Settlement of the Child – Art. 12(2)
The Full Court noted that since the trial the law had changed with regard to the test to be applied to determine whether a child is settled in his new environment. This did not however affect the finding of the trial judge because he had applied the former test which was more strict and still found the child to be settled. The Full Court noted that the onus to show that a child is settled in a new environment may not be a difficult one to discharge. Certainly this was so in the instant case where the child was young and had been living in the same home for over six months and the same geographic area for about eighteen months. The court went so far to suggest that in such circumstances, provided there is no evidence that the child is showing signs of particular distress, the conclusion will always be open that the child is settled in his or her new environment. The Full Court found it to be an open question whether there is in fact a discretion to order the return of a child who is found to be settled in his or her new environment. In the instant case, the court found it sufficient to assume the existence of such a discretion and hold it would not have exercised its discretion to order the return of the child.
Procedural Matters
Provided it has relevance to the matters to be decided, a ‘Family Report’ prepared for substantive custody proceedings can be received as evidence in Convention proceedings. The Full Court held that such a finding was not incompatible with the ruling of the High Court of Australia in De L. In the instant case, the Family Report had relevance to the return application with regard to whether the child was settled in his new environment. It may be noted that the trial proceeded on the basis of written evidentiary material and submissions only.
