State Central Authority & Usinov

The case of State Central Authority & Usinov involved an application for the return of children to Bulgaria under the Hague Convention. The father had brought the children to Australia, and the mother, through the State Central Authority, sought their return. The central dispute concerned whether the children were habitually resident in Bulgaria prior to their removal and whether the mother had rights of custody that were being exercised. The court was required to determine if the removal was wrongful, if the children objected to their return, and if there was a grave risk to them if returned.

The court considered the legal issues of habitual residence and the mother's rights of custody and their exercise. It was necessary to assess whether the father's contention that their residence in Bulgaria was only temporary was valid, and whether the parties shared an intention regarding the children's upbringing and residence. Furthermore, the court had to evaluate the objections of the children, aged seven and nine, considering their age and maturity, and whether these objections went beyond mere preference. The court also had to determine if any grave risk existed for the children upon their return to Bulgaria, and whether the conditions under Regulation 16(3)(b) of the Family Law (Child Abduction Convention) Regulations 1986 were met.

Justice Dawe found that the mother possessed rights of custody under Bulgarian law, which are characterised by unity between rights and obligations, requiring joint parental decision-making. The court was satisfied that the mother was exercising these rights, as evidenced by the children spending weekends with her immediately prior to their removal. The father's argument that the mother had not taken legal proceedings to enforce her rights was rejected. The court also considered the children's objections, noting that their views were appropriate to take into account given their age and maturity, but ultimately found that the father had not established that the children's objections demonstrated a strength of feeling beyond ordinary wishes, nor had he established a grave risk to the children.

The court ordered that the children be returned to Bulgaria, finding that their removal was wrongful. The father was granted an opportunity to arrange for the children to attend a psychologist prior to their return. The question of final orders was adjourned to a later date.