The Gauteng High Court, Pretoria, has ordered a mother who lived in Australia with her husband, but who two years ago returned to South Africa with their son – soon to be 3 years old – for a visit and never returned, to immediately return the child to Australia.
The parents are citizens and permanent residents of Australia. The Central Authority of South Africa and the father claim the immediate return of the child from South Africa 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.
The court was meanwhile told that the mother, a swimming instructor, and her estranged husband, a combat rescue officer in the Australian Defence Force, lived in Queensland. The father and the child are both Australian citizens.
A holiday romance between them resulted in their marriage in South Africa and they then moved to Australia in 2020. Their son was born in 2021 in Queensland.
The mother travelled to South Africa with the boy in September 2022 to visit her parents here. Prior to her departing for South Africa, she and her husband agreed that she would return to Australia the respondent would return to Australia after a month’s holiday here.
The husband apparently had misgivings about consenting to the mother travelling to South Africa with the child, then 13 months old. This was because a previous visit resulted in her almost refusing to return to Australia with the child. Hence, he initially refused to consent to her travelling to South Africa for a holiday with the child.
It was only once the mother promised to return to Australia with the child that he consented to the visit.
The father stated categorically that he had not consented to the child remaining in South Africa permanently as alleged by the mother. To the contrary, he referred to plans that were being made by them for Christmas 2022 to visit his family in other parts of Australia.
However, two years later, she is still in Gauteng with the child. In doing so, she breached his rights of access to the child, the father said.
Judge Linda 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 essence of the mother’s opposition to the minor’s return to Australia is the risk of psychological and physical harm if the child is separated from her, the mother claimed
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.
Pretoria News