Secretary, Department of Family and Community Services and Walkenhorst

The Secretary of the Department of Family and Community Services (the applicant) sought orders for the return of a child to Australia under the Hague Convention on the Civil Aspects of International Child Abduction. The respondent, Mr Walkenhorst, opposed the application. The matter was heard by McClelland J in the Federal Court of Australia.

The primary legal issue before the Court was whether the child had been habitually resident in Australia immediately prior to the alleged wrongful removal. The applicant contended that the child was habitually resident in Australia, while the respondent argued that the child's habitual residence had shifted to Germany.

McClelland J considered the evidence regarding the child's upbringing, the parents' intentions, and the duration and nature of the child's presence in each country. His Honour applied the principles established in cases concerning habitual residence under the Hague Convention, which require an objective assessment of the child's integration into a particular environment, taking into account factors such as the parents' intentions, the child's age, and the length and purpose of the stay. His Honour found that the evidence did not establish that the child was habitually resident in Australia at the relevant time.

Consequently, the Court dismissed the application of the Central Authority.