M v M

The learned trial judge concluded that on any issue in which there was a conflict between the evidence of the respondent and the appellant he accepted the evidence of the respondent. At paragraph 48 of his judgment he found that the appellant was not a credible witness on any matter of significant conflict between them. As he accepted the respondent's evidence that the family had emigrated he determined that the children were habitually resident in Australia.

[7] Mrs Dinsmore QC who with Miss Rice appeared on behalf of the respondent submitted that it was entirely appropriate to use the Hague Convention in this case. As the judge preferred the evidence of the respondent his finding of habitual residence in Australia was one which he was entitled to reach on his view of the evidence and was unimpeachable on appeal.

[9] The learned trial judge summarised the sequence of events and the evidence of the parents between paragraphs 23 and 27 of his judgment.

[11] The judge stated that the issue was the habitual residence of the children. He noted that this expression is not defined. He referred to the description of it in Re A (Area of Freedom, Security and Justice) 2009 2 FLR 1 at page 9.

On the question of acquiring a new habitual residence he referred to Herschman and McFarlane at Chapter H paragraphs 150B � 150C. The essence of the decision of the learned trial judge was, on his acceptance of the evidence of the respondent, that the family emigrated to Australia in August 2008 and thereby acquired habitual residence in that country thereafter.