State Central Authority & Del Rosario

The case involved the State Central Authority and Del Rosario, concerning an application for the return of a child to Brazil under the Hague Convention. The wrongful removal of the child was conceded by the respondent mother. The primary dispute revolved around whether exceptions to the child's return, specifically the grave risk of harm or an otherwise intolerable situation, applied.

The court was required to determine if the respondent mother could establish an exception to the child's return to Brazil. This involved considering whether the father, who had never met the child, was exercising rights of custody at the time of the removal, and whether a grave risk of harm could be ameliorated by conditions imposed on the return. The court also considered how it would have exercised its discretion to refuse return had an exception been made out.

Bennett J found that while the mother had established a grave risk of harm, this risk could be mitigated by imposing specific conditions on the child's return to Brazil. These conditions included suspending a recently obtained Brazilian parenting order that would have placed the child in the father's care with only supervised time with the mother. The court reasoned that the father, despite never meeting the child, possessed a right to determine the child's residence, which could be exercised passively. The court ultimately ordered the child's return to Brazil, subject to a comprehensive set of conditions designed to protect the child and mother, including suspending the existing Brazilian order and requiring the father to obtain new orders from a Brazilian court that would grant the child residence with the mother and restrict the father's contact.