A. & G.S. & Others [2004] FamCA 967, (2004) FLC 93-199, (2005) 32 Fam LR 583

INCADAT legal file Hague parental abduction

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Human Rights – Art. 20
The step-sister argued that the trial judge had erred in referring solely to the human rights of the abducted child and not to hers. This argument was rejected by the Full Court which ruled that the exception was concerned solely with the child to be returned or his or her custodial parent.
Procedural Matters
For the step-sister it was submitted that under the wording of reg 14, (Family Law (Child Abduction Convention) Regulations 1986) it was only the Central Authority that could apply for a return order. She further submitted that given that the wording was clear and unambiguous it was unnecessary to look at the Convention or at other background material. Finally she argued that the decision of the majority of the Full Court in Panayotides & Panayotides (1997) FLC 92-733 (being that the non-abducting parent may bring an application under the Regulations) should not be followed, but rather that the minority decision of Finn J in that case (being that the non-abducting parent cannot bring an application) should be followed. The father, supported by the Attorney General of the Commonwealth of Australia and the Commonwealth Central Authority, opposed these submissions. In Panayotides the return application had been brought by the Queensland Central Authority but this was dismissed at first instance. The appeal was brought by the father and it was in this context that the issue of standing was considered; the majority concluding that the left behind parent was entitled to so act. In the instant case the Full Court concluded that the majority view in Panayotides should not be followed. It held that whilst the construction of the regulations must endeavour to give effect to the terms of the Convention including Article 29 (which seeks to preserve the rights of individuals to apply for relief under the Convention), the implications of a return order were so significant that any conferral of jurisdiction on a court to make such an order on the application of a person other than a Central Authority would need to be clearly spelt out in the Regulations and this has not been done.