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16 October 2015

Hague Convention and children

Family Law
Federal

Asked

Dear Sir/Madam,

We have a few questions in relation to the Hague Convention.

1. If an application under the Hague Convention is made in the United States, what is the time frame for the Central Authority to act on the application?

2. What agencies/personnel are involved in the process? (e.g. Federal Police)

3. What are the logistics of the Central Authority recovering the child from the other parent? How does it take place?

We look forward to your response. Regards.

Answered

We assume that the client is in Australia with a child from the USA and is worried that the other person may make an Hague Application in the USA for the return of the child to the USA.

1. If an application under the Hague Convention is made in the United States, what is the time frame for the Central Authority to act on the application?

There is no prescribed time frame in which the State Central Authority must make an application. However, the application to the State Central Authority needs to be made within one year of the child's removal or retention: reg 16, Family Law (Child Abduction Convention) Regulations 1986. There may be variations to this requirement in different countries prescribed by the regulations in any particular country. If served with an application there will be a court date set. There is time to respond and all directions of the court should be followed.

2. What agencies/personnel are involved in the process? (e.g. Federal Police)

Whilst the parent can make an application personally, the normal procedure is that the State Central Authority for that country makes the application for the return of the child. In Australia the State Central Authority is the Secretary to the Attorney-General's Department. The Application by the State Central Authority is heard in the Family Court of Australia. The Central Authority can seek orders to assist in securing the return and subsequent care of a child: reg 14(1)(e) and (2)(c). The Federal Police would enforce those orders.

3. What are the logistics of the Central Authority recovering the child from the other parent? How does it take place?

If the child was in Australia the party retaining the child in Australia could respond to the Application for removal of the child, for example, that the child was not an habitual resident of the USA. If they participated in the proceedings and were then unsuccessful, the child could be handed over by consent and then the parent in Australia could return to the USA and run a court case there to relocate with the child back to Australia legally. If they didn’t participate in the proceedings or if they didn’t hand over the child willingly, then the court could make additional orders to enable location and recovery of the child. As they would be orders made by a Federal Court, the Federal Police would enforce those orders.

Regards

Mentor