By Alexandra Fildes, Associate

Return of children from Ukraine & Hague Convention

In Magoulas, the 12-month limitation period for the mandatory return of a child is discussed. Does the 12 months begin when the child is removed; or from when the child arrives in Australia?

Key facts:

  1. The child was born in Ukraine in 2009 and is a citizen of the Ukraine and Australia.
  2. The child had lived in Ukraine for most of his life, until September 2016.
  3. The mother was born in Ukraine and is a Ukraine citizen.
  4. The father was born in Australia and is an Australian citizen.
  5. There are other children of the relationship.
  6. The relationship between the mother and the father broke down between late 2015 and early 2016.
  7. The father left Ukraine with the child in the first week of September 2016, travelling through Europe and arriving with the child in Australia on 2 November 2016.
  8. The mother applied to the Ukraine Central Authority on 20 September 2017 and on 8 December 2017 the New South Wales Authority filed an application in the Family Court of Australia under the Abduction Regulations for the child to be returned to the Ukraine.
  9. Both Ukraine and Australia are signatories to the Hague Convention.

When does the 12 months commence?

Regulation 16 of the Hague Convention provides that if there has been the wrongful removal of a child (under 16 years of age) from their habitual place of residence the court is compelled to have the child returned, unless one of the exceptions apply. The application is to be “filed within one year after the child’s removal or retention”.

In Magoulas, 12 months had lapsed since the child left the Ukraine but it had not been 12 months since the child arrived in Australia (as they travelled through Europe before hand). Counsel for the mother submitted that the 12-month period began at the point the child arrived in Australia with the effect that the mother was within time to make the application.

The Judge looked at the intention of the Hague Convention when ascertaining the meaning of the regulation:

“The intention of the Convention is clearly to require the mandatory return of the child within a year of wrongful removal or retention and to require the mandatory return of the child after the expiration of a year, unless it can be demonstrated that the child has settled in his or her new environment.”

Judge Loughnan decided that the date is to be from when the child was removed from the country not when the child arrived in Australia. As the 12-month period had elapsed, consideration had to be given to whether the child has successfully settled into their new environment. The onus was on the father to show the court that the child had done so.

Has the child successfully settled in Australia?

His Honour looked at a number of factors:

  • where the child is living,
  • the medical treatment the child had received;
  • schooling and education – how proficient the child was in English;
  • the social network surrounding the child;
  • the father’s employment and economic ability to support the child;
  • communication between the child and the maternal grandparents and the mother; and
  • the child’s thoughts about living in Australia and returning to the Ukraine.

The Judge concluded that the child seemed to be achieving “remarkable” academic results and spoke to his maternal grandparents numerous times each week. The child would speak to the mother however, never for that long and on many occasions the mother would not answer the phone. While the child did miss his brother, his Honour nevertheless found that the child had settled into his new environment.

The outcome of the Court finding that the child had settled in Australia meant that the Judge was no longer bound to have the child returned to the Ukraine.

Department of Family and Community Services & Magoulas [2018] FamCA 102