Director-General, Department of Communities (Child Safety Services) and Terry

The Director-General, Department of Communities (Child Safety Services), acting as the Central Authority under the Family Law (Child Abduction Convention) Regulations 1986 (Cth), applied to the Family Court of Australia for orders that a child, B, be returned to Country C. The application was made at the request of the child's father, Mr F, who resided in Country C, against the child's mother, Ms Terry, who resided in Queensland, Australia. The dispute concerned the wrongful removal of the child from Country C to Australia, which is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction.

The court was required to determine whether the removal of the child to Australia was wrongful under the Convention and the Regulations. This involved assessing whether the father possessed rights of custody under the law of Country C, whether these rights were actually being exercised or would have been exercised had the child not been removed, and whether the removal breached these rights. The court also considered the age of the child and the habitual residence of the child prior to the removal.

The court found that under Country C law, both parents were joint guardians of the child, and this guardianship included the right to determine the child's place of residence. The existing parenting order in Country C did not alter the father's guardianship rights. Consequently, the father possessed rights of custody as defined by the Regulations. The court determined that the child's removal to Australia was in breach of these rights. While the mother contended that the father was not exercising his rights of custody and would not have done so, the court found it unnecessary to definitively resolve this factual dispute to make its determination.

The court ordered that the child, B, be returned to Country C by a specified date. The order included various provisions to facilitate the return, such as restraining the mother from removing the child from Australia or changing his residence, and requiring the Australian Federal Police to place the child and mother on an alert system. The mother was also ordered to pay the necessary expenses associated with the child's return.