COLIN JOHN BLANCH (COMMISSIONER OF POLICE, WESTERN AUSTRALIA POLICE) and MORGAN
[2024] FCWA 88
•6 MAY 2024
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: COLIN JOHN BLANCH (COMMISSIONER OF POLICE, WESTERN AUSTRALIA POLICE) and MORGAN [2024] FCWA 88
CORAM: BERRY J
HEARD: 19-20 MARCH & 18 APRIL 2024
DELIVERED : 6 MAY 2024
FILE NO/S: 3131 of 2023
BETWEEN: COLIN JOHN BLANCH (COMMISSIONER OF POLICE, WESTERN AUSTRALIA POLICE)
Applicant
AND
MS MORGAN
Respondent
Catchwords:
FAMILY LAW - Child Abduction - Hague Convention - Where the mother travelled from Singapore to Australia with the parents' two children without the father's knowledge or consent - Application by the State Central Authority for the return of the children to Singapore - Where it is conceded that the children are under the age of 16 years and the application has been made within 12 months of the children's removal - Where the Court is satisfied that the father was exercising his rights of custody in Singapore prior to the removal of the children - Where the Court is satisfied that the children were habitually resident in Singapore immediately before they were removed to and retained in Australia - Where the jurisdictional facts required to make a return order are established - Where the mother alleges that the father has perpetrated family violence against her and the children such that the children would at ''grave risk'' of psychological harm or being placed in an intolerable situation if returned to Singapore - Where the mother also submits that the Singapore legal system is unable to manage the children's exposure to ''grave risks'' of psychological harm or an intolerable situation - Where the Court is not satisfied that the mother has established the ''grave risk'' defence or that the father acquiesced to the children's retention in Australia - Orders made for the children to be returned to Singapore on specific conditions - Case turns on its own facts
Legislation:
Acts Interpretation Act 1901 (Cth)
Family Law (Child Abduction Convention) Regulations 1986 (Cth)
Family Law (Child Abduction) Convention Amendment (Family Violence) Regulations 2022 (Cth)
Family Law Act 1975 (Cth)
Category: Reportable
Representation:
Counsel:
| Applicant | : | Ms A |
| Respondent | : | Ms B |
Solicitors:
| Applicant | : | State Solicitor's Office |
| Respondent | : | Law Firm A |
Case(s) referred to in decision(s):
[2024] FCWA 64
De L v Director-General, NSW Department of Community Services (1996) 187
CLR 640
Director General of Family and Community Services v Davis (1990) FLC 92-
182
DP v Commonwealth Central Authority (2001) 206 CLR 401
Gsponer v Director General, Department of Community Services, Victoria.
(1989) FLC 92-001
H v H (Abduction: Acquiescence) [1996] 2 FLR 570
In re E (Children) (Abduction: Custody Appeal) [2012] 1 AC 144
LK v Director-General, Department of Community Services (2009) 237 CLR
582
McDonald and Director-General, Department of Community Services NSW
(2006) FLC 93-297
Secretary, Department of Communities and Justice & Mercado [2023]
FedCFamC1F 874
State Central Authority & Papastavrou [2008] FamCA 1120
TYC v TYD [2017] SGFC 23
Walpole & Secretary, Department of Communities and Justice (2020) FLC 93-
950
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES' NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
IT IS NOTED that publication of this judgment by this Court under the pseudonym Colin John Blanch (Commissioner of Police, Western Australia Police) and Morgan has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 312(b) Family Court Rules 2021 (WA)), or to record a variation to the orders pursuant to r 311 Family Court Rules 2021 (WA).
BERRY J:
Introduction
1Colin John Blanch (Commissioner of Police, Western Australia Police), the Applicant, being the responsible Central Authority (''the Central Authority''), by application filed on 18 October 2023 (''the Application''), seeks an order pursuant to Regulation 14(1)(a) of the Family Law (Child Abduction Convention) Regulations 1986 (''the Abduction Regulations'') for the return of the children, [Child A] born [in] May 2018 (''Child A'') and [Child B] born [in] September 2020 (''Child B'') (collectively referred to as ''the children'') to Singapore.
2[Mr Morgan] (''the father''), the father of the children, requested the Central Authority to commence the action and signed the application for the return of the children on 1 June 2023, which formed part of the Application.
3[Ms Morgan] (''the mother''), the mother of the children, opposes the Application and filed an answer on 8 January 2024. The mother is currently living in Western Australia with the children. The mother removed the children from Singapore to Western Australia on 23 April 2023.
Statutory framework and the scope of issues in dispute
4The purpose of the Abduction Regulations is to give effect to Section 111B of the Family Law Act 1975 (''the Act''). Section 111B provides that the [Abduction] Regulations may make such provision as is necessary or convenient to enable Australia to perform its obligations, or to obtain for Australia any advantage or benefit, under the Hague Convention on the Civil Aspects of International Child Abduction signed at The Hague on 25 October 1980 (''the Convention'').[1] A copy of the Convention is contained in Schedule 1 to the Abduction Regulations.
[1] Family Law Act 1975 (Cth) s 111B(1).
5The Abduction Regulations are intended to be construed:[2]
(a)having regard to the principles and objects mentioned in the preamble to and Article 1 of the Convention; and
(b)recognising, in accordance with the Convention, that the appropriate forum for resolving disputes relating to a child's care, welfare and development is ordinarily the child's country of habitual residence; and
(c)recognising that the effective implementation of the Convention depends on the reciprocity and mutual respect between judicial or administrative authorities (as the case may be) of Convention countries.
[2] Family Law (Child Abduction Convention) Regulations 1986 (Cth) reg 1A(2).
6The preamble to the Convention provides that the state signatories are firmly convinced that the interests of children are of paramount importance in matters relating to their custody, desiring to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access, and have resolved to conclude a Convention to this effect.
7Article 1 of the Convention identifies its two objects: to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and to ensure that rights of custody and access under the law of one Contracting State are effectively respected in the other Contracting States.
8The Abduction Regulations are interpreted according to Australian legal standards.[3] An expression used in the Abduction Regulations and in the Convention has the same meaning in the Abduction Regulations as in the Convention, unless the contrary intention appears.[4]
[3] LK v Director-General, Department of Community Services (2009) 237 CLR 582 at 596 [36]; Walpole & Secretary, Department of Communities and Justice (2020) FLC 93-950 at 512 [90].
[4] Family Law (Child Abduction Convention) Regulations 1986 (Cth) reg 2(1B).
9Regulation 16 of the Abduction Regulations provides:
16Obligation to make a return order
(1)If:
(a) an application for a return order for a child is made; and
(b)the application (or, if regulation 28 applies, the original application within the meaning of that regulation) is filed within one year after the child's removal or retention; and
(c)the responsible Central Authority or Article 3 applicant satisfies the court that the child's removal or retention was wrongful under subregulation (1A);
the court must, subject to subregulation (3), make the order.
(1A)For subregulation (1), a child's removal to, or retention in, Australia is wrongful if:
(a)the child was under 16; and
(b)the child habitually resided in a convention country immediately before the child's removal to, or retention in, Australia; and
(c)the person, institution or other body seeking the child's return had rights of custody in relation to the child under the law of the country in which the child habitually resided immediately before the child's removal to, or retention in, Australia; and
(d)the child's removal to, or retention in, Australia is in breach of those rights of custody; and
(e)at the time of the child's removal or retention, the person, institution or other body:
(i)was actually exercising the rights of custody (either jointly or alone); or
(ii)would have exercised those rights if the child had not been removed or retained.
(2)If:
(a) an application for a return order for a child is made; and
(b)the application is filed more than one year after the day on which the child was first removed to, or retained in, Australia; and
(c)the court is satisfied that the person opposing the return has not established that the child has settled in his or her new environment;
the court must, subject to subregulation (3), make the order.
(3) A court may refuse to make an order under subregulation (1) or (2) if a person opposing return establishes that:
(a)the person, institution or other body seeking the child's return:
(i)was not actually exercising rights of custody when the child was removed to, or first retained in, Australia and those rights would not have been exercised if the child had not been so removed or retained; or
(ii)had consented or subsequently acquiesced in the child being removed to, or retained in, Australia; or
(b) there is a grave risk that the return of the child under the Convention would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation; or
(c)each of the following applies:
(i) the child objects to being returned;
(ii)the child's objection shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes;
(iii) the child has attained an age, and a degree of maturity, at which it is appropriate to take account of his or her views; or
(d)the return of the child would not be permitted by the fundamental principles of Australia relating to the protection of human rights and fundamental freedoms.
Note 1:In considering whether the matter mentioned in paragraph (3)(b) is established:
(a) the court may have regard to any risk that the return of the child under the Convention would result in the child being subject to, or exposed to, family violence; and
(b)the court may have regard to the extent to which the child could be protected from any such risk if the child was returned under the Convention; and
(c)the court may have regard to the matters mentioned in paragraphs (a) and (b) of this note regardless of whether the court is satisfied that family violence has occurred, will occur or is likely to occur.
Note 2:For the definition of family violence, see section 4AB of the Act.
(4) For the purposes of subregulation (3), the court must take into account any information relating to the social background of the child that is provided by the Central Authority or other competent authority of the country in which the child habitually resided immediately before his or her removal or retention.
(5)The court is not precluded from making a return order for the child only because a matter mentioned in subregulation (3) is established by a person opposing return.
(6)If:
(a)the court is considering whether to refuse to make an order under subregulation (1) or (2) on the basis of the matter mentioned in paragraph (3)(b); and
(b)a party to the proceedings, or an independent children's lawyer who represents the interests of the child in the proceedings, raises in the proceedings any condition that could, for the purpose of reducing a risk mentioned in paragraph (3)(b), be included under paragraph 15(1)(c):
(i)in a return order for the child; or
(ii)in any other order that the court proposes to make under paragraph 15(1)(b) in relation to a return order;
the court must consider whether it would be appropriate to include the condition.
(7) In considering whether to refuse to make an order under subregulation (1) or (2) on the basis of the matter mentioned in paragraph (3)(b), the court may have regard to any other measures that would be reasonably likely to reduce the risk mentioned in paragraph (3)(b).
(8)Subregulations (6) and (7) do not limit the matters to which the court may have regard in considering whether to refuse to make an order under subregulation (1) or (2) on the basis of the matter mentioned in paragraph (3)(b).
(As per original)
10The definition of ''family violence'' in Section 4AB of the Act provides:
4ABDefinition of family violence etc.
(1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful.
(2)Examples of behaviour that may constitute family violence include (but are not limited to):
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j)unlawfully depriving the family member, or any member of the family member's family, of his or her liberty.
(3)For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4)Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a)overhearing threats of death or personal injury by a member of the child's family towards another member of the child's family; or
(b)seeing or hearing an assault of a member of the child's family by another member of the child's family; or
(c)comforting or providing assistance to a member of the child's family who has been assaulted by another member of the child's family; or
(d)cleaning up a site after a member of the child's family has intentionally damaged property of another member of the child's family; or
(e)being present when police or ambulance officers attend an incident involving the assault of a member of the child's family by another member of the child's family.
(As per original)
11The Court is satisfied that an application for a return order has been made and filed within one year after the children's removal from Singapore. The requirements of Regulation 16(1)(a) and (b) are satisfied.
12The parties are in dispute as to whether the mother's removal of the children from Singapore was ''wrongful'' within the meaning of Regulation 16(1)(c) and Regulation 16(1A). More specifically, the mother contends that the children did not habitually reside in Singapore immediately before their removal to Australia, within the meaning of Regulation 16(1A)(b).
13The mother contends that if the Court finds that her removal of the children was ''wrongful'', then it should exercise its discretion not to make a return order, because ''there is a grave risk that the return of the child[ren] under the Convention would expose the child[ren] to physical or psychological harm or otherwise place the child[ren] in an intolerable situation'', within the meaning of Regulation 16(3)(b). In considering this provision, the Court must take into account Notes 1 and 2 to Regulation 16(3), as well as Regulation 16(6), (7) and (8). This is the only defence relied upon by the mother.
14The Central Authority submits that the grave risk defence fails, but if the Court finds that it succeeds, then it should exercise its discretion in favour of making a return order, in accordance with Regulation 16(5).
15No reliance was placed by the parties on Regulation 16(4).
16Regulation 15 identifies the orders which the Court may make, and relevantly provides that:
15Orders
(1)If a court is satisfied that it is desirable to do so, the court may, in relation to an application made under regulation 14:
(a)make an order of a kind mentioned in that regulation; and
(b)make any other order that the court considers to be appropriate to give effect to the Convention; and
(c)include in an order to which paragraph (a) or (b) applies a condition that the court considers to be appropriate to give effect to the Convention.
[…]
(5)To avoid doubt, a court may make an order under paragraph (1)(b), or include a condition under paragraph (1)(c) in an order under paragraph (1)(a) or (b), for the purpose of reducing a risk referred to in paragraph 16(3)(b) regardless of whether the court is satisfied that:
(a)the risk will eventuate, or is likely to eventuate; or
(b)the risk has eventuated in the past.
(6)In considering whether to include a condition under paragraph (1)(c) in an order under paragraph (1)(a) or (b), the court may have regard to the following matters:
(a)whether compliance with the proposed condition will be reasonably practicable;
(b)whether the condition is proportionate;
(c)whether the condition would usurp the regular functions of the courts or authorities in the child's state of habitual residence;
(d)whether the condition would be enforceable in the jurisdiction or jurisdictions in which it would apply.
(7)Subregulation (6) does not limit the matters to which the court may have regard in considering whether to include a condition under paragraph (1)(c) in an order under paragraph (1)(a) or (b).
(As per original)
Composition of the evidence
17The Central Authority relied upon the following evidence:
1.Affidavit of Mr Morgan signed on 13 July 2023 and filed on 18 October 2023.
2.Affidavit of [Mr C] sworn on 17 July 2023 and filed on 18 October 2023.
3.Responding Affidavit of Mr Morgan affirmed on 5 February 2024 and filed on 9 February 2024.
4.Affidavit of [Ms D] sworn on 20 February 2024 and filed on 21 February 2024.
5.Affidavit of Mr Morgan affirmed on 5 March 2024 and filed on 6 March 2024.
6.Supplementary Affidavit of Mr C signed and filed on 15 March 2024.
7.Further Supplementary Affidavit of Mr C signed and filed on 11 April 2024
8.Affidavit of [Ms E] signed and filed on 11 April 2024.
18The mother relied upon the following evidence:
1.Affidavit of Ms Morgan affirmed on 5 January 2024 and filed on 8 January 2024.
2.Affidavit of [Ms Lewis] sworn on 5 January 2024 and filed on 8 January 2024.
3.Affidavit of [Ms F] sworn on 3 January 2024 and filed on 8 January 2024.
4.Affidavit of Ms Morgan signed on 5 March 2024 and filed on 6 March 2024.
5.Affidavit of [Ms G] sworn on 12 March 2024 and filed on 13 March 2024.
6.Supplementary Affidavit of Ms G sworn and filed on 11 April 2024.
Conduct of the trial
19The trial proceeded over three days.
20The father and Ms D (''Ms D''), the domestic helper, gave evidence on the first day. The mother and the maternal grandmother, Ms Lewis (''the maternal grandmother''), gave evidence on the second day. In the morning on the third day, expert evidence was given about relevant legislation in Singapore. [Mr C] (''Mr C''), a legal practitioner, was relied upon by the Central Authority. A lay witness, Ms E (''Ms E''), was also relied upon the Central Authority, in respect of visa options available to the mother in Singapore. Ms G (''Ms G''), a legal practitioner, was relied upon by the mother.
Objections to evidence
21 The Central Authority tendered objections to the affidavit of the maternal grandmother.[5] The parties submitted that the Court should attach such weight as it thought fit to the evidence subject to objection. The Court attached weight to the evidence of the maternal grandmother, in respect of the father excluding her partner, [Mr H], from family events.[6] This is because such evidence is relevant to an evaluation of whether such behaviour comprises family violence. Save for that evidence, which was subject to objection, the Court accepts the balance of the objections to the maternal grandmother's evidence and does not place any material weight on that material.
Observations of the lay witnesses
Mr Morgan (the father)
[5] Exhibit 2, ''Objections to the evidence of [Ms Lewis] tendered by the Central Authority on 20 March 2024'' (''Exhibit 2'').
[6] Affidavit of [Ms Lewis] (the maternal grandmother) sworn on 5 January 2024, [34] and [36] (''Maternal Grandmother's Affidavit'').
22The father gave his evidence in a confident and self‑assured manner. While reluctant to initially admit to some of his behaviours and remarks towards the mother and the children, the father did make a number of admissions against interest. Given his conduct towards unrelated third parties, discussed later in these reasons, the father appears, at minimum, to lack insight into the impact of his behaviour on others, including the mother and the children.
23In respect of the mother's allegations of family violence, the father said words to the effect of ''you are seeing a total list of when I have been angry in the last six to eight years''. While the Court considers this to be unlikely, the Court does accept that the mother has sought to paint the father in the worst possible light in these proceedings.
Ms D
24Ms D is the domestic helper employed by the father and the mother (collectively referred to as ''the parents''). She has continued to be employed by the father in Singapore since the mother and the children left in April 2023. The father arranged for her to attend the trial in person for cross-examination. Ms D gave her oral evidence with care and was scrutinised by the father and the mother when doing so.
Ms Morgan (the mother)
25The mother was challenged on the magnitude and materiality of her family violence allegations against the father. Her case was presented on the basis of having to ''flee'' from Singapore with the children. On the basis of the evidence, the Court does not accept that the mother had to ''run away from danger'', which is the ordinary meaning of ''flee''.[7]
[7] Concise Oxford English Dictionary (11th ed, 2004) ''flee''.
26While the environment in the home was at times unpleasant, the Court is not satisfied that the mother's unheralded departure from the jurisdiction with the children was a proportionate response.
27There was no element of spontaneity in the departure. Careful planning and preparation was evident by the mother obtaining 30 minutes of legal advice in Singapore by telephone, several weeks prior to departure. Also prior to departure, the mother had engaged much more substantially with Australian lawyers. On the day that she arrived in [City A], Western Australia, with the children, the mother filed urgent proceedings for parenting orders in the Family Court of Western Australia (currently stayed) and also made an ex parte application for a Family Violence Restraining Order against the father, which was granted. The ex parte Family Violence Restraining Order was granted on 24 April 2023, and extended to operate for the protection of the children. The father is not in breach of the order if, among other things, he communicates with the maternal grandmother ''by WhatsApp calls solely to make arrangements to communicate with [the children]''. The duration of the order is 12 months.[8]
[8] Affidavit of [Mr Morgan] (the father) affirmed on 5 March 2024 (''Father's Third Affidavit''), Exhibit ''A'' (Interim Family Violence Restraining Order dated 24 April 2023), electronic pages 9-18 of 183.
28The mother admitted that she lied in a note that she left for [Ms D] on departure. The Court also does not accept that the content of the note that she left for the father was entirely truthful. In particular, the Court does not accept the mother's statement to the effect of ''[w]e'd agreed at Christmas that the boys and I would return to City A after six months if we couldn't make it work''. There was no such agreement. The Court accepts the father's evidence in this respect.
29During cross-examination, the mother stated that she did not wish for the father to be charged with any breach of the Family Violence Restraining Order. She recounted her understanding that any prosecution could not proceed without a statement being given by her to the Western Australia Police (''WA Police''). Despite her oral evidence, the mother contacted WA Police on 4 February 2024 and indicated that she was prepared to make a statement.[9] The mother gave a statement to WA Police on 10 February 2024.[10] The father was subsequently arrested, charged, and bailed with protective conditions late on 21 February 2024 and in the early hours of 22 February 2024. The father was charged with a breach of the Family Violence Restraining Order alleged to have occurred on 19 December 2023.[11]
[9] Exhibit 3, ''Western Australia Police Force Running Sheet with Incident Reports dated 27 February 2024'' (''Exhibit 3''), electronic page 3 of 9.
[10] Ibid electronic page 2 of 9.
[11] Ibid electronic pages 1-2 of 9.
30The Statement of Material Facts dated 21 February 2024 relevantly provides as follows:[12]
At about 8:31am on Tuesday 19 December 2023, the accused [the father] contacted the victim's [the mother's] iPad using WhatsApp as per the FVRO [Family Violence Restraining Order] and arrangement. The accused spoke with the children before the eldest child did not wish to participate and walked away. The victim was in the room supervising the call, and was recording it on her mobile phone.
Towards the end of the call the accused spoke directly to the victim by saying, ''Can you please square it away with the lawyer and hopefully a decent amount of time, please.'' The victim took this to be in reference to his visitation with the children over Christmas.
The victim said, ''I'm hanging up now.''
The accused replied, ''Okay.''
The victim later reported the incident to Police and provided a copy of the mobile phone recording.
On Wednesday 21 February 2024, the accused was arrested and conveyed to [Suburb A] Police Station where he participated in an interview. The accused made no admissions however he explained that he has documented ongoing issues with regards to how contact is arrangement with his children.
(As per original)
[12] Father's Third Affidavit, Annexure ''B'' (Western Australia Police Force documents in relation to the father's alleged breach of the Family Violence Restraining Order), electronic page 26 of 183.
31This alleged breach is listed for a criminal trial on 14 August 2024.
32The earlier listing of the trial in these Hague Convention proceedings on 22 February 2024 was vacated for reasons not limited to these developments on the night prior to, and the day of, the trial.
Ms Lewis (the maternal grandmother)
33The maternal grandmother gave her evidence in a careful, clear and considered manner. Save for those parts of her evidence which were objected to, and upon which the Court places no material weight, earlier discussed, the Court accepts her evidence.
Ms E
34Ms E is employed by a management consultancy services company used by the father, for the last 13 years, for the application of work passes and permanent residency status in Singapore.[13] Ms E was not materially challenged on the evidence she gave, and the Court accepts her evidence.
Observations of the expert witnesses
[13] Affidavit of [Ms E] filed on 11 April 2024, [2]-[5] (''[Ms E's] Affidavit'').
35Two qualified Singaporean legal practitioners were required for cross‑examination.
36Mr C and Ms G both gave their evidence in a professional manner, and each witness sought to assist the Court so far as possible. The extent to which differences in their opinions are material to the outcome of these proceedings is discussed later in these reasons.
Habitual residence: the law
37For the purpose of the Abduction Regulations, the principles relevant to interpreting 'habitual residence' and cognate expressions have been authoritatively determined in LK v Director-General, Department of Community Services, and may be summarised as follows:[14]
[14] LK v Director-General, Department of Community Services (2009) 237 CLR 582.
1.If the term ''habitual residence'' is to be given meaning, some criteria must be engaged at some point in the inquiry, and they are to be found in the ordinary meaning of the composite expression. The search must be for where a person resides and whether residence at that place can be described as habitual.[15]
[15] Ibid 592 [22].
2.Application of the expression ''habitual residence'' permits consideration of a wide variety of circumstances that bear upon where a person is said to reside and whether that residence is to be described as habitual. Past and present intentions of the person under consideration often bear upon the significance that is to be attached to particular circumstances, like the duration of the person's connection with a particular place of residence.[16]
[16] Ibid 592 [23].
3.It is unlikely, although it is not necessary to exclude the possibility, that a person will be found to be habitually resident in more than one place at the one time. But even if the place of habitual residence is necessarily singular, that does not entail that a person must always be so connected with one place that it is to be identified as that person's place of habitual residence. A person may abandon a place as the place of that person's habitual residence without at once becoming habitually resident in some other place; the person may lead such a nomadic life as not to have a place of habitual residence.[17]
[17] Ibid 593-594 [25].
4.The chief contextual consideration in deciding where a child was habitually resident at an identified time, for the purpose of the Abduction Regulations, is to facilitate resolution of disputes between parents relating to a child's care, welfare and development in the child's country of habitual residence, rather than any other forum. This context may tend in favour of finding that a child does have a place of habitual residence, however the Abduction Regulations and the Convention do not provide for a particular vindication or enforcement of rights in relation to the child.[18]
[18] Ibid 594 [26].
5.When speaking of the habitual residence of a child, it will usually be very important to examine where the person or persons who are caring for the child live and where those persons have their habitual residence. The younger the child, the less sensible it is to speak of the place of habitual residence of the child as distinct from the place of habitual residence of the person or persons upon whom the child is immediately dependent for care and housing.[19]
[19] Ibid 594 [27].
6.Examination of the person's intentions will usually be relevant, and may sometimes be very important, to a consideration of where that person habitually resides. However, considerations relevant to deciding where a person is habitually resident are not necessarily confined to the physical presence and intention, and intention is not to be given controlling weight.[20]
7.Individuals do not always act with a clearly formed and singular view of what is intended (or hoped) that the future will hold. Their intentions may be ambiguous.[21]
8.Because a person's intentions may be ambiguous, in asking whether a person has abandoned residence in a place, it is necessary to recognise the possibility that the person may not have formed a singular and irrevocable intention not to return, yet properly be described as no longer habitually resident in that place.[22]
9.When considering where a child is habitually resident, attention cannot be confined to the intentions of the parent who in fact has the day-to-day care of the child. It will usually be necessary to consider what each parent intends for the child. When parents are living together, young children will have the same habitual residence as their parents. The general rule is that neither parent can unilaterally change that place of habitual residence. The assent of the other parent (or a court order) would be necessary. However, if it becomes necessary examine the intentions of the parents, the possibility of ambiguity or uncertainty on the part of one or both of them must be acknowledged.[23]
10.The question of habitual residence will fall for decision in a very wide range of circumstances. Identification of a closed set of criteria, or the attribution of predetermined weighting between them, is not required.[24]
11.An enquiry into habitual residence is a broad factual enquiry which requires consideration of all the circumstances of the particular case. A settled purpose is one relevant, but not necessarily decisive, consideration in a finding of habitual residence. All the law requires for a ''settled purpose'' is that the parents' shared intentions that the child lives in a particular place should have a sufficient degree of continuity about them to be properly described as settled. The search is for the connection between the child and the particular state.[25]
12.The Court must consider whether presence at a particular place has a ''degree of settled purpose from the child's perspective''.[26]
Habitual residence: factual analysis
[20] Ibid 594 [28].
[21] Ibid 594-595 [29].
[22] Ibid 595 [33].
[23] Ibid 595-596 [34].
[24] Ibid 596 [35].
[25] Ibid 599 [44].
[26] Ibid 600 [45].
38The parents are Australian citizens. They commenced a relationship in 2011 and were married on 6 August 2015. The father has not been a tax resident in Australia since 2002. He has managed his businesses and financial resources while living internationally, to avoid paying high tax rates.
39The father is a [Corporate Executive], and his responsibilities primarily involve overseeing project-based work for various group companies, where he also holds Corporate Executive positions. The mother is an [Social Sciences Professional] who regularly provides consulting services to [Regional Institution A], and occasionally provides consulting services to [International Institution A].[27]
[27] Affidavit of [Mr Morgan] (the father) signed on 15 July 2023, [10] and [12] (''Father's First Affidavit'').
40The parents met in [Country B] and commenced a long distance relationship after the mother moved back to Australia. In January 2012, the parents started living together when the mother joined the father in [City B], [Country C]. Thereafter the parents lived an expatriate lifestyle as follows:[28]
1.City B, Country C: January 2012 to September 2014.
2.[City C], Country D: October 2014 to March 2015.
3.[City D], Country D: April 2015 to March 2020.
4.Australia: March 2020 to June 2022.
5.Singapore: June 2022 to April 2023.
[28] Ibid [13] and [17]-[23].
41When the mother moved to Country C, she transferred from a City A‑based role to a City B-based role with the same company. She was employed in the capacity of [Consultant]. After a brief gap in employment while the parents were living in City C, they relocated to City D so that the mother could pursue a contract engagement with [Regional Institution A] in the capacity of [Specialist].[29] Regional Institution A is headquartered in Country D. The move did not compromise the father's ability to grow his business interests. The mother has been an ongoing short-term consultant to International Institution A, which is headquartered in [City E], since 2016.[30]
[29] Ibid [15].
[30] Affidavit of [Ms Morgan] (the mother) affirmed on 5 January 2024, [12] (''Mother's First Affidavit'').
42While living in City D, the parents travelled to City A, Western Australia, for Child A's birth in May 2018. Travel to City A was planned for Child A's birth, because the mother wanted to be close to her mother and use the private Australian medical system. Three weeks after Child A's birth, the family returned to the Country D.[31]
[31] Father's First Affidavit, [16].
43The mother is able to work remotely for the majority of her role and occasionally has to travel for work. In 2019, prior to the COVID‑19 pandemic, the mother travelled for work on four occasions:[32]
(a)to Country B in September 2019;
(b)to [City F] [Country E] in September 2019;
(c)to [Country F] in November 2019; and
(d)to Country B in November 2019.
[32] Mother's First Affidavit, [12].
44On 15 March 2020, the father returned to City A to celebrate his sister's 40th birthday. Due to the COVID-19 pandemic, the father was not permitted to return to City D, despite having a long-term residence visa and his family there. The mother and Child A returned to City A immediately, after the father urgently booked flights for them, with instructions to pack for a few weeks. Australia closed its international borders on the day after the mother and Child A arrived in City A.[33]
[33] Father's First Affidavit, [17]-[18].
45Child B was born in City A, Western Australia, in September 2020.
46The family initially stayed in 'Airbnb' properties, then in a short‑term rental property, and finally in an investment property, which the father had just purchased. The father and the mother continued to work for their overseas employers.[34]
[34] Ibid [20]-[23].
47In mid-2021, the family moved around, for four to six months, to [Town A] in [State A], where the father owned two investment properties which required renovation.[35]
[35] Mother's First Affidavit, [25].
48During the period in Australia, the children were enrolled in local daycare centres, and Child A commenced Kindergarten in early 2022, at [School A] in Western Australia.[36]
[36] Ibid [23].
49Child B had severe gastrointestinal issues when he was born, and this continued for around 18 months. Child B was later assessed to have both dairy and [digestive] issues.[37]
[37] Ibid [24].
50The parents' marriage became strained in 2021. In late June 2021, the mother had a miscarriage. The Court accepts the mother's evidence that she was primarily responsible for the children's day-to-day needs and the household chores. The Court accepts the mother's evidence that she felt anxious and depressed during this time, and that she felt the father attributed the shortcomings in their relationship to her and her mental health.[38]
[38] Ibid [25]-[27].
51The Court also accepts the mother's evidence that she apologised repeatedly for ''withdrawing from the relationship'' with the father and felt that she had to do so.[39] The mother's evidence in this respect is consistent with around 72 minutes of recorded conversations between the parents in March 2023, relied upon by the mother, without objection, during which the father alleges that the mother had withdrawn from the relationship for two years, and during which the mother, again, repeatedly apologises for doing so.[40]
[39] Ibid [29].
[40] Affidavit of [Ms Morgan] (the mother) filed on 6 March 2024 (''Mother's Second Affidavit''), Annexure ''[redacted]-12'' (USB containing audio recordings with transcripts), electronic pages 19‑30 of 105.
52In early 2022, some international travel restrictions were lifted, and the father raised the subject of the parents moving to [Continent A] again. The Court accepts that the mother was uncomfortable about moving again, because the children were settled in City A, and moving internationally with two young children was ''a big undertaking''. The Court accepts the mother's evidence that this would be the parents' fifth move in the span of two years, ''with four renovations, two small children and a miscarriage''. The mother was exhausted. The Court accepts that there was conflict between the parents when the mother expressed her reluctance to move, and she eventually gave in to the father's plans, to ''keep the peace''.[41]
[41] Mother's First Affidavit, [30].
53The Court does not accept the father's evidence that the parents agreed to ''bring forward a long-term plan to move to Singapore''. The Court does accept the father's evidence that he considered there were several benefits for the family in moving to Singapore, including a better environment for raising the children as compared to Country D, with ''safety, quality of schooling, air quality, and green space'' and ''a world-class healthcare system'' that had ''navigated the [COVID-19] pandemic relatively well''. The father was optimistic that returning to an expatriate lifestyle would remove some of the stressors on his relationship with the mother.[42]
[42] Father's First Affidavit, [27] and [29].
54In the father's view, Singapore was a better location than City A for his work-related travel. The father is able to access direct flights to the Country D and [Continent B] from Singapore.[43]
[43] Ibid [42].
55The mother asked the father to delay his plans for six to 12 months, or to consider moving to another country outside of [Continent A]. The father prepared ''a budget spreadsheet comparing living as residents in Australia versus Singapore'' (where the tax rates are much lower) and used this as evidence to support his view that moving to Singapore was the best move for the family, including to facilitate the parents' travel in the region for work. The mother acknowledged that Singapore would be a better location for her work travel.[44]
[44] Mother's First Affidavit, [31].
56The mother states that when she acquiesced to moving to Singapore, it was her impression that the family would live there ''for up to [three] years or less'', until the father and his brother sold their business in [Country D]. The mother alleges that the father told her that with the funds from the sale of the business, the parents could choose to live anywhere they wished after that.[45]
[45] Ibid [32].
57The father says that when friends or family asked the mother how long the family was considering living in Singapore, she would state that they had ''no plans to leave but not less than [three] years in any event''.[46]
[46] Father's First Affidavit, [43].
58While living abroad, the parents would travel to City A one to two times per year to visit their respective families and friends.[47]
[47] Mother's First Affidavit, [17].
59In her first affidavit sworn in response to the application, the mother deposed:[48]
…I have always considered that we would return to Australia once we had children so that they could access higher education here [Australia]. It had always been deeply important that the children develop a sense of Australian cultural identity before becoming young adults, due to the impacts of growing up as 'third culture children' with our expatriate lifestyle.
(As per original)
[48] Ibid [14].
60The Court is not satisfied that the father and the mother shared a common intention when they left Australia about the duration of their living arrangements in Singapore.
61The parents made enquiries about where they would live and the schools that the children would attend in Singapore. They shipped belongings that were accumulated in City A to Singapore and contacted a real estate agent to rent both sides of the investment property in City A.[49]
[49] Ibid [31].
62The father engaged a firm to obtain Dependant's Passes for the mother and the children. The mother collated the requisite documentation. The mother also organised additional vaccinations for the children in order to comply with the Singapore immunisation schedule.[50]
[50] Ibid [32].
63The mother contracted an agency in Singapore to obtain a Singapore visa for Ms D, a trusted domestic helper who had previously worked for the parents in City D, from June 2018 until March 2020.[51]
[51] Ibid [33].
64The family moved to Singapore in June 2022. In July, the family purchased travel insurance and the father obtained health insurance. The father arranged to rent an apartment for the family with a three‑year term at [Address A] in Singapore.[52]
[52] Ibid [34]-[36].
65The children are enrolled in school. The family are members of [Family Club A]. The children initially attended the [School B] in August 2022. In around late October 2022, the father decided that he wanted to change the children's school, because it would be too expensive on a long-term basis. The mother was opposed to this change because the children had already experienced significant change with moving country and enrolling at a new school. There was a great deal of conflict between the parents over the issue of changing schools.[53]
[53] Mother's First Affidavit, [36]-[38] and [46].
66The Court accepts the mother's evidence that the family did not have an active social life with many friends in Singapore.
67In October 2022, the family travelled to City D for 10 days to sort through personal belongings which remained in the house in which they last resided. The family transported what they wished to retain in Singapore and disposed of the rest. The mother also arranged to determine the best way to ship the parents' artwork to Singapore.[54]
[54] Father's First Affidavit, [44]-[45].
68In late 2022, the parents attended couples' counselling before a holiday back to Australia at Christmas. During the Christmas holiday in December 2022, the mother told the father that she wanted to go back to Australia with the children, if their relationship broke down after returning to Singapore. The Court accepts the father's evidence that he was unequivocal in stating that he would never agree to the mother taking the children to Australia if the relationship broke down. After the Christmas holiday, the father encouraged the mother to see someone to address her mental health, while he worked on his recently diagnosed [Medical Condition A]. He also suggested that the parents try marriage counselling again, if these measures did not resolve the issues between the parents.[55]
[55] Ibid [47]-[49].
69The mother asserts that she told the father that she still wished to return to Australia permanently in the long-term, and at the very latest by the time that Child A commenced high school in Australia. According to the mother, she told the father that her dream was to have a permanent family home in City A, which she did not have in her own early childhood. She asserts that the father agreed at the time, but she now considers that this was simply ''lip service''.[56]
[56] Mother's First Affidavit, [33].
70In February 2023, the father and the mother exchanged WhatsApp messages about making a long-term plan for the mother's future employment ''[a]nd really pro con me [the mother] taking a job''. The mother was attending a safeguards conference in City D at the Regional Institution A headquarters. She was excited at the possibility of taking one of approximately 50 new international staff positions advertised in her area of speciality, over the next three years.[57]
[57] Father's First Affidavit, [51] and Exhibit ''2'' (WhatsApp conversation between the parents on 15 February 2023), electronic pages 24-25 of 85.
71Living in Singapore would be ''tricky'' and ''a bit controversial'' although ''not completely impossible'', according to the mother. The mother refers to a colleague not being permitted to stay in City A with his family. The father refers to the possibility of the mother moving back and forward [from Singapore], with some time in the City D office, and some remote work. The mother indicated that:[58]
''I think they'd probably hold to [City D] and it's where I'd add a lot of value. Anyway a lot to process and for us to think about…''
(As per original)
[58] Ibid.
72The Court accepts the mother's evidence that the father did not wish to move to City D, giving reasons such as the air quality and lifestyle being better in Singapore. The mother reluctantly accepted the father's decision. The mother appeared willing to move back to the Country D, in connection with her employment, on the unstated proviso that the parents' relationship remained intact.
73In March 2023, the father told the mother that she should not feel trapped. The father said that he would ''make it [a separation] work in Singapore'', with two apartments and ''equal custody'' of the children. The mother acknowledges that the father made these representations, but she did not believe him. The father also referred to obtaining permanent residence status for the family in Singapore. The mother was not cross-examined about this representation and the Court is unable to make a finding about it.[59]
[59] Ibid [50]; Mother's First Affidavit, [111].
74During the shorter conversation (recorded by the mother) with the father on 10 March 2023, the mother referred to applying for a full‑time job in Singapore, which she said would mean ''less change'' for the children.[60] Given her removal of the children from Singapore in the following month, this was not a representation that the mother acted upon. Under cross-examination, the mother stated, and the Court accepts, that the mother made this statement as a way to defuse and de‑escalate conflict between the parents. The Court finds that although the mother did not regard this statement to be a ''real consent'', the father would not have understood this to be the mother's position at the time.
[60] Mother’s Second Affidavit, Annexure ''[redacted]-12'', electronic page 33 of 105.
75During the 72 minutes of conversations on 10 March 2023, recorded without the father's consent, the father's tone to the mother was quiet and respectful. The parents were both evidently emotionally distressed and doing their best to salvage a failing marriage.[61]
[61] Ibid (USB).
76On 23 April 2023, the mother removed the children from Singapore to Western Australia, without the consent of the father. The Court does not accept the mother's evidence that any agreement was reached by the parents in December 2022, or at any other time, that she could move to Australia with the children if the parents' relationship did not work out.
Habitual residence: consideration
77The Court is satisfied that the children were habitually resident in Singapore immediately before the mother removed them to Australia on 23 April 2023, for the following reasons:
1.The duration of the family's stay in Australia was caused by the COVID-19 pandemic and travel restrictions imposed during that time. The Court is satisfied that, absent international conditions surrounding COVID-19, the parties would not have remained in Australia for as long as they did. The father's intention was to attend his sister's birthday party in March 2020, and then return to the Country D. Only because he was not able to do so did the mother and children travel to Australia. The family moved to Singapore as soon as practicable after international conditions permitted them to do so.
2.While the mother was reluctant to move to Singapore, the family did so in a manner consistent with a mutual intention to make this country their habitual residence in the foreseeable future. In particular:
(a)the mother's plan was to ''return to Australia before the children would go to high school'';[62]
[62] Mother's First Affidavit, [36].
(b)the father entered into a residential lease agreement for three years, expiring in May 2025;
(c)the parents arranged to collate the required documentation for Dependants' Passes for the mother and children, to enable them to remain in Singapore, and the mother arranged for the children to comply with Singapore's immunisation schedule;
(d)the mother arranged through an agency in Singapore to obtain a visa for Ms D, the domestic helper who had worked for the family from June 2018 to March 2020 in the Country D, to enable her to continue live-in employment with them in Singapore;
(e)the parents shipped the belongings that they had accumulated during their stay in City A to Singapore, leaving behind nothing of significance;
(f)in October 2022, the family visited the Country D to sort through their personal belongings which had remained there during the COVID-19 pandemic, transported what they wanted to keep to Singapore, and disposed of the rest;
(g)the parents made arrangements to rent both sides of the duplex investment property that the father had purchased in City A during the COVID‑19 pandemic;
(h)in October 2022, the mother enquired about the best way to ship the parents' artwork from City D to Singapore;
(i)the parents purchased Singaporean health insurance and travel insurance;
(j)prior to moving to Singapore in June 2022, the parents sold their two cars, and did not retain any motor vehicles in Australia;[63] and
(k)the family established a settled life in Singapore.
3.The father and the mother accept that Singapore is a superior location for each of their occupations, for travel purposes, in comparison to Australia.
[63] Father's Third Affidavit, [16].
78The Court is not satisfied that ''habitual residence'' is established, or not established, simply by an arithmetic calculation of the amount of time spent by the children in a particular country.
79Despite her reluctance to move to Singapore, the mother nevertheless acted in a manner consistent with the intention to make this a settled move for the family. Different intentions between the parents about the move to Singapore must be viewed against the background of the actions and steps the parents took to establish the family's life in Singapore.
80From the children's perspective, the family had established their life in Singapore at the time that the children were wrongfully removed in April 2023. Merely the fact that the children changed school does not derogate from this conclusion.
81Given this analysis, the Court does not accept the mother's submission that the children had no place of habitual residence when the mother removed them from Singapore in April 2023. The children were habitually resident in Singapore immediately prior to their removal.
Are the requirements of Regulation 16(1) satisfied?
82An application for a return order has been made and filed within one year after the children's removal from Singapore and retention in Australia.
83The children are under 16 years of age. The children habitually resided in Singapore immediately before they were removed to and retain retained in Australia on 23 April 2023.
84The father had rights of custody in relation to the children, pursuant to the law in Singapore, immediately before they were removed to and retain retained in Australia. The children's removal to and retention in Australia is in breach of the father's rights of custody. At the time of the children's removal to Australia, the father was actually exercising rights of custody jointly with the mother. The Court accepts the evidence of Mr C in these respects.
85The children's removal to and retention in Australia, since 23 April 2023, is ''wrongful'' within the meaning of Regulation 16(1A).
86All of the requirements in Regulation 16(1) have been satisfied. Subject to the operation of Regulation 16(3), the Court must make the return order.
Grave risk: the law
87Subject to the observations about the amendments made in 2022, the proper construction of Regulation 16(3)(b) has been authoritatively stated by the plurality (with whom Callinan J agreed as to their construction of the Abduction Regulations) in DP v Commonwealth Central Authority.[64] The relevant principles may be summarised as follows:
1.The onus of proof lies on the party opposing return. That party must demonstrate a ''grave risk'' of exposure to harm. Many factors will be relevant to that inquiry. Often, the feared harm will be a central issue in subsequent judicial proceedings in the country of return.[65]
2.There will be cases where, by moulding the conditions on which return may occur, the discretion will probably be exercised by making an order for a return on those conditions, notwithstanding that a case of 'grave risk' might otherwise have been established. Ensuring not only that there will be judicial proceedings in the country of return, but also that there will be suitable interim arrangements for the child, may be significant at this point of the inquiry. If that is to be done, care must be taken to ensure that the conditions are such as will be met voluntarily or, if not met voluntarily, may readily be enforced.[66]
3.The Court is required to make some prediction, based on the evidence, of what may happen if the child is returned. A court cannot avoid making that prediction by repeating that it is not for the courts of the country to which or in which the child has been removed or retained to inquire into the best interests of the child. The exception requires courts to make the kind of inquiry and prediction that will inevitably involve some consideration of the interests of the child.[67]
4.There will seldom be any certainty about the prediction. Certainty is not required. What is required is persuasion that there is a risk which warrants the qualitative description ''grave''. Leaving aside the reference to ''intolerable situation'', and confining attention to harm, the risk that is relevant is not limited to harm that will actually occur, it extends to a risk that the return would expose the child to harm.[68]
5.Clear and compelling evidence is required. The bare assertion, by the person opposing return, of fears for the child may well not be sufficient to persuade the Court that there is a real risk of exposure to harm.[69]
6.The ''grave risk'' exception must be given the meaning its words require and there is no evident choice to be made between the need for a ''narrow construction'' or a ''broad construction'' of the provision.[70]
7.This provision will not necessarily find frequent application. Inevitably a child, taken from one country to another without the agreement of one parent, will suffer disruption, uncertainty and anxiety. That disruption, uncertainty and anxiety will recur, and may well be magnified, by having to return to the country of habitual residence. More than this kind of result is required to engage the provision.[71]
[64] DP v Commonwealth Central Authority (2001) 206 CLR 401 at 416-418 [39]-[45] and 456 [191].
[65] Ibid 417 [39].
[66] Ibid 417 [40].
[67] Ibid 417-418 [41].
[68] Ibid 418 [42].
[69] Ibid 418 [43].
[70] Ibid 418 [44].
[71] Ibid 418 [45].
88These observations must be viewed against the plurality's earlier observations (footnotes omitted):[72]
The content of those exceptions must be understood against the other provisions of the Regulations [the Abduction Regulations] which, as has earlier been pointed out, make plain that there may be an order for return with no expectation that there will be any judicial process in the country to which the child will be returned in which any question about what is in the best interests of the child will be raised or addressed. Often enough, of course, there will be proceedings pending or anticipated in the country to which an order for return is sought. Many cases have been decided under the Regulations, and under equivalent provisions applying in other Convention countries, in which that has been so. If, on return of the child, there will be a court hearing that will decide what arrangements for custody of and access to the child will be in that child's best interests, as an Australian court, exercising a discretion under the Regulations, will no doubt take that into account. But the construction of the Regulations cannot proceed from a premise that they are designed to achieve return of children to the place of their habitual residence for the purpose of the courts of that jurisdiction conducting some hearing into what will be in that child's best interests. As the Regulations recognise, questions of rights of custody in the country to which return is sought are regulated in some cases by operation of law, by administrative decisions, or by agreement. There may be neither occasion nor opportunity for any engagement of the judicial processes of that country.
(As per original)
[72] Ibid 414-415 [33].
89Given the definitive analysis of the meaning of Regulation 16(3)(b) in DP v The Commonwealth Central Authority on 27 June 2001, reliance upon authorities pre-dating this decision should be carefully scrutinised to ensure that undue emphasis is not placed upon propositions which may be inconsistent with it. Taking this consideration into account, the Court is satisfied that the view earlier expressed by two differently constituted Full Courts of the Family Court of Australia, about the construction of Regulation 16(3)(b), remains good law. In particular:[73]
1.The three categories of ''physical harm'', ''psychological harm'' and ''or otherwise place the child in an intolerable situation'' should read disjunctively.
2.The words 'or otherwise' link the quality which each of the first two categories must have to the third category.
3.The physical or psychological harm in question must be of a substantial or weighty kind, to a level comparable to an intolerable situation.
[73] Gsponer v Director General, Department of Community Services, Victoria. (1989) FLC 92-001 at 77,158‑77,159, adopted by Director General of Family and Community Services v Davis (1990) FLC 92‑182 at 78,227.
90The qualitative description ''grave'', deriving from the Latin gravis, in the context of Regulation 16(3)(b), means ''heavy'' or ''serious''.[74] ''Real'' risk is not sufficient. Although ''grave'' characterises the risk rather than the harm, there is in ordinary language a link between the two. Thus, a relatively low risk of death or really serious injury might properly be qualified as ''grave'', while a higher level of risk might be required for other, less serious forms of harm.[75]
[74] Concise Oxford English Dictionary (11th ed, 2004) ''grave''.
[75] In re E (Children) (Abduction: Custody Appeal) [2012] 1 AC 144 at 160 [33].
91Regulation 16(3)(b) was amended in 2022. The Court is expressly permitted to have regard to any risk that the return of a child under the Convention would result in the child being subject to, or exposed to, family violence. Also, the Court is expressly permitted to have regard to the extent to which the child could be protected from any such risk if the child was returned under the Convention. Section 4AB of the Act defines ''family violence'', as earlier set out.[76]
[76] See paragraph [10] above of these reasons.
92The Court adopts the construction of the 2022 amendments to the Abduction Regulations recently stated by Christie J in Secretary, Department of Communities and Justice & Mercado.[77] In summary, the Court accepts that:[78]
[77] Secretary, Department of Communities and Justice & Mercado [2023] FedCFamC1F 874 [30]-[32], [113]‑[116] and [118]; this construction was also adopted by Tyson J in [2024] FCWA 64 [92]-[93].
[78] Ibid.
1.The notes to Regulation 16(3) are part of the Act, pursuant to Section 13(1) of the Acts Interpretation Act 1901 (Cth).
2.The effect of the notes is to invite the Court to consider, when analysing the application of Regulation 16(3)(b), whether:
(a)there is any risk that the return of the children would result in the children being subject to, or exposed to, family violence;
(b)upon return, the extent to which the children could be protected from any such risk; and/or
(c)family violence, within the meaning contained in Section 4AB of the Act, has occurred or will occur, or is likely to occur.
3.If the Court finds that family violence has occurred, then such findings must be taken into account when evaluating prospective risk of exposure to ''grave risk''. The Court must take into account the nature of the family violence, such as whether it follows a pattern of conduct or consists of a one-off event, whether the children are exposed directly or indirectly and/or what the perpetrator has done since.
4.The [Abduction] Regulations, prior to the 2022 amendments, did not preclude consideration of allegations of violence. In particular, the Court is obliged to consider evidence of family violence where a party asserts that such history is relevant to a defence.
5.The effect of the 2022 amendments is to codify and clarify a framework in which family violence may be considered.
93Regulations 15(5), (6) and (7) were inserted by the 2022 amendments and are set out earlier in these reasons.[79]
Grave risk: factual analysis
[79] Family Law (Child Abduction) Convention Amendment (Family Violence) Regulations 2022 (Cth); see paragraph [16] above of these reasons.
94The mother relies upon three categories of facts to support her defence. Firstly, the grave risk of the children being exposed to psychological harm if a return order was made. Second, the grave risk of the children being placed in an intolerable situation if a return order was made. Third, the capability or willingness of Singapore to manage the grave risk of the children being exposed to psychological harm or otherwise being placed in an intolerable situation if a return order was made.
95The Central Authority submits that the evidence relied upon by the mother does not reach the threshold required to establish ''grave risk''. On the Central Authority's case, the mother fails upon analysis of the first and second categories of facts. For the reasons which follow, the Court agrees.
96The Central Authority further contends, in any event, that the evidence of Singapore's relevant applicable laws show that Singapore has ample capacity to properly deal with the children's circumstances if a return order was made.
Grave risk of the children's exposure to psychological harm
97The mother alleges that the father became abusive and controlling towards her in late 2019 onwards. For approximately two years, until late 2021, the mother says that she took [Medication A] to manage anxiety, under the guidance of her doctor. The mother says that the father was not happy about her taking medication.[80]
[80] Mother's First Affidavit, [61]-[62].
98In September 2020, in the week after Child B's birth, the Court accepts the evidence of the maternal grandmother about an incident that occurred at the home of the parents. The maternal grandmother stayed with the parents in City A for a month when Child B was born, to assist the mother. Her partner, Mr H, drove from their home in [Town B] to see the baby and was expected to arrive at 10:00am, however, he arrived at lunch time. The father became angry and was cursing, ''[f]uck, fucking moron'' and told Mr H to ''get out'' of the house. The father advanced on Mr H and Mr H retreated out of the house. The maternal grandmother spoke to Mr H separately and told him to go home. The father was angry because Mr H was late, without explanation, and had not paid immediate attention to the baby, but had taken some time explaining why there were delays in his trip from Town B to City A.[81]
[81] Maternal Grandmother's Affidavit, [18]-[21].
99In his oral evidence, the father said that Mr H was ''an alcoholic'', was ''not a good person'', and that he did not want [Mr H] around the children.
100When the parents lived in the [Suburb C] home in City A, when Child A was two years old, the father carried him up two flights of stairs, by one hand and his hair, at bedtime, while Child A was yelling and screaming that he did not want to go to bed. The mother was not at home when this occurred. The maternal grandmother when giving this evidence, which the Court accepts, was not sure whether to characterise the father's behaviour in this respect as physical violence, or poor parenting. The father, on this occasion, was heavy-handed, and this behaviour could potentially have caused some injury to the child's arm.
101By March 2021, according to the mother, the father's abusive and controlling behaviour extended to the children. The mother alleges that in or around March 2021, the father called Child A ''a little shit'' and ''slammed him'' into his car seat.[82]
[82] Mother's First Affidavit, [26] and [63].
102The Court accepts the mother's evidence that the father has called the children names, including ''creep'' (with reference to Child A, in December 2022), ''retarded'' (with reference to Child A, in March 2023), ''fuckwit'' (with reference to Child A, in March 2023), ''idiot'' (with reference to Child A in April 2023), and ''little turd'' (with reference to Child A in April 2023). In March and April 2023, on separate occasions, the father allegedly shoved Child B hard down on the bed in anger, slammed Child A aggressively into the couch and told him to put his shoes on, was explosively angry because the flashing light on Child A's bicycle helmet was missing and yelled angrily at the mother and Child A by saying, ''[w]ell I'll fuck off then'', in response to Child A not wanting to speak to the father.[83]
[83] Ibid [65], [67]-[69], [74], [77] and [113].
103In or around March 2023, the father allegedly said ''[f]uck, stupid'' after a jar of jalapenos fell out of the fridge and broke, during breakfast one morning. The mother apologised because she said that she had not put the jar back in the right place, and Ms D cleaned up the floor.[84]
[84] Affidavit of [Ms D] sworn on 20 February 2024, [48] (''[Ms D]'s Affidavit'').
104The mother submits that the Court should more readily infer that the father behaves in this aggressive manner by placing appropriate weight on his interactions with third parties. Three examples were explored in evidence.
105The Court accepts the mother's evidence that in 2019, the parents' landlord in the Country D advised that he would not be renewing the apartment lease, and the family was asked to vacate within one month at the end of the lease. According to the mother, the landlord referred to the father's ''unacceptable behaviour'' in dealing with building staff and workers on the premises. The mother recalled the father screaming at workers on the premises to stop working, because the parents had a young child (Child A) trying to sleep.[85]
[85] Mother's First Affidavit, [80].
106On 7 April 2021, the supervisor at Child A's daycare centre in City A sent an email to the father, which included the following extract:[86]
However, an important matter that I would like to address is your demeanour in addressing me with feedback. We have appropriate avenues for providing feedback which I would be happy to share with you if you had requested. Your behaviour in addressing this with me at the entrance was very intimidating and made me feel threatened. I have been made aware via written complaint of another case of this threatening demeanour by a member of our team after a biting incident involving your son, [Child A]. First occurrences are managed in house with a focus on our response to feeling threatened as we appreciate people's responses are influenced by emotional stimuli and their environments. Given that this is the second occurrence, I felt remiss of me not to bring it to your attention.
(As per original)
[86] Ibid Exhibit ''[redacted]-8'' (Email correspondence between the father and the Centre Manager at [Daycare Centre A] dated various), electronic page 72 of 80.
107In a responding email, with reference to this issue, the father stated:[87]
If you or staff feel threatened by my demeanour this was certainly not my intention. In this case maybe written advice is best in the future?
(As per original)
[87] Ibid Exhibit ''[redacted]-8'', electronic page 71 of 80.
108The father's reference to this issue was towards the end of his responding email, the majority of which was devoted to doubling down on his complaints. The tone conveyed in the father's response is that this is a ''you'' problem. No apology is extended by the father for the effect, whether intended or not, of his behaviour towards the daycare supervisor. Significantly, this appears to be the second incident involving the father engaging in what was perceived to be threating and intimidating behaviour with daycare centre staff.
109In February 2023, the father acknowledged swearing at an elderly neighbour from an apartment one storey below who knocked at the front door late at night, telling him words to the effect, ''[f]uck off, you don't come to my home at 10pm at night'' and ''it's not my apartment, it's from upstairs you old fuck''. The neighbour had a noise complaint directed to the wrong person. The Court accepts that the mother was shocked and considered the father's response was disproportionate. The Court accepts the mother said, ''he's an old man, [Mr Morgan]''.[88]
[88] Ibid [66].
110The father insisted, in January 2022, that the maternal grandmother's partner, Mr H, was not permitted to attend any family events in the future. Consequently, in May 2022, the maternal grandmother did not attend Child A's birthday celebration, because Mr H was not invited.[89]
[89] Maternal Grandmother's Affidavit, [34] and [36].
111The father acknowledged calling the mother a ''fat fuck'', referring to her post-pregnancy weight gain. The Court accepts the mother's evidence that when she challenged the father about this comment, he said words to the effect that his language ''wasn't that bad'' and ''well I haven't said anything for two years and its true''. These remarks occurred in late 2022. The father sought to justify his derogatory comment to the mother, rather than apologise to her.[90]
[90] Mother's First Affidavit, [38].
112In December 2022, the maternal grandmother tried to make arrangements with the mother and the children for Christmas, inviting her and the children to Town B to stay overnight, to avoid any confrontations with the father. On 13 December 2022, the father called the maternal grandmother and told her that this arrangement was ''not going to happen''. He told the maternal grandmother that she could visit the mother and the children in City A and stay at [Ms I's] [the paternal grandmother's] house, and that she was further invited to his sister's house for Boxing Day, to spend time with the mother and the children. On 23 December 2023, the maternal grandmother was able to see the children and the mother at the [Suburb B] Foreshore for a picnic.[91]
[91] Maternal Grandmother's Affidavit, [44], [46] and [50].
113On or around 14 January 2023, the father called the mother a ''stupid bitch'' in front of Ms D and Child A. On 7 April 2023, an argument between the parents escalated, and the father attempted to forcibly remove Child A from the mother's arms.[92]
[92] Mother's First Affidavit, [85]-[86].
114On the day that she arrived in Australia with the children, on 23 April 2023, the mother obtained an ex parte Family Violence Restraining Order against the father. The type of evidence upon which the order was obtained has been substantially recounted earlier in these reasons.
115The mother alleges that the father breached the Family Violence Restraining Order on several occasions, including:
(a)on or around 23 November 2023, the father spoke to the mother aggressively, and said, ''I want them [the children] to hear me, I want them to hear how you've destroyed my relationship with them''; [93]
(b)sometime in around late November or early December 2023, the father yelled at the mother that he wanted her to ''stop destroying my [his] relationship with [the children]'';[94] and
(c)on 19 December 2023, the father spoke to the mother directly, and said, ''[c]an you square away the visit with the lawyers for this weekend''.[95]
[93] Mother's Second Affidavit, [46].
[94] Ibid [47].
[95] Ibid [50].
116The mother reported the incident on 19 December 2023 to WA Police, and the father was subsequently charged with the breach. The trial is listed [in] August 2024.
117The Court is satisfied that the father has engaged in acts of family violence against both the mother and the children, in the following respects:
(a)behaving towards the mother in a manner which causes her to be fearful;
(b)denigrating the mother about her weight and calling her a ''stupid bitch'';
(c)seeking to control or influence the mother's access to medication for anxiety, after she disclosed that she was taking the medication;
(d)seeking to control or influence the mother's access to her family, in particular by excluding the maternal grandmother's partner from family events, and placing pressure on the maternal grandmother to choose between attending family events without her partner or not attending at all;
(e)denigrating and verbally abusing the children; and
(f)being physically aggressive towards the children.
118The mother has obtained a Family Violence Restraining Order against the father, and he has been charged with a breach of the Family Violence Restraining Order. The Court has considered the mother's allegations taken at their highest and will discuss family violence further, later in these reasons.
119The Court is satisfied that the father has behaved poorly toward the children on occasion, demonstrating a low tolerance level and low threshold for frustration, and disproportionate expressions of anger. The father's behaviour towards third parties, discussed above, suggests that he can present, on occasions, as intimidating and threatening. The children are likely to feel afraid and emotionally upset on the occasions when the father behaves toward them in the manner that the Court has found. The impact on the children is likely to be magnified if they do not live with or otherwise spend regular time with the mother, if a return order is made.
120If the children live with the father, upon a return order being made, he will have the assistance of Ms D, the domestic helper, who is well‑known to the children. The availability of the mother if a return order is made is discussed in the next section of these reasons.
Grave risk of the children being placed in an intolerable situation
121The intolerable situation asserted by the mother, if a return order is made, falls into two categories. Firstly, the inability of the mother to live or spend time in Singapore with the children, with the consequent increased exposure of the children to the father and asserted greater likelihood of their exposure to his denigrating, abusive and physically aggressive behaviour towards them. Second, the unavailability of proper protections for the mother in Singapore against family violence.
The mother's ability to live or spend time in Singapore
122The practical effect of a return order, absent any condition being imposed, is that the children may, at least initially, live with the father. The father will have the assistance of Ms D, the domestic helper, who is well-known to the children. If a return order is made, the mother's ability to live or spend time in Singapore is subject to a number of variables.
123The mother explored her legal options before leaving Singapore with the children on 23 April 2023, during a 30-minute telephone conversation with a Singaporean lawyer on or around 16 March 2023. The mother says that she would not be able to access a refuge because she is not a permanent resident or a citizen of Singapore. According to the mother, applying for and obtain a violence restraining order would take ''two to three months''. The mother asserts that divorce proceedings would need to be commenced first before parenting and property issues could be dealt with, and this requires living in Singapore for three years, hence she has no standing to commence divorce proceedings in Singapore. The mother has no family in Singapore to stay with and only one close friend with three small children of her own. The mother also says that she cannot open her own bank account in Singapore as a Dependant's Pass holder.[96]
[96] Mother's First Affidavit, [106]; Mother's Second Affidavit, [7].
124The mother may have her Dependant's Pass cancelled by the father. The mother could obtain a protection order against harassment.
125The mother is a Dependant's Passholder. This entitles her to live in Singapore and work in her usual pattern. The pass may be cancelled by the father at any time. The Court accepts the evidence of Ms G that the mother is likely to face considerable practical difficulties without her own independent right to live and work in Singapore, such as the probable inability to secure a lease in her own name.[97]
[97] Affidavit of [Ms G] sworn on 12 March 2024, [20] (''[Ms G's] First Affidavit'').
126If the father cancels the mother's Dependant's Pass, the mother may only remain in Singapore for a period of up to 90 days on a short‑term visit pass and she would have to appeal to the Ministry of Manpower for extensions of time to remain on a short-term visit pass, but she would require a local sponsor to support her application for an extension.[98]
[98] Ibid [46].
127The mother would be able to apply to the Court (in Singapore) to seek an order for the father to reinstate her Dependant's Pass.[99] The mother would need to demonstrate that the cancellation of the Dependant's Pass was calculated to ''cause her financial hardship and stress, with a view to having her leave Singapore and to place her at a disadvantage in the proceedings'' and that ''the cancellation of [the Dependant's Pass] would adversely affect the welfare of the parties' child or children''.[100]
[99] TYC v TYD [2017] SGFC 23.
[100] Ibid [31] and [33].
128The Court is satisfied that the father's attitude to reinstating the mother's Dependant's Pass or otherwise assisting her with accommodation in Singapore, should a return order be made, is reflected in his evidence, for the following reasons.
129Firstly, in his affidavit affirmed on 13 July 2023, the father states:[101]
130.In the event [Ms Morgan] [the mother] was to return with the children to Singapore she can either stay in the FMH [former matrimonial home] or I will organise an apartment. I am also willing to subsidise the cost of her alternative accommodation if required. The children are already enrolled at schools here and their positions remain open, with the academic year to commence in September 2023.
131.[Ms D] is still in my employ in Singapore.
132.The family membership at [Family Club A] is suspended and could be reactivated on their return.
133.[Ms Morgan] is still able to earn an income as she has not changed employment.
134.[Ms Morgan] can remain as a dependent [sic] on my Employment Pass, or she can obtain her own Employment Pass with localised employment. I recognise the importance of her in the children's lives and want to ensure that she can remain living in Singapore. I am happy to assist her with any Visa applications required, including an application for PR status for the family.
(As per original)
[101] Father's First Affidavit, [130]-[134].
130Secondly, in his affidavit affirmed on 5 February 2024, the father states:[102]
I am living in Singapore on an Employment Pass. [Ms Morgan] [the mother] holds a dependent [sic] pass, which is linked to my visa, and on 23 August 2024 my solicitor wrote to [Law Firm A] requesting she sign the extension of the pass which she agreed to do. The dependent [sic] passes for [Child A], [Child B] and [Ms Morgan] are current until 19 December 2026. There are no limitations on [Ms Morgan] returning to live in Singapore in the event the Family Court makes an Order for the return of the children. I maintain my position that I would support [Ms Morgan] in anyway possible to stay in Singapore on her Dependent [sic] Pass for as long as necessary. She has not made any attempt to visit Singapore with the children since these proceedings commenced.
(As per original)
[102] Affidavit of [Mr Morgan] affirmed on 5 February 2024, [10] (''Father's Second Affidavit'').
131Thirdly, in his affidavit affirmed on 5 March 2024, the father states:[103]
The Dependent [sic] passes have been renewed for another ''41 months'' and the In Principle Approval is valid until 31 October 2023. The Ministry of Manpower have been advised of the Hague Hearing in this matter and have put a stay on the Dependent [sic] passes until after the hearing on 19 and 20 March 2024.
(As per original)
[103] Father's March 2024 Affidavit, [32].
132The father annexes to his affidavit confirmation from the Ministry of Manpower dated 2 August 2023 that the mother's Dependant's Pass has been renewed for another 41 months [until 19 December 2026, which coincides with the expiry of the Employment Pass possessed by the father]. The In-Principle Approval was valid until 31 October 2023. The mother and the father signed the required paperwork in August 2023. The mother's address is identified as the former matrimonial home.[104] The father signed a declaration issued by the Ministry of Manpower on 18 August 2023, which stated, among other things, that he shall ''bear responsibility for the pass holder's upkeep and maintenance in Singapore''.[105]
[104] Ibid Annexure ''M'' (Documentation from the Singapore Ministry of Manpower regarding the Dependant's Passes for the children and the mother along with email correspondence dated 30 August 2023 from [Ms J] to the Australian Central Authority), electronic pages 156 to 183 of 183.
[105] Ibid Annexure ''M'', electronic page 163 of 183.
133Fourthly, the father arranged for an affidavit to be filed from [Ms E], [Corporate Executive] at [Company A], signed on 11 April 2024. This firm provides consultancy services, including applications for work passes and permanent residency status in Singapore. The father has been a client of the firm since 2011 and has engaged its services to handle all applications and renewals of his Employment Pass and Dependant's Passes for his family members. [Ms E] confirmed that the mother holds a valid In‑Principle Approval for a Dependant's Pass, which is linked to the Employment Pass of the father, expiring on 19 December 2026.[106]
[106] [Ms E]'s Affidavit, [2]-[6].
134The father requested [Ms E]'s advice ''as to the options available to [Ms Morgan] [the mother] for a visa to reside in Singapore that are not linked to his Employment Pass''.[107] In her affidavit, [Ms E] sets out the options available to the mother as follows:[108]
1.Obtaining an Employment Pass through direct employment with Regional Institution A in securing a Singapore‑based staff position.
2.Obtaining an Employment Pass by incorporating and subsequently being employed in her own consulting company. This would allow the mother to continue providing consultation services via the company to the Regional Institution A or other clients.
3.Seeking employment and securing an Employment Pass through a local company in Singapore. The mother could explore opportunities to secure employment with a local company in Singapore that is willing to sponsor her for an Employment Pass. This option would require her to find a job that matches her skills and qualifications.
4.Applying for a Long-Term Visit Pass with the Immigration Authority. The mother could apply for a Long-Term Visit Pass in Singapore to accompany her children with their studies. However, this option would not provide her with authorisation to work in Singapore. A local sponsor, either a Singaporean Permanent Resident or national, would be required for the Long-Term Visit Pass application. The father has suggested that he would furnish a personal friend or business colleague for this purpose if required.
[107] Ibid [7].
[108] Ibid [11(a)-(d)].
135Given the father's evidence in his first three affidavits, no sworn evidence was given by him about why [Ms E]'s evidence was adduced.
136Given the available evidence, the Court cannot be satisfied on the balance of probabilities that any of the options outlined by [Ms E] can be reasonably engaged by the mother in the short-term.
137Mr C accepts the evidence of Ms G in respect of the practical and legal difficulties that a ''trailing spouse'' [a spouse in the position of the mother in these proceedings] may face in Singapore. Materially, Mr C then immediately states:[109]
It is noted, however, that opinion expressed in the Affidavit [the Affidavit of [Ms G] filed on 13 March 2024] is based on the assumption that the Father will cancel the Mother's Dependant's Pass. Any risks to the Mother can be mitigated by having the Father provide an undertaking in writing that he will not cancel the Mother's [Dependant's] Pass.
(As per original)
[109] Affidavit of [Mr C] filed on 11 April 2024, [4(b)] (''[Mr C]'s Third Affidavit'').
138For reasons to be later discussed, the Court is not limited to relying upon the father to provide an undertaking. The Court does not accept Mr C's evidence that such an undertaking might also be incorporated into Court orders [only] if there is a mutual consent to it.[110] The Court is entitled to make an order or impose a condition on a return order, subject to the statutory requirements.[111]
[110] Ibid [12].
[111] Family Law (Child Abduction Convention) Regulations 1986 (Cth) regs 15(1)(b) and (c), (5), (6) and (7).
139Mr C agrees with Ms G that the mother may apply for a Long‑Term Visit Pass, for which the father's co-operation would be necessary. Mr C expresses the opinion that if the father wishes to have the children return to Singapore, it would be sensible for him to support the mother's Long-Term Visit Pass application.[112]
[112] [Mr C]'s Third Affidavit, [13]-[14].
140The mother would have serious difficulty securing a lease in her own name in Singapore with only a short-term pass.
141A Long-Term Visit Pass, to enable the mother to stay for up to two years in Singapore, is unlikely to be obtained by the mother because this requires the father's co-operation.[113]
[113] [Ms G]'s First Affidavit, [53].
142Ms G is instructed that, if a return order is made, the mother will apply for the children to relocate from Singapore to Western Australia. After reviewing the law applicable to such an application, which requires the welfare or best interests of the children, and a number of factors, to be considered, Ms G opines that ''she [the mother] would be able to make a compelling argument to persuade the Singapore Courts to allow her to relocate permanently with the Children [to Western Australia]''.[114]
[114] Ibid [16] and [60].
143The Court does not make any finding or comment about Ms G's opinion in this respect. Relevantly, two points are worthy of observation. Firstly, the mother has provided instructions that she will apply for the children to relocate from Singapore to Western Australia, if a return order is made, in the Singapore Courts. Second, the relevant legislation takes into account the children's best interests.
144Mr C accepts Ms G's evidence that, if a return order is made, the mother may apply for the children to relocate from Singapore to Western Australia, that the outcomes of such cases are ''fact‑centric exercises'', and further accepts that Ms G correctly identifies the relevant legislation, process and factors.[115]
Protection for the mother against family violence in Singapore
[115] [Mr C]'s Third Affidavit, [16]-[19].
145The Court accepts the evidence of Ms G that:
1.Family violence is defined more narrowly in Singapore than in Australia. It does not specifically include emotional, psychological or financial abuse.[116]
[116] [Ms G]'s First Affidavit, [34].
2.In Singapore, family violence does not include any force ''by way of correction towards a child below 21 years of age''. Corporal punishment has not been outlawed in Singapore.[117]
[117] Ibid [29].
3.There is the unproclaimed Women's Charter (Family Violence and Other Matters) Amendment Bill passed by the Singapore Parliament on 4 July 2023, which includes protection against ''emotional and psychological abuse''. However, these provisions, which amend the Women's Charter 1961, are not yet in force and will only come into operation on a date appointed by the Minister in the Gazette.[118]
[118] Ibid [35].
4.Financial abuse is not specifically provided for in any of the amendments to the Women's Charter 1961.[119]
5.In Singapore, contested child proceedings may take around nine to 12 months to resolve.[120]
6.In Singapore, a maintenance claim may take four to six months to resolve.[121]
7.Either of the parents may apply for custody of the children and maintenance in Singapore (in the mother's case, in respect of maintenance, for both herself and the children[122]).
[119] Ibid [36].
[120] Ibid [43].
[121] Ibid [45].
[122] Ibid [44].
146The Court accepts the evidence of Mr C that:
1.The mother could consider applying for a Personal Protection Order, defined under the Women's Charter 1961, as well as a Protection Order under the Protection from Harassment Act 2014.[123]
2.The standard of proof to obtain such orders in Singapore is the balance of probabilities.[124]
3.The scope of a Personal Protection Order under the Women's Charter 1961 requires proof of family violence. This may require proof of the perpetrator causing 'hurt' or placing a family member 'in fear of hurt'. 'Hurt' means bodily pain, disease or infirmity. Alternatively, family violence may be demonstrated by proof that the perpetrator is causing ''continual harassment with intent to cause or knowing that it is likely to cause anguish to a family member''.[125]
4.Under the Protection from Harassment Act 2014, an individual must not, with intent to cause harassment, alarm or distress to another person (''the target person''), by any means use threatening, abusing or insulting words or behaviour, make any threatening, abusive or insulting communication or publish any identity information of the target person or a related person of the target person, and as a result causing the target person or any other person harassment, alarm or distress. Ancillary provisions to this effect are also in force.[126]
5.Singapore's legal system provides court mediation for all family law matters, including where they concern young children.[127]
[123] [Mr C]'s Third Affidavit, [29(c)].
[124] Ibid [29(d)].
[125] Ibid [26].
[126] Affidavit of [Mr C] filed on 15 March 2024, [44] (''[Mr C]'s Second Affidavit'').
[127] [Mr C]'s Third Affidavit, [4(a)].
147The Court does not accept that the behaviour which the Court has found in these proceedings was perpetrated by the father against the mother and the children would necessarily establish a ''fear of hurt'' under the Women's Charter 1961. The case law relied upon by Mr C in respect of ''intimidatory, offensive or emotionally abusive behaviour'' features facts which evidence far more severe forms of behaviour than those in evidence in these proceedings.
148Nor is the Court is reasonably satisfied that the mother has recourse to the Protection from Harassment Act 2014, if the father further engages in the conduct which the Court has found he has committed against her. Ms G opines that the mother will not be provided with the same level of protection that she has been granted in Australia under the Family Violence Restraining Order.
149Mr C and Ms G differ in their opinions as to whether Singapore's legislative regime applies to protect the mother and the children in the same terms as the existing Family Violence Restraining Order made in favour of the mother and the children. The Court considers that, presently, Australian law has a lower threshold for engagement than Singapore's law, with respect to family and domestic violence. That is, an applicant in the mother's circumstances in this case is likely to more readily obtain a family violence order in Western Australia, than a comparable order in Singapore. However, this is not the relevant enquiry in these proceedings.
150The Court is satisfied that the mother has access to legislation in Singapore to protect her from family violence and harassment, as defined under Singaporean law. While the legislation is different from Australian law, the Court is satisfied that its terms are sufficient to deal with any conduct of the father falling within its scope, during the currency of any legal proceedings in Singapore.
151The relevant enquiry is not whether Singapore's family violence laws offer the same level of protection as Australian law. The Court is satisfied that they presently do not. The question is whether there is a grave risk that the return of the children will expose them to psychological harm or an intolerable situation.
Inability of Singapore's legal system to manage the asserted grave risks
152The Court is satisfied that the mother has access to Singapore's legal system to institute proceedings:
(a)to protect her from family violence and harassment, as defined under Singaporean law; and
(b)to seek orders to relocate with the children to Australia.
153The Court rejects the mother's case that Singapore's legal system is unable to manage the children's exposure to grave risks of psychological harm or an intolerable situation. The defence does not succeed simply because Australian law may provide a higher degree of protection (i.e have a lower threshold of engagement) to the mother or the children, than Singaporean law.
Grave risk: consideration
154For reasons earlier given, the Court is satisfied that the father has engaged in acts of family violence against both the mother and the children. However, the Court is satisfied that these acts do not expose the children to a grave risk of psychological harm or an intolerable situation if a return order is made.
155Even if the father is convicted of breaching the Family Violence Restraining Order on 14 August 2024, the Court is not satisfied that the nature of the breach engages the defence relied upon by the mother. The breach of the Family Violence Restraining Order, if such is found on the Statement of Material Facts relied upon by WA Police, falls in the lower range on the spectrum of severity.
156The Court is satisfied that, if a return order is made, the children's risk of exposure to psychological harm will increase if:
(a)the children return to Singapore and live in the primary care of the father; and
(b)the children are unable to live with or spend regular time with the mother.
157Regarding the increased risks just referred to, the Court is satisfied that:
(a)the mother's ability to live and work in Singapore is currently tenuous;
(b)given (a) above, the children may be unable to live with the mother in the short-term; in the short-term, the children will likely live with the father and be able to spend time with the mother by electronic means, if the parents can reach agreement; and
(c)if agreement cannot be reached, the mother will need to engage Singapore's legal system, which will permit her to apply to relocate the children to live in Australia with her.
158The mother is able to institute child-related proceedings in Singapore. The mother and the father can access mediation in Singapore.
159The evidence discloses that Child A is currently five years of age and has some learning difficulties. Child B is currently three years of age.
160The Court is not satisfied that, upon a return order being made, there is a grave risk that the children will be exposed to psychological harm or placed in an intolerable situation, if the mother is unable to have the option to spend at least regular physical time with the children and have the option of living and working in Singapore.
161The ''grave risk'' enquiry is a separate and distinct enquiry to whether the children's welfare or best interests would be served by such an arrangement. That is a question for the Singapore Courts to determine, if the parents cannot agree.
Are the requirements of Regulation 16(3)(b) satisfied?
162For these reasons, the Court is not satisfied that the mother has made out her defence to a return order being made.
163In these circumstances, the Court must make a return order.
Discretion to make or not make a return order if grave risk is established
164The Court proposes to briefly address how it would have exercised its discretion if the mother had established her defence under Regulation 16(3)(b). The relevant law in relation to the exercise of discretion to refuse an order for return is summarised as follows, with a brief statement of the Court's findings, in the event that the defence in Regulation 16(3)(b) was established:
1.The discretion is unconfined except in so far as the subject matter and the scope and the purpose of the Regulations enable it to be said that a particular consideration is extraneous. The subject matter is such that the welfare of the child is properly to be taken into consideration in exercising that discretion:[128]
[128] De L v Director-General, NSW Department of Community Services (1996) 187 CLR 640 at 661-662.
Noted.
2.The comparative suitability of the forum to determine the child's future in the substantive proceedings:[129]
[129] As to the factors in sub-paragraphs (2) to (7), see H v H (Abduction: Acquiescence) [1996] 2 FLR 570 at 574.
The expert evidence of Mr C and Ms G establishes that Singaporean law requires the welfare and best interests of the children to be taken into account in parenting proceedings. The Court finds that there exists a comparable suitability of forum in Singapore to determine the children's future in the substantive proceedings.
3.The likely outcome (in whichever forum) of the substantive proceedings:
The Court is unable to make a finding about the likely outcome in the substantive proceedings.
4.The consequences of the acquiescence:
There was no evidence of acquiescence in this case.
5.The situation which would await the absconding parent and the child if compelled to return:
The mother faces potential difficulties in her accommodation and employment status (subject to any conditions that the Court imposes). The children will live with the father in the former matrimonial home (subject to any order of a court of competent jurisdiction in Singapore).
6.The anticipated emotional effect upon the child of an immediate return (a factor which is to be treated as significant but not paramount):
The children will be exposed to an increased risk of psychological and emotional harm by an immediate return to Singapore.
7.The extent to which the purpose and underlying philosophy of the Hague Convention [the Convention] would be at risk of frustration of a return order were to be refused:
Given the degree of planning undertaken by the mother to remove the children to Australia, and immediately institute proceedings here, both in this Court and for a Family Violence Restraining Order in the Magistrates Court of Western Australia, in the circumstances where the Court has found that the mother did not need to ''flee'' with the children, the purpose and underlying philosophy of the Convention would be grossly undermined if a return order were refused.
165The Court would make a return order, even if the mother had made out her defence under Regulation 16(3)(b). The Court has no discretion to refuse to return the children.[130]
[130] Regulation 16(5) does not apply, and Regulation 16(3)(b) is not established.
166The Court now considers whether any order or condition can properly be included in a return order, which is appropriate to give effect to the Convention, which sufficiently ameliorates the risk to the children identified in these reasons, irrespective of whether such risk is properly characterised as ''grave''.[131]
[131] Family Law (Child Abduction Convention) Regulations 1986 (Cth) reg 15(1)(b), (c) and reg 15(6).
167Matters that bear on the exercise of that discretion include formulating conditions on which return may occur, whether judicial proceedings will take place in the country of return, and whether there are suitable interim arrangements for the child. If return is ordered, care must be taken to ensure that the conditions are moulded so that they can be met voluntarily or can readily be enforced.
168The Court is satisfied, if it has erred in its assessment of grave risk, that any such risk can be sufficiently ameliorated by the conditions the Court intends to impose. In the circumstances of this case, a return order, with conditions, should be made.
169The Court will hear from counsel as to the form of those conditions and the form of the orders generally. In the absence of any further submissions, the Court proposes to make the orders at the end of these reasons.
Conditions
170The Court refers to the terms of Regulation 15(1) and (5) to (7), earlier set out.[132]
[132] See paragraph [16] above of these reasons.
171The Court intends to make orders imposing the following conditions on the operation of the return order. The Court is satisfied that these conditions are appropriate to give effect to the Convention.
172Firstly, that the father forthwith do all acts and things necessary, including signing and lodging all necessary documents, to enable the mother's Dependant's Pass to be issued by the Ministry of Manpower until 19 December 2026. This coincides with the existing In Principle Approval.
173Secondly, that the father pay to the mother the sum of $20,000. This payment is intended as a financial contribution to assist the mother, if she wishes to accommodate herself in Singapore, or commence legal proceedings in Singapore in respect of the children.
174These two conditions were advanced by the father during closing submissions, following exchanges between the Court and counsel. Both conditions are based upon, or derived from, evidence given by the father in support of the Central Authority's case.
175Thirdly, that the Central Authority be at liberty to relist the proceedings on short notice, in default of agreement with the mother, for further orders to give effect to the return order.
176In determining that such orders and conditions are appropriate, the Court takes into account the considerations identified in Regulation 15(6), as follows.
(a) Whether compliance with the proposed condition will be reasonably practicable
177Given the father's evidence and submissions, earlier set out, his compliance with these conditions is reasonably practicable.
(b) Whether the condition is proportionate
178The conditions are proportionate and arise from evidence given by the father himself and submissions made on behalf of the Central Authority.
(c) Whether the conditions would usurp the regular functions of the courts of authorities in the child's state of habitual residence
179Rather than usurp the regular functions of the courts or authorities in Singapore, the condition will facilitate any necessary litigation or mediation being conducted there, on a less uneven playing field.
(d) Whether the condition would be enforceable in the jurisdiction or jurisdictions in which it would apply
180The conditions are enforceable in Australia and impose a personal obligation on the father to take certain actions before the return takes place.[133] As already stated, those are actions which necessarily arise from evidence given by the father himself or submissions made on his behalf.
[133] McDonald and Director-General, Department of Community Services NSW (2006) FLC 93-297 at 81,040 [29].
181For the purpose of Regulation 15(7), the Court takes into account the observation made by Bennett J in State Central Authority & Papastavrou:[134]
The Regulations implement the 1980 Convention [the Convention] which is supposed to provide a hot pursuit remedy. A hot pursuit remedy does not…take the form of a speedy hearing and then a possibly long delay whilst conditions may or may not be fulfilled.
(As per original)
[134] State Central Authority & Papastavrou [2008] FamCA 1120 at [131].
182There is no evidence that a ''long delay'' is likely to ensue, following the imposition of these conditions.
183The Court proposes to join the father as a party to the proceedings, given that the conditions it proposes to impose bind the father, and take the form of orders.
184As already indicated, the Court will hear from the parties about the terms of any further conditions. In this respect, the Court notes that the father relies upon an undertaking to the Court dated 19 July 2023, firstly, that he will bear the cost of the return of the children to Singapore including payment of flights for the children and accompanying adult, and secondly, that he will arrange to fly, or for an agent to fly, with the children back to Singapore.[135] During closing submissions, the Central Authority also submitted that, upon a return order being made, the father would pay for the children's school fees at the schools that they previously attended.
[135] Undertaking of [Mr Morgan] signed on 19 July 2023 and filed on 18 October 2023.
185Any conditions imposed by the Court are without prejudice to the rights of father and the mother to apply to a court of competent jurisdiction in Singapore for such relief as each may be advised to pursue.
Orders
186For these reasons, the Court intends to make the following orders, subject to hearing from counsel as to whether any alternative or further orders should be made, and further subject to hearing from counsel as to the terms of the conditions imposed on the return order:
1.The father, Mr Morgan (''the father''), be and is hereby joined as a party to these proceedings, with the purpose and intent of being bound by these orders, pursuant to Regulation 15 of the Family Law (Child Abduction) Regulations 1986 (Cth).
2.The children, Child A born [in] May 2018 (''Child A'') and Child B born [in] September 2020 (''Child B'') be returned to Singapore.
3.The Respondent, Ms Morgan (''the Respondent''), and the father do all acts and things necessary to give effect to the preceding order.
4.The father forthwith do all acts and things necessary, including signing and lodging all necessary documents, to enable the Respondent's Dependant's Pass to be issued by the Singapore Ministry of Manpower until 19 December 2026.
5.The father pay the Respondent the sum of $20,000, with the characterisation of such sum reserved to a court of competent jurisdiction.
6.The enforcement of paragraphs 2 and 3 of these orders is suspended pending the father's compliance with the preceding two orders.
7.Upon compliance by the father with paragraphs 4 and 5 of these orders, the Applicant, COLIN JOHN BLANCH (COMMISSIONER OF POLICE, WESTERN AUSTRALIA POLICE) (''the Applicant'') be at liberty to relist the proceedings on short notice, in default of agreement with the Respondent, for further orders to give effect to paragraphs 1 and 2 of these orders.
8.All documents produced by named persons pursuant to subpoena be returned or destroyed in accordance with the request from the named person upon the expiration of 42 days from this order.
9.In relation to material tendered as an exhibit into evidence in these proceedings:
(a) all parties must collect their exhibits tendered by them (''their exhibits'') from the Chambers of the Honourable Justice Berry at least 42 days, and no later than 56 days, from the date of this order.
(b) all parties must contact the Chambers of the Honourable Justice Berry to arrange the collection of their exhibits; and
(c) in default of compliance with subparagraph (a), all material tendered as an exhibit, save and except for material produced pursuant to subpoena, will be destroyed by the Court without notice to the parties.
10.All material tendered as an exhibit and uploaded electronically by the Court will be destroyed by the Court without notice to the parties upon the expiration of 42 days from this order.
11.In the event of an appeal being lodged prior to the expiration of 42 days from this order, paragraphs 8, 9 and 10 above do not apply.
12.The proceedings be otherwise dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.
JW
Associate
6 MAY 2024
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