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Children to be returned to Australia where they have been wrongfully retained in this jurisdiction
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Court of Appeal allows appeal against a High Court finding that two children were not wrongfully retained in this jurisdiction, and orders their return to Australia, on the grounds that: the trial judge erred in failing to carry out a more comprehensive global analysis of the circumstances of the children’s lives and family ties (including with their older brother) in Australia, as well as the circumstances that led to their presence in Ireland and how their lives here had evolved; a fuller analysis required to be carried out of the circumstances of the children’s lives in Australia and the common intention of the parents; and merely acquiring some degree of integration in Ireland does not have the effect per se of extinguishing either child’s habitual residence of origin in Australia.
Court of Appeal - 4th September, 2023 - High Court decision - respondent born in England, lived in Ireland for a period - 2010 - moved to Australia - 2016 - met the appellant - July 2017 - respondent granted Australian citizenship - parties purchased family home - December 2018/February 2021 - children born - November 2021-February 2022 - appellant granted long service leave - November 2021 - family travelled to Ireland - 23rd February, 2023 - date of intended departure - 11th February, 2022 - respondent contracted Covid-19 - 22nd March, 2022 - date of potential departure - February 2022 - older child admitted to hospital - 9th June, 2022 - date of follow-up ultrasound scan - 27th May, 2022 - date of intended departure - dispute regarding intentions to travel to Ireland - 25th March, 2022 - Australian Administrative Appeals Tribunal decision - held respondent's delay in returning was caused solely by the children's illness - appellant appealing against refusal - Hague Convention on International Child Abduction (Hague Convention) - Child Abduction and Enforcement of Custody Orders Act, 1991 - judge found children habitually resident by time appellant had withdrawn consent for them to remain - residence not proven wrongful - habitual residence - wrongful retention - appeal regarding whether children wrongfully retained in breach of father's rights under custody law - whether father consented - possible defence under Article 13 of Convention - appellant argues he wasn't consulted - "creeping retention" - standard of review - core issues wrongful retention and habitual residence - Hague Convention - Article 3 - earliest date of wrongful retention not identified - errors in approach, analysis and findings - errors of law - delay - consent - shouldn't have been issue where wrongful retention had been proven - integration, habitual residence - trial judge wrong to say retention not wrongful - delays not significant - children wrongfully retained in this jurisdiction - court orders return to Australia - no costs order.
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