Ms Ashworth had been accused by her child's father of abducting the child from Australia to the UK. Ms Ashworth had travelled with the child to Australia for three nights before returning to the UK. The father, who lived in Australia, claimed she had agreed to permanently move to Australia with the child and as such the child was habitually resident in Australia before its wrongful removal so had been abducted. Ms Ashworth claimed the move was temporary based on how the relationship progressed and therefore the child's habitual residence remained in the UK. She discovered while in Australia that the father had been having multiple affairs and immediately left for the UK.
The reason habitual residence is a very important test in child abduction cases is because it is one of the first hurdles a parent seeking a return has to overcome. If a child is not habitually resident in the country from which the removal took place, then the parent cannot proceed under the child abduction legislation. On the other hand, the test for habitual residence does not contain a time limit. Habitual residence of a child can change overnight depending on the settled intention of its parent.
In Ms Ashworth's case, Judge Verdan found that the child had not acquired habitual residence in Australia. He felt the child had not integrated to a sufficient degree in either his family or social environment, and found Ms Ashworth's evidence to be more credible and reliable than that of the father. E-mails sent by Ms Ashworth were also used to show her intentions at the time of removal. Producing e-mails and Facebook entries as evidence in court is becoming an increasingly common feature of family court actions. Clients should be warned, if it's not too late, to be careful how they communicate on any platform.