THE SUPREME Court has ordered a mother, who claims she had to flee Australia for Ireland 2½ years ago because her son had been allegedly sexually abused by his father, to return the boy to Australia where his father lives.
The order will come into effect as soon as the father of the eight-year-old boy gives an undertaking to abide by whatever orders the Australian court makes relating to custody and access.
The father had claimed the mother left Australia prior to the Australian family courts making final decisions on custody issues while the mother insisted a final decision had been made providing for supervised access by the father. Because of that, she claims she had to flee on grounds of her son's safety.
She is now in a new relationship here and has given birth to a second child.
Yesterday, when refusing the mother's appeal against a High Court order directing the boy's return to Australia, the Supreme Court said the mother had not made out a case to support her claim that her son would be at grave risk if returned.
Giving the court's judgment, Mr Justice Nial Fennelly outlined that the mother, although not born here, is an Irish citizen while the father is Australian.
They met in Australia in the early 1990s, lived in Australia, Ireland and elsewhere for a time, bought a house jointly in Australia in 1995 and their son was born in 1999. They never married, separated in 2002 and the mother left their home to live elsewhere in Australia.
The boy's father had access to him on a weekly basis from 2002 but difficulties arose in 2004. The father claimed that was due to his forming a new relationship but in May 2004, the mother made allegations to the police of sexual misbehaviour by the father towards their son.
From 2004, the couple were involved in family law proceedings in which the mother strongly objected to any access by the father to the child. In October 2005, the case came on for hearing. The couple gave conflicting accounts of what happened in that hearing.
The mother claimed the trial judge had indicated he intended permitting supervised contact between father and child for a period of six months and unsupervised contact after that. She was distraught at the judge's attitude and, out of concern for her son's safety, fled Australia with her son on October 31st, 2005 without telling anyone in advance, including her lawyers.
The boy's father initiated proceedings under the Hague Convention on child abduction for the return of the child and in December 2007 the High Court here ordered the boy's return.
Mr Justice Fennelly said the main issue in the appeal was the claim of grave risk on the basis of the mother's claim of sexual abuse, which was strenuously denied by the father.
The Australian court had not yet ruled on those allegations and the mother had failed to produce credible evidence to support her claim the Australian court was unable or unwilling to protect the boy's rights, the judge said. It was for the Australian court to test the claims.
Mr Justice Fennelly also said he had no hesitation in concluding the mother had not shown the boy had settled in his new environment. A psychiatrist who examined the boy had reported he was a detached child who showed no enthusiasm for either Ireland or Australia and cast doubt on the boy's ability to express a mature considered decision.
