Family Law Titles
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(Family Division, Peter Jackson J, 10 April 2013)
When the British father and Australian mother separated the, now 14-year-old, child lived with the mother in the UK and had contact with the father although the child travelled extensively with the mother. In 2010 the mother and child travelled to Australia with the intention of staying for a year which the father agreed to. The father reluctantly agreed to a further year in Australia but refused to consent when the mother requested an additional 2-year stay. Following a visit to the UK over Christmas the father retained the child and refused to allow him to return to Australia, claiming that he the child objected to a return. The mother returned and initiated Hague Convention proceedings.
There was no doubt that the child was habitually resident in Australia and that the father wrongfully retained him in the UK. The guardian was of the opinion that the child was of an age and degree of maturity at which it was appropriate to take account of his views. He was able to offer balanced views of the good and bad aspects of living in each country and was clear that he did not wish to return to Australia. His views were rational and he had a sufficient degree of insight, if not complete insight, for them to be given considerable weight.
Although the child was habitually resident in Australia, his ties to that country were not of the strongest nature. This had not been a naked abduction but something more complicated than that which had its roots in the child's early years and the relationship between the parents. Taking into account all of those matters, the application for a return order was dismissed. Future issues of the child's welfare would be determined by the English court.
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