Police Commissioner of South Australia & Agustina (No. 2)

This matter concerned an application by the State Central Authority of South Australia, on behalf of the father, for the return of a child, X, to the United States of America, pursuant to the Family Law (Child Abduction Convention) Regulations 1986. The mother had retained X in Australia more than one year prior to the application being made. The court was required to determine whether the child should be returned to the United States, considering exceptions to the mandatory return provisions of the Convention.

The primary legal issues before the court were whether the application for the child's return was made within the prescribed time limit under the Convention, and if not, whether the child had become settled in her new environment in Australia. The court also considered whether any exceptions to the mandatory return, such as acquiescence, grave risk of harm, or an intolerable situation, applied. The court was asked to take judicial notice of the effects of the COVID-19 pandemic in Australia and the United States.

Bennett J found that the application was made more than one year after the child's retention in Australia. Crucially, the court determined that the child had become settled in her new environment in South Australia. Consequently, the court held that the Family Law (Child Abduction Convention) Regulations 1986 ceased to apply in this instance, and the application for the child's return had to be dismissed. The court noted that while the mother had acted in bad faith, the policy of the Convention prioritises the child's welfare and minimises the harmful effects of international parental child abduction, which includes a safeguard for children who have become settled in a new country after a significant period. The court also made orders regarding ongoing communication between the children and their parents.