The Court of Appeal has dismissed a father’s appeal against an order requiring his son to return to Australia under the Hague Convention on international child abduction.
The judgment, delivered by Ms Justice Finlay Geoghegan on 2 July 2018, upheld the High Court’s decision that the child had been wrongfully retained in Ireland after an agreed holiday. The appeal court said Irish proceedings concerned the child’s summary return, not custody. Decisions about where the child should live and parental access were for the Australian courts, where he had been habitually resident.
The child was born in Ireland in 2008 and moved to Australia with his mother after a 2010 District Court order allowed her to relocate. An Australian Family Court order made in February 2015 provided for shared parental responsibility, the child to live with his mother, and arrangements for contact with his father. The father moved to Australia in 2013 but returned to Ireland in January 2017 after his visas ended.
In November 2017, the father collected the child in Melbourne for an agreed holiday in Ireland. The holiday was due to end on 29 November. The father did not return the child and said he did not intend to do so. The mother began return proceedings in the High Court in January 2018.
The father argued that returning the child could create a grave risk of an intolerable situation because he might not be able to obtain another visa to enter Australia and maintain physical contact with his son. The Court of Appeal said the father had to prove the factual basis for that defence on the balance of probabilities. It agreed with the High Court that the evidence did not establish that it was highly unlikely he would obtain a visa in future. The judgment noted that he had previously succeeded in visa appeals, had not been found to have breached immigration requirements, and had not appealed the refusal of his 2017 eVisitor application.
The court also considered that the mother had undertaken to support future visa applications connected with contact with the child and to provide necessary documents. It directed that this undertaking be recorded in the return order. The court agreed that the child’s close relationship with his father and best interests had been considered, but said the evidence did not establish the Convention defence. It also upheld the High Court’s conclusion that there was no evidential basis meeting the high threshold for refusal under Article 20.
The appeal was dismissed. The Court of Appeal said the return order should be made forthwith, with a precise implementation date to be settled after hearing counsel.