The Court of Appeal has directed the return of two children to Australia with their mother.The three-judge court overturned a High Court finding the habitual residence of the children was Ireland, as their father had claimed, and not Australia, as the mother alleged.
The children had been in this country for some months this year when the Australian mother and Irish father returned to Ireland to live.
The president of the Court of Appeal, Mr Justice Sean Ryan, said it was barely necessary for the court to say how tragic and distressing all of this has been for everybody concerned, and he expressed sympathy to and for both sides.
“The task this court has to perform in a case like this is difficult and painful, and gives judges little satisfaction and much anxiety.”
The judge said the children had been born and brought up in Australia to an Irish father and an Australian mother.
They returned to Ireland earlier this year, and the wife maintained she reluctantly agreed to move here in circumstances where the husband agreed they would return to Australia if things did not work out.
After a time a situation arose where they became estranged, and the father removed the children’s passports and retained them.
The husband began legal proceedings seeking sole custody of the children, while the wife initiated separate High Court proceedings.
Jurisdiction
After a full hearing the High Court ruled the children were habitually resident in Ireland, with the effect that further proceedings could proceed in this jurisdiction and the mother was restrained from taking any further steps before the courts in Australia.
Granting the mother’s appeal against the High Court decision, Mr Justice Ryan said there was not a decisive concord between husband and wife to abandon Australia for good to live in Ireland on some permanent basis.
He said although the wife agreed to move to Ireland, she did so under such pressure or persuasion by the husband her consent was significantly impaired or at least rendered questionable.
He also found the amount of time spent by the children in Ireland was inadequate in the circumstances to establish a change of habitual residence to Ireland.
In a separate concurring judgment, Mr Justice Gerard Hogan said the wife’s agreement to travel to Ireland was a conditional and provisional one, and the father’s removal of the passports involved wrongful retention of the children.