LAWSON & LAWSON

The proceedings concerned an application by the father for the return of his children to the United Kingdom under the Hague Convention. The State and Commonwealth Central Authorities had withdrawn from the proceedings, and the father was joined as a party to pursue the children's return. The dispute arose after the parties travelled to Australia with the children and subsequently separated, with a disagreement as to whether they had agreed to emigrate to Australia or to reside there for a defined period.

The court was required to determine whether the children were habitually resident in the United Kingdom prior to their removal to Australia, and if so, whether their retention in Australia by the mother was wrongful under the Hague Convention. The court also considered whether any defences were available to the mother, and if it would have exercised its discretion to order the children's return. Additionally, the mother sought an order for costs against the State and Commonwealth Central Authorities.

McClelland J found that the parties had agreed to emigrate to Australia, evidenced by their decision to ship personal belongings from the UK to Australia, which was inconsistent with an intention to stay for only a defined period. The court further found that the children were not habitually resident in the United Kingdom at the time of their removal. Consequently, the court determined that the children were not wrongfully retained in Australia by the mother. Even if a defence under sub-regulation 16(3)(a)(ii) had been made out by the mother, the court indicated it would not have exercised its discretion to return the children to the United Kingdom.

The application for the children's return was dismissed. The mother's application for costs against the State and Commonwealth Central Authorities was also dismissed, as regulation 7 of the relevant rules precludes the court from ordering costs against a Central Authority.