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International Child Abduction Case – By – Abbi Golightly – Accredited Family Law Specialist

A child remains in Australia despite she and her Mother being considered “illegal non-citizen” – Family Court dismisses Commonwealth Government’s Application to return a child to New Zealand

In a recent decision, the Family Court of Australia sitting in Sydney has allowed a Mother and 6 year old child to remain in Australia despite the Commonwealth Government asserting that the child was being retained in Australia by the mother in contravention of a New Zealand based Father’s “rights of custody”.

The Hague Convention on Civil Aspects of International Child Abduction provides a mechanism for the prompt return of wrongfully removed or retained children between countries who are signatories to the Convention.  Australia and New Zealand are both signatories to the Convention and our respective Commonwealth Governments work closely with each other and the aggrieved parent in circumstances where it is believed that a child is being retained in either country illegally.

In the recent decision of Secretary, Attorney General’s Department (Cth) & Donald the Family Court found that the Hague Convention had no application to the child in question because the child was considered “habitually resident” in Australia.

In this matter the parents executed a New Zealand “joint parenting agreement” which permitted the Mother to take the child to Sydney (doing so the same day as the agreement was signed unbeknowns to the Father) however whilst the child was visiting the Father in New Zealand the Father indicated to the Mother that he was concerned for the child and that he was retaining her in New Zealand.  The Father’s concerns included the child’s declining weight, the Mother’s failure to enroll the child in day-care nor taken steps to secure permanent residency status in Australia entitling the child to health care within the Australian public system.

A long sequence of events followed culminating in the child spending time with the Mother in Australia at the conclusion of which the Mother did not return the child to the Father.

In dismissing the Commonwealth’s Application the Court held that notwithstanding the Mother’s immigration status (misleading immigration as to her intention to remain in Australia permanently) the Mother had become habitually resident in Australia.  It followed that because the child was reliant upon her Mother the child likewise became habitually resident here and the Hague Convention did not apply.
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Hayley Condon

Hayley Condon

  • Senior Associate
  • Family Law
  • Direct line: (07) 5553 5805
  • Mobile: 0413 486 402