Secretary, NSW Department of Communities and Justice & Barnett

This case concerned an application by the Secretary, NSW Department of Communities and Justice, acting as the Australian Central Authority, for the return of a child to Ireland under the Family Law (Child Abduction Convention) Regulations 1986. The respondent, the child's mother, disputed that the child's removal from Ireland was wrongful, arguing that the father did not possess rights of custody that he was exercising immediately prior to the removal, and that the removal was not in breach of any such rights. The respondent also raised issues concerning retrospectivity, public policy, denial of natural justice, and whether a return order would render an ongoing Irish appeal nugatory, constituting an abuse of process.

The court was required to determine whether the father possessed rights of custody in Ireland that were being exercised immediately before the child's removal, and if so, whether the child's removal to Australia on 30 August 2020 was in breach of those rights. A key aspect of this determination involved considering a declaration made pursuant to s 6F of the Guardianship of Infants Act 1964 (IR) on 12 April 2021, which was subsequent to the child's removal and subject to appeal. The applicant also asserted the doctrines of res judicata and issue estoppel.

Williams J found that the declaration made by the Irish court on 12 April 2021 referred to the father's rights prior to the child's removal on 30 August 2020. His Honour held that these rights constituted rights of custody for the purposes of the Regulations, and that the child's removal was in breach of these rights, which the father was exercising at the time. Consequently, the court was satisfied that the requisite jurisdictional facts had been proven and that the removal was wrongful. The court rejected the argument that a return order should be stayed pending the outcome of the Irish appeal, noting that the objects of the Regulations require prompt return and that delaying such an order would undermine this principle.

The court ordered that the child be returned to Ireland pursuant to the Family Law (Child Abduction Convention) Regulations 1986. The respondent was granted liberty to accompany the child, and various orders were made concerning passports, the child's residence, and enforcement by the Australian Federal Police. The court also discharged a previous order and authorised the respondent to collect passports. Liberty was reserved to the parties to apply urgently regarding the implementation of these orders, while the remainder of the applicant's application was dismissed.