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Children – child abduction – mother repudiated agreement for family’s temporary stay in Australia

In Handbury & State Central Authority and Anor [2020] FamCAFC 5 (21 January 2020) the Full Court (Alstergren CJ, Strickland and Williams JJ) dismissed the mother’s appeal of Bennett J’s order sought by the State Central Authority (SCA) that the parties’ six-year-old child be returned from Melbourne pursuant to Regulation 16(1) of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) to the United Kingdom, being the child’s place of habitual residence, accompanied by the father.

The mother was born in Australia but began living with the father in the UK in 2005. Their child was born there in 2013. When the mother was offered temporary work in Australia the family came here in 2017. Bennett J found that the child was a habitual resident of the UK; that the parties had agreed to live temporarily here for two years; and that the mother repudiated that agreement in 2018 when telling the father that she did not want to return to the UK with the child.

The Full Court ([47]-[48]) adopted the following statement of principle by the UK Supreme Court as applying to the present case:

“When the left-behind parent agrees to the child travelling abroad, he is exercising, not abandoning, his rights of custody. …It is not accurate to say that he gives up a right to veto the child’s movements abroad; he exercises that right by permitting such movement on terms. He has agreed to the travel only on terms that the stay is to be temporary and the child will be returned as agreed. So long as the travelling parent honours the temporary nature of the stay abroad, he is not infringing the leftbehind parent’s rights of custody. But once he repudiates the agreement, and keeps the child without the intention to return, and denying the temporary nature of the stay, his retention is no longer on the terms agreed. It amounts to a… unilateral decision where the child shall live. It repudiates the rights of custody of the leftbehind parent, and becomes wrongful.”

Robert Glade-Wright is the founder and senior editor of The Family Law Book, a one-volume loose-leaf and online family law service . He is assisted by Queensland lawyer Craig Nicol, who is a QLS Accredited Specialist (family law).

This story was originally published in Proctor May 2020.

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