The High Court has ordered the return to Australia of a young child who had been living in Ireland with her mother, finding that the child remained habitually resident in New South Wales and that her father had not consented to her staying in Ireland.
The judgment, delivered by Mr Justice John MacMenamin on 17 July 2009, concerned an application under the Hague Convention on the Civil Aspects of International Child Abduction. The father applied through Australia’s central authority on 13 February 2009, seeking the child’s return to Australia. The parents, identified in the judgment as A.S. and C.S., have been anonymised, as has their daughter, R.
The family travelled from Australia to Cork in December 2008. The parents disagreed about whether the move was intended as a temporary stay or a longer relocation. The judge found that they intended to spend a significant period in Ireland, possibly up to a year, but that the evidence did not establish a joint intention to settle there continuously. The parents lived together in Ireland for less than a month. The father returned to Australia alone in early 2009.
The court said the relevant issues were the child’s habitual residence and whether the father had consented to her remaining in Ireland. It found that the child had lived in Australia from birth until December 2008 and had not been in Ireland long enough to become habitually resident there. The judge concluded that her habitual residence remained New South Wales.
The mother argued that the father had agreed to the child staying in Ireland. The judge found that the evidence did not prove clear, positive and unequivocal consent. The court therefore found that the retention was wrongful under the Convention and ordered the child’s return to Australia.
The order determines the state where custody and access issues are to be resolved; it does not decide where the child must live in the future. The judge said no grave-risk argument had been pursued. He also directed that clear arrangements for the child’s custody, access, accommodation and subsistence in New South Wales be put in place before the return order takes effect. He said he would hear counsel on the terms of compliance and those arrangements.