Garning and Director-General, Department of Communities, Child Safety and Disability Services & Ors (Discharge of Return Order)

This matter concerned an application by a mother to discharge an order placing her four children into foster care pending the outcome of her appeal to the High Court of Australia concerning a return order made under the Hague Convention. The children had previously been the subject of a return order to Italy, which was upheld on appeal to the Full Court. Following their recovery after being secreted, an order was made placing them with a person nominated by the Department of Communities, Child Safety and Disability Services, and they were subsequently placed with a foster carer. The mother sought orders that the children live with her pending the High Court appeal, presenting evidence of the children's substantial distress, their repeated desire to return to her care, and threats of self-harm by at least one child. Murphy J of the Federal Circuit Court of Australia considered these applications.

The primary legal issues before the Court were whether to discharge the existing foster care order and, if so, what interim arrangements should be made for the children's living arrangements pending the High Court appeal. Additionally, the Court considered an application by the children's maternal great aunt for appointment as their case guardian, and whether the children's right to be heard had been adequately afforded.

Murphy J reasoned that the children's distress, their expressed wishes to live with their mother, and the evidence of self-harm threats weighed heavily in favour of altering their current placement. The Court found that the children's right to be heard was sufficiently met by the material already before the Court, and therefore dismissed the maternal great aunt's application for case guardian. The Court then made orders discharging the previous order placing the children with a foster carer and ordered that the children live with the mother until further order, with specified time with the father. These orders were made conditional upon the mother providing a comprehensive list of undertakings, including not to remove the children from Australia, not to discuss the proceedings with them, and to prevent others from doing so, among other conditions. The Court also made orders regarding the father's time with the children, therapeutic counselling, and reporting requirements for the mother.