FOI25 416 Attachment D Documents.pdf

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Advice on Application under the Overseas Child Abduction Scheme
s 47F(1)

Due date: 30 August 2024 – This date is 28 days from the date the application was deemed to be
complete (2 August 2024). The guidelines require a decision within 28 days of receipt of a completed
application.
Recommendation:
I recommend that you approve a grant of legal financial assistance under the Overseas Child Abduction
Scheme to s 47F(1)
for:
(a) s 47F(1)

(the purpose of the application)
(b) in the total amount of s 47E(d)  (GST exclusive) (the amount recommended in the
application), and
(c) for a period of 6 months or until the grant is fully expended, whichever occurs first (the
period of the grant).

Part 1 ─ Executive summary

Assessment
1)  I have assessed the application in accordance with:
a)  the Commonwealth Guidelines for Legal Financial Assistance 2012 (the Guidelines)
b)  the information submitted by, or on behalf of the applicant
c)  the department’s obligations under the Public Governance, Performance and
Accountability Act 2013, and
d)  the requirements of the Commonwealth Grant Rules and Guidelines 2017.
2)  The Commonwealth Legal Financial Assistance Schemes Assessment of Costs July 2012 (the AoC)
document does not apply to the assessment of costs for legal proceedings outside of Australia.1
However, the department has referred to the AoC for guidance when considering the
reasonableness of the requested amounts for consistency with our domestic policy where
appropriate.
3)  Having regard to the above, I am satisfied that the applicant is eligible for legal financial
assistance under the Guidelines. My reasons for supporting the grant are outlined below.
Decision-making authority
4)  Grants under the Scheme are made at the discretion of the Attorney‑General or his delegate
(subsection 1.5(1) of the Guidelines). Your authority for making a decision on the requested
grant is set out in the Attorney General’s authorisations to decide applications for financial
assistance 2024, dated 3 May 2024..

1 Section 1.1 of Commonwealth Legal Financial Assistance Schemes Assessment of Costs July 2012
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Applications for legal financial assistance2
5)  The applicant is s 47F(1)
(the applicant).
6)  This is the applicant’s s 47F(1) application for legal financial assistance. s 47F(1)

The application
was considered complete on 29 July 2024.
Court proceedings
7)  s 47E(d)
is a signatory to the Hague Convention on the Civil Aspects of International Child
Abduction (the Hague Convention), acceding in February 2002. A grant would be consistent with
Australia’s commitment to the principles of the Hague Convention.3
8)  s 47F(1)
Applicant profile
9)  s 47F(1)
10)
11)
Circumstances of the removal and retention of the applicant’s child4
12) s 47F(1)
13)  The child’s s 47F(1) and child departed from s 47F(1)
to s 47F(1)
on
s 47F(1)
. The child and child’s s 47F(1) did not return to s 47F(1)

14)  On s 47F(1)

2 Application form, pp1-34 (Email from the applicant dated 1 July 2024) 24#351219DOC
3 Hague Conference on Private International Law, Hague Convention on the Civil Aspects of the International Child
Abduction, (https://www.hcch.net/en/instruments/conventions/ful -text/?cid=24 see Article 5 and 7)
4 Application form, p11 (Email from the applicant dated 1 July 2024) 24#351219DOC
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Part 2 – Assessment of application
The Guidelines – general principles
15)  Section 5.1(2) of the Guidelines require decision makers to have regard to:
a)  the scope of the schemes covered by the Guidelines
b)  the purpose of the scheme
c)  the special considerations
d)  whether it is reasonable in all the circumstances to make the grant, and
e)  the total funds available for all grants under the legal financial assistance appropriation in
the relevant financial year.
16)  As the decision maker, you may decide the weight that should be given to each matter relevant to
the circumstances of the case (section 5.1(3) of the Guidelines).
Scope of the Scheme
17)  Section 1.5(2) of the Guidelines states that grants may only be made where the proposed
expenditure falls within the scope of the Commonwealth constitutional power. s 7(2)

grant would also be supported
by Financial Framework (Supplementary Powers) Regulations 1997, Sch1AA, Item 402.006:
Objective: To provide funding for legal costs and disbursements in proceedings involving
Commonwealth law, or in circumstances that give rise to a special Commonwealth interest.
18)  I am satisfied the application meets the scope of the Scheme as the application is seeking a grant
of legal financial assistance as part of the enforcement orders made under an international treaty
obligation.
Purpose of the Scheme
19)  Section 3.7 of the Guidelines explains the purpose of the scheme is to provide assistance for a
parent who is seeking the return of a child who has been wrongfully removed from Australia or
retained in another country.
20)  The application meets the purpose of the Scheme under sections 1.5(2), 3.7 and 5.1(2) of the
Guidelines, as demonstrated below:
s 47F(1)
The special considerations
21)  Under the Guidelines (item 1 of section 5.6(1)), the ‘special considerations’ for the Scheme are
specified at Item 2 of section 5.6(2) and 5.6(2)(5).
Scheme’s purpose (section 5.6(2)(4))
22)  Addressed above.

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Connection with Australia and currently overseas (section 5.6(2), item 2(2) and (4))5
23)  'The applicant has resided in s 47F(1)

I am satisfied that there is sufficient connect to Australia.
Criminal history (section 5.6(2), item 2(3))6
24)  A Nationally Coordinated Criminal History Check was conducted by the Australian Criminal
Intelligence Commission on 29 July 2024 and shows no disclosable outcomes.
Fulfilling Australia’s commitment to the principles of the Hague Convention on the Civil Aspects of
International Child Abduction (the Hague Convention) (section 5.6(2)(5))
25)  Noting that s 47E(d)
is a signatory to the Hague Convention, the department considers that a
grant would be consistent with Australia’s commitment to the principles of the Hague
Convention. In particular:
a)  the conviction that the interests of children are of paramount importance in matters relating
to their custody, and
b)  that children should be protected internationally from the harmful effects of their wrongful
removal or retention and to establish procedures to ensure their prompt return to the State
of their habitual residence, as well as to secure protection for rights of access.
Is it reasonable in all the circumstances to make the grant?
26)  You may have regard to ‘any matter relevant to the circumstances of the case’, including (section
5.7(1) of the Guidelines):
a)  the applicant considerations
b)  the financial considerations, and
c)  the legal action considerations.
Applicant considerations
27)  Section 5.8(1) of the Guidelines states that the applicant considerations in this matter are:
a)  an assessment of whether the applicant has the means to meet the cost of the legal action
without incurring serious financial difficulty having regard to his financial circumstances,
and
b)  the nature and extent of the benefit or detriment that may accrue to the applicant as a result
of the legal action.
Financial means (section 5.8(1)(a))7
28)  In accordance with sections 5.7 and 5.8 of the Guidelines, I am satisfied that the applicant does
not have the means to meet the s 47F(1)
without incurring
serious financial difficulty.
29)  s 47F(1)


5 Application form, p3, s 47F(1) online entitlement check & Citizenship interview letter appointment on 22 July 2024 (Email
from the applicant dated 1 July 2024) 24#351219DOC
6 National Co-ordinated police check report (dated 29 July 2024) 24#397137DOC
7 Application form (pp24), s 47F(1)
(dated 18 March 2024) with financial information from s 47F(1) and s 47F(1)
money (Email from the applicant dated 1 July 2024) 24#351219DOC; s 47F(1) statements with payslips (Email from applicant
dated 30 July 2024) 24#400084DOC

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  s 47F(1)
30
31)  I am satisfied that the applicant does not have the means to meet the costs of the s 47E(d)
without incurring significant financial hardship.
Benefit/detriment to the applicant as a result of the legal action (section 5.8(1)(b))
32)  The Guidelines define ‘benefit’ as any advantage and is not limited to property or money. The
Guidelines define a ‘detriment’ as any disadvantage and is not limited to personal injury or to
loss or damage to property (section 2.1 of the Guidelines).
33)  The applicant stands to benefit from the legal action s 47F(1)


Legal action considerations8
34)  The legal action considerations are the prospects of success of the legal action (section
5.15(1)(a)) and whether a party to the legal action has a reasonable case to argue (section
5.15(2)(a)).
Prospects of success (section 5.15(1)(a))
35)  s 47E(d)
36)
s 47F(1)
sovereign citizen s 47F(1)

37)  s 47E(d)

8 Email from s 47E(d), 24#410350DOC
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Reasonable case to argue (section 5.15(2)(a)
38)  I am satisfied that the applicant has reasonable case to argue. s 47E(d)


Financial considerations
39)  Section 5.16 of the Guidelines provides the financial considerations you may have regard to
include:
a)  the likely cost of the legal action
b)  the availability of legal aid from a legal aid commission to fund the legal action
c)  the availability of funds, in any given year, under the legal financial assistance
appropriation
d)  the number and relative merits of other applications for grants made under all schemes
administered within the legal financial assistance appropriation, and
e)  the number and relative merits of grants likely to be made under all schemes administered
within the legal financial assistance appropriation.
Likely cost of the legal action (section 5.16(a)) (GST exclusive – AUD) 9
40)  The applicant has requested an estimated total of s 47F(1)

The costs are as follows:
Description
Requested cost of item
Recommended costs of item
s 47E(d)

s 47E(d)

s 47E(d)

s 47E(d)

s 47E(d)
s 47E(d)
Total
s 47E(d)

s 47E(d)

41)  s 47E(d)
42)  s 47F(1)

. s 47E(d)


43)  s 47E(d)

9 Application form, p28 (Email from the applicant dated 1 July 2024) 24#351219DOC
10 s 47E(d)
(dated 2 August 2024) 24#410082DOC
11 Email from the applicant (dated 2 august 2024) 24#351219DOC
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Availability of legal aid from a legal aid commission (section 5.16(b))
44)  The applicant applied and was grant legal assistance s 47E(d)

Availability of funds (section 5.16(c)) and merits of other applications and grants (section 5.16(d) and
(e))
45)  Section 1.5(3) of the Guidelines state:
Assistance is generally targeted to helping people meet the sometimes prohibitive costs of disbursements.
Targeting assistance in this way ensures that the limited funding available is administered efficiently,
effectively and ethically. It will also ensure that the limited grant funds in any given year are shared
equitably and given to those cases that will assist the community to the greatest extent.
46)  The department’s budget for the Financial assistance towards legal costs and related expenses
sub-program in the 2024-25 financial year is currently $7.865 million. s 47E(d)

47)  s 47E(d)
Conclusion
48)  I am satisfied that it is reasonable in all the circumstances to make a grant of legal financial
assistance.
49)  I recommend you s 47E(d)

. It is, however, open
to you to arrive at a different conclusion under the Guidelines.

s 47F(1)

Senior case officer
Legal Financial Assistance Casework
2 August 2024

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