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.