Director-General, Department of Communities, Child Safety and Disability Services and Matos Viera

The Director-General, Department of Communities, Child Safety and Disability Services, acting as the State Central Authority, applied to the Family Court of Australia for final orders for the return of a child, S, to Brazil. The respondent was the child's mother, Ms Matos Viera. The application was made under the Family Law (Child Abduction Convention) Regulations 1986 (Cth), which give effect to the Hague Convention on the Civil Aspects of International Child Abduction. The child's father, Mr de Chito, who normally resides in Brazil, had made the initial request for the child's return.

The court was required to determine whether the child, S, was habitually resident in Brazil, whether the father held rights of custody under Brazilian law at the time of the child's retention in Australia, whether the child's retention in Australia by the mother was wrongful, and whether any of the exceptions to a return order, as provided by the Convention and Regulations, were established. The mother contended that the child was not wrongfully retained, that the father did not hold custody rights, that the father had consented to the child remaining in Australia until June 2013, and that the child's return would pose a grave risk of harm or place the child in an intolerable situation, or that the child objected to returning.

Justice Kent found that the applicant had discharged the onus of proof on all requirements. The court determined that the child was habitually resident in Brazil, that the father possessed rights of custody under Brazilian law, and that the mother's retention of the child in Australia beyond the agreed return date of 6 October 2012 was wrongful and in breach of the father's custody rights. The court rejected the mother's contentions regarding wrongful retention, the father's lack of custody rights, and the alleged consent for the child to remain in Australia until June 2013. Furthermore, the mother had withdrawn her claims regarding the grave risk exception and the child's objection to return.

Consequently, the court ordered that the child, S, be returned to Brazil on or before 7 May 2013. The orders included injunctions restraining the mother from removing the child from Australia or changing the child's residence, and provisions for the retention of passports on an alert system, with specific exceptions for facilitating the child's return. The mother was ordered to pay all necessary expenses associated with the child's return, with provisions for reimbursement to the applicant if the mother failed to do so. Certain previous interim orders were discharged, and all other applications were dismissed.