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Children’s Views in Abduction Cases

The Full Court of the Family Court of Australia decision of Colak & Viduka [2016] FamCAFC 79 reviewed the issues relating to not returning a child to their overseas home following parental abduction where the child expresses a view against returning.

The family had lived in Croatia since 2006 when the two children were four and three. The father and the children were born in Australia and the mother in Croatia. In 2014 the mother removed the children from Croatia to Australia and at the time of trial were aged 12 and 14. There was no dispute on appeal that the mother had wrongfully removed the children from their habitual residence in Croatia in breach of the father’s custodial rights.

The mother defended the return of the children under the regulations implementing the Hague Abduction Convention on the basis the children objected to being returned and were of an age and maturity that their objections should be considered.

Family Law Regulation 16(3)(c) provides that the child’s objection shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes and that the child has attained an age, and a degree of maturity, at which it is appropriate to take account of his or her views. The judge at first instance found in the mother’s favour.

The Family Consultant observed the children’s views “would need to be viewed within the context of them being unhealthily aligned with their mother” and the family doctor gave evidence that the children’s “psychological health would most likely deteriorate markedly if they returned to Croatia”.

The trial judge found the children’s emotional maturity was compromised by enmeshment with the mother’s views. The question the judge posed was whether the views of intellectually mature children whose emotional maturity has been compromised should be taken into account and answered by stating it was unrealistic not to do so.

The Full Court declined to reverse the decision as it concluded any difference it may have with the trial judge was a difference of view as to a matter of weight and this was insufficient to reverse the decision.


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