Department of Family and Community Services and Gurner

The applicant, the Department of Family and Community Services, sought orders for the immediate return of a child, B, to the United States of America under the Family Law (Child Abduction Convention) Regulations 1986 (Cth). The respondent was Ms Gurner. The matter was heard by Watts J in the Family Court of Australia.

The central legal issue before the court was whether the child, B, had been wrongfully removed from the United States of America and whether the conditions for the child's return under the Convention were met. The court was required to determine if the removal was in breach of the applicant's custody rights and if the child had established habitual residence in Australia.

Watts J dismissed the application for the child's return. The reasoning involved a detailed consideration of the evidence presented regarding the child's habitual residence and the circumstances surrounding the child's presence in Australia. The court found that the threshold for establishing wrongful removal under the Convention was not met. Consequently, the court discharged previous orders and made specific interim orders for a period of 28 days, restraining the respondent and the child from leaving Australia, and requiring their names to remain on a watch list, with passports and air tickets to be retained by the Registrar.