Department of Communities (Child Safety Services) and Yeats

The Family Court of Australia considered an application by the Department of Communities (Child Safety Services), acting as the State Central Authority, to return two children, B and C, to Country D. The application was made on behalf of the children's father, Mr G, who resided in Country D. The respondent was the children's mother, Ms Yeats, who appeared by telephone. The court was asked to determine whether the children had been wrongfully retained in Australia and, if so, to make orders for their return.

The court was required to determine if the requirements of the Family Law (Child Abduction) Regulations 1996 (Cth) were met for the return of the children to Country D. Specifically, the court needed to be satisfied that the children were under sixteen years of age, that Country D was a Convention country, that the children habitually resided in Country D, that the father possessed rights of custody, and that the children's retention in Australia was in breach of those rights. The court also considered whether the father was actually exercising his rights of custody at the time of retention.

Justice Kent found that the unchallenged evidence established all the necessary requirements under the Regulations. The court was satisfied that the children were under sixteen, that Country D was a Convention country, and that they habitually resided there. It was also satisfied that the father possessed rights of custody and that the children's retention in Australia on 31 March 2011 was in breach of those rights, which the father was exercising or would have exercised. Consequently, the court found the children had been wrongfully retained in Australia.

The court made orders for the children's return to Country D, subject to certain conditions relating to the father providing funds for airfares and an irrevocable authority to the mother to purchase the tickets. These orders included provisions for the children's departure, injunctions restraining the mother from removing the children from Australia or changing their residence, and the placement of their names on an All Ports Watch Alert System. The court also made provision for the discharge of these orders and the removal of names from the alert system in the event the father failed to comply with his obligations.