Director General, Department of Family and Community Services and Tsvetan

The Director General of the Department of Family and Community Services applied to the Family Court of Australia for orders to return a child, B, to Country C, pursuant to the Family Law (Child Abduction Prevention) Regulations 1986 (Cth). The respondent, Mr Tsvetan, the child's father, opposed the application, alleging that the child had been in Australia for over 12 months prior to the application, that the child objected to returning, and that the child's mother had consented to her remaining in Australia permanently. The father also contended that returning the child to Country C would place her at grave risk of harm and in an intolerable situation.

The primary legal issue before the Court was whether the child should be returned to Country C under the Hague Convention. This involved determining whether the child had been in Australia for more than 12 months before the application was filed, and if so, whether the child had become settled in her new environment. The Court also considered the weight to be given to the child's wishes and whether the mother had consented to the child remaining in Australia. A further consideration was whether the Court retained a discretion to order the child's return even if she was found to be settled, or if the application should be dismissed as a matter of course.

The Court found that the child had arrived in Australia on 24 June 2010, meaning more than 12 months had elapsed before the application was filed on 9 August 2011. The evidence, including the child's own statements to a family consultant and declarations made by the mother, strongly indicated that the mother had consented to the child remaining in Australia permanently, or at least contemplated that the child might wish to do so, within approximately two weeks of her arrival. The family consultant's report concluded that the child was settled in Australia, had reached an age and maturity where her wishes should be taken into account, and that her objections to returning to Country C were significant. The Court determined that the child's habitual residence had ceased to be Country C upon the parents agreeing she could live in Australia.

Consequently, the Court dismissed the application. It found that the child had not been wrongfully removed from Country C or wrongfully retained in Australia, and therefore the Convention did not apply. The Court concluded that the mother's consent to the child remaining in Australia was established on the balance of probabilities, and that the child was settled in her new environment. The Court also noted that even if a discretion existed to order return in such circumstances, it would not exercise it in this case, given the mother's consent and the child's well-being. All prior orders, including the Airport Watch List, were discharged.