Australian father wins court battle to have son returned
Mother loses appeal after refusing to leave Scotland with one-year-old
AN AUSTRALIAN father has won his legal battle to have his one-yearold son returned from Scotland to Brisbane so judges there can determine the baby’s future.
The father – who has not been identified – instructed lawyers to go to the Court of Session in Edinburgh last year.
The wholesale car trader objected to his estranged Scottish partner’s June 2016 refusal to return to Australia from her parents’ home in Midlothian.
The woman, who also was not identified, returned to Scotland last May for a three-month break with the baby because of a troubled relationship with the father.
But the woman refused to return to Australia, prompting the father to begin a legal battle in the Scottish courts.
Judge Lord Brailsford ruled last November that international law dictated the child should be returned to Australia, the country where he was born.
The Scottish judge ruled judges in the Commonwealth country were best qualified to determine issues such as residence and contact for the baby.
Lawyers acting for the mother appealed, arguing Lord Brailsford had misunderstood the law.
However, yesterday, civil appeal judges Lady Paton, Lord Drummond Young and Lord Glennie ruled their colleague had acted correctly.
In a written judgment issued at the Court of Session, Lady Paton wrote: “On the basis of that evidence, it cannot in our opinion be said the conclusion reached by the Lord Ordinary was not reasonably open to him.”
The woman moved from Scotland in 2010 to live in Australia.She became an Australian citizen in January 2015.
She then met the man who later became her child’s father. When the infant was born, the Scottish woman and Australian man “lived together as family”.
On May 16 last year, the woman and her child travelled to Scotland on a return air ticket for a threemonth stay. The man agreed to allow her to go to Scotland with their child for three months.
However, in a legal document submitted to the court, the woman said she wanted to live full-time in Scotland.
She said: “From the moment I arrived on May 16, 2016, I was thinking about how I was going to tell the petitioner I wasn’t going to come back. Once I was home, I felt even more certain I just could not go back to Australia.”
The court heard the woman told her partner she wasn’t coming back to Australia on June 20. He then sent an email to her asking her to come back to Australia.
He wrote: “Please forgive our differences. I have been very emotional and angry about your intentions to keep our son in Scotland.
“I am asking you please come back to Australia with our son. Please let us resolve any issues or differences we have here. Please come home as we agreed on August 8.”
Lawyers for the father argued that international law dictated that since the child was born in Australia, the courts there should decide where the child should live. The court heard that the Australian judges should also decide contact issues.
Lawyers acting for the mother argued that the child should be allowed to stay in Scotland because his family lived here and that he had became “integrated” with Scottish society.
However, Lord Brailsford concluded the child should be returned to Australia.
Appeal judges agreed with the decision.