International Relocation of Children – Where will they live?
The child in this case (we will call him Ivan) was born in the Ukraine in 2009. His mother had been born there and his father was born in Australia. Ivan held Ukrainian and Australian citizenship. The parties separated in the Ukraine in late 2015 or early 2016.
In September 2016, when Ivan was aged seven and living with his father in the Ukraine, the father bought him to Australia and he was living with the father in Australia when the case went to Court in Sydney in 2018.
In December 2017, 15 months after Ivan arrived in Australia, the NSW Department of Family and Community Services filed an application in the Family Court, seeking, on behalf of the mother, the return of Ivan to the Ukraine. Ivan had not been living with his mother in the Ukraine at the time that the father removed him to Australia. The mother became aware of that about a month later, in October 2016. However, it was not until September 2017, that she applied to the relevant Ukrainian authority for the return of Ivan. There was no explanation for the delay.
The relevant law is contained in the Australian Family Law (Child Abduction and Convention) and Regulations 1985 which provide that, where an order for the return of a child to the country where they had been living is applied for more than 12 months after the child’s removal, the Court must order the return of the child if, as the Regulations say, “The Court is satisfied that the (father) has not established that the child has settled into (their) new environment.”
So, had Ivan “settled into (his) new environment”? The evidence was that he has started school in Australia in February 2017, and was excelling. The father had a large extended family, spread across Sydney. Ivan associated with his cousins and he had made friends at his school.
The Judge said that, if Ivan was found to have settled into his new environment, the Court had no discretion to consider ordering that he be returned to the Ukraine. The NSW Department appealed, the appeal was dismissed and Ivan stayed in Australia.
The situation would have been very different if the mother had applied, through the Ukrainian authorities to have Ivan returned, less than 12 months after he was taken to Australia. In that case, a different Regulation would have applied and the question would have been whether Ivan had been wrongfully removed, having regard to such matters as his habitual residence, which was in the Ukraine.
Richard Tonkin
