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The Federal Government has changed the law to address concerns regarding the way Australian courts deal with international child abduction cases where a parent has fled domestic violence overseas.
Key points:
- Some Australian courts are sending women back to countries where they've escaped abusive partners, experts say
- Attorney General Mark Dreyfus says the law will be the changed so courts can consider domestic violence before ruling
- Mr Dreyfus added that Australia "fully respects" its international obligations under the Hague Convention
Some legal experts and victims of domestic violence who have been caught up in legal matters filed under the Hague Convention have warned that Australian courts are sending women and their children back to countries where they have escaped abusive partners.
The Hague Convention is an international agreement between dozens of countries, including Australia, designed to swiftly respond to cases where a child has been taken by one of their parents to another country without the consent of the other parent.
Attorney General Mark Dreyfus has agreed to amend the law to make it clear that allegations of family and domestic violence can be considered before Australian judges' issue orders for a child to be returned to their home country.
"Up until now, it has not been possible for the courts to take adequate account of family and domestic violence that's occurred," Mr Dreyfus told the ABC.
"What we've done with these new regulations is to amend the law to protect parents and children fleeing family and domestic violence.
"In future, these regulations will make it clear that allegations of family and domestic violence can be considered before return orders are made.
Under the Hague Convention, applications for a child to be returned can be rejected if a court decides that the child would face a "grave risk of harm" or be put in an "intolerable situation".
Mr Dreyfus says the changes will clarify that family and domestic violence can be considered as a defence under the "grave risk" exemption.
The amendments will also clarify that judges can impose "very tight" conditions when issuing return orders "to protect a child from exposure to family or domestic violence even if the court is not satisfied that such violence has occurred or will occur".
"Australia fully respects our international obligations under the Hague Convention," Mr Dreyfus said.
"These regulations affirm that protection from family and domestic violence is an important consideration in proceedings."
Legal experts say that the convention, which was first drafted in the 1980s, was created with good intentions but has not evolved as societal understanding about the prevalence of domestic violence has shifted.
In one case in 2008, English woman Cassandra Hasanovic, who had fled to Australia with her two sons, was stabbed to death by her husband after she returned to the UK when court orders were issued under the Hague Convention.
The changes have been done by regulation and do not require passage through parliament.
They will come into effect immediately and will not apply retrospectively.
Calls for changes have simmered for months but were dismissed by former Attorney General Michaela Cash despite some Coalition members agitating for a review last year.
"Courts are well placed to make such decisions and consider a range of matters in making their decisions, including submissions from parents," Senator Cash previously told the ABC in July last year.
Since becoming the Shadow Attorney General Julian Leeser has taken a very different stance, saying courts have failed to give adequate consideration to allegations of domestic abuse.
"The courts giving insufficient weight to evidence of family and domestic violence in Hague Convention cases can have devastating consequences," Mr Leeser previously said.