Re: Imogen (No 5)

Watts J of the Supreme Court of Victoria considered an application by the father for an order for the recovery of a child, Imogen, pursuant to the Hague Convention on the Civil Aspects of International Child Abduction. The mother had removed Imogen from Australia to New Zealand. The father sought the child's return to Australia, alleging that the removal was wrongful and constituted a breach of his custodial rights.

The central legal issue before the Court was whether the removal of Imogen from Australia to New Zealand was wrongful within the meaning of Article 3 of the Hague Convention. This required the Court to determine if the father had actual custody rights over Imogen at the time of her removal, and if so, whether the mother's removal of Imogen was in breach of those rights. The Court also had to consider whether the exception under Article 13(1)(b) of the Convention applied, which would permit the Court to refuse the return of the child if there was a grave risk that the child would be exposed to physical or psychological harm or otherwise placed in an intolerable situation.

His Honour found that the father had established that he held actual custody rights over Imogen at the time of her removal. The Court analysed the evidence and concluded that the mother's removal of Imogen was in breach of these rights. Furthermore, Watts J determined that the circumstances did not give rise to a grave risk of harm to Imogen upon her return to Australia, nor did they place her in an intolerable situation. The Court applied the principles of the Hague Convention, emphasising the paramountcy of the child's welfare and the objective of securing the child's prompt return to their habitual residence.

The Court ordered the return of Imogen to Australia.