State Central Authority v. Keenan [2004] FamCA 724, (2004) FLC 93-200

INCADAT legal file Hague parental abduction

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The child, a boy, was 5 at the date of the alleged wrongful removal. The parents met over the internet in 1998. The child was conceived in the same year, when the mother, an Australian citizen, travelled to the US to visit the father. The mother then returned to Australia where the child was born.
In 1999, the mother obtained court orders granting her residence and sole responsibility for the care, welfare and development of the child. The father’s contact was reserved.
In 2000, the mother and child moved to the United States to live with father. The parties married in December that year, residing together in the State of Virginia until October 2002, when the mother, without notice to the father, removed the child to Australia.
On 20 December 2002, a request was forwarded to the Central Authority in Australia to issue proceedings for the child’s return. The father, in the meantime, filed a complaint in a Virginia state court seeking custody and return of the child. The Australian proceedings were adjourned to await the outcome of the US proceedings.
The Virginian court held it had no jurisdiction to grant relief as the child had been resident in the state for less than 6 months before the application was made, and Virginia was not, therefore, the “home state” of the child. A direction was made however that the matter remain on the court docket.
The return proceedings in Australia were eventually heard on 22 July 2004. It was common ground in those proceedings that prior to the child’s removal, the child had been habitually resident in the US and that the father had been exercising normal parental rights and obligations in respect of the child. The issues before the court were whether the father had a right of custody enforceable in the US at the time of the removal and whether the child would be exposed to a grave risk of harm if returned.