Department of Communities and Clementine

The case involved the Department of Communities, acting as the applicant, and Ms Clementine, the respondent mother. The dispute concerned the return of a child, S, born in June 2007, to New Zealand. The matter was heard by O’Reilly J in the Family Court of Australia.

The court was required to determine whether the child, S, had been wrongfully retained in Australia contrary to the provisions of the relevant Convention. This involved considering the definition of "retention" within the context of international child abduction conventions and the specific factual circumstances of the child's presence in Australia.

O’Reilly J applied established legal principles regarding the determination of disputed facts in Convention matters, referencing decisions from the English Court of Appeal. The court considered the distinction between the "removal" and "retention" of a child, noting that retention occurs when a child, present outside its habitual residence for a limited period, is not returned at the expiry of that period. The court found that the mother's submission that there was no retention because the father had abandoned them was not accepted. Instead, the court determined that retention occurred on the day following the expiry of the agreed period for the child's stay in Australia, as per the Convention's framework.

The court ordered that the child S be returned to New Zealand, with specific provisions outlined in Annexure A to facilitate this return. These provisions included the child's departure from Australia by a specified date, injunctions restraining the mother from removing the child from Australia or changing their residence, and arrangements involving the Australian Federal Police and the Department of Communities. The court also discharged previous orders and dismissed all other applications.