16Obligation to make a return order

#### 16 Obligation to make a return order (1) If: (a) an application for a return order for a child is made; and (b) the application (or, if regulation 28 applies, the original application within the meaning of that regulation) is filed within one year after the child’s removal or retention; and (c) the responsible Central Authority or Article 3 applicant satisfies the court that the child’s removal or retention was wrongful under subregulation (1A); the court must, subject to subregulation (3), make the order. (1A) For subregulation (1), a child’s removal to, or retention in, Australia is wrongful if: (a) the child was under 16; and (b) the child habitually resided in a convention country immediately before the child’s removal to, or retention in, Australia; and (c) the person, institution or other body seeking the child’s return had rights of custody in relation to the child under the law of the country in which the child habitually resided immediately before the child’s removal to, or retention in, Australia; and (d) the child’s removal to, or retention in, Australia is in breach of those rights of custody; and (e) at the time of the child’s removal or retention, the person, institution or other body: (i) was actually exercising the rights of custody (either jointly or alone); or (ii) would have exercised those rights if the child had not been removed or retained. (2) If: (a) an application for a return order for a child is made; and (b) the application is filed more than one year after the day on which the child was first removed to, or retained in, Australia; and (c) the court is satisfied that the person opposing the return has not established that the child has settled in his or her new environment; the court must, subject to subregulation (3), make the order. (3) A court may refuse to make an order under subregulation (1) or (2) if a person opposing return establishes that: (a) the person, institution or other body seeking the child’s return: (i) was not actually exercising rights of custody when the child was removed to, or first retained in, Australia and those rights would not have been exercised if the child had not been so removed or retained; or (ii) had consented or subsequently acquiesced in the child being removed to, or retained in, Australia; or (b) there is a grave risk that the return of the child under the Convention would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation; or (c) each of the following applies: (i) the child objects to being returned; (iii) the child has attained an age, and a degree of maturity, at which it is appropriate to take account of his or her views; or (d) the return of the child would not be permitted by the fundamental principles of Australia relating to the protection of human rights and fundamental freedoms. > Note 1: In considering whether the matter mentioned in paragraph (3)(b) is established: (a) the court may have regard to any risk that the return of the child under the Convention would result in the child being subject to, or exposed to, family violence; and (b) the court may have regard to the extent to which the child could be protected from any such risk if the child was returned under the Convention; and (c) the court may have regard to the matters mentioned in paragraphs (a) and (b) of this note regardless of whether the court is satisfied that family violence has occurred, will occur or is likely to occur. > Note 2: For the definition of family violence, see section 4AB of the Act. (4) For the purposes of subregulation (3), the court must take into account any information relating to the social background of the child that is provided by the Central Authority or other competent authority of the country in which the child habitually resided immediately before his or her removal or retention. (5) The court is not precluded from making a return order for the child only because a matter mentioned in subregulation (3) is established by a person opposing return. (6) If: (a) the court is considering whether to refuse to make an order under subregulation (1) or (2) on the basis of the matter mentioned in paragraph (3)(b); and (b) a party to the proceedings, or an independent children’s lawyer who represents the interests of the child in the proceedings, raises in the proceedings any condition that could, for the purpose of reducing a risk mentioned in paragraph (3)(b), be included under paragraph 15(1)(c): (i) in a return order for the child; or (ii) in any other order that the court proposes to make under paragraph 15(1)(b) in relation to a return order; the court must consider whether it would be appropriate to include the condition. (7) In considering whether to refuse to make an order under subregulation (1) or (2) on the basis of the matter mentioned in paragraph (3)(b), the court may have regard to any other measures that would be reasonably likely to reduce the risk mentioned in paragraph (3)(b). (8) Subregulations (6) and (7) do not limit the matters to which the court may have regard in considering whether to refuse to make an order under subregulation (1) or (2) on the basis of the matter mentioned in paragraph (3)(b).