Director-General, Department of Communitites (Child Safety Services) and Mathieson

The Director-General of the Department of Communities (Child Safety Services), acting as the State Central Authority, applied to the Family Court of Australia for orders that a child, C, be returned to Country B. The respondent was the child's mother, Ms Mathieson, who had brought the child to Australia. The application was made 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 child's father, residing in Country B, was the requesting person.

The court was required to determine whether the child's removal to Australia was wrongful under the Convention. This involved assessing whether the child was under 16 years of age, habitually resided in Country B immediately prior to the removal, and whether the father possessed rights of custody under the law of Country B. Further issues included whether the child's return would pose a grave risk, whether the child objected to return, and whether returning the child, who was an Australian citizen, would infringe upon their human rights and fundamental freedoms. The court also considered whether any conditions should be imposed on a return order.

The court reasoned that the Regulations' purpose is to determine the appropriate forum for welfare issues, not to decide the child's best interests directly. It found that the child habitually resided in Country B and that the father held rights of custody under Country B law, despite the ongoing family law proceedings in that jurisdiction concerning parental responsibility and residence. The court rejected the mother's argument that the divorce order in Country B constituted a parenting order or affected custody rights. The court also found that the child's removal was wrongful as it occurred without the father's consent and within one year of the child's habitual residence in Country B. The court determined that none of the exceptions to return, such as grave risk or the child's objection, were established.

The court ordered the child's return to Country B by a specified date, with injunctions restraining the mother from removing the child from Australia or changing their residence pending return. The court also made orders regarding the retention of passports, the involvement of the Australian Federal Police, and the payment of expenses associated with the child's return, with liberty to apply for further orders.