DEPARTMENT OF FAMILY AND COMMUNITY SERVICES & MAGOULAS

The Secretary of the Department of Family and Community Services applied to the Federal Circuit Court for the return of an eight-year-old child to the Ukraine, pursuant to the Hague Convention. The application was opposed by the father, who contended that the child was settled in Australia and that the mother had not been exercising her rights of custody.

The court was required to determine whether the child had become settled in Australia, whether the mother had been exercising her rights of custody at the time of the child's removal, and whether any of the defences to return under the Family Law (Child Abduction Convention) Regulations 1986 (Cth) were established. Specifically, the court considered whether the child’s objection to return was sufficiently mature to be influential, and whether there was a grave risk of physical or psychological harm or an intolerable situation for the child upon return.

Loughnan J found that the child was settled in Australia and that the father had wrongfully removed the child from the Ukraine. However, the court determined that the mother had not been exercising her rights of custody at the time of the removal. While the child objected to returning to the Ukraine, the court found the objection was not sufficiently mature to be influential. Crucially, the court found that the defences of a grave risk of harm or an intolerable situation were not established. Consequently, the court held that there was no discretion to order the child's return.

The application by the Secretary of the Department of Family and Community Services was dismissed.