Department of Community Services & Whipp

The case of *Department of Community Services & Whipp* concerned an application brought under the Hague Convention on the Civil Aspects of International Child Abduction. The dispute arose after a baby, born in Australia, was taken to New York by agreement. Interim orders had been made in Australia before the child's departure. Subsequently, the mother brought the child back to Australia, alleging that the child was habitually resident in Australia. The father was not recorded on the child's birth certificate, and the mother denied he had rights of custody. Petitions concerning paternity and custody had been filed by the father in the Family Court of the State of New York, but these had not been served on the mother prior to the child's removal from New York.

The central legal issues before the court were whether the child had been habitually resident in New York, whether the father had been exercising rights of custody at the time of the child's removal, and whether the mother had consented to or acquiesced in the child's removal from New York. The court also considered the implications of the New York Family Court not having exercised its rights of custody. Expert evidence on New York Family Law was presented to assist the court in determining these issues.

Justice Ryan found that the Central Authority had failed to establish the threshold conditions necessary for the application of the Abduction Convention. His Honour reasoned that the father had not been exercising rights of custody at the relevant time, and that the mother had not consented to or acquiesced in the child's removal from New York. Consequently, the application brought by the Department of Community Services as the Central Authority was dismissed.