The federal government is considering changing the law to ensure victims of domestic violence are not forced to send their children back to abusive partners under the requirements of an international treaty.
The Hague Convention on the Civil Aspects of International Child Abduction was drafted more than 40 years ago, to ensure one parent could not remove a child from a country without the consent of the other parent.
However, many women argue that it forces them, and their children, to return to dangerous situations.
One Australian woman, Sue (not her real name), was in a relationship with a man from Europe.
She became pregnant and was intending to give birth in Australia.
However, she says, he coerced her to visit him in his country where domestic violence landed her in hospital and forced her to give birth there.
"I was in a dangerous relationship, and I didn't realise until it was too late," she said.
She left the European country, taking the baby to Australia on the first flight she could get on.
The father has now applied for the child's return under the Hague abduction convention.
Sue is now fighting that application in court.
"I had no idea about the Hague convention — I'd never heard about it in my life," she said.
"For me, I was returning home to the country I had intended to give birth in … to my homeland, with my family, with my support, with my friends, where my work is.
"Just because I gave birth over there, the Hague doesn't take into consideration domestic violence and I am stuck fighting this law that is just geared towards allowing abusive men to win."
Sue says she is in no doubt of what she and her baby face if they are forced to go back.
"I know that if I were sent over he would fulfil his promise of burying me and getting away with it — and my baby would be motherless," Sue said.
Campaigning for change
Sue wants the Australian courts to change their approach to Hague child abduction cases.
"I would like to see the judges understanding that domestic violence perpetrated against a mother is a grave risk of harm and is an intolerable situation for children," she said.
Article 13 of the Hague abduction convention states the return of a child can be rejected if the court decides there is a "grave risk of harm" or that the child's return would place him or her in an "intolerable situation".
However, Gina Masterton — a lawyer based in Brisbane who wrote her PhD thesis on the Hague convention — said that this is rarely applied in Hague cases involving domestic violence, because judges treat the convention as a jurisdictional law, even if significant evidence of domestic violence has been produced.
She said the approach applied in domestic family law cases is different to that in Hague cases.
"The child's best interests are not taken into account in Hague cases, and this is proving to be a major issue for abused women and children who flee to Australia," she said.
"Domestic violence to the mother is not considered by the courts to be abuse [of] the child.
"Consequently, urgent law reform is required to protect these vulnerable people from attack in this way by abusive partners."
Dr Masterton said the Hague abduction convention was drafted in the late 1970s, to tackle the large number of cases involving fathers taking their children from their mothers and fleeing to other countries.
"I've always said the Hague convention is very good for its purpose, but it was never meant to be applied to cases involving domestic violence," she said.
"And that's why there's nothing in the convention that talks about domestic violence or domestic abuse."
"I don't know how a woman, who is in fear for her safety, is meant to notify her abuser that she's leaving to go back to the country where she has family and friends and support."
What happens when a court rules the child is returned?
When a court rules the child must be returned to the country they had fled, the mother is often faced with an unbearable predicament.
"The court can never order a mother to return and that's what the judges like to say … they say: 'You don't have to go back, we're ordering that the child is returned'," Dr Masterton explained.
However, according to Dr Masterton, in most cases, mothers do return with their children because they don't want to be separated from them, especially if they're young.
"Out of the 10 women I interviewed for my PhD, only one woman didn't return and she said that was because she knew she'd get killed if she did go back," she said.
"So, she had to put her six-year-old daughter on a plane and send her back by herself to go and live with [the woman's] mother in the other jurisdiction."
Once the child is returned to the country of origin, custody disputes must be resolved there.
"You have to fight through the domestic courts then, because either the father's managed to get orders in his favour in the mother's absence, and a lot of women who've done that and returned are punished by the court," Dr Masterton said.
In one tragic case in 2008, English woman Cassandra Hasanovic — who had fled to Australia with her two sons — returned to the UK under the Hague abduction convention. She was then stabbed to death by her husband.
Where to from here?
More than 90 countries are signatories to the Hague abduction convention and, with so many jurisdictions to consult, it's a complex and lengthy task to amend.
However, Dr Masterton and campaigners are seeking several changes to Australia's Hague Regulations in the Family Law Act, including adding a specific domestic violence defence, and restricting fathers with extensive criminal histories from filing return applications.
"I'd like to see a domestic violence defence added to Australia's law so that — when women escape domestic violence with their children and cross international borders — there's something in our law that can address that situation and, possibly, help mothers in that circumstance," she said.
Shadow Attorney-General Julian Leeser has called on the Labor government to urgently review this aspect of the law.
"The courts giving insufficient weight to evidence of family and domestic violence in Hague convention cases can have devastating consequences," he said.
"The application of the law relating to the Hague convention should reflect the broader values of the Australian community when it comes to dealing with domestic and family violence," Mr Leeser said.
However, a challenge in finding a solution was preserving the original purpose of the Hague convention: where domestic violence was not present but where partnerships between parents had broken down.
A spokesman for the federal attorney-general, Mark Dreyfus, confirmed his department was seeking advice on what changes could be made to ensure the Hague abduction convention cannot be abused, and whether its implementation could be made safer for women fleeing violence.
"The government is committed to ensuring that Australian courts place sufficient weight on risks of family violence when considering the appropriateness of return orders for children to their country of residence," the spokesperson said.
In the meantime, Sue is campaigning for change.
"I fight because I fight for my baby," she said. "And because my heart is trying to save the children."
