Supreme Court Supports Mother Who Changed Mind Over Return to Australia

Divorces where there is an international dimension often present specific issues, and a recent case involving a couple who had been living in Australia before they separated is no exception, leading ultimately to a hearing in the Supreme Court.

The British mother of two was living with her husband in Australia. The marriage was in difficulties and in May 2015, while on maternity leave, she returned to the UK with their children for a visit. It was agreed between the couple that she should extend her stay for up to a year, and she gave notice to her Australian employer and looked for work in the UK.

Without telling the children’s father, she applied in November 2015 for both children to be given British citizenship. The application was made on the ground that she feared they would all suffer domestic abuse if she returned to Australia.

In June 2016, she told her husband that she did not intend to return to Australia, having made up her mind to remain in the UK in April 2016. He then made an application for the children to be returned to Australia under the Hague Convention that deals with child abduction.

As the mother had removed the children from Australia with the father’s consent, they could not be considered to have been abducted, but could there have been a period of ‘wrongful retention’ of the children before the agreed period of absence had expired – i.e. from the time the mother changed her mind about returning to Australia? Secondly, could the children be said to have been abducted if they had become habitually resident in the UK?

On the facts, the Court found that the children had become habitually resident in the UK before their father’s application, so an order for their mandatory summary return under the Convention could not be made. In addition, the mother’s November 2015 decision to apply for citizenship for them did not amount to ‘repudiatory retention’ of the children as it was open to the judge to believe her evidence that she had not at that point decided to remain in the UK.