MQ v. Director-General, Department of Community Services (NSW) (2005) 34 Fam LR 8, [2005] FamCA 843, (2006) FLC 93-255, (2006) 34 Fam LR 656

INCADAT legal file Hague parental abduction

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Grave Risk – Art. 13(1)(b)
The Full Court held that issues concerning the relationship between the half sisters and the effect a return order might have been considered in the context of the Australian regulation giving effect to Article 13(1)(b).
Rights of Access – Art. 21
The step-sister argued that her application for contact should have paramountcy over the orders requiring the return of her half sister to the United States. This ground of appeal was rejected by the Full Court which held that the issue of contact could only be considered once the issue of return was adjudicated upon. Moreover the issue of contact would also depend on the outcome of any proceedings in the United States as to custody. Consequently it would be appropriate to decline the step-sister’s application to review, out of time, the decision reached in the abduction proceedings. In its conclusion the Full Court noted that issues of contact between the step-sisters were matters that would be properly considered in the custody proceedings that would be held in the United States. It also held that in the event of any conflict of interests between the half siblings the focus should be on the best interests of the abducted child.
Procedural Matters
It was the mother’s case that in accordance with Australian law, and by reason of its conduct in the first appeal, the Central Authority was estopped from bringing the subsequent proceedings for the return of the child. The Full Court rejected this ground and upheld the findings of the trial judge that the Central Authority had not acted unreasonably. In particular it was noted that the Central Authority was not a party to the return application when the matter was heard at first instance and only joined in the suit at the appeal stage so that consideration could be given to substituting it as the applicant. The Central Authority’s failure to avail of that opportunity was not unreasonable given that it had not received a request to so act. The Full Court noted that the Central Authority did not have a roving brief to intervene and could only act upon a request made to it by a person or body properly interested. Once it received a formal request in early 2005 it was then required to give effect to it.