Mother ordered to return child to Australian-based father
Gauteng High Court (Pretoria) Judge Linda Retief has ordered a mother who lived in Australia with her husband – but who two years ago returned to SA with their son for a visit and never returned – to immediately return the child to Australia.
A Pretoria News report says the parents are citizens and permanent residents of Australia. The Central Authority of SA and the father claim the immediate return of the child from SA to Australia.
The mother opposed the application and raised a defence that the return of the child in terms of the Hague Convention would result in a grave risk of psychological harm to the child.
She raised a counter application in which she argued that returning the child to Australia would not be in line with the Children’s Act, which states that the best interest of the child is of paramount importance.
But the court ordered that the counter-application will have to stand over to be argued at another time, as it cannot be in the interests of the child for a decision regarding his return, pending the final outcome of the mother’s counter application.
Retief said the court is required in terms of the Convention to order the return of the child to Australia unless the mother proves – on a balance of probabilities – a grave risk of harm to the child.
The Pretoria News report says the mother claimed the essence of her opposition to the minor’s return to Australia is the risk of psychological and physical harm if the child is separated from her.
She, however, only referred to a single incident of aggression between herself and the father, which the father denied.
The judge said it is the mother’s choice not to return to Australia and she must reconcile herself with the consequences of her decision, being the child’s separation from her in the event of his return to Australia.
According to the father, he has support services in place if the child was to be returned and he is able to look after his son.
The mother has not discharged the burden of proof resting upon her to demonstrate the existence of a grave risk of harm to the child in the event of his return to Australia.
The child’s interests and the general purposes of the Convention are both met by an order that he be returned to Australia, his place of habitual residence, the judge said in ordering his return.
Article disclaimer: While we have made every effort to ensure the accuracy of this article, it is not intended to provide final legal advice as facts and situations will differ from case to case, and therefore specific legal advice should be sought with a lawyer.
