Event and Time
Event Description
- Application for discharge of a return order concerning the child, Z, born in 2010, requiring her return to Brazil under the Hague Convention due to alleged exceptional circumstances.
Application and Claims
- The mother filed an application under reg 19A(2)(c) of the Family Law (Child Abduction Convention) Regulations 1986.
- She claimed that Brazilian courts allowed her to remain in Australia with the child, thus arguing for exceptional circumstances that justified discharging the return order.
Judicial Decisions
- The court discharged specific paragraphs of the return order initially made on 17 March 2021 and dismissed the applicant mother’s further application as a consequence of the findings.
Dispute Points and Legal Basis
Dispute Points
- Mother's Claims:
- The Brazilian court sanctioned her ongoing presence in Australia. - Her rights of custody and access were recognized by Brazilian courts following the issuance of the return order. - The return order contradicted subsequent Brazilian orders allowing the child’s continued residence in Australia.
- State Central Authority's Arguments:
- The Brazilian courts sanctioned the child's stay only on an interim basis, lacking a full custodial determination. - No exceptional circumstances existed to discharge the return order as required under the regulations. - Following international comity, Brazil's orders should not undermine the enforceability of the return order.
Ruling and Impact
Ruling Result
- The court ruled that exceptional circumstances existed to discharge the return order based on: