Child to go to Australia for domiciliary ruling

AN IRISHWOMAN who married an Australian and had a child by him there, but who stayed here with the 18-month-old girl after coming to Ireland last Christmas, must return the child to Australia to allow courts there to determine where the child should live, the Supreme Court has ordered.

Last July the High Court ruled that the child’s habitual residence was in Australia and the mother’s decision to keep the child here constituted an unlawful retention, in breach of the father’s custody rights. Under Australian law, both parties have equal parental custody and had agreed, as their relationship was a very new one, to share custody of the child if they could not live together.

The child has lived here with her mother pending the mother’s appeal against the High Court decision. The father returned here for court proceedings.

The Supreme Court yesterday rejected the mother’s appeal.

Ms Justice Fidelma Macken noted the woman went to Australia in 2005, met the man in 2007 and became pregnant. They married and their child was born in April 2008. They stayed in Australia, where the man had work, until they came to Ireland in late 2008.

The mother claimed their intention was to move here long term. The father claimed he had committed himself to staying for Christmas, having organised extended parental leave from his job, and that staying longer depended on his liking Ireland and finding work.

Before December 2008, the relationship became strained and the couple started living separately soon after coming to Ireland, the judge said. They lived together here for less than a month and the man returned to Australia in late January 2009.

Ms Justice Macken noted that article 3 of the Hague Convention provides that the removal or retention of a child is wrongful if it breaches custody rights granted to another person under the law of the state where the child was habitually resident immediately before the removal or retention. It was fundamental to establish the girl’s habitual place of residence before the breach of the father’s custody rights in January 2009.

The issue here was whether there was a joint “settled intention or purpose” between the man and woman that they should not return to Australia, at least in the foreseeable future, and should instead live in Ireland.

The High Court was entitled to find that the child had not acquired habitual residence in Ireland.

The judge agreed with the High Court that the habitual residence was Australia. At the outside, the mother’s retention of the child began on January 27th when the father left Ireland, she held.