Objections of the Child to a Return – Art. 13(2)
The Court noted that there had been discussion in Australian jurisprudence as to whether the objection of the child had to be specifically focussed on the State of habitual residence, but declined to participate in the debate. The Court held that the evidence was now overwhelming that the child objected to being returned to the United States. Whether that was because of the absence of the primary caregiver or was based upon real or imagined memories of life in the United States as compared to life in Australia, it was clear that the child’s objections were firm and had been rationally explained by him. Considering the exercise of discretion the Court concluded that it was difficult to see how almost three years after the wrongful retention had taken place it would be appropriate to return a most reluctant 12 year old child in circumstances where the return might require the use of force and where the return would separate the child from his primary caregiver.
Procedural Matters
The role of the Australian State Central Authority in this case was of some concern to the court. The Central Authority had not carried out the initial orders of the court ordering the return of the child in 2004. At the appeal hearing in July 2006, the Central Authority stated that it did not have a budget to return the child to the USA. The court was concerned that where both parents lacked the means to purchase international airfares, Australia’s obligations under the Convention would be rendered nugatory if the Central Authority could not return the child.
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