High Court rules children must return to their mother in Australia

Family Law|July 17th 2015

Four children who were kept in England by their father after a summer holiday visit have been told they must return to their mother in Australia. The ruling was issued by the High Court.

The children, aged between nine and 13, had joined their father to spend their two month Australian summer holiday in England. At the end of their stay, however, their father told their mother than the children wished to stay in England and that he would not be returning them to Australia.

The couple, who are both English, met in 1995 and when they had children the mother gave up her employment and became totally financially dependent on her husband. They moved to Australia in July 2007, but their relationship had broken down shortly after their relocation and they separated in October 2007. The husband had begun another relationship. He returned to the UK but kept in touch with the children via skype and telephone. At no point since the separation in 2007 had either party issued a petition for divorce.

The children had one prior visit to England in January 2014 before returning for a second visit during their Australian school summer holiday break in November 2014. Their mother travelled with them and their flights were paid for by their father.

When the mother returned to Australia shortly afterwards, she was served an eviction notice on her house due to mortgage arrears. In court she produced a series of text messages from her husband assuring her that he would help with her financial difficulties, but no money was forthcoming, leaving her in severe financial straits. The father, who is a financial consultant, did continue to spend money on the children, taking them first on a skiing trip costing £15,000 and later on a holiday in the Middle East worth £28,000. The mother believes her husband earns in excess of £250,000-£300,000 per year, but he did not confirm this estimation.

The mother returned to England, after her husband told her he would not be returning the children to Australia, in an attempt to regain them. On her arrival she attempted to persuade her husband to enter mediation, but he refused. She applied for a Child Arrangement Orderand subsequently for a prohibited steps order when her husband proposed to take the children on holiday to prevent him doing so. Both applications were listed for hearing on March 26 and her husband was given permission to take the children on holiday while the application for the child arrangement order was adjourned until April 21.

At the March 21 hearing, the mother appeared as a litigant in person and stated that her children had been retained in England without her permission. She subsequently contacted the International Child Abduction and Contact Unit (ICACU) in London and proceedings were issued on April 21, with the first hearing two days later. At this point, contact between the mother and children broke down.

Child abductions fall under the remit of The Hague Convention on the Civil Aspects of International Child Abduction which is a multi-national legal agreement which allows the swift return of children under the age of 16 who are taken without permission by a parent from one participating country into another.

The Cafcass High Court team were ordered to prepare a report on the children’s objections to moving back to Australia. One child said they had extended family members in England and did not have that in Australia. Other said that they had a new baby sister in England and wanted to see her grow up. After talks with each of the children, the Cafcass representative said that the four children had not said anything negative about their mother’s care while they were in Australia, but that she felt what was important to the children was living in England around family and being with their father. She also said that the children had indicated that they wanted their mother living nearby so they could see her regularly.

His Honour Judge Clifford Bellamy said that he felt it was important for him to meet with the children, which he did via video link on June 30 and discussed their views and feelings and checked their understanding of what was happening.

In his conclusions the judge said,

“Although I am satisfied that the children are of an age and maturity at which the court should take account of their views, I am not satisfied that their wishes, feelings and preferences amount to objections to returning to live in their country of habitual residence.”

He concluded that the father should have applied to the Australian court to request the children relocate to England, but he chose not to do so. Instead he kept the children in England after an agreed holiday visit.

He also said that the father had abused the financial imbalance between him and his wife. He had put her under extreme financial pressure and done nothing to help when she was served with an eviction order.

His Honour concluded:

“What he has been unable to do is to persuade this court that the mother has acquiesced in his wrongful retention of the children in England or that the expressed views of his children amount to ‘objections’ in [Hague]Convention terms. It follows, therefore, that there should be an order for the summary return of the children to Australia

Representation for the father had said that if the court found that the children should go back to Australia he would make the appropriate financial provision. The mother’s representative indicated that divorce proceedings and an application for financial remedy will be issued immediately and that they would be seeking an urgent hearing for maintenance.


Read the judgement here

Photo by [peter davis] via Flickr

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