International Parental Child Abduction
Australia March, 2002 DISCLAIMER: The information in this circular relating to the legal requirements of a specific foreign country is provided for general information only. Questions involving interpretation of specific foreign laws should be addressed to foreign legal counsel.
GENERAL INFORMATION: Custody in Australia is referred to as "parental responsibility." Unless there is a court order to the contrary, the parents of a child are assumed to have "joint parental responsibility." A court-issued "residence" order specifies who will be the primary physical custodian of the child. A "contact" order is similar to a U.S. visitation or access order. Australian family courts adjudicate petitions on a case-by-case basis with the judge applying the "best interests of the child" standard. The amount of access allowed a non-custodial parent is also decided on a case-by-case basis, and may be denied under certain egregious circumstances. Legitimacy of the child is not a factor in a judge's determination.
If your child has a claim to Australian citizenship, you may be able to prevent the issuance of an Australian passport to your child. Please contact a consular officer at the Australian Embassy in Washington, D.C. (202-797-3000) for further information. There is also an Australian Consulate in California (310-229-4800). NEW U.S. LAW ON PASSPORT APPLICATIONS FOR MINORS: On July 2, 2001, the Department of State began implementation of the new law (Section 236 of P.L. 106-113) regarding the passport applications of minor U.S. citizens under age 14. Under this new law, a person applying for a U.S. passport for a child under 14 must demonstrate that both parents consent to the issuance of a passport to the child or that the applying parent has sole authority to obtain the passport. This law covers passport applications made at domestic U.S. passport agencies in the United States and at U.S. consular offices abroad. Exceptions to this requirement may be made in special family circumstances or exigent circumstance necessitating the immediate travel of the child. The purpose of the new requirement that both parents' consent be demonstrated is to lessen the possibility that a U.S. passport might be used in the course of an international parental child abduction.
CHILDREN'S PASSPORT ISSUANCE ALERT PROGRAM (CPIAP):
Separate from the two-parent signature requirement for U.S. passport issuance, parents may also request that their children's names be entered in the U.S. passport name-check system, also known as CPIAP. A parent or legal guardian can be notified by the Department of State's Office of Children's Issues before a passport is issued to his/her minor child. The parent, legal guardian or the court of competent jurisdiction must submit a written request for entry of a child's name into the Passport Issuance Alert Program to the Office of Children's Issues. The CPIAP also provides denial of passport issuance if appropriate court orders are on file with the Office of Children's Issues. Although this system can be used to alert a parent or court when an application for a U.S. passport has been executed on behalf of a minor, it cannot be used to track the use of a passport. If there is a possibility that your child has another nationality you may want to contact the appropriate embassy or consulate directly to inquire about the possibility of denial of that country's passport. There is no requirement that foreign embassies adhere to U.S. regulations regarding issuance and denial of passports. For more information contact the office of Children's Issues at 202-736-9090. General passport information is also available on the Office of Children's Issues home page on the Internet at children's_issues.html.
THE HAGUE CONVENTION: The United States is a party to the Hague Convention on the Civil Aspects of International Child Abduction. The Convention is an international treaty. Its purpose is to discourage international parental child abduction and to ensure that children who are abducted or wrongfully retained, are returned to their country of habitual residence. The Convention does not deal with child custody itself, but determines the jurisdiction where those custody issues should be adjudicated.
The Hague Convention entered into force between the United States and Australia on July 1, 1988. Therefore, Hague Convention provisions for return would apply to children abducted to or retained in Australia after July 1, 1988. Under certain circumstances, parents and legal guardians of children taken to Australia prior to July 1, 1988, may still submit applications for access to the child under the Hague Convention. 1. Who qualifies to apply under the Hague Convention? You may qualify to apply under the Hague Convention if:
· Your abducted/retained child is currently under age 16;
· Your child was habitually resident in a convention country immediately prior to the abduction;
· Your child was retained in/abducted to Australia after the Hague Convention entered into force on July 1, 1988; and
· You had and were actually exercising a "right of custody" at the time of the abduction/retention. 2. Who is Australia's Central Authority? What is their role? How can they be contacted? The designated Central Authority for all of Australia is the Commonwealth Attorney General's Department, International Family Law Section, which is part of the Family Law and Legal Assistance Division. Their address is Robert Garran Offices, National Circuit, Barton, ACT 2600, Australia. The international telephone number is 011-61-2-6250-6724 and the international telefax number is 011-61-2-6250-5917. The Section maintains a website, which is located at http://www.law.gov.au/childabduction The Attorney General's Department coordinates the implementation of the Convention through the Family Law (Child Abduction Convention) Regulations. Legal proceedings in Australia for the return of children are conducted by the State and Territory Central Authorities operating in each of the six states and two territories of the Australian Commonwealth on behalf of the Australian Central Authority.
3. What attachments/documents does Australia require along with the Hague application form?
To apply for the return of a child under the Hague Convention in Australia, you must submit the following: Essential Documents: An application form. The U.S. Central Authority application form may be found in the 2001 edition of the U.S. Central Authority's brochure, "International Parental Child Abduction." It may also be obtained from the Department of State's Office of Children's Issues or downloaded from our web site at "children's_issues.html". Please refer to pages 37 through 40 of the brochure for instructions on completing the application form. Evidence of Habitual Residence. An Affidavit or Sworn Statement from the applicant that clearly explains the habitual residence of the child and the circumstances surrounding the wrongful removal or retention of the child. If the application is not made within 12 months of the removal or retention, an explanation for the delay in making the application is required. Evidence of Rights of Custody. An Affidavit of Law from a lawyer/attorney, that clearly explains the applicant's rights of custody at the time of the removal or retention as defined in Article 3 of the Convention. Alternatively, a copy of the relevant Statute, Civil Code or Applicable State Law at the time of the removal or retention may be sufficient. Note: It is not necessary to obtain a post-abduction court order of sole custody to apply for assistance under the Hague Convention. Obtaining such an order may actually complicate your case. Photos of the child and of the taking parent. Useful (Non-Essential) Documents Copy of each child's birth certificate, and a copy of your marriage certificate or divorce decree, if appropriate. Certified copies of any court orders relating to the custody of the child. An undertaking/agreement from the applicant to pay for the return airfare of the child(ren) if a return is ordered by the Australian Court. To apply for access to a child in Australia under the Hague Convention, you must already have a court order or legally binding agreement for access. It is expected that there will be a change in the Australian regulations in the near future which will eliminate this requirement. Your access application must include the following documents: An application form. The U.S. Central Authority application form may be found in the 2001 edition of the U.S. Central Authority's brochure, "International Parental Child Abduction." It may also be obtained from the Office of Children's Issues or downloaded from our web site at "children's_issues.html". Please refer to pages 37 through 40 of the brochure for instructions on completing the application form. Evidence of Access Rights. A Statement of Law from a lawyer/attorney which clearly sets out the left-behind parent's rights of access and how those rights have been breached under Article 4 of the Convention.* Certified copies of any court orders relating to access, custody or guardianship of the child. An Affidavit or Sworn Statement from the left-behind parent that clearly explains what access is being sought. Photos of the child and of the taking parent. Please remember: · All documents should be typed or very neatly printed in black ink.
· Fill out the Hague application as completely as possible with the information you possess. The physical descriptions of the taking parent and child (Parts I and III) are especially important, and should be completed regardless of the existence of accompanying photos. While passport numbers and social security numbers are very helpful, they are not essential.
· If you are concerned that the taking parent will flee or hide the child when notified of the proceedings, it is very important that you note this and state the reason for this concern in section VIII of the application, or on a separate page. It is helpful if this concern is repeated in a cover letter or note attached to the application. The completed Hague application with supporting documents should be submitted to: By FedEx, DHL, Express Mail, etc.
The United States Central Authority
Office of Children's Issues
U.S. Department of State
1800 G Street NW, Suite 2100
Washington, DC 20006 By regular mail*
The United States Central Authority
Office of Children's Issues
U.S. Department of State
2201 C Street, NW
Washington, D.C. 20520-4818 (* - As of March, 2002 the State Department is experiencing considerable delays of three to four weeks in the delivery of regular mail due to mandated irradiation against harmful substances. We strongly recommend that Hague application packages be sent by courier such as FedEx, DHL, Express Mail, etc. to ensure prompt delivery.) Tel: 202-736-7000 (Recorded information, access to officers) or 202-736-9090
Fax: 202-312-9743
Internet: children's_issues.html 4. What is initial case processing like? The Commonwealth Central Authority receives and reviews the application(s) submitted by overseas Central Authorities. Once the location of a child is known, the file is forwarded to the Central Authority of that particular State or Territory for filing with the Family Law Court. The State or Territory Central Authority then conducts the litigation, taking instructions from the Commonwealth Central Authority. It is very important to understand that a left-behind parent is not a party to the legal proceedings initiated by the Central Authority in Australia. The Central Authority is the Plaintiff and the abducting parent is the Respondent. The Central Authority lawyers do not take instructions relating to the conduct of the case directly from the left-behind parent. In most cases, the left-behind parent will not be required to attend the Australian court proceedings.
5. How is the return decision made?
Applications are usually filed in the Family Court of Australia (a federal court) by State Central Authority lawyers. Hague matters are given priority by the Family Court.
6. How long does the process take?
The Convention requires that cases be heard expeditiously. On an average, most cases take between one and six months to resolve. However, the length of time required depends entirely on the circumstances of each individual case. For example, is the location of the child and the taking parent known? Will the taking parent consent to returning the child voluntarily? Are there many arguments and counter-arguments that need to be examined by the Court? Is the taking parent asserting that there are issues of resettlement or "grave risk" under Articles 12 or 13 of the Convention?
7. Is it necessary to retain the services of a lawyer? How is a lawyer found in Australia?
It is unnecessary for a left-behind parent to retain a private lawyer in Australia when the Central Authority is conducting the case. It achieves no purpose and is an unnecessary imposition on the left-behind parent's financial resources. It can also cause delays rather than speeding up the process. The Australian Abduction Regulations do, however, permit a left-behind parent to retain an Australian lawyer and initiate private proceedings under the Hague, if the Central Authority refuses to accept the left-behind parent's application or if the left-behind parent wishes to conduct his/her own case. In that case, the Central Authority will not provide representation and the proceedings will be conducted at the expense of the left-behind parent. Information on retaining a foreign attorney and attorney lists are available from the Office of Children's Issues or can be downloaded from our website.
8. What costs will the left behind parent incur?
The Australian Central Authority pays all legal costs connected with the application for the return of a child if the application is filed with the Central Authority. The left-behind parent must agree to cover the cost of the return airfare for the child if there is an order for return. Depending on the circumstances of an individual case, a Court may order the taking parent to cover these costs. If a left-behind parent wishes to conduct his/her own case, he/she is responsible for all expenses incurred.
9. Is pro bono legal assistance available?
Pro bono legal assistance is not required, since the Australian Central Authority covers legal assistance.
10. Can a decision be appealed? How?
Yes, a decision can be appealed by either the abducting parent or by the Central Authority. An appeal from a first instance decision of a Judicial Registrar is given to a single judge. The single judge will review the evidence as though the case originated in his/her Court and make an independent decision. That single judge decision may be appealed to the Full Court of the Family Court. A Full Court decision may be appealed to the High Court of Australia (the final court of appeal), but only if the High Court grants permission. Appeals can add considerable delay to the Hague process.
11. Is there anything else I should know about Hague proceedings in Australia?
Sometimes the Australian Court order may impose certain "undertakings" or conditions for return. These may include, but are not limited to, requiring the left-behind parent to provide: transportation costs for the child; a sworn affidavit stating the left-behind parent will not pursue criminal charges against the taking parent; and a sworn affidavit stating the left-behind parent will not seek enforcement of a temporary ex-parte custody order issued in the United States immediately following the child's return.
Criminal Remedies:
For information on possible criminal remedies, please contact your local law enforcement authorities, or the nearest office of the Federal Bureau of Investigation. Information is also available on the Internet at the web site of the U.S. Department of Justice, Office of Juvenile Justice and Delinquency Prevention at http://www.ojjdp.ncjrs.org. You should be aware that filing criminal child abduction charges in the United States against a taking parent may jeopardize an Australian Hague Convention case.
Mirror Orders:
A final U.S. court order can be registered in the Australian Family Court. The Family Court is a federal court, so orders are enforceable throughout Australia. The process for registration is set out in Regulation 23 of the Australian Family Law Regulations. The parent who wishes to register a U.S. Court order in Australia should write a cover letter requesting registration. The letter should include the address in Australia where the child will be located. Attached to the letter must be three certified copies of the U.S. court order and documentation by a court officer that the copy is a true copy of the original order made by the Court. The court officer must also certify that the order is enforceable in that particular jurisdiction and that no subsequent orders have been made. The documents may be sent directly to the Australian Central Authority or to the Office of Children's Issues for forwarding to the Australian Central Authority. There is no fee for this service. The registration of the order will be effective as soon as the Registrar of the Australian court files the order and notes the registration. However, a U.S. temporary or interim order for custody and visitation cannot be registered in Australia through the above process. The parent seeking Australian "consent orders" (orders agreed to by both parents) should apply to the Australian Family Court. Two documents must be filed. They are (1) a Form 12A signed by both parties and witnessed by a lawyer or Justice of the Peace and (2) the Consent Orders signed by both parties and witnessed by a person over the age of 18 years. Orders can duplicate the U.S. orders. A notation should be added that they are identical to orders made in the U.S. The notation should include the name and address of the Court where the orders were made and the date when they were made. To expedite the process, a parent physically located in the United States can telefax a signed copy of the orders to the Australian Court in accordance with the Rule 7 Order 2. When filing by telefax, the document must be accompanied by a letter to the Court Registrar setting out (a) the nature and immediacy of the damage or harm which may result if the document is not lodged by telefax and (b) any other circumstances justifying lodging the document by facsimile. The original signed copy should be sent to the Australian Court by an international courier service, such as Federal Express or DHL. There is no filing fee for an application for consent orders. Obviously, this process requires the cooperation of both parents. Should you have any questions, please contact the Office of Children's Issues. If you are currently in Australia, you may contact the Central Authority of Australia directly. The State Department has general information about welfare visits, hiring a foreign attorney, service of process, enforcement of child support orders, and the international enforcement of judgments, which may supplement the country-specific information provided in this flier. In addition, the State Department publishes Consular Information Sheets for every country in the world, providing information such as location of the U.S. Embassy, health conditions, political situations, and crime reports. When situations in a country are sufficiently serious, the State Department issues Travel Warnings that recommend U.S. citizens avoid traveling to that country. These documents are available on the Internet at http://travel.state.gov or by calling the State Department's Office of Overseas Citizen Services at (202) 647-5225. | 
