The application related to two children, aged six and almost 4, at the date of the alleged wrongful retention. The parents separated in March 2001. In January 2002 the mother indicated that she wished to relocate to New Zealand with the children. The father immediately initiated legal proceedings, however the parents were able to reach an amicable settlement.
This provided that the children could go with the mother to New Zealand but would return after two years and then spend two years with the father in Australia. This shuttle custody arrangement was to continue until the children reached the age of 18. The agreement was given legal effect and lodged with the Family Court in Brisbane.
Mother and children left Australia on 7 February 2002. On 4 July the mother initiated proceedings in New Zealand for sole custody. In her petition she stated that her children should have the security of knowing that they would not have to return to Australia in two years.
The father petitioned for the return of the children under the Hague Convention. The Family Court at Porirua ruled that the children were being retained and that the retention was wrongful as the children were still habitually resident in Australia. The mother appealed.
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