A HIGH Court judge has granted an application by a father for the return to Australia of his two children who were brought to Ireland two years ago by their Irish citizen mother.
The mother had alleged they were at grave risk of abuse by their father but the judge said that, while her account was "probable", there was insufficient evidence before him to prove that claim.
Mr Justice John MacMenamin yesterday made an order for the return of the children but put a stay on that order until the father proves he can provide accommodation and maintenance for the children and until a date is set for family law proceedings in the local Australian jurisdiction where the couple lived.
The mother, who is 24 years old, has Irish and Australian citizenship from her Irish-born parents. Her mother now lives here having returned to Ireland shortly after the woman gave birth to her first child. The mother had met the father, who was born in Ethiopia and obtained Australian citizenship, while she was still at school in Australia and they began living together in 2000. They now have two children, aged seven and four.
The High Court heard both the mother and father came from unstable and insecure backgrounds and worked in different jobs until 2003 when they came to Ireland with their first child. They returned to Australia a year later.
In late 2006, the woman's grandmother became ill and she came back to Ireland with the two children. In early 2007, she phoned her partner and told him she was not going back to Australia and also indicated, through another person, that she intended travelling to Iran in the future.
The partner then obtained an Irish High Court order restraining the mother from removing the children from this jurisdiction and she was also ordered to surrender her passport. In those proceedings, the mother claimed the return of the children would expose them to physical and psychological harm or otherwise place them in an intolerable situation.
She claimed her partner was a heroin addict who had been arrested in Australia for drug dealing, violence and vandalism, that he habitually carried weapons including guns and had been diagnosed as suffering from mild schizophrenia. She also claimed he had regularly sexually assaulted her and threatened to kill her.
She further claimed he ill-treated the children and subjected them to a harsh disciplinary regime. The mother had kept her Irish address secret because she was so fearful of her partner, she said.
The father, who gave evidence via video-link from Australia, denied some of the claims and referred to others as fanciful.
Under cross-examination, he said he worked in the importation of laptops and phones and also was in receipt of welfare in Australia. Two of his friends swore affidavits saying they did not see him physically or mentally abusing the mother or children.
A friend of the mother said in an affidavit she had witnessed the father making threats to the mother's life, saw evidence of drug abuse by him and knew of occasions when he carried guns.
Mr Justice MacMenamin found that, on the evidence, he was unable to conclude that there was a grave risk if the children were returned. While the mother's account "may be probable", it was not proved.
Undertakings could be given to minimise risk and this matter would fall within the jurisdiction of the local Australian court, the judge said.
While he had to accede to the application for the return of the children, the judge said he had a strong impression the father had not given sufficient thought to the financial and other arrangements necessary for the children's return.
He put a stay on the making of the order of return until the father has provided money for the air fares for the children; a timetable is in place for family court proceedings in Australia and there is evidence of suitable accommodation in a protected location pending those proceedings.
He also directed the father must undertake not to molest or disturb the mother or children pending the Australian court proceedings.