In the recent decision of Walpole, Secretary Department of Communities & Justice [2020] FamCAFC 65, the Full Court of the Family Court of Australia allowed an appeal against orders made requiring two children aged three and two years to return to New Zealand.
The case was brought under the Family Law (Child Abduction) Regulations 1986 which give effect in Australia to the Hague Convention. The Hague Convention concerns the international abduction of children by a parent and provides an expeditious method to return a child to the country he or she normally resides in.
The case may be one of the first decisions to provide guidance as to how the Family Court might handle cases in the time of the COVID-19 Pandemic.
At first instance, the Family Court made an order requiring the mother to return the children to New Zealand where the father resided. The Full Court of the Family Court allowed the appeal of this decision on the basis of a finding that there was a ‘grave risk that the return of the child[ren] under the Convention would expose the child[ren] to physical or psychological harm or otherwise place the child[ren] in an intolerable situation’.
The father, a New Zealand citizen, had a significant criminal history and had been deported from Australia. The mother, while pregnant with the couple’s second child, followed the father to New Zealand with the other child. The younger child was then born in New Zealand.
Apart from the decision itself, the judgment made a number of interesting observations about the conduct of Hague Convention abduction cases. With respect to COVID-19, the Court took judicial notice of the current situation of international travel restrictions and noted that, had the appeal not been allowed on other grounds, the Court would have required further submissions on returning the children in the context of COVID-19.
If you find yourself in difficulties with parenting arrangements and separation at the present time and require legal advice, contact our Family Law team today.
DISCLAIMER: The information contained in this article is general and is not intended to be advice on any matter. It is for information only and is not legal advice. In the event of a legal problem, you should seek legal advice.
