A and R (1980 Hague Convention: Return to Australia), Re

Habitual residence under the 1980 Hague Convention is a child-focused question of fact. The court must evaluate the child’s integration into the relevant social and family environment, without imposing fixed legal sub-rules or minimum periods. Parental intention is relevant but not determinative.

Article 13(b) has a high threshold. Where allegations, if true, would create a grave risk, the court must examine concrete protective measures and their effectiveness on return. Past domestic abuse may be relevant, but it does not itself establish that effective protection is unavailable. The court must assess the cumulative allegations and the future situation of the child.

The father applied under the Child Abduction and Custody Act 1985, incorporating the 1980 Hague Convention, for the summary return of two children to Australia. The children had travelled to England with their mother in April 2023 and remained there after the agreed date of return in November 2023.

The mother argued that the children had become habitually resident in England. Alternatively, she relied on Article 13(b), alleging domestic abuse and contending that her mental-health deterioration on return, or separation from the children, would expose them to grave risk or place them in an intolerable situation.

1. Habitual residence. The children were habitually resident in Australia immediately before the retention on 19 November 2023. The inquiry was child-focused and factual. Their seven months in England had provided routines, nursery, health and recreational activities, and substantial contact with the maternal family, but did not amount to integration into English life sufficient to change their habitual residence. The children remained Australian children on an extended visit, and the mother’s contemporaneous intention throughout the relevant period had been to return to Australia.
2. Article 3. The father therefore established that the retention was wrongful under Article 3 of the 1980 Hague Convention. The court was required to order the children’s return unless an Article 13(b) exception was established.
3. Article 13(b). The court did not conduct a final fact-finding exercise on the disputed allegations of domestic abuse. Proceeding on the assumption that the allegations were true, they would create a grave risk requiring protective analysis. The allegations had to be assessed cumulatively, and the court had to examine the concrete future situation on return.
4. Protective measures and mental health. The father’s undertakings, including non-contact and non-attendance provisions, were capable of enforcement in Australia. The agreed financial provision, accommodation, transport, health insurance and access to medical and therapeutic services would provide effective protection and support. The psychiatric evidence did not establish that the mother’s likely deterioration would create an intolerable situation for the children. The Article 13(b) defence was therefore not made out.
5. Order. The application was allowed and the children were ordered to return to Australia, with arrangements for the father to pay the mother AUS$31,200 and for the return to occur, if possible, within approximately one month.

Not stated in the judgment.