Rights of Access – Art. 21
Under Regulation 25(4) of the Family Law (Child Abduction Convention) Regulations, which implements the Hague Convention into Australian Law, the Australian courts may, where an application is made to secure the effective exercise of rights of access, make any order in relation to rights of access to a child that the court considers appropriate to give effect to the Convention. The Family Court held that in applying this regulation the principle of the paramountcy of the best interests of the child did not apply. It further noted, referring to the earlier case of Police Commissioner of South Australia v. Castell, that the Regulation only applied to access rights already in existence. The court noted that the applicant grandmother had such rights, that those rights had been breached and that the relevant child was habitually resident in a Contracting State at the time of the breach of those rights. Having established that the Regulation was prima facie applicable, the court stated that it had a discretion to decide what was the appropriate order to make in the circumstances. The trial judge stated that regard should be had to the purpose and intention of the Convention, practical issues, the welfare of the child, together with the recency and circumstances surrounding the Arizona court order. The Family Court granted the grandmother’s application but made some amendments to the Arizona court order.