Commissioner of Police for State Central Authority of South Australia & Garnett - [2021] FamCA 86

FAMILY COURT OF AUSTRALIA
Commissioner of Police for State Central Authority of South Australia & Garnett [2021] FamCA 86

File number(s): ADC4498/2020

Judgment of: WILLIAMS J

Date of judgment: 3 March 2021

Catchwords: FAMILY LAW – CHILD ABDUCTION – HAGUE CONVENTION – Child brought to Australia from United Kingdom – Consideration of the child’s habitual residence at the time of removal – Whether the father’s rights of custody were breached – Held, jurisdictional facts established and child’s removal from the UK was wrongful – Whether father consented or acquiesced to child’s removal in circumstances where he handed the child’s passport to the mother to enable international travel – Held, father consented – Grave risk of physical and psychological harm and intolerable situation considered – Objections of the child – Consideration of discretion – Discretion exercised to dismiss application – Family Law Act 1975 (Cth) s 111B – Family Law (Child Abduction Convention) Regulations 1986 – reg 16 – Return Order

Legislation:
Family Law Act 1975 (Cth) s 111B

Family Law (Child Abduction Convention) Regulations 1986 (Cth) regs 14, 15(2), 16

Cases cited:
De L v Director General, NSW Department of Community Services[1996] HCA 5

DP v. Commonwealth Central Authority; JLM v. Director–General, NSW Department of Community Services [2001] HCA 39

HZ & State Central Authority [2006] FamCA 466

LK v Director-General, Department of Community Services [2009] HCA 9

M (Children) (Habitual Residence: 1980 Hague Child Abduction Convention) [2020] EWCA Civ 1105

Re H (Abduction: Habitual Residence: Consent) [2000] 2 FLR 294

Re H (Minors) [1997] AC 72

State Central Authority & Handbury [2019] FamCA 668

Walpole & Secretary, Department of Communities and Justice [2020] FamCAFC 65

Wenceslas & Director-General, Department of Community Services [2007] FamCA 398

Number of paragraphs: 144

Date of last submission/s: 15 January 2021

Date of hearing: 25 November 2020, 9, 10 & 15 December 2020

Place: Melbourne

Counsel for the Applicant: Ms Mitchell

Solicitor for the Applicant: Crown Solicitor’s Office

Counsel for the Respondent: Mr McQuade

Solicitor for the Respondent: Harry Alevizos, Barrister & Solicitor
ORDERS

ADC4498/2020

BETWEEN:
COMMISSIONER OF POLICE FOR STATE CENTRAL AUTHORITY OF SOUTH AUSTRALIA

Applicant

AND:
MS GARNETT
Respondent

ORDER MADE BY:

WILLIAMS J

DATE OF ORDER:

3 MARCH 2021

THE COURT ORDERS THAT:
1.The Application filed by the Commissioner of Police for State Central Authority of South Australia on 18 September 2020 is hereby dismissed.
2.Paragraphs 1 and 2 of the Orders made on 22 September 2020 be discharged.
3.Paragraph 3 of the Orders made on 22 September 2020 be discharged and the mother be entitled to retrieve any passports lodged for safe keeping with the court.
4.The Court requests that the Australian Federal Police remove the name of the child X born on … 2010 from the Watch List at all points of international arrivals and departures in Australia.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Garnett has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Williams J
INTRODUCTION

This is an application by the Commissioner of Police for State Central Authority of South Australia (the State Central Authority) filed on 18 September 2020 seeking the return to the United Kingdom (UK) of the child, X born in 2010, pursuant to the provisions of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”).
The respondent, Ms Garnett is the mother of the child. The requesting parent, Mr B who lives in the UK, is X’s father.
The relevant regulations are made pursuant to s.111B of the Family Law Act1975 (Cth), to make such provision as is necessary or convenient to enable the performance of the obligations of Australia under the Convention on the Civil Aspects of International Child Abduction, which is generally referred to as the Hague Convention.
The Convention provides a framework for the prompt return of children, where it is alleged there has been a wrongful removal of a child from his/her country of habitual residence. Both Australia and the UK are signatories to the Convention.
Upon establishment of the pre requisites to a return order, the jurisdictional facts, as prescribed by reg 16(1A), there are limited circumstances or exceptions to return which may be relevant in response to an application to return the child to his country of habitual residence. Those regulatory exceptions must be read in the context of the fundamental obligation to return the child.
If the court is satisfied on the requisite standard of proof that one or more of the regulatory exceptions to return are made out, then the court has a discretion to return the child. The matters relevant to the exercise of that discretion include some consideration of the best interests of the child: HZ & State Central Authority [2006] FamCA 466.
The Regulations provide as follows:
Reg 16 Obligation 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 sub-regulation (1A);
the court must, subject to sub-regulation (3), make the order.
(1A)For sub-regulation (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.
(3)A court may refuse to make an order under sub-regulation (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.
(4)For the purposes of sub-regulation (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 sub-regulation (3) is established by a person opposing return.
The Regulations require that applications for return of children, when it is alleged that they have been wrongfully removed from their habitual residence, are dealt with expeditiously and as quickly as proper consideration of each matter permits (reg 15(2)).
In De L v Director General, NSW Department of Community Services [1996] HCA 5, the High Court cautioned against the need for expedition resulting in insufficient hearing of issues in dispute. Some disputes are appropriate for summary determination and others require cross-examination.
In this case, Counsel for the State Central Authority cross-examined the mother and Counsel for the mother cross-examined the father and his sister.
The State Central Authority asserts that the child has been wrongfully removed from the UK, in accordance with regs 16(1) and (1A), on the following basis:
(a)the application was made within one year of the child’s removal from the United Kingdom;
(b)the child is under the age of 16;
(c)the child was habitually resident in the United Kingdom, a Convention country prior to her removal on 16 May 2020;
(d)the requesting parent, the father, has rights of custody in relation to the child, which he was exercising immediately prior to the child’s removal; and
(e)the removal of the child was in breach of the father’s rights of custody.
The mother conceded that:
(a)the application for a return order was filed within 12 months of the day that it is alleged that that X was wrongfully removed (reg 16(1)(b));
(b)X is under 16 years of age (reg 16(1A)(a));
The mother opposes the application for return and asserts that X was not wrongfully removed from the UK on 16 May 2020.She does so for the following reasons:
(a)that X was not habitually resident in the UK prior to her removal on 16 May 2020; and
(b)at the time of her removal the father was not exercising rights of custody and those rights were not breached.
If the Court found the jurisdictional facts established, then the mother relied on the exceptions to return in regs 16(3)(a)(ii), 16(3)(b), and 16(3)(c), namely:
(i)The father had consented, or subsequently acquiesced to the child’s removal;
(ii)There is a grave risk that the return of the child would expose her to physical or psychological harm or otherwise place her in an intolerable situation; and
(iii)The child objects to being returned, her objection shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes and the child has attained an age and degree of maturity at which it is appropriate to take account of her views.
Onus of proof
The State Central Authority bears the onus of proving the jurisdictional facts which establish that the retention was wrongful: DP v. Commonwealth Central Authority; JLM v. Director–General, NSW Department of Community Services [2001] HCA 39. They are habitual residence and rights of custody.
The mother bears the onus of proof to establish the regulatory exceptions to return. They are consent and/or acquiescence, grave risk of harm or intolerable situation and X’s objection to being returned to the UK.
Preliminary Matters
The hearing was conducted electronically via Microsoft teams, due to the COVID-19 Pandemic.
An electronic hearing enabled the father to participate in the proceedings.
I wish to express my appreciation to both Counsel for the professional and courteous manner in which the proceedings were conducted.
Background
The father is aged 45, is a British citizen and resides in F Town, E County, England. The mother is also aged 45 and is a British citizen with permanent residency rights in Australia.
The child, X was born in 2010 in South Australia and is a dual citizen of the United Kingdom and Australia.
The parents met in London in 2009 and prior to X’s birth the father moved to Australia in July 2010. The parents married in 2011 and lived together in Australia until their first separation on 27 October 2012. They reconciled in January 2014 and separated again in June 2014. Subsequent to separation, the father returned to the United Kingdom in August 2014, where he has remained, apart from holidays and stays in Australia to visit X.
Although the parties divorced in 2016, on 18 July 2019 the mother, X, and the mother’s son Y arrived in the United Kingdom from Australia so that the parents could reconcile. The mother, X and Y remained living with the father until 16 May 2020, when the mother left the family home with the children and boarded a flight to Australia.
Subsequent to the mother and X’s arrival in the United Kingdom, the family moved into a rented apartment. Both the mother and the father are co-tenants of the property.
On 16 September 2019, X was enrolled in a local primary school. She also attended a local sports club multiple times weekly. In March 2020, X’s school moved to online learning, due to the COVID-19 pandemic.
The mother obtained employment as a community worker in the United Kingdom shortly after her arrival, obtained a UK drivers licence and opened a UK bank account. Both the mother and X were registered with a local general practitioner and attended from time to time.
Following an argument between the parents on 15 May 2020, the mother informed the father that she wished to return to Australia permanently with X and Y, as she was missing family there and had no trust in the parental relationship. The father asserts that he objected to X returning to Australia as she had a happy and stable life in the UK.
On the morning of 16 May 2020, the father found the mother packing a suitcase. The mother informed X that they were returning to Australia and the father asserts that X was extremely shocked upset and angry, and that she wanted to stay in the UK.
Both parties agree that the mother informed the father that she would find somewhere to stay in G Town, E County for a few days, would let the father know where she was staying and told X that she would return with her so, that she could say goodbye to her father. The father asserts that he continued to object to X returning to Australia and that he was informed by the mother that she had no intention to fly to Australia in the next few days.
On the morning of 16 May 2020, both parties agree that the father handed the mother the Australian passports for herself and the two children and assisted her with her bags into a taxi.
The mother, X and Y travelled to Australia later in the day on 16 May 2020.
Evidence and Documents relied upon by the parties
The State Central Authority relied upon the following documents:
(a)Form 2 Application filed 18 September 2020;
(b)affidavits of Mr B sworn/affirmed 24 June 2020, 27 July 2020, 3 September 2020, 11 November 2020 and 19 November 2020.
The respondent relied upon the following documents:
(a)Response filed 23 October 2020;
(b)affidavits of Ms Garnett filed 23 October 2020 and 3 November 2020;
(c)Book of annexures;
(d)Report writer family consultant Ms H dated 5 November 2020;
(e)affidavits of Ms J, Mr K, Ms L, Ms M and Ms N, all attached to the mother’s trial affidavit.
Both Counsel tendered documents during the trial as follows:

Exhibit Number

Applicant Exhibit Description

A-1

The 5 affidavits of Mr B, sworn 24 June 2020, 27 July 2020, 3 September 2020, 11 November 2020, 19 November 2020 save to the objections to the affidavit of 19 November 2020 paragraphs 16-18

A-2

Letter from father’s solicitors to Ms Garnett dated 8 September 2016

A-3

Email containing text messages dated 26 September 2019

Exhibit Number

Respondent Exhibit Description

R-1

Police Incident Report of 27 October 2012

Regulation 26 enables the court to direct a family consultant to report to the court on such matters that are relevant to the proceedings as the court considers to be appropriate and that such a report may be received in evidence in any proceedings. In this matter a reg 26 report was ordered to address:
(a)the apparent emotional functioning of X and any acute distress or indicators that she requires immediate expert assessment or mental health treatment;
(b)whether X objects to being returned to the United Kingdom;
(c)whether any objection by X shows a strength of feeling beyond the mere expression of a preference, or ordinary wishes;
(d)whether X has attained an age and degree of maturity, at which it is appropriate to take into account her views; and
(e)whether X is settled in her current environment.
The report dated 5 November 2020 was prepared by family consultant Ms H and is in evidence. Neither party sought to cross-examine the family consultant.
Credibility of Witnesses
The father presented as a responsive and credible witness. He was direct and forthright and his oral evidence was generally consistent with the evidence in his affidavits with the exception of the circumstances surrounding who had possession of X passports prior to the argument of 27 October 2012.
The father’s sister, Ms D, also presented as credible and responsive, except that she initially, as expected, sought to overemphasise matters which she thought were advantageous to her brother, and minimise matters which she perceived as advantageous to the mother.
The mother was not a good witness. Many of her answers were monosyllabic and it was difficult to follow her narrative. She did however make concessions about discrepancies and inaccuracies in her affidavits. Examples were her evidence about the transfer of funds between her bank account and the father’s bank account and her admission, during cross-examination that she did intend to move to the UK with X and Y on a permanent basis.
Where the evidence of the father and the mother differs, I generally prefer the evidence of the father.
Jurisdictional facts
I will firstly address the issue of X’s habitual residence and then secondly address whether at the time of her removal the father had rights of custody and whether they were breached.
RELEVENT LEGAL PRINCIPLES - HABITUAL RESIDENCE
The question of whether a person is habitually resident in a particular country is a question of fact, not an artificial legal construct, and requires an evaluation of all relevant circumstances.
The law in relation to habitual residence in Australia is well settled. The seminal authority is the High Court decision of LK v Director-General, Department of Community Services [2009] HCA 9 (“LK”). French CJ, Gummow, Hayne, Heydon and Kiefel JJ said:
[23]… First, 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. Secondly, the past and present intentions of the person under consideration will often bear upon the significance that is to be attached to particular circumstances like the duration of a person's connections with a particular place of residence.
…
[25] … it may be accepted that "[h]abitual residence, consistent with the purpose of its use, identifies the centre of a person's personal and family life as disclosed by the facts of the individual's activities". Accordingly, 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 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. So, for example, 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; a person may lead such a nomadic life as not to have a place of habitual residence.
…
[27] 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 – 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. But if, as the writings about the Abduction Convention and like instruments repeatedly urge, the question of habitual residence of a child is one of fact, it is important not to elevate the observation that a child looks to others for care and housing to some principle of law like the (former) law of dependent domicile of a married woman.
[28] … examination of a person's intentions will usually be relevant to a consideration of where that person habitually resides. Sometimes, intention will be very important in answering that question. The example of a person who leaves a jurisdiction intending not to return is one such case. But unlike domicile, considerations relevant to deciding where a person is habitually resident are not necessarily confined to physical presence and intention, and intention is not to be given controlling weight.
…
[34] … 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. No less importantly, it may be accepted that 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. But again, if it becomes necessary to examine the intentions of the parents, the possibility of ambiguity or uncertainty on the part of one or both of them must be acknowledged.
[35] It follows … that to seek to identify a set list of criteria that bear upon where a child is habitually resident, or to attempt to organise the list of possible matters that might bear upon the question according to some predetermined hierarchy of importance, would deny the simple observation that the question of habitual residence will fall for decision in a very wide range of circumstances. And examination of decided cases in the area does not require the identification of a closed set of criteria, or the attribution of predetermined weighting between them.
…
[45] Moreover, the approach described in [Punter] Accords with the general tenor of decisions in the United States of America. It may be observed of those decisions that there is seen to have been a division between the Circuit Courts of Appeals about the relevance of the parents' subjective intentions for the child or children concerned. When it is also observed, however, that the resolution of the competing approaches has been to invite attention to whether presence at a place has a "degree of settled purpose from the child's perspective" (emphasis added), the difference in expression of the relevant considerations may not be great. At all events, a thread common to the leading decisions in the United States remains the need to look at all of the circumstances of the case. And it is that approach, as described in Punter, which should be followed.

The father’s evidence as to habitual residence is as follows:
Intention
(a)there was a shared intention between the father and the mother, that the mother would reconcile with the father and that she and X would relocate to the United Kingdom permanently. This was following the father’s trip to Australia in April 2019;
(b)the mother demonstrated and expressed her intention to do so by:
(i)WhatsApp messages exchanged with the father and the period 2018 to May 2019, which are annexed to the father’s first to fourth affidavits. Some of the messages are Annexures C, D and E of the father’s third affidavit;
(ii)ending her relationship with her former partner Mr P in May 2019;
(iii)the Facebook profile messages which are annexures J and K of the father’s second affidavit and in particular the mother’s comments of 25 July 2019 that “I’ve moved back” and “I’ve moved back here”;
(iv)making public statements on Facebook reflecting the agreement between the parents and that X and the mother were moving to reside in the UK permanently and that she wished to make a new life in the UK;
(v)the mother resigning her employment in South Australia as a health professional;
(vi)ending X’s enrolment at Q School in Australia;
(vii)giving up the lease on her rented property in South Australia;
(viii)selling and/or giving away X’s possessions including her gym equipment;
(ix)subsequent to her arrival in the UK the mother demonstrated her continuing intention to settle in the UK by obtaining employment, obtaining a driver’s licence, entering into a lease with the father as cotenants and registered for council land tax, obtaining a national insurance number and cancelling the Australian child support agreement relating to X in January 2020, approximately six months after her arrival in the UK.
Settled Purpose and ties to the UK
(c)the father’s case is that it was the shared intention of both parents that X live in the UK and that steps were taken pursuant to that shared intention including:
(i)enrolling X at F Town Primary School from September 2019;
(ii)enrolling X, in and ensuring her attendance at R Sports School;
(iii)registering X for health benefits, and her receiving medical care at F Town Hospital and S Hospital;
(iv)registering X as a patient under the care of a general practitioner at the T Medical Centre.
(d)at the time of her removal from the UK, X had significant ties to the UK and had integrated into the community as follows:
(i)she had settled into the school at F Town Primary, made close friends and developed a good working relationship with children and adults at the school;
(ii)she had been selected for the school gymnastic teams including competition, and had actively participated in the sport;
(iii)she had attended R Sports School multiple times a week with her cousins and formed attachments and friendships with other club members;
(iv)she had close family ties in the UK and had developed close relationships with her cousins, aunty, uncle and grandparents and spent considerable time with extended paternal family members.
The mother’s evidence to X’s habitual residence is as follows:
Intention
(a)the mother’s intention at all times was that she would be moving to the UK effectively on a trial basis to see whether the reconciliation between herself and the father was successful;
(b)in the event the reconciliation was unsuccessful, she would return to Australia with the children;
(c)prior to her move to the UK, the father made various representations to her namely;
(i)the mother could obtain a high degree of support for Y who had special needs;
(ii)he would purchase a house for the family to live in;
(iii)if the trial reconciliation was not successful the mother and children could return to the Australia;
(d)none of the representations referred to in the previous subparagraph were honoured by the father, as Y did not receive a high level of support, the father did not purchase a house for the family, there were constant arguments regarding the children’s schooling, X’s sleeping arrangements and the father’s. continued association with a previous girlfriend;
(e)prior to leaving Australia, she renewed her professional registration in May 2019, her Australian permanent residency visa on 8 July 2019 and she had no intention of abandoning her permanent residence in Australia;
(f)prior to leaving Australia, she advised her friend, Ms V, that her move to London was on a “see how it goes” basis and that she advised Ms L that she was going on a trial basis.
Settled purpose and ties to the UK
(g)apart from a holiday in 2011 for her first birthday, X has lived the whole of her life in Australia until she travelled to the UK with her mother in July 2019;
(h)X has never lived in the sole primary care of her father and during times when her parents were separated she has lived in the primary care of her mother in Australia;
(i)X’s habitual residence is that of her mother, Australia;
(j)she did not integrate into the UK and although she attended school she had not settled into school and did not like the school. This is supported by the text messages between the parents as to X’s reluctance and dislike of school which are annexure X14;
(k)X did not attend school in person subsequent to March 2020, due to COVID-19 restrictions;
(l)she did not have her close family ties in the United Kingdom, other than her father and her close family ties remained in Australia.
DISCUSSION
I will firstly address the evidence and submissions in relation to intention.
Counsel for the mother submitted that the father’s denial during cross-examination that the reconciliation was to be on a trial basis and that parties had never turned their minds to the mother’s return to Australia with the children, if reconciliation was unsuccessful, beggars belief. That is particularly so in the context of the history of the couples short lived reconciliations.
It is also highly improbable that the father would have the court believe that the mother was prepared to uproot her settled life in South Australia, together with those of the two children accompanying her, without discussing or giving any thought to the possibility of their relationship failing.
Furthermore, the absence of the father asserting any agreement or understanding that the mother and X would remain in the UK in the event of a hypothetical separation, is demonstrative of the father’s knowledge of the understanding and arrangement between the parents, that upon separation the mother and children would return to Australia. Such an agreement or understanding between the parents would also assist to explain the events of 16 May 2020, when the father handed the passports to the mother.
The evidence of the mother’s witnesses as to a trial period, refer to conversations they had with the mother about the temporary nature of her move prior to her departure to the UK. The father is critical of those witnesses on the basis that the mother has been active on social media for many years and none of the conversations were recorded in social media comments, apart from the “see how we go” message to her friend Ms V. It is apparent from the voluminous annexures to the affidavits that the mother was most active on social media. It is surprising that the mother would not have had a conversation with the father nor referred to the temporary nature of their relationship in social media conversations with him, or with others, if that had been her true intention.
Annexure B-02 to the father’s fifth affidavit is a screenshot of an exchange of messages between the mother and a friend on 30 June 2020, which includes a message from a friend “hey hunny I thought you were back for good” with a response from the mother “yeah me too …” That exchange of text messages is entirely inconsistent with the evidence of the mother’s witnesses, and is consistent with the father’s view of the mother’s intention at the time of relocation to UK.
The father’s evidence as to the mother’s intention to permanently move to the UK refers to the mother’s dissatisfaction of her life in Australia and the breakdown of her relationship with Mr P. The text messages refer to the mother expressing that she missed English life and culture, her family in England and was looking forward to being close to her family and the paternal family, particularly the relationship between X and her cousin Z. The messages also indicate a desire to rekindle a relationship and expressions of love and patience and understanding that it would never be the same with anyone else and that the relationship was meant to be, even to the extent of “bones to bones” and “ashes to ashes”. There is no mention at all of any temporary or trial basis to the relationship, to the contrary there seems to be an expression of the ultimate destiny of two people who were meant to be together, however naïve those sentiments may have ultimately turned out. In the context of that communication, it does not surprise me that the parties did not turn their minds to the prospect of their relationship failing, and what would happen in terms of living arrangements, if that came to pass.
Counsel for the State Central Authority, in her final written submissions, contends that the mother’s evidence in her affidavits as to her intent, is inconsistent and irreconcilable with concessions made during cross-examination.
She refers to an exchange between herself and the mother which is recorded at page 129 of the transcript of recording from 10 December 2020, lines 12 – 13, which was as follows:
Counsel for the Central Authority: Now you did all that because it was your intention to move to the UK with X and Y on a permanent basis, wasn’t it?
Mother: Yes
It is difficult to reconcile the contradictory evidence of the mother and the submissions of counsel for the mother, in light of that statement. It would be almost impossible to find that the mother did not have the intention of making the UK her permanent home, and X’s permanent home after she has made such a concession, particularly in the context of the sentiments expressed in the messages referred to in paragraph 50 hereof. In the circumstances, I find that it was the mother’s intention to make a permanent home for herself and X in the UK prior to her departure from Australia. I am mindful that intention is not determinative of habitual residence, and is one of many factors to be considered.
I will secondly address the evidence and submissions as to settled purpose and ties to the UK.
The submissions of the State Central Authority about X’s degree of integration are in the context of the parents putting into place arrangements reflecting their shared intention that X would live permanently in the UK. The submissions of Counsel for the wife about X’s degree of integration, are in the context of irrespective of whether X was to remain permanently in the UK, the parents would need to take steps to secure her education and medical needs.
It is agreed that X, Y and her parents lived together as a family unit, initially in the father’s flat, prior to the parents securing a lease of a flat in F Town, where the father remains living. There were disputes between the parties about sleeping arrangements of the family, which were the subject of cross-examination, but not of particular assistance in this enquiry.
There is common agreement that X was enrolled in F Town Primary School from September 2019 and indeed the mother complained that the father had not taken timely steps to enrol X at an earlier time. The father’s evidence was that he had been unable to do so until such time as X was in the UK, as he was required to produce documents showing that she was in the UK prior to enrolling her at school. That proposition was not disputed by the mother during cross-examination.
The father’s evidence was that apart from an initial settling in period, X was happy and settled at school and sports, had friends at school and sports and had formed relationships with family in the UK. He had also been advised by teachers at school that X had settled in.
His evidence included that X had spent time with extended family members on both the maternal and paternal sides, including his great aunts and uncles and his cousin CC on his side, and that his mother and sister, Ms D regularly assisted looking after X when the mother was at work.
The father’s evidence was corroborated by his sister, Ms D whose evidence was that X was shy and nervous at first, but thereafter seemed to grow in happiness and confidence. Ms D’s affidavit refers to relationships which X formed with her family, sports and school as well as her positive relationship with her father. I accept her evidence in that regard.
X’s school report for the year 2019 to 2020 which is annexure B-12 to the father’s fourth affidavit of 11 November 2020, refers to X in her personal profile in the following terms:
X is a hard-working and cheerful member of class who has settled in well to F Town School. X has quickly made a close group of friends who she plays with and talks to, she has developed good working relationships to both the children and adults in the class. Her behaviour is exemplary she always follows our school rules, making her role model to her peers… In smaller group tasks, X enthusiastically shares her ideas and cooperates well with the rest of her group, which demonstrates how well she has integrated herself into class. I was really impressed to hear that X had been selected for the school’s gymnastic team and that she was taking part in competitions outside of school too.
During the hearing, it became apparent that the report referred to X’s continuing attendance at the school beyond May 2020, when she had left the country. Despite that irregularity, I accept the submission, that the content of the report about X’s progress at school is an accurate independent record of her attendance between September 2019 and May 2020, albeit some remote attendance subsequent to March 2020. The report clearly demonstrates that X had settled in and assimilated into her school life and had made a close group of friends.
The evidence of the mother was that X did not enjoy school and that X had told her that she only had one friend school. Despite her belief, during cross-examination the mother did not dispute that the contents of the school report were correct.
The mother’s evidence about X’s inability to settle into school in the UK is partially based on a series of text messages between 23 September 2020 and 4 November 2020 annexures X 14, 15 and 16 of the second affidavit of the mother. On 23 September 2019, the mother sent the father text messages which included “crying because she hates school”, “crying to the point of almost vomiting”, “refusing to get dressed” and “she has just vomited”. In other messages the mother wrote “she (X) wants to go back to Australia school”, “she is crying”, “horrible tears before school”, “tears… She said she hates school”, “she burst out crying again”, “tears, stomach ache, needing a teacher to accompany in”. The mother was cross-examined about the contents of the messages and agreed with the proposition that X’s behaviour may have been affected because she had had a late night before one of the series of messages and that in relation to messages of 14 October 2019, disappointment at sports or school may have had an effect on how X was feeling about school that day.
The messages cease on 4 November 2020. The mother gave various explanations about why the messages ceased on that day including:
(a)if there had been more messages about that topic she would have included them in her affidavit;
(b)there were no more messages but there were verbal conversations;
(c)she did not have time to include all of the messages;
(d)she could not remember if there were more messages; and
(e)during re-examination, that she had sent hundreds of messages to her lawyers, but they did not have time to go through them.
Annexure B-13 to the father’s fourth affidavit is a letter dated 5 November 2020 from the class teacher and sports coach at F Town Primary School, which states:
X was chosen last year to participate in a sports competition that would be against other schools in the borough in February 2020. She always attended our practices, whether these were before or during school time and put in 100% effort the entire time.
Taking part in the sports team increased X’s confidence and I enjoyed watching her confidence grow. It gave her the opportunity to work collaboratively with children in different year groups and those who are not in her class within her own year group.
Annexure B-14 is a letter from the head coach of R Sports School dated 10 June 2020 which refers to X being a popular and well regarded member of the team who, when she commenced was a particularly shy child but subsequently formed strong friendship bonds within the club and became more and more confident over time.
Annexure B-15 is a series of messages between the mother, Ms C (paternal grandmother) and Ms D referring to X’s first day at school on 16 September 2019 as going really well and having made three friends. Annexure B-16 is a series of social media posts and photos of X with her friend, BB, cousin Z and friends from sports.
During cross-examination, the mother accepted that X spent time with her aunt and cousins outside of sports, that X had a friend, was doing well socially at R Sports School, where her cousin also attended, was competing at a national level and that she had purchased new equipment for her at the start of the lockdown in March 2020.
Ms D’s evidence of her involvement with X, including collecting her from school, seeing her at sports a couple of times a week and X’s involvement with her family was natural and unremarkable, as was the father’s evidence of X’s involvement with his family. I accept the evidence of both those witnesses in that regard and indeed it would be remarkable if X had not been embraced by her paternal family, given she had previously lived in Australia and by all accounts is a delightful and charming girl.
During her time in the UK, X received medical care at F Town Hospital, in S Hospital and was a patient of a general practitioner. Counsel for the mother submits that these matters of themselves cannot establish an intentional or intended or actual change of habitual residence, as it would be untenable for a child not to receive an education or have her healthcare neglected. In my view, these factors also support the degree of X’s integration into her life in the UK during the relevant time.
Additionally, given X’s young age it is reasonable to assume that the parental intention has bearing on her place of habitual residence. It is obvious that the father was and remains habitually resident in the UK and I have found that it was the mother’s intention to permanently relocate to the UK. This is also a case where both parents sanctioned X’s travel from Australia to the UK to commence a new life in the UK.
Although there were no relevant submissions, I am satisfied that the length of X’s residence in the UK was for an appreciable period.
Having considered the evidence of X’s family life, her integration into her school life and gymnastic pursuits and her involvement with the extended paternal and maternal family, referred to in the preceding paragraphs, together with my finding as to the mother’s intention of permanently relocating to the UK with X, I find that X’s degree of integration into her life in the UK was such that I have no hesitation in finding that X was habitually resident in the UK at the time of her removal from the UK on 16 May 2020.
Whether at the time of X’s removal from the UK the father was exercising rights of custody

I will now address whether at the time of X’s removal from the UK, whether the father was exercising rights of custody and whether they were breached.
In his final submissions, Counsel for the mother submitted that at the time of X’s removal to Australia from the UK she was not a habitual resident of the UK but rather her habitual residence was Australia. Therefore, the father’s rights of custody to X were pursuant to Australian law, which rights were not breached by her return to her place of habitual residence. It was further submitted that at the time of X’s removal from the UK, by reason of the father’s agreement to her return, he had accepted that his rights of custody were to be exercised pursuant to Australian law and that by handing X’s passport to her mother, he was agreeing to X living in Australia. Those actions disavowed himself of any rights of custody he may have had in English law, and was an acknowledgment that his time with X, in the event of dispute, would be adjudicated pursuant to Australian law.
There were no submissions about this jurisdictional fact in the event that I determined that X was habitually resident in the UK at the time of her removal.
Counsel for the State Central Authority submitted that the father was exercising his rights of custody at the relevant time and in that regard she relies on the evidence of the affidavit of Ms W dated 24 June 2020 to the effect that:
(a)the father had rights of custody in respect of X under the law of the UK;
(b)the removal of X was in breach of those rights of custody
(c)the father was exercising his rights of custody under UK law in relation to X immediately prior to her removal to Australia and would have continued to exercise those rights had she not been removed.
The evidence of Ms W was unchallenged and I accept, particularly having regard to my determination that at the time of her removal X was habitually resident in the UK, that the father was exercising rights of custody in relation to X.
There were no submissions about the definition of rights of custody as defined by reg 4(2) of the regulations.
Regulation 4(2) provides:
For the purposes of sub-regulation (1), rights of custody include rights relating to the care of the person of the child and, in particular, the right to determine the place of residence of the child.
It is obvious that X lived with her parents immediately prior to her removal and that her father also undertook a parenting role. The dispute about the passport was clearly in the context of the child’s place of residence. There can be no doubt that the father was exercising rights of custody as at 16 May 2020 and that her removal was in breach of those rights.
Having determined that X was habitually resident in the UK at the time of her removal and that the father was exercising his rights of custody at the relevant time, I am satisfied that all of the jurisdictional facts have been established by the State Central Authority and find that X’s removal from the UK on 16 May 2020 was a wrongful removal.
Exceptions to return
I will now address the regulatory exceptions raised by the mother, namely:
(a)consent and/or acquiescence;
(b)X’s objection to return;
(c)there is a grave risk that return of the child would expose her to physical or psychological harm or otherwise place her in an intolerable situation.
I will firstly address whether the father consented or acquiesced to X’s removal to Australia.
Relevant Legal Principles - Consent and Acquiescence (reg 16(3) (a)(ii))
The Full Court in Wenceslas & Director-General, Department of Community Services [2007] FamCA 398 considered the distinct and differing concepts of consent and acquiescence. Consent has to arise before the act of removal or retention, acquiescence can only arise after such an act.
Consent
The respondent mother has the burden of proving on the balance of probabilities that the father has consented to X’s return to Australia. At page 301 of Re H (Abduction: Habitual Residence: Consent) [2000] 2 FLR 294, Holman J stated:
On the facts of a particular case a court may consider that evidence of consent needs to be cogent before it can overcome the degree of improbability of consent having been given on those particular facts. But in the end there is only one question, namely has consent been established? And only one standard, namely the balance of probabilities.
In Wenceslas the Full Court of the Family Court at [257] – [263] reviewed the United Kingdom authorities as to whether or not consent can be inferred from conduct. At [262], the Court referred to the statements of Hale J as she then was, in Re K (Abduction): Consent [1997] 2 FLR 212. At 217-8, Her Honour said:
It is obvious that consent must be real. It must be positive and it must be unequivocal. But that is a separate issue from the nature of the evidence required to establish it. There will be circumstances in which the court can be satisfied that such consent has been given, even though it has not been given in writing. It stands to reason, however, that most people who wish to retain or remove the child would be well advised to get written consent before they do so to place the matter beyond argument. There may also be circumstances in which it can be inferred from conduct.
At [264] of Wenceslas, May and Thackeray JJ said as follows:
It seems to us that the views expressed by Hale J allow for the vagaries often associated with the way in which parents communicate in matters relating to the children. As presently advised…we are of the view that consent can be can inferred from conduct; however, we are also the view that the consent must be real and unequivocal and can only be made out by clear and cogent evidence.
Acquiescence
In Wenceslas, at [252] – [257] the Full Court analysed the authorities and adopted the approach that acquiescence may be passive, by conduct, as well as active by words. Acquiescence may be inferred by the Court from a course of conduct by the party seeking to rely upon the convention or the regulations, without any words expressed to the other party such as might otherwise be thought to be involved.
Whether or not a wronged parent has acquiesced in the removal or retention of a child, depends upon their actual state of mind, which is a question of fact to be determined in all the circumstances of the case and where the burden of proof falls on the “abducting parent”: State Central Authority & Handbury [2019] FamCA 668 Bennett J at [242], adopting Lord Browne-Wilkinson in Re H (Minors) [1998] AC 72 at [90].
I will now consider the evidence of both parents about the events of 15 and 16 May 2020, however prior to doing so, it is helpful to consider where the passports were actually located.
In the mother’s first affidavit (paragraph 45) she asserted that immediately upon her arrival in the UK the father asked for the passports and locked them away without providing her with a key to have access to them. The father denies that the passports were locked away and at paragraph 24 of his fourth affidavit sworn/affirmed 11 November 2020, the father deposes that shortly after arrival in the UK, the mother requested that he put the passports and some other documentation in a safe place, whereupon he put them in a filing box with his own documents. He showed the mother where the filing cabinet was kept and the location of the key to access it. On 15 October 2019, whilst he was at work, the mother sent him a WhatsApp message requesting access to the filing cabinet. In his reply he again provided her with instructions as to the whereabouts of the key and the mother confirmed that she “got it”. A copy of the WhatsApp message screenshot is annexure B-22 to that affidavit. The mother was cross-examined about the exchange of messages and conceded the contents of the message.
The evidence of both the mother and the father surrounding the circumstances of X’s removal from the UK on 16 May 2020 is remarkably similar. Where they disagree, is whether those facts, and in particular the father handing the passports to the mother, amount to the father having consented to X’s removal.
The mother’s evidence of the events of 15 May 2020 and 16 May 2020 is set out at paragraphs 49 to 51 of her first affidavit sworn 23 October 2020 and paragraphs 56 to 59 of her trial affidavit sworn 3 November 2020. Her evidence was as follows:
(a)the mother became aware that the father was still in contact with his previous girlfriend, Ms AA and they had several arguments about that;
(b)on 15 May 2020, the mother and father had a further argument about the father’s ongoing relationship with Ms AA and during that argument the mother told the father “I want to go back to Australia because I’m not happy here. The children are not happy here and we will return back to Australia as soon as possible”;
(c)she proceeded to pack the belongings of herself and the children throughout the course of the night;
(d)the following morning on 16 May 2020 she had finished packing and told the father that “we will go to stay in a hotel and will return back to Australia as soon as possible” and requested him to provide her with all passports;
(e)the father told her “do not do this” and she again told him “we are not happy and want to go back to Australia as soon as possible” and again asked for the passports;
(f)the father then took the passports from the locked filing cabinet and handed them to her;
(g)she called a taxi and the father helped her put her suitcases in the taxi;
(h)while she was in the taxi it came to her attention that hotels were closed due to COVID-19 restrictions and she therefore telephoned her parents to inform them of her situation;
(i)her parents advised her to go to the airport, which she did and where she managed to purchase tickets to Australia which were paid for by her father;
(j)she and the children boarded a plane at 12:45PM the same day;
(k)she did not inform the father of the date/time of her departure because she did not know how and when she would be able to obtain tickets to return to Australia because of COVID-19 restrictions;
(l)the first time she became aware of the father’s change of mind regarding X’s return to Australia was after her arrival in Australia when she saw his text messages.
The mother was vigorously cross-examined about these events and her evidence under cross-examination was as follows:
(a)she was unaware whether the father knew she had been packing during the night;
(b)in the morning she told him she was going to find somewhere to stay in G Town for a few days;
(c)she denied telling him that she would let him know where she was staying;
(d)she denied she would return to the family home and say goodbye before she went to Australia;
(e)she denied saying she had no intention of flying in the next few days as she told him she was going as soon as possible;
(f)she agreed that she had told him she was going to a hotel before returning to Australia;
(g)she denied that despite the country being in lockdown, she thought she would go to a hotel and get a plane to Australia;
(h)in response to health and safety concerns for herself and the children travelling internationally, she responded, yes, it’s risky;
(i)she agreed that before she left the house she asked him to get the passports;
(j)she agreed he had said “don’t do this”;
(k)she agreed he had retrieved the passports;
(l)she assumed that he knew she wanted to go back to Australia as soon as possible and he agreed and got the passports;
(m)she denied that he had not agreed to X leaving the country;
(n)in response to the proposition that he gave the passports to her because she requested, and that he did not agree to her leaving and taking X, her response was, he did;
(o)in response to the proposition that her affidavit does not specify that he agreed, she stated that he agreed by giving her the passports;
(p)in response to the proposition that he did not verbally agree to her and X going back to Australia, she said that by giving her the passports he agreed;
(q)she agreed she had not included a statement in her affidavit that he had verbally agreed;
(r)during the argument which occurred on 15 May 2020 she was angry about his ex-girlfriend and said that she was not happy nor were the kids happy in the UK and that she wanted to go back to Australia as she missed family, he rattled on about papers and then went to bed;
(s)she continued to pack during the night;
(t)in the morning, she asked him at about 7:30AM if she could please have her passports and he responded “don’t do this”;
(u)that conversation occurred in the bedroom when X was present and was not heated as neither of them wanted the same situation (as occurred in October 2012) with anger or assaults in front of the children;
(v)the passports were in the main bedroom in a locked cabinet in the wardrobe;
(w)after he said “don’t do this” she said she wanted to go as she was not happy there, he said okay and went to the cabinet and handed over the passports;
(x)after that she called a taxi in another room and when the taxi arrived he put the suitcases in the taxi;
(y)there were tears exchanged between X and the father and he gave her a hug;
(z)in the taxi on the way to the airport she thought she was going to a hotel in G Town but she had no booking and she rang her parents and thereafter decided to go to the airport;
(aa)she thought the father had agreed because he gave her the passports and said okay;
(bb)his demeanour when he handed over the passports was expressionless.
The father’s evidence about the events of 15 May 2020 and 16 May 2020 is set out at paragraphs 23 to 28 of his affidavit sworn 24 June 2020. His evidence is as follows:
(a)late at night on 15 May 2020 the mother informed him that she wished to return to Australia permanently with X and Y, as she was missing family there and had no trust in the relationship;
(b)when he asked when she wished to return the mother replied “soon”;
(c)the father objected to the mother’s decision as X was happy and stable in the UK and that it would devastate her to take that away;
(d)early on the morning of 16 May 2020 he found the mother packing a suitcase and the mother informed X that they were returning to Australia;
(e)X was extremely shocked, upset and angry and stated that she loved England and wanted to stay in the UK;
(f)the mother informed the father that she was taking X and Y to find somewhere to stay in G Town, England for a few days and promised the father she would let him know where they were staying and told X that she would return with her so she could say goodbye to her father;
(g)he continued to object to the decision the mother had made and the mother informed him that she had no intention to fly in the next few days;
(h)the mother left the apartment with X and Y in a taxi on the morning of 16 May 2020;
(i)after they left the apartment on the morning of 16 May 2020, the father did not receive any answers to phone calls to the mother’s phone and no response to messages to her phone, asking her to return and requesting their location;
(j)at certain points in the afternoon, messages sent to the mother’s phone read as undelivered;
(k)he also recalled, that he had said that they should discuss the mother’s intention to leave the UK with lawyers.
The father was cross-examined about the events of 15 and 16 May 2020 and his evidence was as follows:
(a)he had not made any mention in his affidavit that he had voluntarily handed the passports to the mother on 16 May 2020, until the mother filed her affidavits, as he was unsure it was a relevant issue until it was raised by the mother;
(b)in response to whether he had forgotten it, he said he was reminded about it when he read it, he had not completely forgotten rather he didn’t believe it was that important to include in the initial affidavits;
(c)he did not consider he gave permission for X to leave the country;
(d)in response to the proposition that on 16 May 2020, either before or after he handed the mother the passports, he did not tell her he would prevent her from leaving the country, he responded that he did not know she was intending to leave straight away;
(e)in response to the question whether he had taken steps to prevent the mother leaving straight away, he said that on 16 May 2020 she hadn’t said she would be leaving immediately, rather she would return to the family home so they could talk about it when she had calmed down;
(f)he did not tell her on 16 May 2020, after he gave her the passports, that he would take steps to prevent her leaving the country as he was trying to calm the situation down, the mother said she would return and she would be calmer and they could discuss the matter and he had no idea that she could get on a flight that day;
(g)in response to the proposition that one way to make sure she couldn’t leave the country was to hold the passports, he said that the mother had promised she would not leave the country immediately;
(h)he did not think she would leave on that day, as she had promised X she would return to the family home prior to leaving;
(i)in response to the question, had he thought of preventing her returning to Australia by hanging on to the passports, he replied that he did not want his daughter to be distraught and he concentrated on keeping the situation calm;
(j)it had occurred to him that it was something he could have done;
(k)he conceded that the mother had told him on 15 May at around 11:00PM or midnight that she was leaving to go to Australia;
(l)when the mother told him she was going to return to Australia he didn’t say, I’ll make sure you can’t, rather he told her that they should speak to lawyers to discuss options;
(m)he didn’t tell her he would prevent her from returning, as when the mother told him she wanted to leave it was a complete shock;
(n)in response to the proposition that he never indicated to her that he would take steps to prevent her, he responded that he said they should speak to lawyers and get legal advice;
(o)he agreed that there was some discussion on 15 May 2020 for a little while and that he needed to process what he had been told as it was very late at night;
(p)the discussion at night was not for a few hours, rather 10 minutes;
(q)he did not know she had been packing during the night of 15 May 2020 and he had believed she would not be leaving that soon as she had not specified a date;
(r)he got up early at about 6:00AM, when X got up to go to the loo and heard her ask her mother what she was doing in the next room where she was packing suitcases. The mother said ‘we are going to Australia’ and X asked whether that was a holiday and the mother said they were going for good. X was distraught and said she loved it there and loved her daddy;
(s)it did not occur to him to say to X that “mummy can’t take you to Australia” as he was trying to console X and wasn’t thinking about those words;
(t)he denied that the mother had told him around 9:00PM on 15 May 2020 and said that it was later.
Both parents were also cross-examined about an incident which occurred on 27 October 2012. I do not propose to comprehensively address the events of 27 October 2012 other than there was a scuffle between the parties on that date in the context of the father having retained X’s Australian passport and the mother subsequently not allowing the father to spend time with X until he had returned X’s passport to the mother.

The relevance of the incident of 27 October 2012 is threefold:
(a)both parties were acutely aware of the significance of holding X’s passport in the context of capacity to travel;
(b)both were conscious of not wanting to have a physical altercation in front of X on 16 May 2020;
(c)their respective accounts of the incident differed to the police records, which could impact on their respective credibility.
I do not place much weight on the credibility arguments, as the incident happened over 8 years ago, and there are likely to be discrepancies between the parents, as to their respective recollection of the specifics of the event.
Consideration of the evidence of both parties supports the following propositions;
(a)the mother told the father on the evening of 15 May 2020 and again on the morning of 16 May 2020 that she was not happy in the UK and wished to return to Australia with the children;
(b)the mother did not provide a timeframe for her intended travel, other than it would be soon;
(c)the father said to the mother “don’t do this”;
(d)the father did not explicitly say to the mother that he consented to X permanently departing or that he would take steps to prevent X leaving the country;
(e)the father handed the passports to the mother in circumstances where he knew the mother had told him that she wanted to return to Australia;
(f)the father thought that the mother was not departing for Australia imminently, but would stay in G Town for a few days and would then return to the home, so X could say goodbye to her father, prior to departure;
(g)the father thought that if the mother returned home he would be able to persuade her to remain;
(h)after he handed the passports to the mother he assisted her to carry the bags to the taxi.
The father’s own evidence suggests to me that he was acutely aware that the mother intended to leave the UK with X, she was not happy with her life there and that notwithstanding the mother’s repeated intention of travelling to Australia with X, he handed her the passports which would enable her to do so. He did not provide any satisfactory explanation why he was not more forceful in resisting the mother’s desire to leave the country with X and her requests for the passport. Whilst I appreciate the father would not have wanted to have a heated confrontation with the mother in X’s presence on the morning of 16 May 2020, I do not accept that handing over passports, particularly in the context of the dispute about passports and consequent restrictions about his time with X, which occurred in October 2012, does not amount to consent for X to leave the country. The father must have been abundantly aware of the implications of handing over X’s passport to the mother. There can be no other explanation why the mother wanted X’s passport, other than to travel to Australia, as she had said to the father on a number of occasions on 15 and 16 May 2020.
According to the father’s own evidence he was aware from late at night on 15 May 2020 that the mother wished to end the relationship and travel to Australia with X. It is not a situation where the father was advised by the mother for the first time in the heat of the moment on the morning of 16 May 2020 that the mother wished to end the relationship and return to Australia.
The father’s evidence is that he did not think the mother would travel imminently and by handing over the passports, he did not consent to X leaving the UK. At paragraph 98 of his fourth affidavit, the father states that he was informed by the mother that she had no intention of flying in the next few days and promised that X would return, as she wanted to say goodbye to daddy. He also states that the mother promised she would let him know where they were staying and they would return home before flying. His own evidence supports the contention that he knew implicitly and unambiguously that the mother intended to fly with the children and that is why she required the passports. Irrespective of whether the mother intended to travel that day or a few days later, after having stayed in a hotel, the father was well aware of her intended destination, Australia. The father may have had hope and aspirations that the mother would reconsider her position after a few days, but those expectations must be seen in the context of a clear and unambiguous statement by the mother that she wanted to return to Australia. There is no room to doubt the mother’s sentiments of wishing to return.
The mother’s evidence that she changed her mind in the taxi on the way to G Town, when she realised she would be unlikely to secure hotel accommodation and after speaking to her parents also has little bearing on whether or not the father’s actions in handing over the passports in the face of her stated intent to leave the country with the child, constitutes consent.
The father’s evidence is that subsequent to the mother’s departure he forwarded two text messages to her at 10:34AM and 12:31PM asking where she was and to please come home. The mother did not respond to the messages. The father also asserts that the speed of the mother’s departure, and the fact that it occurred on a Saturday was designed to thwart him taking legal action to stop them leaving. Such a sentiment is not supported by the facts, as the mother booked her flight on 16 May 2020 at the airport. Given the evidence of both parties that England was in lockdown at that time, it is far-fetched to suggest that the mother would have had any certainty of being able to obtain a flight to Australia on that day at the airport. That theory does not take into consideration that it was the father who handed the mother the passports, which were the necessary tools to enable her to catch an international flight.
I am satisfied that the conduct of the father, in handing the child’s passport to the mother, when he knew she intended to travel to Australia with the child, is clear and cogent evidence of the father’s real and unequivocal consent to X departing the UK and travelling to Australia.
For the reasons referred to in the previous paragraphs, I find that the father consented to X’s removal from the UK.
I will now address acquiescence, which refers to actions after the act of removal or retention.
The submissions of Counsel for the mother do not directly address how it is asserted that the father acquiesced to X’s removal from the UK nor point to any evidence to substantiate acquiescence.
Counsel for the State Central Authority submitted that at no time since X’s removal on 16 May 2020 has the father acquiesced to her remaining in Australia. He has not demonstrated cogently and unambiguously that he acquiesced to X remaining permanently in Australia with the mother. To the contrary, the father:
(a)contacted the UK police on 17 May 2020 to inform them that the mother had left the UK with X without his consent;
(b)sent text messages to the mother on the morning of 16 May 2020 enquiring about her whereabouts and that of X;
(c)attempted to contact the mother to request contact with X and requested her return;
(d)commenced these proceedings as soon as practicable after he discovered the mother was no longer in the UK with X.
I agree with the submissions of Counsel on behalf of the State Central Authority that there is no evidence which could possibly support a finding that the father had acquiesced to X remaining in Australia.
The father advised the local police on the day after the child had been removed from the UK that the child had been removed without his consent and thereafter consistently advised the mother that he did not consent to her living permanently in Australia. The father signed the ICACU Application on 24 June 2020 just over a month after X’s removal.
I find that the father did not acquiesce to X’s removal from the UK on 16 May 2020.
Grave risk of physical or psychological harm or placing the child in an intolerable situation (reg 16(3)(b))
I will now address the issue of grave risk of physical or psychological harm or placing the child in an intolerable situation.
Relevant legal principles
The leading authority in Australia pertaining to this regulatory exception is DP v. Commonwealth Central Authority; JLM v. Director–General, NSW Department of Community Services [2001] HCA 39 (“DP”) Gaudron, Gummow and Hayne JJ stated [39]:
[39] … Of course it must be recalled that the onus of proof lies on the party opposing return. It will be for that party to demonstrate a grave risk of exposure to harm. Many factors may be relevant to that inquiry…
…
[41] … On its face reg 16(3)(b) presents no difficult question of construction and it is not ambiguous. The burden of proof is plainly imposed on the person who opposes return. What must be established is clearly identified: that there is a grave risk that the return of the child would expose the child to certain types of harm or otherwise place the child in “an intolerable situation”. That requires some prediction, based on the evidence, of what may happen if the child is returned. In a case where the person opposing return raises the exception, a court cannot avoid making that prediction by repeating that it is not for the courts of the country to which a 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.”
[42] Necessarily there will seldom be any certainty about the prediction. It is essential, however, to observe that certainty is not required: what is required is persuasion that there is a risk which warrants the qualitative description “grave”. Leaving aside the rederence 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.
[43] Because what is to be established is a grave risk of exposure to future harm, it may well be true to say that a court will not be persuaded of that without some clear and compelling evidence. 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.
[44] These considerations, however, do not warrant a conclusion that reg 16(3)(b) is to be given a “narrow” rather than a “broad” construction. There is, in these circumstances, no evident choice to be made between a “narrow” and “broad” construction of the regulation. If that is what is meant by saying that it is to be given a “narrow construction” it must be rejected. The exception is to be given the meaning its words require.
[45] That is not to say, however, that reg 16(3)(b) will find frequent application. It is well-nigh inevitable that 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. Regulation 16(3)(b) and Art 13(b) of the Convention intend to refer to more than this kind of result when they speak of a grave risk to the child of exposure to physical or psychological harm on return.
In DP at paragraph [130], his Honour Justice Kirby, in a dissenting judgment stated:
… Inevitably…the application of the exception provided for in reg 16(3)(b) will be rare both by virtue of the language in which that exception is expressed and so as not to undermine the achievement of the overall object of the law…It should not therefore be surprising that they (the exceptions) have only been invoked successfully in comparatively rare instances.
Ryan and Aldridge JJ in Walpole & Secretary, Department of Communities and Justice [2020] FamCAFC 65 at [58] referred to comments of Gaudron, Gummow and Hayne JJ, at paragraph [40] of DP:
So far as reg 16(3)(b) is concerned, the first task of the Family Court is to determine whether the evidence establishes that “there is a grave risk that [his or her] return … would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation”. If it does or if, on the evidence, one of the other conditions in reg 16 is satisfied, the discretion to refuse an order for return is enlivened. There may be many matters that bear upon the exercise of that discretion. In particular, there will be cases where, by moulding the conditions on which return may occur, the discretion will properly be exercised by making an order for 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 loom large at this point in the inquiry. If that is to be done, however, care must be taken to ensure that the conditions are such as will be met voluntarily or, if not met voluntarily, can readily be enforced.
In her Outline of Case document, the mother contends that she has no accommodation either for herself or for X in the UK and none is offered by the father. There are no other submissions about the risk of grave harm and or intolerable situation.
Counsel for the State Central Authority in her closing submissions, submitted that there was no evidence proffered by the mother to support a contention that X would be a grave risk of harm or placed in an intolerable situation should she be returned to the UK.
Furthermore, she asserted that if it was the intention of the mother to rely on assertions about the father’s behaviour throughout the history of the relationship as posing a grave risk or intolerable situation, such evidence does not meet the threshold for grave risk.
In her affidavits, the mother seeks to make disparaging comments about the father’s character throughout the relationship, although she does not cast this evidence in the context of posing a grave risk to X or placing her in an intolerable situation should she return to the UK.
The various accusations against the father include:
(a)the father was not supportive of her pregnancy and his family did not support the marriage, although she made various concessions under cross-examination about these statements;
(b)during the time the father was in Australia between 2010 and 2014 he would constantly state he was there on a temporary basis only;
(c)she sustained an injury during the incident in October 2012, although this is not reflected in the police incident reports;
(d)the father forced her to move to Melbourne in 2014 and that when they ultimately separated again he sold all of her furniture. Such evidence was contrary to documentary evidence that the father paid for furniture removal and her concession under cross-examination, that the only furniture which she was able to identify which had been left in Melbourne was a dressing table;
(e)her assertion that the father kept the passports for herself, X and Y under lock and key, when the screenshots of messages between the mother and the father demonstrate that there was a key to the draw in which the passports were kept, which was kept under the bottom corner of the drawers;
(f)the father had not taken appropriate steps to secure accommodation in the UK for the family, when she conceded during cross-examination that she had eventually attended premises to view prior to entering into a lease;
(g)the father had forced her to transfer money to his bank account and took control of her finances, when the evidence demonstrated that although money had been transferred, the father had transferred back to the mother more than she had transferred to him.
Even if I accepted the veracity of these claims, many of which were proved to be inaccurate and misleading, I could not be satisfied that such conduct would demonstrate that either X or the mother would be exposed to grave risk of a physical or psychological harm or placed in an intolerable situation, should she return to the UK. The mother has not established this regulatory exception.
COVID-19
Counsel for the State Central Authority referred to the issue of COVID-19, which had not been raised in any documents or evidence. She submitted that the relevance of the pandemic should be viewed in relation to conditions which might be included if a return is to be made not in relation to assessment of grave risk. I accept that submission.
As with any of the regulatory exceptions, the onus of proof rests with the mother, and in this case she did not refer to the pandemic nor seek to adduce any evidence as to particular risk to herself or the child or their circumstances, arising from COVID-19. It was a matter for her how she chose to run her case on present evidence. In that context I am unable to make any finding that COVID-19 would expose the child to a grave risk of physical or psychological harm or place her in an otherwise intolerable situation, if a return to the UK were ordered.
It is common ground that the mother and the child flew to Australia from UK during the pandemic and the mother was prepared to assume that risk for herself and X in May 2020.
Objection of the child (reg 16(3)(c))
The mother relies upon reg 16(3)(c) and submits that sub-paragraphs (i) and (ii) namely that the child objects to being returned and her objection shows a strength of feeling beyond the mere expression of a preference or ordinary wishes, has been satisfied. It was conceded that subparagraph (iii) has not been established insofar as X has not attained an age and a degree of maturity at which it is appropriate to take account of her views.
The evidence supporting such a submission is to be found in the family report of Ms H dated 5 November 2020. Ms H was not required for cross-examination.
The exception to mandatory return envisaged by reg 16(3)(c) is only enlivened when all of the matters referred to in reg 16(3)(c)(i),(ii) and (iii) have been established.
It is evident from Ms H’s report:
(a)at paragraph 14, X clearly stated that she does not want to return to the UK;
(b)at paragraph 20, X demonstrated a clear objection to returning to the UK and that X’s objection appeared to be of a strength, greater than the expression of a preference;
(c)at paragraph 19, that X presents as quite a young 10 year old and is not mature enough to make sense of the complexities of her family situation or think through difficult conundrums.
Given the unchallenged evidence of Ms H, I am unable to conclude that all three of the considerations referred to in reg 16(3)(c) have been satisfied so as to enliven my discretion to refuse to return on the basis of the objection of the child.
It was submitted by Counsel for the mother that I should have regard to X’s objection to return in the context of exercising my discretion. I refer to that in the following paragraphs.
DISCRETION TO RETURN
If an exception is found, as it has been in this matter, I am now required to address whether I should exercise my discretion to return X to the UK.
At paragraph 29 of HZ & State Central Authority [2006] FamCA 466, the Full Court of this Court referred to the factors relevant to the exercise of discretion to refuse return as follows.
In TB v JB (formerly JH) [2000] EWCA Civ 337 Laws and Arden LJJ, Hale J dissenting, upheld an appeal from a decision of Singer J and ordered the return of children aged 14, 13 and 10½ to New Zealand in circumstances where the mother had brought the children to England seeking to escape from what she said was an abusive relationship with her second husband. It was clear that the eldest child did not wish to return to New Zealand. Hale LJ accepted and applied a list of factors suggested by Waite J (as he then was) in W v W (Child Abduction: Acquiescence) [1993] 2 FLR 211 and later adopted by him in the Court of Appeal in H v H (Abduction: Acquiescence) [1996] 2 FLR 570 at 574 which were:
(a)the comparative suitability of the forum to determine the child's future in the substantive proceedings;
(b)the likely outcome (in whichever forum) of the substantive proceedings;
(c)the consequences of the acquiescence;
(d)the situation which would await the absconding parent and the child if compelled to return;
(e)the anticipated emotional effect upon the child of an immediate return (a factor which is to be treated as significant but not paramount); and
(f)the extent to which the purpose and underlying philosophy of the Hague Convention would be at risk of frustration if a return order were to be refused.”

In this matter, the forum which would determine the child’s future in the substantive proceedings is the UK, which is a jurisdiction where the best interests of the child and the child’s welfare are paramount in proceedings. Both parents are able to access proceedings in both UK and Australia, although it may be electronically.
The likely outcome of the substantive proceedings would be based on the child’s best interests. If the proceedings were determined in Australia then the father is entitled to seek orders that X return to the UK. The mother would be entitled to seek orders that X live with her in Australia and to spend time with the father, both electronically and in person. The father would be able to participate electronically in such an application in Australia even if he were unable to travel to the country, as he participated electronically in these current proceedings.
The consequences of acquiescence are that X would remain with her mother in Australia, where she lived all her life, except between September 2019 and May 2020. The mother has secure accommodation and lives as a family unit with both children and her former partner Mr P. The mother’s evidence is that X has an extremely close and loving relationship with her sister, Ms J, who visits the family home on an almost daily basis and takes X to her dance classes on Wednesday evenings. X has been re enrolled in Q School and recommenced on 15 June 2020. According to the mother, she was thrilled with her return to school where she has many close friends and is well respected by students and staff members. X has had FaceTime communications with her father, since her return to Australia. The mother maintains that X is and remains quite traumatised with the prospect she may have to go back to the United Kingdom.
The mother has deposed that it is not an option for her to return to live in the UK. She did not propose that she would not accompany X if a return order were made. The mother’s evidence is that she would face some practical difficulties such as obtaining accommodation, if a return is ordered. The mother also objects on the basis that as she is unable to remain in the UK, if X were to remain permanently in the UK, she would be separated from her mother who has been her primary carer all her life and from her siblings and other family members and friends in Australia. Her evidence was that X was reluctant to be in her father’s care without her being present and that forcing her to do so would traumatise her indefinitely. Unsurprisingly, the father’s evidence is completely contradictory to the mother about X’s relationship with him and his family members. As referred to previously in these reasons, according to the family consultant, X objects to a return to the UK and her objection appeared to be of a strength greater than the expression of a preference. I accept that evidence, however in doing so, I do not necessarily accept that X’s experience in the UK was as portrayed by the mother. X’s views were sought many months after she had resumed her life in Australia and I have no doubt that she would be well aware of her mother’s views about resuming life in the UK. The father’s proposal that he is capable of caring for X in the absence of the mother, does not adequately take into account the fact that X has been in the primary care of her mother for almost all of her life.
The anticipated emotional effect of an immediate return would separate X from her mother, siblings and extended family in Australia, and would be in the face of her objection referred to in the previous paragraph. On the other hand, she would resume face-to-face time with her father and be reunited with her paternal family members, whom she has not seen since May 2020. If X remains in Australia once COVID-19 travel restrictions have been lifted, then the father is at liberty to travel to Australia to spend time with X on a regular and frequent basis.
In terms of the extent to which the purpose and underlying philosophy of the Hague Convention would be at risk of frustration if a return order is not made there was no evidence or indeed any submissions by either Counsel. However, in this case an exception to return, as provided by the regulations, has been satisfied.
For the reasons set out herein, I propose to exercise my discretion not to return X to the UK and will make the relevant orders dismissing the application.

I certify that the preceding one hundred and forty-four (144) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Williams.
Associate:
Dated: 3 March 2021

File number(s):	ADC4498/2020
Judgment of:	WILLIAMS J
Date of judgment:	3 March 2021
Catchwords:	FAMILY LAW – CHILD ABDUCTION – HAGUE CONVENTION – Child brought to Australia from United Kingdom – Consideration of the child’s habitual residence at the time of removal – Whether the father’s rights of custody were breached – Held, jurisdictional facts established and child’s removal from the UK was wrongful – Whether father consented or acquiesced to child’s removal in circumstances where he handed the child’s passport to the mother to enable international travel – Held, father consented – Grave risk of physical and psychological harm and intolerable situation considered – Objections of the child – Consideration of discretion – Discretion exercised to dismiss application – Family Law Act 1975 (Cth) s 111B – Family Law (Child Abduction Convention) Regulations 1986 – reg 16 – Return Order
Legislation:	Family Law Act 1975 (Cth) s 111B Family Law (Child Abduction Convention) Regulations 1986 (Cth) regs 14, 15(2), 16
Cases cited:	De L v Director General, NSW Department of Community Services[1996] HCA 5 DP v. Commonwealth Central Authority; JLM v. Director–General, NSW Department of Community Services [2001] HCA 39 HZ & State Central Authority [2006] FamCA 466 LK v Director-General, Department of Community Services [2009] HCA 9 M (Children) (Habitual Residence: 1980 Hague Child Abduction Convention) [2020] EWCA Civ 1105 Re H (Abduction: Habitual Residence: Consent) [2000] 2 FLR 294 Re H (Minors) [1997] AC 72 State Central Authority & Handbury [2019] FamCA 668 Walpole & Secretary, Department of Communities and Justice [2020] FamCAFC 65 Wenceslas & Director-General, Department of Community Services [2007] FamCA 398
Number of paragraphs:	144
Date of last submission/s:	15 January 2021
Date of hearing:	25 November 2020, 9, 10 & 15 December 2020
Place:	Melbourne
Counsel for the Applicant:	Ms Mitchell
Solicitor for the Applicant:	Crown Solicitor’s Office
Counsel for the Respondent:	Mr McQuade
Solicitor for the Respondent:	Harry Alevizos, Barrister & Solicitor

ORDER MADE BY:	WILLIAMS J
DATE OF ORDER:	3 MARCH 2021

Exhibit Number	Applicant Exhibit Description
A-1	The 5 affidavits of Mr B, sworn 24 June 2020, 27 July 2020, 3 September 2020, 11 November 2020, 19 November 2020 save to the objections to the affidavit of 19 November 2020 paragraphs 16-18
A-2	Letter from father’s solicitors to Ms Garnett dated 8 September 2016
A-3	Email containing text messages dated 26 September 2019

Exhibit Number	Respondent Exhibit Description
R-1	Police Incident Report of 27 October 2012