Department of Community Services and Sharmain (No. 2)

The case involved the Department of Community Services as the applicant and Sharmain (also known as Mack) as the respondent, concerning a child born in December 2004. The dispute centred on the mother's removal of the child from the United States of America on 26 June 2007 and her subsequent retention of the child in Australia. The matter was heard by Justice Rose.

The court was required to determine whether the mother's actions constituted wrongful removal and retention of the child within the meaning of Article 3 of the Convention. A key legal issue was whether the mother had discharged the onus of proving a grave risk of harm to the child, or that the child would be placed in an intolerable situation, should she be returned to the United States. This involved assessing the conflicting evidence presented by both parents regarding alleged violent and abusive behaviour.

Justice Rose found that the removal and retention of the child by the mother were wrongful under Article 3 of the Convention. However, the court was not persuaded, on the balance of probabilities, that the mother had established a grave risk of harm to the child or that the child would be placed in an intolerable situation upon return to the USA. While acknowledging a risk that the child might be exposed to the father's intoxication, this was not considered a grave risk. The court noted the lack of evidence suggesting the mother and child would cohabit with the father in the USA and accepted the mother's evidence regarding her financial capacity to purchase property in Australia.

Consequently, the court declared the removal and retention wrongful and ordered that arrangements be made for the return of the child to the United States in the company of her mother and brother. This order was stayed pending further submissions regarding any conditions that should be attached to it.