Family Law Court Upholds Return of Children to England Amid Controversial Hague Convention Appeal

Event and Time

Event Description

• Case involves an appeal from orders requiring the return of two children to England under the Family Law (Child Abduction Convention) Regulations 1986 (Cth).
• The appeal is filed by the father, Mr. Hays, against the ruling of the primary judge who rejected his defenses under reg 16(3) concerning grave risk of harm to the children.

Application and Claims

• Father claims that returning the children would expose them to grave risk of harm, both physical and psychological, given their circumstances.
• He argues that any risk of harm is a result of the mother's actions and that the primary judge wrongly interpreted relevant regulations while assessing custody rights.
• The New South Wales Department of Communities and Justice, responding on behalf of the mother, claims the return is warranted as the fathers’ arguments do not meet the regulatory exceptions.

Judicial Decisions

• The primary judge ordered the return of the children to England and found that the father did not adequately substantiate his claims of grave risk of harm.
• Appeal heard on 14 December 2022 and ultimately dismissed on grounds of lack of merit in the father’s claims.

Dispute Points and Legal Basis

Dispute Points

• Father's Argument:

- Claims potential physical and psychological harm to the children upon return to the UK. - Asserts that support from the English court or child services can’t adequately mitigate risks. - Argues both children object to the return based on maturity and emotional state. - Contests that the mother was not exercising her custody rights at the time of the children's removal from the UK.

• Respondent's Argument (Department):

- Contends that the father cannot invoke risks he has caused. - Asserts that the mother actively exercised rights of custody. - Claims that objections expressed by the children stem from a preference to remain with the father and are not based on a substantial concern for harm. - Upholds that the father failed to prove that circumstances meet any exceptions outlined in reg 16.