
Ms Helen Freris, International Social Service Australia, Committee
Hansard, 26 August 2011, p. 10. See also, Mr Ken Thompson, Committee Hansard,
26 August 2011, p. 8, who suggested that periodic teleconferences between
case officers at the CCA, the relevant SCA and the applicant could improve the
flow of information to applicants.
[56]
Attorney-General's Department, Submission 32, p. 9. See
further, Department of Communities, QLD, Submission 24, p. 1.
[57]
Department of Communities, QLD, Submission 24, p. 1.
[58]
Attorney-General's Department, International Child Abduction, http://www.ag.gov.au/www/agd/agd.nsf/Page/Families2_Internationalchildabduction
(accessed 27 October 2011).
[59]
For example, the AFP has produced an information kit about the Airport
Watch List; and DFAT produces information booklets on children's passports, and
incorporates relevant information in its Smartraveller series of
publications, as well as in guidance materials produced by the Australian
Passport Office.
[60]
See, for example, International Social Service Australia, Family Safety
and Child Abduction Planning and Prevention Resource Kit.
[61]
See, for example, Mr Michael Nicholls QC, Submission 6, p. 4;
Department of Family and Community Services NSW, Submission 8, p. 6;
International Social Service Australia, Submission 11, pp 5-6; Reunite
International (UK), Submission 12, p. 3; Law Society of NSW, Submission
21, p. 3; Mr Ken Thompson, Submission 22, pp 22-24; Law Council of
Australia, Submission 39, p. 3.
[62]
Ms Alexandra Wearne, Legal Aid New South Wales, Committee Hansard, 26
August 2011, p. 19; Reunite International (UK), Submission 12, pp
2-3; Mr Ken Thompson, Submission 22, pp 19‑20.
[63]
Mr Lauchlan Leishman, Committee Hansard, 26 August 2011, p.
1.
[64]
Northern Territory Government, Submission 29, p. 1.
[65]
Law Council of Australia, Submission 39, p. 3.
[66]
Mr Ken Thompson, Submission 22, pp 22-24.
[67]
Mr Ken Thompson, Submission 22, p. 2; Queensland Law
Society, Submission 25, p. 2; Northern Territory Government, Submission
29, p. 1.
[68]
Attorney-General's Department, Application Form—Assistance by the
Commonwealth for Legal and Related Expenses for Schemes Administered by the
Attorney-General, p. 1.
[69]
Mr Lauchlan Leishman, Committee Hansard, 26 August 2011, p.
8.
[70]
Mr Ken Thompson, Committee Hansard, 26 August 2011, p. 8.
[71]
Submission 25, p. 2.
[72]
Submission 32, p. 4.
[73]
Submission 25, p. 2.
[74]
For example, parenting, location, recovery and Airport Watch List orders,
and arrest warrants in respect of breaches of ss 65Y and 65Z.
[75]
Mr Ken Thompson, Submission 22, p. 3. See further,
Queensland Law Society, Submission 25, p. 2.
[76]
Mr Ken Thompson, Submission 22, p. 3.
[77]
Mr Ken Thompson, Committee Hansard, 26 August 2011, p. 9; Mr
Paul Hansen, Attorney‑General's Department, Committee Hansard, 26
August 2011, p. 42.
[78]
National Legal Aid, Submission 37, p. 2.
[79]
Submission 12, p. 1.
[80]
Ms Angela Lynch, Women's Legal Services Australia, Committee Hansard,
26 August 2011, p. 22.
[81]
Submission 2, pp 2-3.
[82]
Submission 12, p. 1.
[83]
Submission 35, p. 42. The Family Law Act provides that the
court may make an order for the representation of a child's best interests in
incoming Convention matters only if it considers that there are 'exceptional
circumstances' that justify doing so: see Family Law Act, s 68L(3).
Chief Justice Bryant argued that a finding of exceptional circumstances
may no longer be an appropriate pre-condition to the engagement of an
Independent Children's Lawyer, due to the increasing complexity of Convention
proceedings: see Committee Hansard, 26 August 2011, pp 30-31.
[84]
Mr Paul Hansen, Attorney-General's Department, Committee Hansard,
26 August 2011, p. 42.
[85]
Mr Ken Thompson, Committee Hansard, 26 August 2011, p. 4.
See also, Mr Paul Hansen, Attorney-General's Department, Committee Hansard,
26 August 2011, p. 42.
[86]
Mr Ken Thompson, Committee Hansard, 26 August 2011, p. 4. See
also, Ms Robin Bowles, Submission 3, p. 2.
[87]
Ms Jennifer Furze and Mr Paul Hansen, Attorney-General's Department, Committee
Hansard, 26 August 2011, p. 42.
[88]
Mr Paul Hansen, Attorney-General's Department, Committee Hansard,
26 August 2011, p. 43. See also, Assistant Commissioner Ramzi Jabbour,
Australian Federal Police, Committee Hansard, 26 August
2011, p. 43.
[89]
Mr Paul Hansen, Attorney-General's Department, Committee Hansard,
26 August 2011, p. 42.
[90]
Mr Paul Hansen, Attorney-General's Department, Committee Hansard,
26 August 2011, p. 42.
[91]
Submission 13, Attachment 1, p. 8.
[92]
The Hon Robert McClelland MP, Attorney-General, and the Hon Jenny Macklin
MP, Minster for Families, Housing, Community Services and Indigenous Affairs,
'Stronger Laws to Deal With International Child Abduction', Media Release, 19
September 2011.
[93]
Ms Louise Glanville and Mr Paul Hansen, Attorney-General's Department, Committee Hansard,
22 September 2011, pp 5-6.
[94]
International Social Service Australia, Submission 11, p. 6;
Mr Ken Thompson, Submission 22, pp 17-18; Queensland Law Society, Submission
25, p. 3; Attorney-General's Department, response to question on
notice, received 16 September 2011.
[95]
International Social Service Australia, Submission 11, p. 6;
Mr Ken Thompson, Submission 22, pp 17‑18.
[96]
Mr Paul Hansen, Attorney-General's Department, Committee Hansard,
26 August 2011,
pp 46-47. See also Nigel Lowe (for the Hague Conference on Private
International Law), A Statistical Analysis of Applications Made in 2008
Under the Hague Convention of 25 October 1980 on the Civil Aspects of
International Child Abduction, Part I: Global Report and Part III: National
Reports (2011).
[97]
Attorney-General's Department, response to question on notice, received 16
September 2011.
[98]
See, for example, Mr Daniel Wass, Submission 15, pp 1-2.
[99]
Mr Matthew Wyman, Submission 1, p. 4; Mr Ken Thompson, Submission
22, pp 18-19.
[100] Ms Helen Freris,
International Social Service Australia, Committee Hansard, 26
August 2011, p. 13.
[101] Mr Matthew Wyman, Submission
1, p. 4; Mr Ken Thompson, Submission 22, p. 19.
[102] Mr Ken Thompson, Submission
22, p. 19.
[103] Mr Paul Hansen,
Attorney-General's Department, Committee Hansard, 26 August 2011,
p. 46.
[104] Ms Helen Freris,
International Social Service Australia, Committee Hansard, 26
August 2011, p. 13.
[105] Ms Louise Glanville,
Attorney-General's Department, Committee Hansard, 22 September
2011, p. 1. See further, Family Law Council, Letter of Advice to the
Attorney-General and the Minister for Families, Housing, Community Services and
Indigenous Affairs, 5 August 2011, p. 1, Additional Information,
tabled by the Attorney-General's Department, 22 September 2011 (Letter of
Advice).
[106] Letter of advice, 5 August
2011, pp 3-6 (recommendations 1 and 2).
[107] Letter of advice, 5 August
2011, p. 6 (recommendation 3).
[108] Ms Louise Glanville,
Attorney-General's Department, Committee Hansard, 22 September
2011, pp 1, 4.
[109] The Hon Robert McClelland
MP, Attorney-General, and the Hon Jenny Macklin MP, Minister for Families,
Housing, Community Services and Indigenous Affairs, 'Stronger Laws to Deal With
International Child Abduction', Media Release, 19 September 2011.
CHAPTER 5 - Complementary support services, dispute resolution and international engagement
[1]
Submission 11, p. 1. The Australian Government provided a
grant of $200,746 to ISS Australia in 2010‑11: Attorney-General's
Department, Submission 32, p. 3.
[2]
Department of Family and Community Services NSW, Submission 8,
p. 5; Law Society of NSW, Submission 21, p. 3.
[3]
Submission 11, p. 1.
[4]
Submission 11, p. 1.
[5]
Submission 11, pp 3, 4 and 6.
[6]
Submission 11, p. 1.
[7]
Submission 2, p. 1, emphasis in original. See also Law
Society of NSW, Submission 21, p. 3.
[8]
Submission 8, p. 2.
[9]
Submission 8, p. 2.
[10]
Submission 11, p. 3.
[11]
Committee Hansard, 26 August 2011, p. 14.
[12]
See, for example, Mr Michael Nicholls QC, Submission 6, pp
4-5; Mr Ken Thompson, Submission 22, pp 20-21.
[13]
Submission 22, p. 20.
[14]
Submission 22, p. 21.
[15]
Submission 12, p. 3.
[16]
Committee Hansard, 26 August 2011, p. 36.
[17]
Submission 6, pp 4-5.
[18]
Committee Hansard, 26 August 2011, p. 28.
[19] Article
7(h).
[20] International
Social Service Australia, Submission 11, p. 5; Mr Ken Thompson, Submission
22, pp 24-25.
[21] International
Social Service Australia, Submission 11, p. 5.
[22] Submission
11, p. 5. Mr Ken Thompson supported the publication of guidance
materials for persons affected by international parental child abduction in
relation to the range of post-return issues that may arise, as well as
available support services: Submission 22, p. 25.
[23]
Article 7(c) of the Convention.
[24]
The Hon Diana Bryant, Chief Justice, Family Court of Australia, Submission
35, p. 29. In contrast, the 1996 Child Protection Convention
(implemented in Australia as Part XIIIAA, Division 4, s 111CA of the Family Law
Act and the Family Law (Child Protection) Regulations 2003) does
specifically mandate mediation.
[25]
Department of Family and Community Services, NSW, Submission 8,
p. 8; International Social Service Australia, Submission 11,
p. 3; Reunite International (UK), Submission 12, pp 2, 4;
Attorney-General's Department, Submission 32, p. 11;
The Hon Diana Bryant, Chief Justice, Family Court of Australia, Submission
35, pp 29-38, 42.
[26]
Attorney-General's Department, Submission 32, pp 11-12.
[27]
See, for example, Department of Family and Community Services NSW, Submission
8, p. 8; International Social Service Australia, Submission 11,
p. 3; Reunite International (UK), Submission 12, pp 2, 4; Law
Society of NSW, Submission 21, p. 4; Mr Ken Thompson, Submission
22, p. 16; Attorney-General's Department, Submission 32,
p. 11; The Hon Diana Bryant, Chief Justice, Family Court of
Australia, Submission 35, pp 29-38, 42.
[28]
Submission 35, p. 34.
[29]
Submission 32, p. 11.
[30]
Submission 12, p. 4.
[31]
Committee Hansard, 26 August 2011, p. 33.
[32]
Committee Hansard, 26 August 2011, p. 33.
[33]
Submission 8, p. 8.
[34]
Committee Hansard, 26 August 2011, p. 21.
[35]
Committee Hansard, 26 August 2011, p. 21.
[36]
Submission 35, pp 36-37.
[37]
Submission 35, p. 33.
[38]
Submission 8, p. 8.
[39]
Committee Hansard, 26 August 2011, p. 21.
[40]
Submission 35, p. 37. In these instances the conciliator
would not be legally trained, however, he or she would have extensive experience
in parenting matters before the Family Court and could be assisted by a legally
trained Independent Children's Lawyer.
[41]
Submission 35, p. 42.
[42] See, for
example, Department of Family and Community Services NSW, Submission 8,
p. 6; International Social Service Australia, Submission 11,
p. 4; Law Society of NSW, Submission 21, p. 2; Mr Ken
Thompson, Submission 22, p. 5.
[43] See, for
example, Department of Family and Community Services NSW, Submission 8,
p. 6; International Social Service Australia, Submission 11,
p. 4; Law Society of NSW, Submission 21, p. 3; Mr Ken
Thompson, Submission 22, p. 5.
[44] Mr
Paul Hansen, Attorney-General's Department, Committee Hansard, 26
August 2011, p. 50. See also Special Commission on the Practical Operation of
the 1980 and 1996 Hague Conventions, Conclusions and Recommendations Adopted
by the Special Commission (1‑10 June 2011).
[45] See,
for example, the Hon Robert McClelland MP, Dialogue with Japan on
International Child Abduction, Media Release, 23 August 2011. See further,
Attorney-General's Department, Response to Question on Notice 51, Senate
Legal and Constitutional Affairs Legislation Committee, Additional Estimates
2010-2011, 22 February 2011.
[46] See
for example, Queensland Law Society, Submission 25, p.3; Mr Ken
Thompson, Submission 22, p. 9.
[47] Submission
35, pp 28-29.
[48] Mr
Thompson advocated a legislative framework similar to that of the US International
Child Abduction Prevention and Return Bill, (HR 1940, 112th Congress, introduced
23 May 2011). The Bill, which is before Congress at the time of writing,
proposes a framework for the designation of contracting states with a pattern
of non‑cooperation, and the administration of punitive measures against
them (including public condemnation, the cancellation of certain official
visits, or the withdrawal, limitation or suspension of certain foreign
assistance): see Submission 22, p. 16.
[49] Submission
12, p. 4.
[50] Submission
6, p. 4. The committee notes that these comments accord with the views
expressed by the Joint Standing Committee on Treaties in its examination of
Australia's bilateral agreement with Lebanon in 2010: Joint Standing Committee
on Treaties, Parliament of Australia, Report 110: Treaties tabled on 18,
25(2) and 26 November 2009 and 2(2) February 2010 (March 2010), pp 8-9. See
further, Senate Foreign Affairs, Defence and Trade References Committee, Helping
Australians Abroad: a Review of the Australian Government's Consular Services (June 1997),
[9.25].
[51] Mr
Matthew Wyman, Submission 1, pp 2-5; Mr Craig Cannock, Submission
2, p. 3; Mr Phil McIntyre, Submission 42, pp 9-11.
[52] Submission
6, p. 2.
[53] Submission
6, pp 2-3.
[54]
The Hon Diana Bryant, Chief Justice, Family Court of Australia, Submission
35, pp 39-40.
[55]
The Hon Diana Bryant, Chief Justice, Family Court of Australia, Submission
35, p. 40.
[56]
While strongly supporting the role of the Hague Network, the Chief Justice
expressed concern, however, that some contracting states are not participating
actively: Submission 35, p. 41.
CHAPTER 6 - Committee view and recommendations
[1]
The Hon Diana Bryant, Chief Justice, Family Court of Australia, Submission
35, p. 42; Mr Michael Nicholls QC, Submission 6, p. 2.
[2]
Ms Louise Glanville, Attorney-General's Department, Committee Hansard,
22 September 2011, p. 4.
[3]
For example, fleeing from violence, protecting the child from danger of
imminent harm, reasonable excuse, and consent: Family Law Council, Submission
13, Attachment 1, p. 10.
[4]
For example, duress, sudden or extraordinary emergency, self-defence,
lawful authority, and mistake of fact: Family Law Council, Submission 13,
Attachment 1, p. 10.
[5]
Submission 13, Attachment 1, pp 11-13, recommendation 6.
[6]
The Hon Robert McClelland MP, Attorney-General, and the Hon Jenny
Macklin MP, Minister for Families, Housing, Community Services and
Indigenous Affairs, 'Stronger Laws to Deal With International Child Abduction',
Media Release, 19 September 2011. See also, Ms Louise Glanville,
Attorney-General's Department, Committee Hansard, 22 September 2011,
p. 1.
[7]
Submission 13, Attachment 1, p. 12.
[8]
Submission 13, Attachment 1, p. 11.
[9]
Family Law Act, s 60I. See further, Family Law Council, Submission
13, Attachment 1, pp 6-7, recommendation 2.
[10]
Submission 33, p. 10, recommendation 9.
[11]
Ms Louise Glanville, Attorney-General's Department, Committee Hansard,
22 September 2011, p. 4.
[12]
See, for example, Mr Matthew Wyman, Submission 1, p. 4; Mr
Ken Thompson, Submission 22, pp 18-19; Ms Helen Freris,
International Social Service Australia, Committee Hansard, 26 August
2011, p. 13.
[13]
Ms Louise Glanville, Attorney-General's Department, Committee Hansard,
22 September 2011, p. 7 (referring to the partial acceptance of
recommendation 4 of the Family Law Council's advice).
[14]
Ms Louise Glanville, Attorney-General's Department, Committee Hansard,
22 September 2011, p. 2.
[15]
Family Law Council, Submission 13, Attachment 1, pp 8-9,
recommendation 4; Law Council of Australia, Submission 39, p. 3. See also,
for example, Ms Alexandra Wearne, Legal Aid New South Wales, Committee
Hansard, 26 August 2011, p. 19.
[16]
Submission 39, p. 3.
[17] Submission
11, p. 6.
[18]
Australian Federal Police, Submission 31, pp 7-8.
[19]
Australian Federal Police, Submission 31, pp 4-6; Department
of Foreign Affairs and Trade, Submission 34, p. 2; Law Council of
Australia, Submission 39, p. 2.
[20]
Submission 35, p. 34.
[21]
Submission 32, p. 11; Mr Paul Hansen, Attorney-General's
Department, Committee Hansard, 26 August 2011, p. 47.
[22]
The Hon Diana Bryant, Chief Justice, Family Court of Australia, Submission
35, p. 35; Ms Angela Lynch, Women's Legal Services Australia, Committee
Hansard, 26 August 2011, p. 22.
[23]
The Hon Diana Bryant, Chief Justice, Family Court of Australia, Submission
35, p. 38; National Legal Aid, Submission 37, p. 4.
[24]
Submission 35, pp 33, 36.
[25]
See, for example, Department of Family and Community Services, NSW, Submission
8, p. 6; International Social Service Australia, Submission 11, pp
5-6; Reunite International (UK), Submission 12, p. 3; Law Society of
NSW, Submission 21, p. 3; Mr Ken Thompson, Submission 22,
pp 22-24.
[26]
Submission 12, p. 3.
[27]
See, for example, the Australian Government websites for its programs on
access to justice (http://www.accesstojustice.gov.au/),
social inclusion (http://www.socialinclusion.gov.au/)
and preventing violent extremism in the community (http://www.resilientcommunities.gov.au/).
[28]
Submission 39, p. 3.
[29]
See, for example, Mr Craig Cannock, Submission 2, p. 1;
Department of Family and Community Affairs, NSW, Submission 8, p.
2; Law Society of NSW, Submission 21, p. 3.
[30]
International Social Service Australia, Submission 11, p. 3.
[31]
See, for example, Mr Michael Nicholls QC, Submission 6, pp
4-5; Mr Ken Thompson, Submission 22, pp 20-21; the Hon Diana
Bryant, Chief Justice, Family Court of Australia, Committee Hansard,
26 August 2011, p. 36.
[32]
See, for example, International Social Service Australia, Submission
11, p. 5; Mr Ken Thompson, Submission 22, pp 24-25.
[33]
Attorney-General's Department website, http://www.ag.gov.au/www/agd/agd.nsf/Page/Families2_FrequentlyAskedQuestionsaboutInternationalChildAbduction
(accessed 22 September 2011).
[34]
Committee Hansard, 26 August 2011, p. 28.
[35]
The committee also notes the involvement of the Australian Government
(including the CCA, some SCAs and the Family Court) in discussions with
Singapore in 2010, which resulted in Singapore's accession to the Convention in
2011: see, for example, Department of Family and Community Services NSW, Submission 8,
p. 6.
[36]
Submission 35, pp 28-29.
[37]
See further, International Social Service Australia, Submission 11,
p. 6.
[38]
See also, Family Law Council, Parental Child Abduction: A Report to the
Attorney-General (January 1998), p. 14.
[39]
See also, Family Law Council, Parental Child Abduction: A Report to the
Attorney-General (January 1998), p. 14, recommendation 1.
[40]
Mr Paul Hansen, Attorney-General's Department, Committee Hansard,
26 August 2011, p. 47.
[41]
Mr Paul Hansen, Attorney-General's Department, Committee Hansard,
26 August 2011, pp 46‑47.
[42]
Submission 35, p. 42; Committee Hansard, 26 August
2011, pp 30-31.