Gary Humphries (ACT, Liberal Party, Shadow Parliamentary Secretary for Defence Materiel) Share this | Hansard source

I present the report of the Legal and Constitutional Affairs References Committee on international child abduction to and from Australia, together with the Hansard record of proceedings and documents presented to the committee.

Ordered that the report be printed.

by leave—I move:

That the Senate take note of the report.

This inquiry was referred to the Senate Legal and Constitutional Affairs References Committee on the basis of concern expressed in the Australian community about a significant number of parental child abductions each year. These are abductions carried out by a parent—or occasionally a step-parent—who has responsibility for a child. The parent takes the child outside the Australian jurisdiction either without the knowledge or permission of the other parent—the left-behind parent or person exercising custodial responsibility—or, occasionally, with such knowledge or consent, and then retains the child outside of the jurisdiction against the wishes of the left-behind parent.

There are a number of such cases in Australia each year. Indeed, between 2003 and 2008 there was a 74 per cent increase in the number of applications for the return of children to Australia under the terms of the Hague convention, which regulates the return of abducted children. There is a concern in the community about these cases. Indeed, there was a fairly high profile case of an Australian father who spent a long period of time travelling around the world before finally locating his child in Holland and coming to arrangements to have the child returned.

Whether these cases are large or small in number is immaterial. The fact that they occur is, quite legitimately, a matter of concern within the community. The Senate committee's brief was to discover what was being done to prevent such abductions, to increase as much as possible the extent of assistance available to left-behind parents, to ensure that the system operated particularly effectively with respect to countries that had been signatories to the Hague convention and to explore what could be done to ensure that countries that were not signatories to the Hague convention could still have in place arrangements that would allow the return of children abducted from Australia. There was also some focus on the abduction of children to Australia, although that was a relatively minor part of this inquiry.

The intention of the committee was to discover whether more could be done to prevent and to remedy international child abduction. In particular, the committee focused on the question of whether there ought to be a specific stand-alone criminal offence of international parental child abduction—not to be confused with the abduction of a child not known to the abductor, which is a very different set of circumstances.

After some deliberation, the view of the committee was that although these practices should be discouraged as much as possible and, where appropriate, those who perpetrate them should face the effect of the law, it is not helpful at this point in time to have a separate, stand-alone criminal offence of international parental child abduction. The committee noted that there are in fact already offences under sections 65Y and 65Z of the Family Law Act 1975 which provide that it is a criminal offence for a child to be taken outside the Australian jurisdiction contrary to an order of the Family Court or while the child is subject to proceedings in the Family Court.

The government announced, while this inquiry was underway, that there is to be an extension of the circumstances in which sections 65Y and 65Z would operate in future. That will particularly provide for a child taken lawfully outside Australia but retained outside Australia against the wishes of the left-behind parent to also be subject to the provisions of sections 65Y and 65Z. The committee is reassured by that extension of the law but urges the government to maintain a watching brief on the extent to which such extensions of the law actually discourage the incidence of international parental child abduction.

The committee accepts that there are some downsides to the introduction of a separate offence. Most particularly, the committee accepts that to criminalise an abducting parent too readily runs the risk that it will be more difficult for abducted children to be returned to Australia. The committee believes that there is a good case for sending an unmistakable signal that such behaviour, in the ordinary course of events, is unacceptable. However, it also wishes to ensure that if a child is abducted the highest possible chance of that child being returned to Australia is furnished according to the law.

Concerns were expressed to the committee that by not having a separate, stand-alone offence of international parental child abduction the cooperation of the Australian Federal Police in preventing abduction would be minimised—that the police would be reluctant to be involved in preventing a child being removed from a jurisdiction or taking steps to locate a child who had been removed from the jurisdiction. Some advocates before the committee felt that there needed to be such an offence in order to galvanise the police response to international child abduction.

The committee is reassured that under the present state of the law there are opportunities for the Australian Federal Police—and, to some extent, state police forces as well—to be involved in the prevention of the removal of a child from a jurisdiction, in particular in connection with sections 65Y and 65Z of the Family Law Act. The committee acknowledges that where a child is in the process of being abducted it is extremely important for a parent to have cooperation from the Australian Federal Police. The committee believes that in general terms that cooperation is available, although the circumstances in which it might be available are probably not well understood by many parents in that circumstance. It is possible for the Family Court to order at very short notice that a child not be removed from a jurisdiction, and indeed the committee heard that there have even been examples of where planes have been required to land in Darwin to prevent a child being removed in that circumstance. But it remains true that there are still very many cases where such abductions occur, and the circumstances in which they occur need to be considered carefully in order to focus on ways of preventing such cases from arising in the future.

There is a recommendation from the committee that there be better cooperation between state agencies charged with the welfare of children and the Attorney-General's Department to ensure that the handling of cases for the return of children to Australia, particularly under the Hague convention, is done on a more streamlined basis. There is also a recommendation from the committee that specific and comprehensive online information be available about international child abduction so as to assist parents who find themselves dealing with such a situation.

I note that the government is also proposing to amend the law to ensure that it is possible for the Family Court to make an order, in the appropriate circumstances, that child support via the Child Support Agency not be paid to a parent who has taken a child out of Australia. At the moment, preventing the payment of child support where a child has been abducted is actually quite difficult. The government proposes to make that easier—not inevitable but easier—by virtue of an order of the Family Court.

I commend this report to the Senate. It is not as ambitious as at one stage I think the committee considered it ought to be, but it does clearly flag concerns about the ongoing profile of the law with respect to preventing child abduction. I am confident that, if the measures announced by the government and suggested in the committee's report are followed through, we will be able to reduce the number of such cases and remedy them when appropriate.