SECRETARY, ATTORNEY-GENERAL’S DEPARTMENT & ABDELNOUR

In the matter of *Secretary, Attorney-General’s Department & Abdelnour*, Le Poer Trench J of the Federal Circuit Court of Australia considered an application concerning child abduction under the Hague Convention. The applicant sought leave to amend its application regarding the date of wrongful removal after the hearing had concluded, asserting it was misled by the respondent's case until after the hearing. The respondent opposed this amendment, citing concerns about procedural fairness and the inability to cross-examine the father on issues arising from the proposed amendment, particularly in light of the cross-examination that had already occurred.

The court was required to determine two primary legal issues. Firstly, whether to grant the applicant leave to amend its application, considering the timing of the request, the nature of the proceedings, and principles of procedural fairness, including the rule in *Browne v Dunn*. Secondly, the court had to determine whether the father had consented to the child's removal from France to Australia, and if so, whether that consent was vitiated by deceit. The court also considered whether there had been a wrongful removal or retention of the child.

Regarding the amendment, the court found it to be reasonable given the complex factual matrix and noted that both parties had access to documentary evidence and had the opportunity to present their cases. The court granted leave to amend. On the substantive issues, the court found that while the father initially consented to the child's removal from France, his consent was specifically for removal to the United Kingdom, not Australia. However, the respondent successfully established, on the balance of probabilities, that the father subsequently consented to the child's removal to Australia, and that this consent was not obtained by deceit. The court also noted an initial wrongful retention that was remedied by the respondent returning the child to France. Despite the initial wrongful retention, the court exercised its discretion not to order the child's return to Australia. Consequently, the application was dismissed.