ORCID Profile
0000-0002-1545-0309
Current Organisation
University of South Australia
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Publisher: Wiley
Date: 2014
DOI: 10.1111/FCRE.12069
Publisher: SAGE Publications
Date: 06-2016
Publisher: Elsevier BV
Date: 2011
DOI: 10.2139/SSRN.2640417
Publisher: Oxford University Press (OUP)
Date: 03-01-2018
Publisher: Brill
Date: 24-11-2018
DOI: 10.1163/15718182-02604008
Abstract: This article examines the appropriateness of applying civil limitation laws to adult civil law claims in historical childhood abuse cases, focusing on issues of legal policy attending the use of such laws highlighted in the Australian case of Brisbane South Regional Health Authority v. Taylor . It is argued that civil limitation laws are inappropriate when applied to such cases and that ultimately such laws often give primacy to the interests of alleged wrongdoers and to the need to protect alleged wrongdoers from civil law redress in a context in which the ordinary justification for such laws is weak when weighed against the enormity of the injury caused by the abuses complained of and the acute difficulties victims often face in pursuing timely enforcement action in respect of the childhood rights allegedly violated. The article also contains a review of recent developments in the law in several jurisdictions.
Publisher: Brill
Date: 22-08-2022
DOI: 10.1163/15718182-30030010
Abstract: The Hague Convention on the Civil Aspects of International Child Abduction creates an exception to the mandatory return of abducted children if the child objects to being returned to their country of habitual residence and has attained an age and degree of maturity at which it is appropriate to take account of their views. The Australian regulations also require that the child’s objection demonstrates a ‘strength of feeling beyond the mere expression of a preference or of ordinary wishes.’ This article examines this unique requirement and how it has been approached by the Family Court. It finds that many Australian judges treat the “strength of feeling” requirement as an additional hurdle that children must overcome before their objection can be taken into account. This approach is contrary to Australia’s international obligations under the Convention. A less restrictive approach, which some other judges follow, is recommended to ensure that the Convention’s primary objective of protecting children is met.
Publisher: MDPI AG
Date: 05-08-2023
DOI: 10.3390/LAWS12040069
Abstract: In this article we compare how children’s objections to being returned to their country of origin are treated in Hague child abduction matters in three different international jurisdictions: England and Wales, Australia, and the United States. We examine the relevance of children’s views for the purposes of the ‘gateway’ stage of the relevant exception to mandatory return, and how children’s objections have been approached in legislation, case law, and scholarly commentary. We critique each jurisdiction’s approach against the objectives of the Hague Convention and the Convention on the Rights of the Child. We discuss how aspects such as the methods by which children are heard can make a difference to experiences for children and make recommendations to promote greater certainty and consistency in how children’s objections are heard and considered across jurisdictions.
No related grants have been discovered for Michelle Fernando.