There are six grounds under the regulations on which the court has a discretion whether to order the return of the child to its home country even though the child has been wrongly removed to, or retained in, Australia.
These are the only grounds on which the court can refuse to order the return of a child who has been wrongfully removed to, or retained in, Australia.
The grounds are as follows:
1. Where a person, institution or other body applying for the return of the child was not actually exercising rights of custody when the child was removed to, or first retained in, Australia, and would not have exercised those rights have the child not been so removed or retained (reg 16(3)(a)(i)).
2. Where the person, institution or other body applying for the return of the child had consented to, or subsequently acquiesced in, the child being removed to, or retained in, Australia (reg 16(3)(a)(ii)).
3. Where there is a grave risk that return of the child under the Hague Convention would expose the child to physical or psychological harm or otherwise placed the child in an intolerable situation (reg 16(3)(b)).
4. Where the child objects, with the strength of feeling beyond the mere expression of reference ordinary wishes, to being return and has attained an age and degree of maturity at which is appropriate to take into account his or her views (reg 16(3)(c)).
5. Where the return of the child would not be permitted according to the fundamental principles of Australia relating to the protection of human rights and fundamental freedoms (reg 16(3)(d)).
6. Where the application for return of the child was filed at least one year after the day on which the child was removed to, or first retained in, Australia, and the court is satisfied that the child is settled in its new environment (reg 16(2)).
The mere fact that a person opposing the return of the child establishes one of the grounds does not mean that the court must then refuse to make an order for the child's return. If the ground is established, the court has a discretion whether to order the return of the child. (see Director-General, Department of Families, Youth and Community Care v Bennett (2000)FLC 93-011 at 87,230.)
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