Secretary, Department of Communities and Justice & Paredes

This case concerned an application by the Secretary, Department of Communities and Justice, for the return of a child to Brazil under the Hague Convention. The respondent mother, Ms Paredes, opposed the return. The matter came before Williams J of the Federal Circuit and Family Court of Australia.

The primary legal issues before the court were whether the child was habitually resident in Brazil immediately before her alleged retention in Australia, whether her presence in Australia was in breach of the father's rights of custody, and whether any of the regulatory exceptions to return under the Family Law (Child Abduction Convention) Regulations 1986 were established. The mother raised several exceptions, including consent or acquiescence, a grave risk of harm due to the COVID-19 pandemic, the child's objection to return, and that return would contravene Australian human rights principles.

Williams J found that the jurisdictional facts for a return order were established. The court determined that the child was habitually resident in Brazil and that her retention in Australia from 19 May 2020 was in breach of the father's rights of custody. The court considered each of the mother's raised exceptions. It found no consent or acquiescence, and that the mother had not established a grave risk of physical or psychological harm to the child or an intolerable situation arising from the COVID-19 pandemic or potential legal proceedings in Brazil. The exceptions relating to the child's objection to return and the contravention of Australian human rights principles were also dismissed.

Consequently, the court ordered the child's return to Brazil, subject to conditions regarding the mother's potential COVID-19 immunisation and the timing of the return. The mother was permitted to accompany the child, and various injunctions and directions were made to facilitate the return and prevent further removal of the child from Australia.