“Invoking the Hague Convention: the left-behind parent’s position”
For the left-behind parent, the Hague Convention is often encountered not as doctrine, but as urgency. The realisation that a child has been removed from Australia or retained overseas without consent is usually sudden and destabilising. Domestic parenting orders and parenting plans, however, carefully drafted, offer little comfort when the child is now beyond the reach of the Australian courts.
It is at this point that the Hague Convention becomes central. Unlike ordinary family law remedies, it operates across borders. It is the mechanism by which Australia can call upon another state to act to return the child home for the merits of the case to be determined in Australia.
Doing so requires speed, clarity and those with experience. There is no substitute for getting it right the first time.
The Form 1 as the foundation of the case
Every outgoing Hague Convention application from Australia begins with a Form 1 lodged with the Australian Central Authority. Although often described as an administrative document, the Form 1 is, in practice, the foundation of the entire case.
It sets out the alleged habitual residence of the child, the rights of custody said to have been breached, the circumstances of removal or retention, and the factual narrative upon which the application will stand. Once transmitted to the foreign Central Authority, it often becomes the principal lens through which overseas courts understand the dispute. Carefully crafting this document early and with precision will not only help the overseas Court understand the dispute; it sets the dispute out clearly to the Australian Central Authority.
The preparation of the Form 1 is not a clerical exercise or one that should be taken lightly – it should be treated as legal advocacy in distilled form.
Habitual residence, rights of custody and proof
As with incoming cases, habitual residence is the basis of outgoing applications. The left-behind parent must establish that, at the relevant time, the child was habitually resident in Australia and that the removal or retention breached rights of custody recognised under Australian law.
These are legal conclusions drawn from factual material. School enrolments, housing arrangements, parental intention and interaction, immigration status, and the child’s day-to-day life all become critical. How these facts are framed can determine whether the Convention applies at all.
The process demands restraint as well as precision. The temptation to argue welfare, fairness or future outcomes must be resisted. The Convention is not concerned with who the better parent is or what idiosyncrasies they have. The question is which court has the authority to decide.
The international dimension
Once an application leaves Australia, control over it diminishes. Foreign lawyers, foreign courts and foreign procedural norms take over. Evidence prepared in Australia will be scrutinised through another legal culture.
This makes outgoing Hague work inherently comparative. It requires an appreciation of how Australian concepts — such as parental responsibility and its exercise— will be understood elsewhere. It also requires realistic advice to parents about timelines, enforcement and the limits of what the Convention can achieve.
The Convention is powerful, but it is not universal. Where a child has been taken to a non-Convention country, the treaty offers no direct remedy. Even within the Convention system, outcomes are shaped by local practice and judicial culture. Countries that are otherwise good global citizens in terms of conventions may respond directly because of thoughts about what constitutes family and where children are best placed.
Experience and access to justice
Delay can entrench a child overseas. Poorly prepared material can undermine an otherwise strong case and having experienced practitioners at the outset matters so deeply.
In Australia, practices that regularly act in Hague matters have developed systems to assist left-behind parents with the preparation of outgoing applications, including Form 1 drafting and evidence collation. One example is www.hagueconventionlawyers.com.au (powered by Hope Earle Lawyers), which assists parents on a fixed-fee basis to prepare Convention-compliant applications and supporting material.