Legal Project Management Plan & Checklist
Rebut consent and acquiescence defences in Hague child abduction proceedings before the FCFCOA under reg 16(3)(c)/(d) of the Child Abduction Regulations 1986.
What is the consent and acquiescence defence in Hague Convention proceedings?: Under reg 16(3)(d), a court may refuse to return a child if the respondent proves the left-behind parent consented to, or subsequently acquiesced in, the removal or retention. Consent must be given before the removal; acquiescence occurs after. Both must be real and unequivocal. In the Marriage of Graziano (1991) 14 Fam LR 697 confirmed that consent is not merely passive failure to object - it requires positive conduct consistent with agreement to the arrangement. Text messages, emails, signed agreements, and conduct following the removal are all potentially relevant evidence.
How does the applicant respond to a consent or acquiescence defence?: Gather and file all written communications with the respondent before and after the removal. Obtain witness statements from persons who observed the applicant's reaction. Demonstrate that any apparent consent was conditional, limited in time, or procured by misrepresentation. Prepare a reply affidavit that squarely addresses each piece of evidence relied upon by the respondent.
Jurisdiction: Federal Circuit and Family Court of Australia (FCFCOA), applying reg 16(3)(c) and (d) of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) and Hague Convention 1980 Arts 13(a) and 13(c).
The Process at a Glance: Receive and analyse the respondent's consent or acquiescence evidence. Obtain a full chronology of all written and oral communications between the parties. Gather evidence of the applicant's steps to secure the child's return immediately after the removal as contemporaneous evidence negating acquiescence. Prepare a comprehensive reply affidavit addressing each piece of consent evidence and draft written submissions on the legal threshold.
Key Legislation and Case Law: Family Law (Child Abduction Convention) Regulations 1986 (Cth) regs 16(3)(c) and 16(3)(d); Hague Convention 1980 Arts 13(a) and 13(c). In the Marriage of Graziano (1991) 14 Fam LR 697 (consent must be real and unequivocal); P v P (Abduction: Acquiescence) [1998] 2 FLR 835 (English - limited time consent does not constitute general acquiescence); De L v Director-General, NSW Department of Community Services (1996) 187 CLR 640 (High Court - pro-return philosophy).
* Disclaimer: We're nobody's lawyer, because we aren't lawyers. You are, so you know better than to take legal advice from an app. We also aren't accountants or dog trainers - just digital spirit guides taking zero liability for any of this. This site exists to gather the collective knowledge of practitioners like you. Verify everything and submit your feedback on the Hague Convention Child Return Application - Left-Behind Parent - Respondent Raises Consent or Acquiescence (Reg 16(3)(c)/(d)) matter plan to improve the playbook. THIS IS NOT LEGAL ADVICE, it's a request for input.
This legal matter plan provides a structured workflow for Family Law cases, outlining the standard Litigation process. Utilize these tracking templates to manage your legal cases efficiently.
Build a complete picture of the applicant's communications before and after the removal to rebut consent allegations.
Identify the strongest arguments against each piece of consent evidence.
File a complete evidentiary response squarely addressing the respondent's case.
Obtain return order notwithstanding the consent or acquiescence defence.
Got a question about this plan?
Ask in the practitioner Discord - edge cases, rule changes, and jurisdiction-specific nuances, all in one place.