Commissioner of Police for State Central Authority of South Australia & Garnett

The Commissioner of Police for the State Central Authority of South Australia, as the applicant, brought proceedings against Ms Garnett, the respondent, concerning the alleged abduction of a child, X, from the United Kingdom to Australia. The application was made under the Family Law Act 1975 (Cth) and the Family Law (Child Abduction Convention) Regulations 1986, seeking the child's return to the United Kingdom. The matter was heard by Williams J.

The court was required to determine several key legal issues. Firstly, it needed to ascertain the child X's habitual residence at the time of her removal from the United Kingdom. Secondly, the court had to consider whether the father, at the time of the removal, possessed rights of custody under the relevant convention and whether these rights were breached. Finally, the court was to assess whether the father had consented to or acquiesced in the child's removal, and whether there were any grounds to refuse the return order, such as a grave risk of harm to the child or the child's objections.

Williams J found that the jurisdictional facts were established, meaning the child's removal from the United Kingdom was wrongful. However, the court determined that the father had consented to the child's removal, particularly in circumstances where he handed the child's passports to the mother to facilitate international travel. While the court considered the potential grave risk of physical and psychological harm and the child's objections, it ultimately exercised its discretion to dismiss the application for the child's return.

Consequently, the court ordered the dismissal of the application filed by the Commissioner of Police. The previous orders made on 22 September 2020 were discharged, and the mother was permitted to retrieve any passports lodged with the court. The court also directed the Australian Federal Police to remove the child's name from the Watch List at all points of international arrival and departure in Australia.