Department of Communities and Justice & Kingsley

In the matter of *Department of Communities and Justice & Kingsley*, Rees J of the Federal Circuit Court of Australia considered an application for the return of a child to Canada under the Hague Convention. The applicant, the Department of Communities and Justice representing the father, sought the return of the child, X, to Canada, from which she had been brought by her mother, Ms Kingsley. The central dispute concerned whether the child's habitual residence had changed to Australia, whether the father had consented to her permanent relocation, or whether her return would pose a grave risk.

The court was required to determine several legal issues. These included whether the child was habitually resident in Australia at the time of her alleged retention, whether the father had consented to the child remaining permanently in Australia, whether the father had acquiesced to the child remaining permanently in Australia after her arrival, and whether there was a grave risk that the child's return to Canada would expose her to physical or psychological harm. The court also considered its discretion under Regulation 16(5) of the Family Law (Child Abduction Convention) Regulations 1986 (Cth).

Rees J found that the respondent mother had not established any of the defences relied upon. The court rejected the argument that the child was habitually resident in Australia, finding that the father's statements about potentially moving to Australia and his signing of a consent letter for the child's travel did not amount to consent to her permanent relocation. The father's deposition indicated surprise and dismay at the mother's actions, negating any claim of acquiescence. Furthermore, the court found no evidence to support the assertion that the child would be exposed to a grave risk of harm upon return to Canada. The court emphasised that the purpose of the Convention proceedings was to determine the appropriate jurisdiction for the substantive family law dispute, not to pre-empt the outcome of those proceedings.

Consequently, Rees J ordered the immediate return of the child X to Canada. The respondent mother was ordered to make the necessary arrangements for the child's return and to bear the costs associated with it, including her own travel expenses. Liberty to apply was granted in relation to any application for conditions of return.