Department of Community Services & Frampton

The Director-General of the Department of Community Services, as the delegate of the State Central Authority, applied to the Family Court of Australia for the return of a child to Scotland pursuant to the Family Law Act (Child Abduction Convention) Regulations. The respondent mother opposed the application on several grounds, including that the child did not habitually reside in a Convention country, that the father had acquiesced in the child's retention in Australia, and that the child's return would expose her to psychological harm or an intolerable situation.

The primary legal issues before the court were whether the child's habitual residence immediately prior to her removal to Australia was in a Convention country, and if not, whether the father had acquiesced in the child remaining in Kenya, which was not a Convention country. The court was also required to consider whether the return of the child to Scotland would expose her to a grave risk of psychological harm or place her in an intolerable situation. The court examined the concept of habitual residence and the legal principles surrounding acquiescence, drawing on case law that emphasised the need for clear and unequivocal words or conduct to establish acquiescence.

Justice Le Poer Trench found that the father's statement, "Enjoy your life in Kenya," coupled with his failure to traverse the mother's affidavit detailing this conversation and his prior inquiries about proceedings in Kenya knowing it was not a signatory to the Hague Convention, constituted acquiescence in the child remaining in Kenya. Consequently, the child's habitual residence was determined to be Kenya, a non-Convention country, meaning the Convention and Regulations did not apply. Even if this finding were in error, the court found that the mother would be unable to meet the conditions of any visa that might allow her to accompany the child to Scotland, and requiring the child to return without her primary carer would expose her to psychological harm or an intolerable situation.

The application by the Director-General of the Department of Community Services was dismissed.