Friday, June 27, 2014
The Hague Abduction Convention in Australia
The following are excerpts, without footnotes, of an article published in the Judges’ Newsletter on International Child Protection Vol. XX, Summer – Autumn 2013.
The full article is available on the website of the Hague Conference on Private International Law.
Concentration of Jurisdiction under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction: Australia
By The Honourable Diana BRYANT AO, Chief Justice of the Family Court of Australia and The Honourable Justice Victoria Bennett of the Family Court of Australia
Judicial structure and operation of the 1980 Child Abduction Convention
Family law cases are heard by the Family Court of Australia, which is the superior court of record, and the Federal Circuit Court, which is the trial court. The Family Court of Australia is a specialised court comprising the Chief Justice, the Honourable Justice Diana Bryant, the Deputy Chief Justice and 31 Judges. It sits directly below our supreme court, the High Court of Australia (which comprises the Chief Justice and 6 Justices). The Family Court hears appeals and cases of long duration or of such complexity as renders the case unsuitable for determination by the trial court.
Pursuant to a Protocol between the Family Court and the Federal Circuit Court, all Hague abduction cases are dealt with by the Family Court of Australia as are international relocation cases. Accordingly, in Australia jurisdiction to hear abduction cases at first instance is concentrated to 23 justices of the general or trial division of the Family Court. An appeal from the first instance decision lies to the Appeal Division of the Family Court comprised of three judges often comprised of two Appeal Division judges and a judge from the General Division. An appeal from a decision of the Full Court of the Family Court to the High Court of Australia requires leave of the High Court. To date, leave has been sought in 19 Hague abduction cases but granted in only six.
The Commonwealth Central Authority in Australia for the 1980 Child Abduction Convention is the same as the Central Authority for the 1996 Child Protection Convention work and is a person appointed within the Commonwealth Attorney-General’s Department. Another person is appointed to be the Central Authority for the work of the 1993 Adoption Convention. The Commonwealth Attorney-General designates a person in each of the States and Territories to be the State Central Authority for the 1980 Child Abduction Convention work within that State. This is usually the secretary or head of the state’s child welfare department. Accordingly, a State Central Authority has at its disposal the services of trained child protection workers, emergency accommodation and a working relationship with the police. Through the Commonwealth Central Authority, the State Central Authorities have access to some official records, such as immigration records from which it can be determined when a child entered or departed Australia as well as social security payments.
Abduction applications are prosecuted by the State Central Authority. The left behind parent is not required to pay for the costs of the prosecution (Article 26). A left behind parent may prosecute their own case, to the exclusion of the State Central Authority, but it is most unusual. Accordingly, almost every abduction case is prosecuted by a model litigant who has extensive experience in Hague abduction cases. This results in a concentration of expertise in prosecution work. Unlike some other Contracting States, legal aid bodies in Australia do not maintain a panel of specialist lawyers whom they will fund to act for abducting parents to defend the application. Accordingly, the standard of defence work is varied. Where a child is represented in a Hague abduction proceeding, which is exceptional, that representation is funded by the legal aid authority of the state or territory in which the child is located. It is the authors’ experience that, within our state of Victoria, independent children’s lawyers have extensive experience in international child abduction matters and a personal commitment to undertake the work to a high standard. Skilled representation of the child’s interest is essential where an abducting parent fails or neglects to raise an issue for determination such as the jurisdictional facts of habitual residence or right of custody or an exception to return.
Benefits resulting from concentration of jurisdiction
By concentrating jurisdiction to hear Hague abduction applications to the superior, specialist court, hearings can be allocated more quickly and case managed more directionally than they can be in the high volume trial court.
Case management and the ability to expedite the hearing of abduction applications are important because our supreme court, the High Court of Australia, has eschewed
a purely summary determination of return applications.
Consequently, it is not uncommon for a final hearing to run for between 1 and 3 days and involve commissioning reports by social scientists, other expert evidence and taking cross examination from overseas outside court sitting hours.
We find that the other benefits of the concentration of jurisdiction are:-
• the efficiency with which judicial education about recent developments within the Hague community as well as recent decisions in other Contracting States can be delivered;
• the ability to familiarise our judges with the operation of the International Hague Network of Judges and the ability to facilitate general or direct (case specific) judicial communications between our court and the relevant judge in the Contracting State of habitual residence via the International Hague Network of Judges. This is particularly valuable to implement conditions for return, schedule a preliminary hearing in the home State and other safe harbour measures;
• the ease of delivery of information about mediation of abduction cases within our jurisdiction. This specialised mediation must be facilitated, if it is to be facilitated at all, at very short notice so as to not delay any judicial determination of the case. It is usually only available through a small number of service providers who can operate at minimal or no financial cost to the participants and who can provide a co-mediator in each Contracting State (eg. International Social Service) or who have the technology to convene the required number of sessions (often three) through audio visual connectivity;
• as a superior court of record, it should be apparent to the courts of other Contracting States that any determination of our Family Court is authoritative and not prone to reversal by multiple rulings after further contests in higher courts. The authoritative nature of our determinations aids enforcement, Article 15 requests and direct judicial communications around conditions for return and safe harbour measures.
We appreciate the benefits of the determination of Hague abduction cases being concentrated in our one specialist and superior court. Likewise, we appreciate the relative ease of dealing with other Contracting States who have, over the last 20 or so years, taken the significant but very constructive step of concentrating jurisdiction to determine these cases to a specific court or level of court within that State. Most respectfully, our experience is that in Contracting States where jurisdiction is concentrated, the 1980 Child Abduction Convention is implemented with a higher degree of cohesion between the executive and judicial arms of government and the judicial determinations from the courts in those States around core concepts of habitual residence, rights of custody and, say, grave risk of harm are more consistent and more timely than those which emanate from States where jurisdiction is diffuse.