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The parents were both British nationals. They met in London in 2020 and moved to Australia in December 2022. The child was born in Australia in February 2023, he is a British national and does not have Australian citizenship.

In December 2023 the parents booked flights for the father to go to Germany and the mother to go to England to visit family. They planned to return to Australia together in June 2024. 

In March 2024 the father lost his employment following a complaint of unwelcome and inappropriate behaviour towards a female colleague that was upheld following an internal investigation. He did not secure work again until November 2024.

The parents separated in April 2024 after the mother caught the father taking cocaine in the family home. 

In April 2024 the mother travelled to England with the child. This was earlier than planned and with the father's agreement. 

In June 2024 the mother informed the father she planned to stay in the UK until September 2024. The father agreed. 

In April 2025 the father made an application under the 1980 Convention for the return of the child to Australia. 

The mother argued that returning to Australia would expose the child to a grave risk of harm, in accordance with Article 13(1)(b).

Return ordered, subject to undertakings.

Grave Risk - Art. 13(1)(b)

The mother argued that returning the child to Australia would put him at grave risk of harm as the father’s behaviour was controlling and the mother’s mental health issues would be exacerbated and due to the uncertainties related to her immigration position.

Regarding the father’s behaviour, the Judge held that, though the mother’s allegations were serious, taken at their highest they would not raise the possibility of a grave risk to the child and that the contact between the father and child would be pending any order of the Australian courts who could offer protective measures.

Regarding the mother’s mental health, her psychological assessment report stated that if the mother was to return to Australia the psychological stress could be partially mitigated and managed, for example, if she registered with a doctor, was provided with stable accommodation and had access to regular income etc. Overall, the judge was not satisfied that the likely effect on the mother’s mental health was sufficient to establish a grave risk that the child would be exposed to physical or psychological harm or otherwise placed in an intolerable situation.

Regarding the mother’s immigration position in Australia, as the parents were not Australian citizens they were therefore reliant on temporary visas. Furthermore the mother was reliant on the father’s visa. The mother argued that would create an intolerable situation for the child should they be separated and she be forced to leave Australia without him. The judge did not find that this gave rise to a grave risk within the meaning of Article 13(1)(b) as he was satisfied that it was likely that the mother would be able to return to and remain in Australia for sufficient time whilst long-term decisions are made for the child in their country of habitual residence. 

Undertakings

The judge stressed that it was of particular importance that the father consented to making an order to the effect that, if the mother was not admitted to Australia on her arrival or if her visa was subsequently cancelled, then the mother and child should not be separated and should return to England. The father should also find private medical/health insurance for the mother so that she has the full access to the necessary psychological support services.

It was appropriate for the order to be registered prior to the mother and child’s return to Australia so that it was recognised and enforceable to provide the mother with the necessary protection. This included measures to ensure that the child was not separated from the mother in any circumstances and in particular related to any issued from her visa.