This article examines how recent amendments have changed the way a child’s objection is determined in international child abduction cases in Australia and how those changes may impact the outcome of future cases.
The purpose of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (the Convention) is to protect children from the wrongful removal to or retention in a country other than their country of habitual residence. The Convention provides a legal framework for the prompt return of children between member countries.
The Family Law (Child Abduction Convention) Regulations 1986 (the Regulations) give effect to the Convention in Australia.
The Regulations are made pursuant to section 111B(1) of the Family Law Act 1975 (Cth) (the Act), which allows for the making of such provision as is “necessary or convenient” to enable the performance of Australia’s obligations under the Convention.
Regulatory Exceptions
The so-called “jurisdictional facts” which must be established to enliven the obligation of an Australian court to make a return order under the Convention are set out in sub-regulations 16(1), (1A) and (2).
Regulation 16(3) sets out the regulatory exceptions1 which enliven a discretion for an Australian court to refuse to make a return order even if the jurisdictional facts are established.
The party opposing the return order bears the onus of proof to establish one or more of the regulatory exceptions applies. The requisite standard of proof is the balance of probabilities.2
Recent Amendments
The Family Law (Child Abduction Convention) Amendment (Child’s Objection) Regulations 2024 (Cth) commenced on 15 April 2024.
Prior to that date, regulation 16(3)(c) required a child’s objection to show a “strength of feeling beyond the mere expression of a preference or of ordinary wishes“.3 This requirement imposed a higher threshold than provided for in the text of the Convention itself.
The amendment was intended to ensure that a child’s objection is appropriately considered in Convention cases by promoting the child’s right to be heard, whilst retaining the Court’s discretion where a child objects.4
How Is the Child’s Voice Heard?
Independent Children’s Lawyers
The appointment of an Independent Children’s Lawyer is not automatic in parenting disputes dealt with under the Act.
Commencing in May 2024, the Family Law Amendment Act 2023 (Cth) removed the requirement that there must be “exceptional circumstances” to justify the appointment of an Independent Children’s Lawyer (ICL) in Convention cases, by repealing previous section 68L(3) of the Act.
The “exceptional circumstances” requirement was intended to support the prioritisation of speed and efficiency in Convention proceedings. However, in practice, Convention matters are complex and often do not proceed in the summary nature originally contemplated by the Convention or the Regulations.
Section 68L(1) now expressly includes Convention cases by reference to “any such proceedings arising under regulations made for the purposes of section 111B” of the Act.
The purpose of this amendment was to increase the voice of the child in Convention cases and to promote the child’s right to be heard.5 It is also consistent with Australia’s obligations pursuant to Article 12 of the United Nations Convention on the Rights of the Child.6
Regulation 26 Hague Report
Regulation 26 expressly provides for the preparation of a report by a Family Consultant in Convention cases. Typically, a Family Consultant is a psychologist or social worker who is appointed as an expert to assess the alleged objection. The appointed Family Consultant may also include in the report “any other matters” relating to the care, welfare or development of the child. The Court may make such orders or give such directions as “it considers appropriate in relation to the preparation of the report” including for parties and/or the child to attend upon the Family Consultant.
Cross Examination
In addition to one or both parents and the appointed expert, witnesses may include a psychologist or psychiatrist (in Australia or overseas) and/or a family law practitioner who can give evidence about the applicable law in the relevant overseas jurisdiction.
There is an inherent tension between the potential evidentiary benefits of cross examination and the narrow scope of Convention cases. Sub-regulation 15(2) requires that the Court “give such priority as will ensure that the application is dealt with as quickly as a proper consideration of each matter relating to the application allows”.
Consideration of the reported cases demonstrates that oral evidence is frequently relied upon in Convention cases. It is suggested that this is indicative of the Court’s task in determining factual disputes in circumstances where competing narratives are asserted by each party. In relation to the regulation 16(3)(c) defence, cross examination is likely to assist the Court to assess the reliability and context of the child’s actual or asserted objection.
Assessment Reports and Other Documents
Expert reports including evaluations and/or assessment reports prepared in any substantive parenting proceedings overseas may be relied upon. School reports, attendance records and other documents may also be relevant.
Where assertions of family violence or other risk factors are made, police records may need to be obtained, along with records and/or reports prepared by child protective services or similar agencies in Australia or other jurisdictions.
Regulation 16(3)(c) – Child’s Objection
A court may refuse to make a return order if both of the following requirements are met as set out in regulation 16(3)(c):
“(i) the child objects to being returned; and
(ii) the child has attained an age, and a degree of maturity, at which it is appropriate to take account of his or her views.”
Aside from the specific wording of sub-regulation 16(3)(c), the Regulations (like the Convention itself) are silent as to the matters a Court should or must take into account when considering a child’s objection.
Consideration of case authorities, both prior to and since the 2024 regulatory amendments, reveal the following non-exhaustive list of relevant factors:
- The age of the child;
- Consideration of whether the objection is “to place”. It is not sufficient for a child to express a preference about which parent they wish to live with. The child must object to being returned to their country of habitual residence.
- The degree to which the child’s views are influenced by, or enmeshed with, a parent.
In Hurston [2023] the Father initially argued that the children, aged 6 and 9 years, objected to being returned to New Zealand. A Regulation 26 Hague Report was ordered. The primary Judge found that: “Unsurprisingly, given the children’s ages and stages of development, it could not be found that the children object to returning to New Zealand in the sense required [under the Regulations]…“7
In Cullen [2022] the primary Judge found that the child (aged 15 and a half) “clearly objected”. However, he declined to find the regulatory exception had been satisfied on the basis that the strength of feeling had been brought about by the Mother’s enmeshment with the child.
The primary Judge stated that even if the exception had been made out, he would not have exercised the discretion to refuse to make a return order on this basis and that the Mother’s attempt to rely on Regulation 16(3)(c) needed to be viewed in that context.
The primary Judge cited the following passage from the 2010 case of Hotzner:
“If the Court should come to the conclusion that the child’s views have been influenced by some other person, for example the abducting parent, or that the objection to return is because of a wish to remain with the abducting parent, then it is probable that little or no weight will be given to those views.”8
Another factor which features in the reported cases is whether a return order would result in (or avoid) the separation of siblings.9
Best Interests of the Child?
The best interests of the child are not the primary or determinative factor in Convention cases. This is a significant departure from the determination of parenting matters pursuant to Part VII of the Act, where the best interests of a child are the paramount consideration.10
When determining best interests, section 60CC(2)(b) requires consideration of any views expressed by the child. In the context of Part VII proceedings, the child’s views may relate to any aspect of their life and can cover a broad range of factors. By contrast, in Convention matters the relevant inquiry is narrow, concerning only whether the child objects to a return order being made.
In both instances, the weight to be given to the child’s views or objection (as applicable) will depend to a large extent on the age and maturity of the child and whether their expressed position is determined to be their own, independent of any influence by, or enmeshment with, a parent.
Exercise of the Discretion
A finding that the child objects within the meaning of Regulation 16(3) is not determinative of the outcome but rather gives rise to a judicial discretion.
Once enlivened, the discretion is at large. The following passage from the majority judgment in the seminal High Court of Australia decision of Director General NSW Department of Community Services v De Lewinski (1996) FLC 92-674 is frequently cited in Convention cases:
“The Regulations are silent as to the matters to be taken into account in the exercise of that discretion and the ‘discretion is, therefore, unconfined except in so far as the subject matter and the scope and purpose of the [Regulations]’ enable it to be said that a particular consideration is extraneous… That subject-matter is such that the welfare of the child is properly to be taken into consideration in exercising that discretion.”
In the 2006 decision of HZ & State Central Authority11 the Full Court of the Family Court of Australia (as it then was) referred favourably to the following list of factors relevant to the proper exercise of the discretion:
“(a) the comparative suitability of the forum to determine the child’s future in the substantive proceedings
(b) the likely outcome (in whichever forum) of the substantive proceedings
(c) the consequences of the acquiescence
(d) the situation which would await the absconding parent and the child if compelled to return
(e) the anticipated emotional effect upon the child of an immediate return (a factor which is to be treated as significant but not paramount); and
(f) the extent to which the purpose and underlying philosophy of the Hague Convention would be at risk of frustration if a return order were to be refused”.12
In Brandt [2023], factors which were identified as being persuasive for the making of a return order notwithstanding the child’s objection were that there were proceedings on foot in South Africa in relation to the child where Orders had been made, and considerations of judicial comity.
The primary Judge stated:
“I am confident that the South African court, with all the information available to it, will be able to reach a decision which pays proper regard to the views of this intelligent and mature child in the context of all the matters which fall for consideration pursuant to their laws.”13
Consideration of the situation which would await the child and the respondent parent if a return order is made will often necessitate expert evidence being adduced. In Viduka [2015], the primary Judge acknowledged the mother’s fears that she might be incarcerated because she abducted the children but was factually unable to find that that was a concern and so did not give them any weight when exercising the discretion.
Conclusion
Recent amendments signal a shift in emphasis toward ensuring that children’s views are meaningfully incorporated and appropriately weighted in Convention proceedings determined in Australia, while also preserving the core purpose and framework of the Convention. Ultimately, although a child’s objection may enliven the court’s discretion, it is only one factor in a broader evaluative process and does not alone determine the outcome.
The extent to which a child “has a say” in Convention cases depends not only on their age and maturity but also on the quality and reliability of the evidence placed before the court. For practitioners, this underscores the importance of making all necessary inquiries and ensuring that the evidentiary foundation is properly established—both in relation to any regulatory defence and the exercise of the discretion.
Jemma Mackenzie
Partner & Accredited Family Law Specialist
Forte Family Lawyers
Footnotes
- Sometimes also or alternatively referred to as “defences”. ↩
- As required by section 140 of the Evidence Act 1995 (Cth). ↩
- Previously sub-regulation 16C(3)(ii). ↩
- Explanatory Memorandum issued by authority of the Attorney General under subsection 125(1) of the Family Law Act 1975, page 7. ↩
- Explanatory Memorandum to Family Law Amendment Bill 2023, General Outline (paragraph 5) and Other Provisions (paragraphs 17-22). ↩
- Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990). ↩
- Director General, Department of Child Safety, Seniors and Disability Services & Hurston [2023] FedCFamC1F 711 at [33]. ↩
- State Central Authority v Hotzner (No 2) [2010] FamCA 1041 at [147]. ↩
- Refer to, for example, Commonwealth Central Authority v Sangster [2018] FamCA 765, Department of Family and Community Services & Viduka [2015] FamCA 640 and State Central Authority v Castillo [2015] FamCA 792. ↩
- Section 60CA Family Law Act 1975. ↩
- HZ & State Central Authority [2006] FamCA 466 at [29]. ↩
- As first identified and applied by Waite J (as he then was) in W v W (Child Abduction: Acquiescence) [1993] 2 FLR 211 and later adopted by the Court of Appeal in H v H (Abduction: Acquiescence) [1996] 2 FLR 570. ↩
- Secretary, Department of Communities and Justice & Brandt [2023] FedCFamC1F 257 at [97]. ↩