(Family Division; Sir Mark Potter P; 20 February 2007)
The family, which had lived in both Australia and England, was contemplating relocation to Australia after many years of settlement in England. However, sometime after the breakdown of the marriage, the mother changed her mind about a permanent move to Australia and stated that she would be remaining in England with the children. She was persuaded to travel to Australia with the children for a holiday, with return tickets. When it became clear that the mother would be returning to England with the children at the end of the holiday, the father applied for an Australian residence order. Eventually the mother entered into an Australian consent order under which she and the children would return to England, and the children would have contact with the father in Australia on specified dates. Subsequently the mother refused to comply with the terms of the consent order. The father applied under the Hague Convention, and under the inherent jurisdiction, for the return of the children to Australia. The children, aged 12 and 9, were expressing their opposition to a return.
The children were habitually resident in England; the trip to Australia had not affected habitual residence. There had therefore been no wrongful retention in England, and no abduction. There was no excuse for the mothers plainly reprehensible conduct in entering into a consent order in Australian proceedings and then reneging on the terms on which it had been made, however, notwithstanding the consideration of comity, the welfare interests of the children strongly militated against the making of an order for return under the inherent jurisdiction. The father could have contact with the children in England. The court was confident that no undue offence would be caused to the Australian court: given that the matter was now before the English court, with a clear indication of the childrens wishes and feelings, the court could not conceive that the Australian court would regard it as other than appropriate that the English court was the appropriate venue for consideration of the questions of residence and contact.