Department of Communities and Justice & Bamfield

In this matter, the Department of Communities and Justice, acting on behalf of a child, contested the mother's refusal to return the child to Belgium. The mother, who was originally from Belgium, had moved to Australia and subsequently retained the child in Australia against the father's wishes. The case was heard in the Family Court of Australia, where the primary issue was whether the child should be returned to Belgium and under what conditions, considering the mother's wrongful retention of the child. The court also needed to decide whether enforceable orders should be made in Belgium to ensure compliance with the conditions for the child's return.

The court considered the implications of wrongful retention and the child's habitual residence in Belgium. It noted that the mother's intention to reside in her country of origin, rather than in Belgium, was a significant factor in the case. The court emphasised that parenting responsibility should otherwise be joint and that neither parent should remove the child from Belgium without the other's written consent. Regarding the enforcement of orders, the court invited the parties to request contact with the designated judge in Belgium to ascertain the necessary steps to obtain enforceable orders there. The court also recommended mediation to help the parents establish a cooperative and constructive relationship following the child's return to Belgium.

In conclusion, the court found that the child should be returned to Belgium, and it reserved the right for the parties to apply for alternative orders. The court requested the Independent Children's Lawyer to ascertain whether the parents were amenable to mediation and to arrange it if they agreed. The court's decision was clear that the wrongful retention of the child by the mother in Australia, against her habitual residence in Belgium, necessitated her return to Belgium under specified conditions.