HBH & Director-General, Department of Child Safety (Qld)

This matter concerned an appeal to the Full Court of the Family Court of Australia regarding an application for the return of a child under the Hague Convention on International Child Abduction. The parties were separated parents of a young child. The mother brought the child to Australia from the Netherlands, with the father following shortly after. The father subsequently returned to the Netherlands and initiated proceedings for the child's return, alleging wrongful retention by the mother in Australia.

The central legal issue before the Full Court was whether the child's habitual residence had ceased to be the Netherlands. This determination hinged on whether the father's relocation to Australia was conditional, as he asserted, or if it represented a shared, settled, and unconditional intention to relocate with the child. The father contended that his move was contingent on obtaining a visa and reconciling with the mother, and that upon these conditions not being met, his subsequent request for the child's return rendered the mother's continued retention of the child in Australia wrongful.

The Full Court allowed the appeal, overturning the trial judge's order for the child's return. Their Honours reasoned that the trial judge had made a finding that the parties possessed a shared, settled intention to relocate to Australia, and crucially, that this intention was unlimited and unconditional. Given this finding, the Court concluded that the child's habitual residence had indeed ceased to be the Netherlands. Consequently, the mother's retention of the child in Australia could not be considered wrongful under the Convention. The order for the child's return was set aside.