Director-General, Department of Communities, Child Safety and Disability Services and Ibbott (No 2)

The case involved the Director-General, Department of Communities, Child Safety and Disability Services, as the applicant, and Mr Ibbott, the respondent father, concerning the alleged wrongful retention of a child, B, in Australia. The dispute arose under the Hague Convention on the Civil Aspects of International Child Abduction, as implemented by the Family Law (Child Abduction Convention) Regulations 1986 (Cth). The central question was whether the child, B, was habitually resident in Ecuador immediately before her alleged wrongful retention in Australia.

The court was required to determine several key legal issues. Firstly, it had to ascertain the child's habitual residence, considering that the mother and child had come to Australia on a scholarship for the mother's studies, funded by the Ecuadorian Government. Secondly, the court considered whether the concept of "inchoate rights of custody" from English law was applicable in determining rights of custody under the Australian Regulations. Thirdly, it examined whether the mother had provided consent for the child to remain in Australia for a fixed period of two years, and finally, whether there was any basis for establishing acquiescence by the father.

Kent J found that the child remained habitually resident in Ecuador, reasoning that the mother's temporary relocation to Australia for study, with a very young child, did not alter the child's habitual residence. The court determined that the concept of "inchoate rights of custody" was not part of Australian law. Furthermore, the court found that the mother had not established consent for the child to remain in Australia for the specified two-year period, nor was there any basis to conclude that the father had acquiesced to the child remaining in Australia.

Consequently, the court ordered the child, B, to be returned to Ecuador. Specific directions were given regarding the timing of the return, the father's restraint from removing the child from Australia or her current residence, and the management of the child and father's names on the Family Law Watchlist. Previous orders from the Federal Circuit Court and earlier orders made by Kent J were discharged, and liberty to apply was granted.