Department of Communities and Helscher

This matter concerned an application by the Central Authority for the return of a child, E, born in August 2003, to the United States of America. The application was brought before O’Reilly J of the Family Court of Australia. The respondent was Ms T, representing the Department of Communities.

The primary legal issue before the court was whether the child, E, should be returned to the United States of America pursuant to the Hague Convention on the Civil Aspects of International Child Abduction. This required the court to determine disputed matters of fact, particularly in light of the affidavit evidence presented by the parties.

O’Reilly J applied principles established in English and High Court of Australia authorities regarding the determination of disputed facts in Convention matters. The court noted that where affidavit evidence is irreconcilable and no oral evidence is available or sought, a judge must look for compelling independent extraneous evidence to reject sworn testimony, or determine if the evidence is inherently improbable. If neither is present, the applicant may fail to establish their case. The High Court in *MW & Director-General, Department of Community Services* cautioned against peremptory decisions on imperfect records, even in the context of the Convention's requirement for promptness, and indicated that proceedings may be adjourned for more adequate affidavit evidence or cross-examination if necessary.

The application by the Central Authority for the return of the child E to the United States of America was dismissed. The court further ordered the release of all passports held relating to the child and the mother to the mother or her nominee, and discharged specific prior orders made by Justice Murphy. All other applications in the matter were also dismissed.