In the Marriage of Agee

This case concerned an appeal by the husband against orders made by Jerrard J. in the Family Court of Australia. The appeal arose from an application brought by the State Central Authority under the Family Law (Child Abduction Convention) Regulations for the return of the parties' two children to New Zealand. The primary judge had dismissed this application, refusing to order the children's return. The husband and wife had lived in Australia before moving to New Zealand, where they separated. The wife subsequently returned to Australia with the children without the husband's consent. A court counsellor's report indicated that the children objected to returning to New Zealand for reasons considered personal, age-appropriate, and credible.

The central legal issue before the Full Court was whether the wife had established, pursuant to Regulation 16(3)(c) of the Regulations, that the children "objected" to being returned to New Zealand, and whether they had attained an age and degree of maturity appropriate to consider their views. If these conditions were met, the Court also had to determine, in the exercise of its residual discretion, whether ordering the children's return was appropriate, having regard to the purpose of the Regulations.

The Full Court affirmed that the phrase "objects to being returned" in Regulation 16(3)(c) should not be interpreted narrowly, referencing the High Court's decision in *De L v Director-General New South Wales Department of Community Services*. The Court reiterated that the objection must be to returning to the country of habitual residence, not merely to living with a particular parent, although children need not articulate this distinction explicitly. The Court found that the primary judge had properly considered the children's statements, interpreting their age-appropriate expressions as objections rather than mere preferences. The Court also confirmed that where a defence under Regulation 16(3) is established, the Court retains a discretion, to be exercised broadly and having regard to the Convention's purpose, on whether to order the child's return.

The Full Court dismissed the husband's appeal with costs. It held that the primary judge had acted within his discretion in finding that the children objected to being returned to New Zealand and in refusing to order their return. This decision was based on the judge's consideration of the children's background, the wife's removal of the children, the policy of the Convention, and the events that had transpired since the children's arrival in Australia.