The children were 2 1/2 and 1 at the date of the alleged wrongful removal. They had lived in Australia for the majority of their lives. The parents were separated and had joint rights of custody. On 18 June 1993 the mother took the children to England, her State of origin, for a vacation. She did not return.
On 2 August 1993 the High Court of Justice granted custody to the mother, prohibiting non-consensual removal of the children from the court’s jurisdiction by the father. On the same day the father issued an originating summons in the English High Court seeking the return of the children.
On 20 August 1993 a return order was made, subject to undertakings.
On 25 August 1993 the mother returned with the children to Australia. She claimed that upon her arrival the father informed her that he would not adhere to all of the undertakings. The mother was subsequently refused legal aid to make an application to remove the children out of the jurisdiction.
On 10 November 1993 Johnson J. of the English High Court wrote to the Chief Justice of the Family Court of Australia noting the father’s refusal to perform his undertakings. The Family Court subsequently issued a summons addressed to the father, mother and the State Central Authority, stating that the court would sit in its welfare jurisdiction to enquire whether proper arrangements had been made for the children.
The Family Court invited the Solicitor-General and counsel for the Central Authority to address the Court in respect of the procedure which had been adopted to bring the parties to Court.