SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES & TREDWAY

The Secretary of the Department of Family and Community Services applied to the Family Court of Australia for the return of a 14-month-old child to Bermuda, alleging wrongful removal by the mother. The dispute centred on the child's country of habitual residence and whether the father's consent to the mother's removal of the child precluded the application for return.

The court was required to determine whether the child had been wrongfully removed from Bermuda, within the meaning of Article 3 of the Hague Convention on the Civil Aspects of International Child Abduction, and whether any of the defences under Regulation 16(3) of the Family Law (Child Abduction Convention) Regulations 1986 were applicable. Specifically, the court considered whether the father had consented to the child's removal and, if so, whether it was too late for him to withdraw that consent for the purposes of the defence under Regulation 16(3)(a)(ii). The court also considered whether the removal or retention of the child involved a grave risk of physical or psychological harm or would otherwise place the child in an intolerable situation.

In its reasoning, the court found that while the child had been wrongfully removed from Bermuda, the father had consented to the mother's removal of the child. The court determined that, in accordance with established principles, once the mother acted on that consent, it was too late for the father to withdraw his consent for the purposes of the defence under Regulation 16(3)(a)(ii). Furthermore, the court concluded that the threshold for establishing a grave risk of harm or an intolerable situation was not met. Applying these findings and weighing the various factors, including the spirit of the Convention, the court exercised its discretion to refuse the return of the child.

Consequently, the Amended Application of the Secretary of the New South Wales Department of Family and Community Services was dismissed. Leave was granted to the parties to restore the proceedings to the list for any consequential orders.