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Child abducted to Australia

Information about what can happen if a child is wrongfully brought into Australia.

  • The law changed on 6 May 2024
  • This content will be updated as soon as is possible

In the interim please consult the Federal Circuit and Family Court of Australia website or the Victoria Legal Aid Website.

If a child is brought to Australia without permission from a parent (or other person with custody or parental responsibility for that child), the procedure for seeking to have that child returned depends on whether the child has been removed is a signatory to the Hague child abduction convention. The countries are listed in the Hague Conference on Private International Law (HCCH) website.

See HCCH—28 Status table(opens in a new window).

If child removed from a convention country

An application is usually made on behalf of a parent or custodian from the Central Authority of the country where the child 'habitually resides' to the Australian Central Authority. The Department of Human Services is the Australian Central Authority. Applications could also be made by the parent (or person with custodial responsibilities for the child).

If child is an Australian citizen

It makes no difference to the application if the child is an Australian citizen.

See Laing & The Central Authority [1999] FamCA 100 (9 February 1999)(opens in a new window).

Time limit

Generally an application should be lodged within a year from the date that the child was removed, however there is no strict time limit.

See s. 16—Family Law (Child Abduction Convention) Regulations 1986 (Cth)(opens in a new window).

After Central Authority gets an application

When the Australian Central Authority (Secretary of the Attorney General's Department) gets this application it will make sure that the application complies with the convention. If it does not, they will reject the application and must tell the applicant authority why.

If the application complies with the convention the Australian Central Authority (the 'Authority') must take action to return the child to the country where the child 'habitually resides'. Usually the Authority will transfer the request to the state branch of the Authority where the child is being held. The state Authority will attempt to secure the return of a child by:

  • trying to get an amicable resolution between the person opposing the application and the person seeking to have the child returned
  • seeking the person holding the child to voluntarily return the child
  • applying to court.

See s. 13—Family Law (Child Abduction Convention) Regulations 1986 (Cth)(opens in a new window).

Applying to court

The Central Authority (either Commonwealth or state branch) may apply to the Federal Circuit and Family Court or a state court exercising federal jurisdiction. The orders that can be sought include orders that:

  • the child to be returned under the convention
  • the child's passport (or the passport of a relevant person) is returned to the appropriate authority
  • a warrant be issues for the location and recovery of the child (including stop and search orders for vehicle, aircraft or vessel)
  • the child not be removed from a particular place and that this will be enforced by the Australian Federal Police
  • the child is placed with a particular person, institution or other body until a decision is made.

The Central authority may seek any other order that it believes is appropriate to make.

See r. 14—Family Law (Child Abduction Convention) Regulations 1986 (Cth)(opens in a new window).

Independent children's lawyers

In exceptional circumstances an independent children's lawyer may be appointed to cases such as these. For example, they may be appointed where one party has made an allegation that there is a grave risk to a child's health and safety if they were to be returned to the other country.

See Independent children's lawyers—Appointing an ICL.

If the child is abducted from a non-signatory country

Where the child has been taken from a country that is not a signatory to the Hague convention, the parties must apply for the child to be returned under Part Vll of the Family Law Act 1975 (Cth).

The convention is still relevant for the court, despite the other country's lack of signature, as Australia is a party to the convention. The spirit of the convention should influence and inform the treatment of abduction cases from non-convention countries. Therefore, unless there are exceptional circumstances, the court should be reluctant to refuse to return a child to the country where the child was taken from the lawful custodial parent without authority.

The proceedings will usually be decided based on what the court believes are the best interests of the child. This is the paramount consideration. However if a parenting order from that country has been registered in Australia, that order has the same force as an order made in an Australian court.

Even if there is an order in place in that other country which gives parental responsibility to the applicant, the court has discretion whether or not to recognise this order from another country. It will not ignore the order, and must give the order appropriate weight, but the best interests remain paramount.

See s. 70J—Family Law Act 1975 (Cth)(opens in a new window) and [¶24-600], [¶24-250], [¶24-270], [¶24-550] CCH—Australian family law and practice commentary(opens in a new window).

More information

Legislation

Family Law Act 1975 (Cth)

  • s. 39—jurisdiction of the courts
  • s. 70J—effect of registration on exercise of jurisdiction
  • s. 111B—Convention on the civil aspects of international child abduction

See Family Law Act 1975 (Cth)(opens in a new window).

Family Law (Child Abduction Convention) Regulations 1986 (Cth)

  • r. 13—request for return of a child abducted to Australia
  • Part 3—Court applications, except for access
  • r. 14—applications to court
  • r. 16—obligations to make a return order

See Family Law (Child Abduction Convention) Regulations 1986 (Cth)(opens in a new window).

Family Law Regulations 1984 (Cth)

  • r. 23—procedure for registration of an order made overseas

See Family Law Regulations 1984 (Cth)(opens in a new window).

Relevant cases

Citizenship is irrelevant

Reference

Hague Convention

The status table lists the countries that are signatories to the convention on child abduction.

See:

CCH—Australian family law and practice commentary

  • [¶24-600]—registered overseas orders
  • [¶24-250]—who may apply for the return of a child brought to Australia
  • [¶24-270]—court must ordinarily order the child's return
  • [¶24-550]—proceedings where the child abduction regulations do not apply

Note: These resources are only available to staff at Victoria Legal Aid.

See CCH—Australian family law and practice commentary(opens in a new window).

Updated