DEPARTMENT OF FAMILY AND COMMUNITY SERVICES & EVELYN

The case involved the Department of Family and Community Services (acting as the applicant) and Evelyn (the respondent), concerning allegations of wrongful retention of children under the Hague Convention on the Civil Aspects of International Child Abduction 1980. The father alleged that the mother had wrongfully retained the children in Australia, despite a Canadian court order permitting their temporary stay for six weeks. The mother raised defences that the children objected to returning to Canada and that their return would expose them to a grave risk of physical and psychological harm or place them in an intolerable situation.

The court was required to determine whether the children had been wrongfully retained in Australia, and if so, whether any of the defences raised by the mother were made out. Specifically, the court had to consider the weight to be given to the children's objections and assess the evidence regarding the alleged grave risk of harm or intolerable situation upon their return to Canada, in light of the Canadian court's prior adverse view of the mother and its determination that the father was an appropriate carer.

Le Poer Trench J reasoned that the Convention's primary aim is the prompt return of children wrongfully removed or retained. While acknowledging the defences of the children's objections and grave risk, the court found that the evidence did not support these claims to the extent required to refuse a return order. The court noted the Canadian court's findings regarding the father's suitability as a carer and the mother's prior conduct. The court ultimately ordered the return of the children to Vancouver, Canada, forthwith, accompanied by their father. The order stipulated that the father would collect the children in Australia and accompany them to Canada, with liberty to apply for further orders to implement the return or impose conditions, and a provision for discharging the return order if the children were not returned within six months.