ATTORNEY-GENERAL’S DEPARTMENT & MCGAFFEY

The case of *Attorney-General’s Department & McGaffey* concerned an application brought before Le Poer Trench J in the Family Court of Australia. The dispute involved an application for the return of a child pursuant to the Hague Convention on the Civil Aspects of International Child Abduction. The application was made more than 12 months after the alleged wrongful removal of the child.

The central legal issues before the Court were whether the child should be returned to his habitual residence, notwithstanding the passage of more than 12 months since the removal, and whether the child's objections to return, his autism, and his settlement in Australia constituted special circumstances justifying a refusal of the return order. The Court was required to consider the child's best interests, the impact of a return on his well-being, and the relevance of his attachment to his mother and his established routine in Australia.

Le Poer Trench J reasoned that while the general rule under the Hague Convention is to return a child if the application is made within 12 months, there is a discretion to refuse return if the child is settled in their new environment. In this instance, the Court found that the child, who has autism, had become settled in Australia. The evidence indicated that autistic children do not respond well to changes in routine, and the child's attachment to his mother, who provided better financial and medical support in Australia, was considered highly relevant. Despite the child's objections to being returned, the family consultant opined that he was not mature enough for his views to be given significant weight. However, the Court ultimately exercised its discretion, finding that the special circumstances of the child, including his autism and his settled state in Australia, weighed against making a return order.

Consequently, the Court dismissed the application for the child's return. The Court further ordered that the passports of the respondent and the child be released to the respondent and that the Airport Watch List order concerning the child be discharged.