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Family Law

Child not returned under Hague Convention as he “settled down” in Australia

By August 25, 2016No Comments

An Australian mother has succeeded in preventing her Hungarian ex-partner from returning a six year old child to Hungary under the Hague Convention on the Civil Aspects of International Child Abduction, in a case that hinged on timing.

In the case heard in the Family Court, a return order of a boy was sought, however the application on behalf of the father was filed more than 12 months after the child was withheld in Australia, and was dismissed on the basis that the child had now “settled in his new environment”.

The court found that while the child was wrongfully detained by the Australian mother, she had demonstrated to the court that the boy was settled in this country, which the father had disputed. The judge stated that “the child has developed a connection to Australia. He is enrolled in school and involved in community activities including swimming lessons and culturally specific classes” after a period of almost two years here.

The onus on the mother was to establish that she had maintained a stable physical and financial environment for the child and that the boy was “embedded” in his current community of schools, supports, friends and extracurricular activities. The mother gave evidence that he had made advances in his social and emotional development and enjoys living in Australia. The court balanced this against the difficulties the boy would experience if he were returned to Hungary. It was noted that the boy’s relationship with his father was “undestroyable”.

Ultimately though, the court found that “the purpose of the Convention includes the ‘prompt return’ of a child to their country of habitual residence. This cannot be achieved in this case as nearly two years have passed since the child was removed to Australia and more than 18 months have passed since he was retained in Australia”.

The case is a good reminder of the importance of timing in legal proceedings, as in situations like this, time is clearly of the essence.

Read the full case: http://www.austlii.edu.au/au/cases/cth/FamCA/2016/633.html

Do you have a parenting matter involving a partner wishing to travel outside of Australia with your children and need advice? Please contact Cristina Huesch or one of our solicitors here at Alliance Family Law on (02) 6223 2400.

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