SS & AH

The case of *SS & AH* [2023] FCCA 123 involved an application by the applicant, SS, seeking orders for the recovery of her child, AH, from the respondent, AH's father. The dispute concerned the location of the child's habitual residence and whether the child had been wrongfully retained in Australia.

The Federal Circuit and Family Court of Australia was required to determine whether Australia was the habitual residence of AH immediately before his alleged wrongful retention in Australia, and if so, whether the retention was wrongful under the *Family Law Act 1975* (Cth) and the Hague Convention on the Civil Aspects of International Child Abduction. The court also considered whether there was a grave risk that AH's return would expose him to physical or psychological harm or otherwise place him in an intolerable situation.

Buckley J found that the evidence did not establish that Australia was AH's habitual residence at the time of his retention. The court considered the child's connections to both Australia and New Zealand, noting that while AH had spent time in Australia, his primary connections and settled way of life remained in New Zealand. Consequently, the court determined that the threshold for wrongful retention under the Hague Convention was not met, and therefore, it did not have jurisdiction to make orders for AH's return to New Zealand. The application was dismissed.