McK and K v O

The parties in this matter were McK and K (the applicants) and O (the respondent). The dispute concerned an application for an order for the recovery of a child, brought by the applicants under the Hague Convention on the Civil Aspects of International Child Abduction. The application was heard by Mullane J in the Federal Circuit and Family Court of Australia.

The central legal issue before the court was whether the child had been habitually resident in the United States of America immediately prior to the alleged wrongful removal to Australia, and if so, whether the applicants had established that the child was wrongfully removed or retained within the meaning of Article 3 of the Hague Convention. The court was also required to consider whether any of the exceptions under Article 13 of the Convention applied, specifically whether the child had attained an age and degree of maturity at which it would be appropriate to take account of the child's views, and whether the child objected to being returned.

Mullane J applied the principles established in *V v V* and *P v P* regarding habitual residence, noting that it is a question of fact to be determined by reference to all relevant circumstances, focusing on the child's integration into a social and familial environment. His Honour found that the evidence did not establish that the child had acquired habitual residence in the United States, as the child’s presence there was transient and lacked the necessary degree of stability and permanence. Consequently, the court determined that Article 3 of the Convention was not engaged.

The application for the recovery of the child was dismissed.