Thursday 17 January 2019

Boy must be returned from Ireland to his mother in Australia, court rules

Stock photo
Stock photo

Tim Healy

AN Irish father who refused to return his young son to his mother in Australia after the boy came to Ireland for a holiday has lost an appeal against a High Court order that he be returned.

The Court of Appeal, which ordered the return on Monday, was told the father intends to apply to the Supreme Court to seek a further appeal on the matter.  The boy's parents have been estranged for a number of years.

The appeal court placed a stay on the return order for two weeks during which time it is expected the Supreme Court will issue a determination as to whether it will accept the father's appeal.

Ms Justice Mary Finlay Geoghegan, who gave the three-judge appeal court judgment, said it was "a sad and difficult case".

However, the court must apply the law which respects the principle that the matter must be determined in the best interests of the child in accordance with the Hague Convention on child abduction and which respects the family rights of all the parties in the case, she said.

It was not in dispute the boy was habitually resident in Australia until last November, she said.  His mother had shared responsibility with the father and did not consent to the child remaining in Ireland beyond November 29 last.  As a consequence, he was wrongfully retained her by the father since that date, the judge said.

The appeal court agreed with the judgment last April from the High Court's Ms Justice Una Ní  Raifeartaigh who, it said, delivered her decision just five days after the hearing and it was admirable for its detail, clarity and analysis of the applicable authorities and principles.

Ms Justice Finlay Geoghegan said she agreed with the High Court that the evidence in the case did not go so far as to support the father's contention that he was highly unlikely to get a visa to visit his child in Australia.

The mother has already given an undertaking to support the father's application for a visa so he could visit his son and that should continue, she said.  The appeal court also supported the High Court's view that the Australian immigration authorities should look favourably upon granting visas to allow the father exercise rights already given to him by the Australian courts where there were separate family law proceedings.

In the High Court, the judge was told the couple's relationship broke down early in the child's life and the mother took him to live with her in Australia on a long-term basis.

The boy has  a "deep and loving relationship" with both parents.  The child told a psychologist he wished they could all live together in Australia or that his father could be Australian so he could go there whenever he chose, or that Ireland and Australia could be "one big land". 

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