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Counsel for the Central Authority submitted that the father’s consent was ‘not real
consent’ and pointed to internal inconsistencies in the mother’s evidence as the basis
for its submission that the father’s consent was ‘inherently improbable and/or so
unreliable that it should be rejected’.
SIGNIFICANT JUDGMENTS Part 5
Held: Application granted. Child to be returned to the United Kingdom.
1. The mother’s removal of the child was in breach of the father’s rights of custody
under Art 5 of the Convention on the Civil Aspects of International Child Abduction and
Reg 16(1A)(d) of the Regulations, as the removal was contrary to or interfered with
the father’s right to determine the child’s place of residence. The father’s rights of
custody derived from his ‘parental responsibility’ under UK statute law.
2. The party raising an issue under Art 13 (reg 16(3)(a)(ii)) carries the burden of proof.
The proper approach to resolving disputed matters of fact in such cases is as follows
(at para 49):
‘Where there is disputed non-oral evidence, any “extraneous independent
evidence” must be more than persuasive, and indeed, compelling, to reject
a deponent’s sworn testimony, such that, where there are “no grounds for
rejecting the written evidence on either side”, the party carrying the onus will
have failed to establish his or her case.’
3. The mother’s case under Reg 16(3)(a)(ii) was not proved as she failed to discharge
the onus of proving that the father consented to or subsequently acquiesced in the
child’s removal from the UK.
4. There were inconsistencies and inherent improbabilities in the mother’s affidavit
material that caused her Honour ‘to doubt her honesty or which, at least, cause[d]
her testimony to be unreliable’.
Parenting orders —International relocation — Mother wishing to relocate to New
Zealand with the children.
Walls v Robinson [2006] FamCA 25, (2006) FLC 93-251, 30 January 2006
Family Court of Australia before Carmody J
This was a defended parenting case involving an international relocation proposal by
the mother. The father and the mother (both New Zealand citizens) of three children
aged 11, eight and five applied for parenting orders. The family lived in New Zealand
before moving to Australia four years before the case was heard. The children were
well‐settled in Australia, with strong sporting links to the community in which the
father and the mother were also heavily involved.
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Family Court of Australia Annual Report 2005–2006