Secretary of the Attorney-General & Stamatelos

The Secretary of the Attorney-General, on behalf of the father, applied to the Federal Circuit Court for the return of a child to the United States of America, alleging wrongful retention under the Hague Convention. The father contended that the mother had wrongfully retained the child in Australia, contrary to orders made by a Massachusetts court. The mother argued that the child was habitually resident in Australia and that her failure to return the child to the United States did not constitute a wrongful retention.

The central legal issues before the Court were whether the child had been wrongfully retained in Australia, and consequently, whether the child was habitually resident in Australia at the time of the alleged wrongful retention. The Court was required to determine the intention of the parents regarding the child's habitual residence and to assess whether the mother's actions amounted to a breach of the father's rights of custody or to take the child.

Faulks DCJ found that the father had consented to the child being born in Australia and subsequently to the mother and child returning to Australia after the parents' separation in the United States. The Court preferred the mother's evidence regarding the parents' intentions and the child's residence, finding that the child was not habitually resident in the United States but was habitually resident in Australia. The Court concluded that the Central Authority had failed to meet its burden of proof in establishing a wrongful retention.

Accordingly, the application brought by the Central Authority was dismissed.