Mr S v Ms E

In the matter of *Mr S v Ms E*, heard before Justice Warnick, the dispute concerned an application for an order for the recovery of a child. The applicant, Mr S, sought the return of his child from the respondent, Ms E, who was alleged to be wrongfully retaining the child.

The central legal issue before the Court was whether the child was being wrongfully retained within the meaning of the *Hague Convention on the Civil Aspects of International Child Abduction* (the Convention) and the *Family Law (Child Abduction Convention) Regulations 1986* (Cth) (the Regulations). This required the Court to determine if the child's habitual residence was in a contracting state and if the applicant had rights of custody under the law of that state.

Justice Warnick reasoned that the evidence established the child's habitual residence was in New Zealand, a contracting state to the Convention. The Court found that Mr S had established rights of custody under New Zealand law, and that these rights were being exercised at the time of the alleged abduction. Crucially, the Court determined that Ms E’s retention of the child in Australia constituted wrongful retention under the Convention and Regulations, as it was contrary to Mr S’s rights of custody and the child’s habitual residence. The Court applied the principles of the Convention, which prioritises the prompt return of children wrongfully removed or retained, to prevent unilateral changes to the child's custodial arrangements.

The Court ordered the child’s return to New Zealand.