DEPARTMENT OF FAMILY AND COMMUNITY SERVICES & ABRAHAM

The Department of Family and Community Services, as the central authority, applied to the Federal Circuit Court for the return of a child to Texas, USA, pursuant to the Hague Convention. The respondent, the child's mother, opposed the application. The central dispute concerned whether the child's removal from Texas was wrongful under the Convention, and alternatively, whether a return order would expose the child to a grave risk of harm or an intolerable situation.

The court was required to determine whether the left-behind parent possessed "rights of custody" for the purposes of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) at the time of the child's removal. This involved interpreting regulation 4(2) and considering the effect of existing Texas court orders. Additionally, the court had to assess whether the defence under regulation 16(3)(b) was established, specifically whether a return to the USA would create a grave risk of harm or an intolerable situation for the child, taking into account allegations of domestic violence, the father's drug addiction, and the mother's financial circumstances. The court also considered the weight to be given to expert evidence, noting that the admissible evidence under regulation 29 was limited to that of the applicant, while the Evidence Act 1995 (Cth) applied to the respondent's evidence.

Le Poer Trench J found that at the time of the child's removal, the existing Texas court orders did not amount to "rights of custody" as defined by the Regulations, and that rights of access did not constitute rights of custody. Consequently, the court determined that the removal was not wrongful under Article 3 of the Convention. Furthermore, the court found that if the child were returned to the USA, she would be placed in an intolerable situation due to the circumstances surrounding the mother's potential imprisonment, the father's history of drug addiction, and allegations of domestic violence. This satisfied the grave risk of harm defence under regulation 16(3)(b). The court also noted that little weight could be given to the expert evidence due to its lack of impartiality.

The application by the respondent to re-open the proceedings was refused. The primary application for the return of the child was dismissed. Existing orders were discharged, and documents surrendered by the respondent were to be returned. The applicant was ordered to serve a copy of the court's order on the Australian Federal Police.