Judge rules child must be returned to mother in Australia

The young son of an estranged couple must be returned from Ireland to Australia to resume living with his mother there, a High Court judge has directed.

The boy came here late last year for a holiday with his father but was not returned.

Ms Justice Úna Ní Raifeartaigh said the child, aged nine, has a “deep and loving relationship” with both parents and she considered it was in his best interests that the immigration authorities there look favourably on his father’s application for further visas to visit him.

“This is an only child for whom the company of each of his parents is precious.” The boy had 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”.

The child had sobbed, saying he was “not able to pick”, she said.

This showed the degree of conflict he was experiencing and the psychologist considered a “firm decision” needed to be made for him. The parents had had a relationship in Ireland but that broke down early in the child’s life. The mother returned to Australia long term with the boy but came back after the father commenced litigation.

Considerable access

An Irish District Court in 2010 made an order permitting her relocate to Australia with the child.

Further litigation followed and final orders made by the Australian courts in 2015 confirmed the boy would continue to reside with his mother with his father having considerable access and holidays with his son outside Australia.

The Australian court was critical of the mother insofar as she was viewed as very controlling in the relationship with her son and wished to exclude or limit the father/son relationship.

It granted the father considerable access reflecting, the judge said, a view the father’s role in his son’s life was very critical and important.

The Irish High Court proceedings arose from issues regarding the father’s access to Australia and visas. He got various visas over the years but those ended in early 2017 when he had to leave Australia.

While the evidence indicated he had not overstayed his visas and was never unlawfully in Australia, he was refused a tourist visa in November 2017 which caused practical problems when he was to return the child after a three week holiday in Ireland, the judge said. He had not done so.

The judge said the child was habitually resident in Australia before his holiday here, his mother has rights of custody and had not consented to the child staying beyond the three weeks. That meant there was an unlawful retention of the child here within the meaning of the Hague Convention.

Intolerable situation

The father’s case was he believed it was very unlikely he would get a visa to return to Australia, with the effect he would not be able to see his son, creating a risk of psychological harm or an intolerable situation within the meaning of the Hague Convention such as not to require the child’s return to Australia.

The evidence did not support the father’s claims in that regard, the judge held.

The child gave a description to a psychologist of a very ordinary “normal” life in Australia, said he was happy to come here to see his father because he missed him, but he also missed his mother.

The evidence is both parents are extremely important to the child and are both good parents to him, Ms Justice Ní Raifeartaigh said. She did not accept it was “highly unlikely”, as the father argued, he would not get another visa to enter Australia to see his son.

If the situation was made known to the immigration authorities and the courts there, some arrangement could be reached, she believed.

The mother has always been the primary carer of the child, he has resided in Australia for as long as he can remember and the Irish court could also not make a choice effectively forcing the mother to live in Ireland, she said.