COMMISSIONER OF WESTERN AUSTRALIA POLICE and KURATA
[2021] FCWA 111
•18 JUNE 2021
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW (CHILD ABDUCTION CONVENTION) REGULATIONS 1986
LOCATION: PERTH
CITATION: COMMISSIONER OF WESTERN AUSTRALIA POLICE and KURATA [2021] FCWA 111
CORAM: TYSON J
HEARD: 13 and 14 MAY 2021
DELIVERED : 18 JUNE 2021
FILE NO/S: PTW 10058 of 2020
BETWEEN: COMMISSIONER OF WESTERN AUSTRALIA POLICE
Applicant
AND
MS KURATA
Respondent
Catchwords:
FAMILY LAW – Child Abduction – Hague Convention – Where the two children travelled to Australia with the mother for a holiday with the father’s consent – Consideration of whether the children were habitually resident in the United Kingdom immediately before the alleged wrongful retention – Consideration of whether the children’s continued presence in Australia was sanctioned by the father or whether it was in breach of his rights of custody – Where the Court is satisfied that the jurisdictional facts are established – Where the mother raises a number of exceptions – Where the Court is not satisfied that mother has established the "grave risk exception" – Where the mother has not established that the father acquiesced to the children’s retention in Australia – Where the Court is not satisfied the child’s objection to return is established – Where the mother has not established any exception to return – Order for the children’s return to the United Kingdom – Case turns on its own facts
Legislation:
Family Law (Child Abduction Contravention) Regulations 1986 (Cth)
Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)
Category: Not Reportable
Representation:
Counsel:
| Applicant | : | Ms Thatcher SC |
| Respondent | : | Mr Nicholls QC |
Solicitors:
| Applicant | : | State Solicitor's Office |
| Respondent | : | Elizabeth Wiese & Associates |
Case(s) referred to in decision(s):
C v G (Approved) [2020] IECA 233
Commissioner, Western Australia Police v Dormann (1997) FLC 92-766
Commonwealth Central Authority v Sangster [2018] FamCA 765
Cooper v Casey (1995) FLC 92-575
Department of Communities v Clementine, Re [2010] FamCA 746
Department of Family and Community Services & Padwa [2016] FamCA 215
Department of Health and Community Services v Casse (1995) FLC 92-629
DP v Commonwealth Central Authority; JLM v Director-General, NSW Department of Community Services (2001) 206 CLR 401
Gsponer v Director General, Department of Community Services, Victoria (1989) FLC 92-001
LK v Director General, Department of Community Services (2009) 237 CLR 582
P v P (Abduction Acquiescence) [1998] 2 FLR 835
Police Commissioner of South Australia v Temple (1993) FLR 375
Punter v Secretary for Justice [2007] 1 NZLR 4
Punter v Secretary for Justice [2007] 1 NZLR 40
Re E (Children) (Abduction Custody Appeal) [2012] 1 AC 144
Re H & Ors (Minors) (Abduction Acquiescence) [1998] AC 72
Re I (Abduction Acquiescence) [1999] 1 FLR 778
Re R (Children) (Reunite International Child Abduction Centre intervening) [2016] AC 76
Re T (Abduction Child’s Objections to Return) [2000] 2 FLR 192 202
Secretary, Department of Communities and Justice and Paredes [2021] FamCA 128
Secretary, Department of Family and Community Services & Padwa (2016) FLC 93-701
Secretary, Department of Family and Community Services v Zadeh [2017] FamCA 44
State Central Authority & Metin [2020] FamCA 535
State Central Authority & Sigouras (2007) 37 Fam LR 364
Wenceslas & Director General, Department of Community Services (2007) FLC 93-321
Yardlay and Commissioner of Police [2020] FamCAFC 186
Zotkiewicz & Commissioner of Police (No 2) (2011) FLC 93-472
TYSON J:
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 Commissioner of Western Australia Police & Kurata has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
1The Commissioner of the Western Australia Police, being the responsible Central Authority (“the Applicant”) seeks an order pursuant to reg 14(1)(a) of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) for the return of [Child A] born [in] 2009 and [Child B] born [in] 2012 in the United Kingdom.
2The father [Mr Kurata] requested the Applicant commence this action. The application is opposed by the Respondent, [Ms Kurata] (“the Respondent”).
3There is no issue that the Hague Convention on the Civil Aspects of International Child Abduction applies. The Convention, to which Australia is a signatory, provides a framework for the prompt return of children, where they have been wrongfully removed or retained from their country of habitual residence. Australia’s obligations under the Convention, are expressed in the Regulations.
4Once the jurisdictional facts necessary to found a return order are determined[1] and subject to any of the prescribed exceptions to return being made out, the response to the application is for the children to be promptly returned to their country of habitual residence.
[1] Regulation 16(1A) of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”).
5The Applicant asserts that the Respondent has wrongfully retained the children in Australia in accordance with reg 16(1A) on the following basis:
(a)the children are under the age of 16 years (reg 16(1A)(a));
(b)the children were habitually resident in the United Kingdom, immediately prior to their retention in Australia (reg 16(1A)(b));
(c)immediately prior to the retention, the father had rights of custody in relation to the children of the country of habitual residence (reg 16(1A)(c));
(d)the retention of the children was in breach of the father’s rights of custody (reg 16(1A)(d)); and
(e)at the time of the retention, the father was exercising those rights of custody, or would have, had the children not been removed or retained (reg 16(1A)(e)).
6The Respondent concedes the children are under the age of 16 years, that the father had rights of custody in the United Kingdom immediately before 1 September 2020 (being the date of the alleged wrongful retention) which he was exercising, and that the application was filed within 12 months of that date.[2]
[2] Case Summary of the Respondent filed 4 May 2021, paragraph 7.
7The Respondent denies that the children were wrongfully retained in Australia on the alleged date and says the father sanctioned the children’s ongoing presence in Australia, after 1 September 2020.[3] She asserts that the children were not habitually resident in the United Kingdom, immediately before any identifiable act of wrongful retention.
[3] Case Summary of the Respondent filed 4 May 2021, paragraph 30.
8If the jurisdictional facts are established, the return of the children is mandatory unless the Court is satisfied that one or more of the exceptions to return is made out. In this case, the Respondent relies on three exceptions:
(a)Firstly, the father acquiesced to the children being retained in Australia;[4] and/or
(b)Secondly, there is a grave risk that the return of the children under the Convention would expose them to physical or psychological harm or otherwise place them in an intolerable situation;[5] and/or
(c)Thirdly, Child A objects to being returned and is of an age and degree of maturity at which it is appropriate to take account of his views.[6]
[4] Regulation 16(3)(a)(ii).
[5] Case Summary of the Respondent filed 4 May 2021, paragraph 54.
[6] Case Summary of the Respondent filed 4 May 2021, paragraph 62.
9The Respondent no longer pursues her claim that the return of the children would not be permitted under the fundamental principles of Australia, relating to the protection of human rights and fundamental freedoms.[7]
WHAT IS THE LAW?
[7] Case Summary of the Respondent filed 4 May 2021, paragraph 7 and Transcript (“TS”) Day 2, page 14.
10Australia is a signatory to the Convention, which has been incorporated into Australian law through s 111B of the Family Law Act 1975 (Cth) and the Family Law (Child Abduction Convention) Regulations 1986 (Cth).
11Regulation 1A provides:
(1)The purpose of these Regulations is to give effect to section 111B of the [Family Law Act 1975 (Cth)].
(2)These Regulations are intended to be construed:
(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 a 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.
12Article 1 of the Hague Convention on the Civil Aspects of International Child Abduction state the objects of the Convention are:
(a)to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and
(b)to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.
13The Convention is directed to the prompt return of children.
14In broad terms, the Regulations require an order for the return of the child to be made where:
(a)the application is brought within 12 months of the child’s removal from a Convention country;[8]
(b)the Court is satisfied that the child’s removal was wrongful;[9] and
(c)no “exception to return” is established pursuant to reg 16(3).
[8] Regulation 16(1)(b).
[9] Regulation 16(1)(c).
15The Court must take into account any information relating to the social background of the child that is provided by the Applicant or other competent authority of the country in which the child habitually resided immediately before his or her removal or retention.[10]
[10] Regulation 16(4).
16Establishing an exception to return does not preclude the Court from making a return order, which remains a matter of discretion. The matters relevant to the exercise of that discretion include the best interests of the child. While I may refer to the children, any exception and resulting discretion which arises as a consequence of the exception being found to apply must be considered and determined in relation to each child individually.
ONUS OF PROOF
17The Applicant bears the onus of proving the jurisdictional facts, namely, to establish that the children’s retention in Australia was wrongful and that the children were habitually resident in the United Kingdom, immediately prior to the date of the wrongful retention. The Respondent bears the onus of proof to establish the regulatory exceptions to return. The requisite standard of proof is the balance of probabilities.
THE EVIDENCE RELIED UPON
18Notwithstanding the summary nature of these proceedings, each party relied upon a volume of material. The Applicant relies upon the Application filed 3 December 2020, together with all thirteen documents annexed to the Application, including the affidavit of the father sworn 3 November 2020 and the affidavit of law by [Ms C] sworn 2 November 2020. The Applicant relies on a further affidavit of the father filed 22 January 2021.
19The Respondent relies upon her Answer and Cross-Application filed 11 January 2021, her affidavit filed 11 January 2021, the affidavits of [Ms D], and [Dr E] filed 11 January 2021, together with the affidavits of [Dr F] filed 7 May 2021 and 11 January 2021, and [Dr G] filed 7 May 2021 and 11 January 2021.
20The Family Consultant’s report dated 23 March 2021 was also in evidence. At the request of the parties, cross-examination was permitted. Each parent, the Family Consultant and all of the witnesses, apart from Dr E, were cross-examined.
THE TRIAL
21Ms Thatcher SC appeared for the Applicant. Mr Nicholls QC appeared for the Respondent. By consent, Dr F was made available for cross-examination by video link.
22Each party filed objections to evidence,[11] and agreed that the Court was not required to make formal rulings on those objections, but instead, the objections would be taken into account, in dealing with the weight to be given to that evidence. I considered that approach to be sensible and appropriate in the circumstances.[12]
[11] Objections to Evidence filed by the Applicant on 11 May 2021 and by the Respondent on 4 May 2021.
[12] Consistent with the approach adopted by Justice Le Poer Trench in Department of Family and Community Services & Padwa [2016] FamCA 215, at [30]–[31], and [391]–[395].
23On the first day of trial, the Respondent advised that Dr E was no longer available for cross-examination, as required by the Applicant. The parties agreed that only page two of Dr E’s report, together with the articles referred to, would be relied upon.
MY OBSERVATIONS OF THE PARTIES AND THE WITNESSES
24A court appointed [Language A] interpreter was provided for the father. It was clear that the father had a grasp of English, and on occasions, he gave answers in English. At other times, he relied on the interpreter. In my view, the father gave his evidence in a relatively straightforward manner, seemingly without any filter. He was direct and frank in his answers. When the father struggled to respond to questions he was asked, I formed the view his difficulties were genuine, as opposed to being indicative of any evasiveness. At times, it appeared the father was confused by the manner in which questions were framed by the Respondent’s counsel.
25The father gave updating evidence in chief in respect of the easing of restrictions in the United Kingdom since the filing of his affidavit, his travel from [City A] to Perth, via [Country B], including the safety requirements, describing the flight as “almost vacant”.[13]
[13] TS Day 1, page 25.
26The father made a number of concessions, without apparent hesitation. He acknowledged that while the children had been in Australia, at times they had been rude and strange towards him, while on other occasions, they had spoken nicely with him.[14] The father admitted to calling both the Respondent and the maternal grandmother crazy, in the presence of the children during a recent visit,[15] telling Child A that as his father, he was important,[16] and that the visits between himself and the children had not gone well. The father denied yelling at the children, nor their mother during recent visits, asserting the Respondent and maternal grandmother had shouted at him.
[14] TS Day 1, page 26.
[15] TS Day 1, page 28.
[16] TS Day 1, page 39.
27The Respondent gave evidence in a careful and considered manner. I consider she attempted to give her evidence honestly, however I had the impression her answers were coloured by her desire for both her, and the children, to remain in Australia.
28For example, the Respondent deposed that she and both children had been diagnosed with asthma, and were “all classed as ‘clinically vulnerable’ pursuant to the NHS taxonomy of vulnerability to COVID‑19”.[17] The father disputed that Child B had asthma. In the Respondent’s evidence in chief, she acknowledged Child B had not been diagnosed with asthma, explaining that in 2016, Child B had a viral induced wheeze, for which she had been prescribed Ventolin.[18] I consider the Respondent’s evidence in this regard was a deliberate attempt to elevate the alleged risks to Child B in returning to the United Kingdom, which was not accurate.
[17] Affidavit of the Respondent filed 11 January 2021, paragraph 26.
[18] Exhibit 3, the copy of an extract of Child B’s medical records from the NHS.
29By way of further example, the Respondent claimed she only formed an intention to remain in Australia permanently, in March 2021, after she obtained a job. I do not accept the Respondent’s evidence, which I found to be implausible and unlikely, when viewed in the context of her conduct and comments since September 2020, including her consistent efforts to resist returning to the United Kingdom.
30For the reasons that follow, I do not accept the Respondent’s evidence in relation to the father agreeing to the children remaining in Australia, nor was I convinced that the Respondent actually believed that to be true.
31The Respondent raised a litany of complaints against the father. Her evidence in this regard, sat uncomfortably with the fact that despite the parents’ separation, the Respondent continued to spend significant time with the father, including regularly sharing meals during the week, time together on weekends in addition to joint holidays.
32Dr F is a public health communicable disease specialist, and intensive care specialist paramedic, based in [State A]. At the request of the Respondent, he prepared two reports which were attached to his affidavits filed in January and May 2021. There was no criticism of Dr F’s expertise or qualifications. Dr F gave his evidence in a professional and helpful manner, to which I will refer in more detail later in these Reasons.
33Ms D is the Respondent’s sister. I found her to be articulate, intelligent and strongly supportive of the Respondent. She [has] qualifications in relation to gifted education. Ms D gave evidence in relation to her trip to [the United Kingdom] in October 2019 to visit the Respondent and children, in addition to her observations of the children since being in Perth. Ms D gave evidence in relation to Child A’s Autism Spectrum Disorder (“ASD”) diagnosis. While her own son has ASD, Ms D is not an expert, nor is she independent. I attach limited weight to her opinions in this regard.
34The Family Consultant is a social worker, employed with the Court. Pursuant to orders made by consent on 18 December 2020, the Family Consultant was requested to prepare a report addressing specific terms of reference.[19]
[19] Orders made by Consent 18 December 2020, paragraph 3 of the Minute of Consent Orders.
35The Family Consultant confirmed her report was the first she had prepared in Convention proceedings. Despite the orders requesting that the Family Consultant explain to the children the nature of the proceedings,[20] she conceded she had not done so. When the Family Consultant was asked about her understanding of the nature of Convention proceedings, her answer was non-responsive.
[20] Orders made by Consent 18 December 2020, paragraph 5 of the Minute of Consent Orders.
36It was clear from the Family Consultant’s report[21] and evidence,[22] that her focus was distracted by a consideration as to what arrangements were in the best interests of the children. As Kirby J cautioned in DP v Commonwealth Central Authority; JLM v Director-General, NSW Department of Community Services (2001) 206 CLR 401:
It is easy enough, to slip back into a factual inquiry into the child’s best interests, that having for centuries been the duty of common law courts in disposing of analogous cases. But such a tendency must be resisted for otherwise the attainment of the main point of the Regulations and the Convention will be frustrated.[23]
[21] For example, which began by identifying what she described as the competing applications of each parent.
[22] TS Day 2, page 36.
[23] At [128] 440 – 441 (Kirby J), citing De L (1996) 187 CLR 640 at 648 – 649.
37Unfortunately, the Family Consultant has focused on arrangements in the best interests of children, which is understandable giving the usual task and role which Family Consultants have in child-related proceedings. In my view, the case highlights the need for further training to assist Family Consultants, with respect to the preparation of reg 26 reports.
38There were additional aspects of the Family Consultant’s evidence which caused me concern. The Family Consultant did not have her notes in the witness box, and accordingly was required to rely on her recollection. The Family Consultant was unclear whether she had read all of Dr G’s report, or a summary of his report, before she met with the children.
39Regrettably, many of the Family Consultant’s answers in cross‑examination were defensive and failed to directly respond to questions she was asked. I found some of the Family Consultant’s evidence lacking in terms of analysis. For example, the Family Consultant accepted the children’s negative reports about life in [the United Kingdom], in contrast to their glowing reports of life in Perth, despite finding that the Respondent had likely influenced Child A’s views, in particular. The Family Consultant acknowledged she did not explore or reality test the children’s statements to her.
40The Family Consultant did not accept the fact both children have managed to move to a new country, start a new school, live in a new environment, and make new friends, would indicate with appropriate management and support, many of the potential difficulties returning to the United Kingdom could be significantly managed or diminished, for reasons which were not articulated. The Family Consultant maintained the children being in the Respondent’s care likely provided them with stability, which assisted in that transition. The Family Consultant would not concede that if the Respondent returned with the children, that would ease the children’s difficulties. In contrast, Dr G accepted that would be a significant factor in ameliorating the children’s levels of distress.
41In response to the terms of reference about what could be done to assist Child A if a return order was made, the Family Consultant made no mention about the importance of the Respondent providing support, despite conceding in cross-examination that would be very important[24] and that given Child A’s age, the Respondent’s encouragement would assist him.
[24] TS Day 2, page 39.
42The Family Consultant wrote that if the Court refused the application for return, in her view, the children were likely to be content living with the Respondent, “and it would be easier for the children if they perceive the father to accept this decision”.[25] There was no comparable comment in relation to what the Respondent should do, in the event the Court made a return order, which the Family Consultant accepted was an oversight.[26]
[25] Report of the Family Consultant dated 23 March 2021, page 8.
[26] TS Day 2, page 40.
43In the circumstances, I held reservations about the evidence of the Family Consultant.
44Dr G is a clinical and forensic psychologist, with 30 years’ experience. Unbeknown to the father, and despite the orders made by consent for the children to attend on the Family Consultant, the Respondent arranged for Child A and Child B to attend on Dr G.
45Dr G prepared two reports, dated 5 January 2021 and 2 May 2021. The terms of reference were not attached to his reports, and were only disclosed during the trial.[27]
[27] The letters of instruction became Exhibits 12 and 13.
46On 4 January 2021, the Respondent’s counsel emailed Dr G, thanking him for agreeing to see the children and wrote,[28] “If you can speak to me before you see them it might be helpful”. It was unclear whether any such discussion occurred. Dr G was told he was “[Ms Kurata’s] expert witness” and that the Respondent would be relying on two exceptions:
•grave risk, in the context of the COVID-19 situation in [the United Kingdom] and the children’s experiences of parenting by their father (“[Ms [Kurata] will be able to explain this to you”); and
•the children’s objection to being returned, in circumstances where they had attained an age and degree of maturity at which it is appropriate to take account of their views.
[28] Exhibit 12, the email from [Mr] Nicholls to Dr G dated 4 January 2021.
47Dr G was provided with an extract of reg 16(3)(c) and advised “it is not easy to make out either of these exceptions; the standard is set quite high”. Reference was made to the Guide to Good Practice on the operation of the relevant exceptions, which the Respondent’s counsel wrote he would try to provide. Again, it is unclear whether that occurred.
48Dr G confirmed he had been requested “to interview [the children] with regard to certain specified issues arising from the children being the subject of proceedings under the 1980 Hague Convention”[29] and “to provide psychological information in terms of the children’s experiences of parenting by their father, a discussion around ‘grave risk’ and whether the children show an objection to returning to the United Kingdom beyond the preference of an ordinary wish”.[30]
[29] First report of Dr G filed 11 January 2021, paragraph 1.
[30] First report of Dr G filed 11 January 2021, paragraph 10.
49He set out a list of documents he had been provided in paragraph 3, being the initiating application and documents in support, together with a report by [Mr H] dated 19 June 2018, and a neurodevelopmental report dated 16 October 2019. However, in his report he referred to the Respondent’s affidavit[31] as well as media reports,[32] which were not identified.
[31] First report of Dr G filed 11 January 2021, paragraph 8.
[32] First report of Dr G filed 11 January 2021, paragraph 14.
50Dr G was provided with an updated letter of instruction in April 2021, which again was only disclosed during the trial.[33] He was then provided with the Family Consultant’s report, the affidavit of Dr F, together with ss 121(9)(a) and (f)(i) of the Family Law Act 1975 (Cth).
[33] Exhibit 13, letter from Elizabeth Weise & Associates dated 27 April 2021.
51The Regulations do not provide specific rules about expert evidence. Part 15.5 of the Family Law Rules 2004 (Cth) covers the presentation of expert evidence. The rules regulating expert evidence, and the use of single expert evidence, while providing the Court with the discretion to appoint another expert, are not peculiar to the family law jurisdiction.
52While no objection was raised by the Applicant to Dr G’s evidence, I make the following observations:
Firstly, the purpose of the Rules is to ensure that expert evidence is only obtained in relation to significant issues, necessary to resolve or determine a case, by a single expert witness.[34] The Rules seek to avoid unnecessary costs from the appointment of multiple experts.
Secondly, the Respondent provided no explanation as to why she had unilaterally engaged an alternative expert, after orders had been made by consent for a report by the Family Consultant.
Thirdly, it was not apparent that the Respondent gave any consideration to the impact of her decision, which resulted in the children being interviewed by the Family Consultant on one occasion, and Dr G on two occasions.
[34] Rule 15.42.
53Dr G was not provided with an agreed statement of facts. Dr G only met with the Respondent, from whom he obtained information about background matters, where it is clear there is much in dispute between the parents. Dr G has not met, nor interviewed the father. Consequently, Dr G has been put in the position of being a partisan witness. These factors impact upon the reliability and weight to be attached to Dr G’s evidence, which I will return to later in the Reasons.
RELEVANT BACKGROUND FACTS
54The father was born in [Country A] [in] 1974. He is 47 years of age and is [a] consultant. The father is a Country A citizen.
55The Respondent was born in Western Australia [in] 1973. She is 48 years of age and is a lawyer. The Respondent is an Australian citizen.
56In 2002, the parents met in Country A and subsequently lived together. [In late] 2005, the parents married, in Western Australia.
57In 2007, the parents moved to the United Kingdom, when the Respondent obtained employment with [Employer A].
58In 2009, Child A was born, in the United Kingdom.
59In [mid-2012], the Respondent and Child A travelled to Australia, to facilitate a job opportunity, in [City B]. The father remained in the United Kingdom, where he was working.
60In [late] 2012, Child B was born, in State A. In December 2012, the Respondent and the children flew to Western Australia, to spend time with the Respondent’s family. The father joined them over the Christmas period. The family returned to the United Kingdom together in January 2013, where they have lived since.
61Child A and Child B are dual Australian and Country A citizens. Child A is also a British citizen. The Respondent, father and Child B each have permanent residence in the United Kingdom, described as “indefinite leave to remain”.
62The children have attended all of their schooling in the United Kingdom.[35] Child A initially attended [School A]. After passing the entrance exams, Child A attended [School B] from year three, while Child B has attended since nursery.
[35] Until July 2020.
63In November 2013, the Respondent returned to work. The family engaged au pairs and nannies, to assist with caring for the children, while both parents worked.
64In late 2015, the family’s au pair left, citing complaints about the father’s inappropriate conduct towards her. That is corroborated by the communications from [Au Pair Business A].[36] In November 2015, the father left the family home and the parents separated.
[36] Affidavit of the Respondent filed 11 January 2021, annexure KI-16, pages 82–94.
65Since separation, the children have lived with the Respondent and spent time with the father. It is common ground that the father has played an active role in the children’s lives. The children have continued to spend regular and frequent time with the father, which included the father regularly taking them to school in the mornings, sharing several meals each week, together with spending time together as a family on weekends. The children have also stayed at the father’s home, including on an overnight basis.
66They continued to holiday as a family, including travelling to Country A in October 2016 and December 2018, and to [Country C] in July 2017. The family travelled together to [Region A] in August 2016, to [Town A] in June 2017, to [City C] in October 2017, [Landmark A] in April 2019, [Landmark B] in July 2019, and [Town B] in October 2019 and January 2020.
67In July 2019, the Respondent and children moved from [Area A] to [Area B], in [County A], while the father continued to live in Area A. Both children continued to attend School B, in Area A.
68In late 2019, the father ceased working, in circumstances which are in dispute, but which were not the subject of any cross-examination. The Respondent says the father asked to move into her home, to reduce the time and cost he incurred spending time with the children. The father says the Respondent asked and he agreed to assist her with the children. On either version, it is accepted the father spent increasing time in the Respondent’s home, with her agreement.
69On 20 March 2020, as part of national lockdowns in response to COVID-19, schools in [the United Kingdom] closed, and the Respondent was required to work from home. From March 2020, the father frequently stayed in the Respondent’s home, with her and the children, for around three nights each week, which continued until June 2020.
70On 5 March 2020, Child A was offered, and the parents accepted, a place at [School C, in Area B] to commence high school in September 2020. School C is a selective grammar school. The Respondent’s decision to move to Area B, was in part to facilitate Child A attending School C.
71In June 2020, the parents agreed to the Respondent and children travelling to Australia to visit their maternal grandparents during the United Kingdom summer school holidays. On 13 June 2020, the Respondent bought one way tickets to fly to Western Australia.
72On 16 June 2020, the father drove the Respondent and children to the airport. On the father’s case, the agreement was that the children would return to the United Kingdom prior to the start of school on 2 September 2020. At the time of the Respondent’s departure, she continued to be employed in [the United Kingdom]. The Respondent’s employers gave her permission to work remotely in Australia, for three months. The father’s unchallenged evidence is that he wanted to accompany the family to Australia, but he needed to remain in the United Kingdom, to look for work.
73On 17 June 2020, the Respondent and children arrived in Perth. After completing 14 days hotel quarantine, the Respondent and children have lived with the maternal grandparents, at [Property A].
74Since 17 June 2020, the father has regularly communicated with the children, through FaceTime and telephone.
75As a consequence of the lockdowns preventing the children from attending school, the parents agreed to Child A and Child B attending school in Australia. The children were enrolled into [School D], and commenced on 20 July 2020.
76In July 2020, the parents were in regular communication, making arrangements with respect to each child’s schooling in the United Kingdom. In August 2020, the Respondent purchased Child A’s School C school uniform, which the father collected at the Respondent’s request, together with a secondhand uniform for Child B for School B. The parents purchased Child A’s schoolbooks, which the father collected. The Respondent paid 50% of Child B’s school fees for the forthcoming year.
77In mid-August 2020, the father asked the Respondent when she was planning to return to the United Kingdom. The Respondent confirmed she would return by the end of August 2020. By the end of August 2020, the father had commenced employment.
78On 24 August 2020, School C emailed the Respondent, advising they heard she was in Australia and struggling to obtain return flights for the start of the school term. The school asked to be kept informed, in order to prepare for Child A’s arrival.
79On 26 August 2020, the Respondent emailed School C, confirming there were “few airlines” operating internationally, but a number were scheduled to re-commence flights in September. The Respondent wrote, “The key issue for Child A (and his sister and I) is the travel ban on leaving Australia. We are attempting to establish that we are not subject to the ban, as we are ordinarily resident in the United Kingdom (Child A is also a British citizen). We will certainly keep you apprised of our travel arrangements”.
80The school year in the United Kingdom commenced on 2 September 2020. The Respondent and children did not return prior to that date, nor since.
81In early September 2020, the Respondent told the father it was difficult to secure a flight, and raised concerns about the potential for a second wave of COVID-19 in [the United Kingdom].
82On 16 September 2020, the Respondent wrote to the father “the children want to stay here. They like going to school and don’t want to be locked down again”, followed by “I can’t waste my time on this. We will stay here until the epidemic is over. That is that”.[37]
[37] Exhibit 6, page 14 of the bundle of documents produced for father’s cross-examination.
83I accept the father’s evidence that sometime between mid to late September 2020 and early October 2020, the Respondent told him during a FaceTime conversation, that she and the children wanted to remain in Australia permanently, because they enjoyed life in Australia and there were no COVID-19 cases in Perth. While the Respondent claimed she could not recall making those remarks,[38] I consider it likely she did. I prefer and accept the father’s evidence, which was not disturbed in cross-examination.
[38] Affidavit of the Respondent filed 11 January 2021, paragraph 36.
84In late September 2020, the Respondent commenced unpaid leave from her employment. In early October 2020, the Respondent bought a car and subsequently joined a gym. In my view, the Respondent’s actions were consistent with her decision not to return the children to the United Kingdom, and with the father’s evidence that she had told him they would be staying in Australia.
85The father’s message to the Respondent on 21 October 2021 was the focus of acute attention at trial. The message needs to be viewed in context of the entire communication, which is set out below in chronological order. I do not accept the Respondent’s suggestion of something sinister or untoward about the father’s presentation of these communications. There is no dispute about the relevant chronology.
On 21 Oct 2020, at 21:38, [the father] wrote:
Parental child abduction – know the law
What you are doing is illegal in the UK and in Australia and in [Country A].
On 21 Oct 2020, at 15:23, [the Respondent] wrote:
No. You drove us to the airport and now say you didn’t permit it. You know what is illegal? Failing to pay child support for years is illegal.
Send from my iPhone
On 21 Oct 2020, at 22:31, [the father] wrote:
You told me you guys would come back before September and that was why I drove to the airport.
Sent from my iPhone
On Wednesday, 21 October 2020, 15:40:21 BST, [the Respondent] wrote:
I also intended to come back then but the kids have begged me not to make them go back. I also have no intention of taking them back during a worsening pandemic when they can live here without any of that worry.
As per usual, you are being selfish. You don’t care about the children at all. You can take me to court. No judge, in any jurisdiction, would rule that going into a pandemic from a pandemic free zone, is in the interests of a child.
Sent from my iPhone
On 21 Oct 2020, at 23:08, [the father] wrote:
If the reason is pandemic, I don’t force you guys to come back. But, you told me you intended to stay in Australia permanently.
I felt like you are waiting for the 5 years of separation date (End of November) there to get an automatic divorce rather than being scared of pandemic.
I don’t want to damage your career by suing you, but if you don’t talk with me by just hanging up the phone all the time. I have to think of an alternative solution as I need my kids, too. If you insist that we got divorced after the 5 years, I can’t even enter Australia any more to meet my kids, which I need to avoid.
You can’t imagine the life without kids, how sad it is. This really made me depressed and I am weeping almost every day by thinking of it. You probably forgot that I am their dad.
I believe I did my best to support kids school fees and their living costs in the past as I have been earning more than you did for the past 10 years, but I don’t have any saving. Rather, I borrowed more than £50,000 from my parents. And you took almost all the money when we sold the house saying that you use the money for the child support. I have records that I contributed the house mortgage as well as deposit. I paid more that you paid for the house in total. You can’t say I didn’t do the child support. My payment records are all stored in [a bank’s] database regardless whatever you say.
Also you have misunderstanding about my holiday usage at [Employer B]. You told me that I didn’t take holidays to look after kids, that is completely wrong. I took too many holiday to look after them, that is why my final salary was negative value as [Employer B] deducted my holiday usage from my salary at the last month. I have never took may paid holidays at [Employer B] for myself or by myself, always with kids.
Are you coming back if the pandemic gets better or vaccines are invented?
On Wednesday, 21 October 2020, 16:29:13 BST, [the Respondent] wrote:
This is all about you isn’t it? Everything you have written below is false.
In the end, what is important is what is best for the children.
I did not want to give up my job. I have never given up a job without one to go to before. But the children sobbed whenever I mentioned going back to the UK. And we are free of Covid here with no looming threat of disease or lockdowns.
If you sued me my career would not be damaged. The damage is to the children. I don’t need to wait to divorce you. Australia does not require 5 years separation. I haven’t divorced you yet because it costs and because the kids hope you might come here one day.
I have been better to you than you deserve. I do that for [Child A] and [Child B].
Sent from my iPhone
86I will return to these messages later in the Reasons.
87The father repeatedly sought to reassure the Respondent, and the children, that it was safe to return to the United Kingdom and asked them to do so. For example:
(a)On 15 October 2020, the father emailed the Respondent, and Child A referring to the current infection rates of COVID-19 in the United Kingdom, and wrote:
Rate of infections per 100,000 people in the 7 days to Oct 10th in [Area B] is 50.6. That means, around 5 people in 10,000 or 1 person in 2,000 in 7 days. That is why you hardly see the infected people there. It is safe to come back. Love, Dad;
(b)On 21 October 2020, the father wrote “Please give a correct [sic] information about COVID-19 and convince them to come back”;[39] and
(c)On 22 October 2020, he wrote “Please come back here before finishing the half term here so that I can pick you up at [the airport]”.[40]
[39] Affidavit of the Respondent filed 11 January 2021, annexure KI-2, email from the father to the Respondent dated 21 October 2021 at 23:40:34pm.
[40] Affidavit of the Respondent filed 11 January 2021, annexure KI-3, iMessage from the father to the Respondent dated 22 October 2020 at 4:37:54am.
88On 3 November 2020, the father authorised the Applicant to pursue the return of the children, pursuant to the Convention. He then continued to communicate with the Respondent, seeking the children’s return to the United Kingdom.
89On 24 November 2020, the parents had the following exchange on iMessage:
Father: Can you please come back to [the United Kingdom] when [Child A] finishes his grad ceremony?
Respondent: Yes, if that is what the kids want and a vaccine programme has been rolled out.
Father: Vaccine is ready… Kids are too young to decide where to live. Please tell them that they need to come back here as soon as possible to catch up on their school curriculums. I’m 100% sure that [Child A] will enjoy [School C] with other smart kids. He is a raw stone diamond, he needs to be brushed up… Does [Child A] have a grad ceremony today? I will need to call the police if you guys don’t come back here.
Respondent: I have told you to stop threatening me and the children. You are giving them nightmares.
Father: I’m not threatening you. I exercised my rights of custody as their father. I love them and I want to live with them, too. You have to imagine the life without kids to yourself. It is a torture, which is what you have been doing since June
90After the application was filed in the Family Court of Western Australia on 3 December 2020, the father persisted in his efforts, to convince the Respondent to return the children to the United Kingdom. By that time, the father then understood Child A’s graduation ceremony was taking place around 17 December 2020.
91On 8 December 2020, the father wrote to the Respondent “As I told you, I can wait until [Child A’s] graduation. But I want to have Christmas with my kids here in [the United Kingdom]”.[41] The Respondent replied “I’m not going to fight with you, but we are not going back to the UK while COVID is not under control”.[42] She subsequently told the father she would “wait for the application”, which would be opposed.[43]
[41] Affidavit of the Respondent filed 11 January 2021, annexure KI-6, iMessage from the father to the Respondent dated 8 December 2020 at 4:28:46am
[42] Affidavit of the Respondent filed 11 January 2021, annexure KI-2, iMessage from the Respondent to the father dated 9 December 2020 at 8:22:38am.
[43] Affidavit of the Respondent filed 11 January 2021, annexure KI-2, iMessage from the Respondent to the father dated 9 December 2020 at 8:45:38am.
92On 10 December 2020, ex parte orders were made restraining the Respondent from removing the children from the Commonwealth of Australia, and placing the children on the Australian Federal Police Family Law Airport Watch List Alerts. The Respondent was required to surrender all passports relating to the children and herself to the Registry of the Family Court of Western Australia. The Respondent was restrained from changing the children’s day-to-day residence and from applying for any further passport or travel documentation for the children.
93The Respondent was subsequently served with the application and the orders.
94On 18 December 2020, orders were made by consent, for the Respondent to file and serve any cross application material upon which she sought to rely by 8 January 2021 and for the Applicant to file and serve any material in reply by 22 January 2021. The proceedings were listed for trial on 25 March 2021, with an estimated hearing time of one day.
95On 11 January 2021, the Respondent filed an answer and cross application, opposing the orders sought.
96On 22 January 2021, the Applicant filed a reply affidavit of the father and attachments.
97The Family Consultant interviewed the parents and the children on 3 and 4 March 2021. The father was interviewed by video link. The Respondent and the children were interviewed in person. On 18 March 2021, the parties agree to vacate the trial on 25 March 2021, which was then relisted for 13 and 14 May 2021.
98On 11 March 2021, the Respondent was offered employment in Australia, which she commenced on 31 March 2021.
99On 15 April 2021, the father left the United Kingdom and travelled to Western Australia. After completing 14 days hotel quarantine, he has spent time with the children, on Sunday 2 May 2021, Monday 3 May 2021, Saturday 8 May 2021 and Sunday 9 May 2021. There have been difficulties in relation to the children’s time with the father, for reasons which are in dispute.
JURISDICTIONAL FACTORS
What is the date of the wrongful retention of the children?
100The Applicant’s case is that the Respondent wrongfully retained the children on or around 1 September 2020. The Respondent says the Court cannot be satisfied she wrongfully retained the children on that date, and points to her actions between mid-August and mid-September 2020, as supporting a finding that she intended to return to the United Kingdom. She suggests that she was unable to do so because of circumstances beyond her control or the risks posed by COVID-19, or a combination of both.[44]
[44] Case Summary of the Respondent filed 4 May 2021, paragraph 28.
101Contrary to the position advanced by the Respondent, I am satisfied the children were wrongfully retained in Australia, on or about 1 September 2020.
102At the time the children left the United Kingdom, I am satisfied the parents agreed for the children to travel to Australia, for a temporary stay only. Further, they agreed the children would return to the United Kingdom, in time for the commencement of the school year. That is supported by:
(a)The father’s application;
(b)The Respondent’s oral evidence;
(c)The communications between the parents, during August and early September, making arrangements to facilitate Child B’s return to School B and Child A’s commencement at School C for the start of the school year on 2 September 2020;
(d)The children’s ongoing enrolment into their respective schools, namely School B and School C;
(e)The Respondent’s arrangements with her English employer, to work remotely during her stay in Australia, on the basis she would be returning by September 2020; and
(f)The Respondent maintaining her flat in Area B, where her and the children’s belongings remain.
103The shared intention and agreement between the Respondent and father, was that the children would visit Australia, for a holiday, and return to the United Kingdom in time to start the new school year in September.
104My findings are further supported by the Respondent’s own evidence, which included:
(a)Her message to the father on 21 October 2020, acknowledging she had intended to return with the children before September 2020;
(b)She intended to return to the United Kingdom before the end of the school holidays had finished, to enable the children to commence school in September 2020;[45] and
(c)At the time she booked to travel to Perth, she believed she could return to the United Kingdom in mid-August 2020,[46] to enable two weeks of quarantine, before the start of the school year.[47]
[45] Affidavit of the Respondent filed 11 January 2021, paragraph 13.
[46] Affidavit of the Respondent filed 11 January 2021, paragraph 18.
[47] Affidavit of the Respondent filed 11 January 2021, paragraph 19.
105I am not satisfied there was any ambiguity about the agreement. I do not accept the Respondent’s assertion that the agreement for the children’s return was conditional upon the state of the pandemic in the United Kingdom. The communications exchanged between the parties, making arrangements for the children’s attendance at school in the United Kingdom,[48] together with the father’s message to the Respondent on 21 October 2020,[49] corroborate my finding.
[48] Attachment 13 to the Application filed 3 December 2020, email correspondence between the father and the Respondent on 15 July 2020 and 25 August 2020.
[49] Attachment 13 to the Application filed 3 December 2020, email correspondence between the father and the Respondent on 21 October 2020.
106I am not persuaded by the fact the Respondent only purchased one way tickets to Perth, was evidence of an agreement that the children could remain until COVID-19 was under control. Instead, I consider that decision reflected the limited flights that were available at the time of their departure. It was expected that the Respondent would book the return flights when in Perth. It is also consistent the Respondent booking tickets to Perth, only days prior to departure.
107I reject the assertion that the Respondent was unable to return to the United Kingdom. The Respondent reserved return flights on 9 September 2020, which she later cancelled. The father’s communications acknowledged the difficulties raised by the Respondent about a lack of flights and the risks posed by COVID-19. That is reflected in the application,[50] where the father deposed he wanted the children to be returned to [the United Kingdom] “as soon as possible”, noting the COVID-19 restrictions then in place. The communications fall short of any consent to the children remaining in Australia beyond 1 September 2020.
[50] ICACU Application Form, page 11, paragraph 7, signed by the father on 3 November 2020.
108I accept the father’s evidence that on or about 1 September 2020, he asked the Respondent to bring the children back to the United Kingdom as soon as possible, which he repeated until the end of October 2020.[51] The father did not agree to the children being retained in Australia. He did not give the Respondent permission or sign any documents consenting to the children remaining in Australia. His communications are consistent with his position seeking the children’s return to the United Kingdom.
[51] Reply affidavit of the father filed 22 January 2021, paragraph 6.
109Counsel for the Applicant described the case as a “textbook retention”.[52] I agree. There was a clear informal agreement between the parents for the children to be returned to the United Kingdom on or about 1 September 2020. The Respondent failed to return the children. I am satisfied the children were wrongfully retained on or about 1 September 2020.
Did the father sanction the children remaining in Australia?
[52] TS Day 2, page 25.
110The Respondent asserts that the father agreed to the children remaining in Australia. She says if children’s presence in Australia was sanctioned by the father, then it was lawful and not in breach of his rights of custody.[53]
[53] Case Summary of the Respondent filed 4 May 2021, paragraph 26.
111The Respondent’s counsel referred to the decision of In re C (Children)[54] in which Lord Hughes referred to the word sanction, to describe an exercise of custody rights that results in the lawful removal or retention of a child in another country, stating:
…It is clearly true that if the two parents agree that the child is to travel abroad for a period, or for that matter if the court of the home State permits such travel by order, the travelling parent first removes, and then retains the child abroad. It is equally true that both the removal and retention are, at that stage, sanctioned and not wrongful. But to say that there is sanctioned retention is to ask, rather than to answer, the question when such retention may become unsanctioned and wrongful.[55]
[54] (International Centre for Family Law, Policy and Practice Intervening) [2018] UKSC 8.
[55] In re C (Children) (supra), at [42].
112I have referred to the father’s repeated requests to the Respondent, to return the children to the United Kingdom on a voluntary basis.
113At trial, there was significant focus on the father’s message to the mother on 21 October 2021, in which he wrote “If the reason is pandemic, I don’t force you guys to come back”. I make the following observations about the exchange between the parents:
Firstly, the communications occurred after the agreed date when the children were to have been returned to the United Kingdom.
Secondly, the father explained when he wrote to the Respondent, he meant to say he would not force the children to come back “immediately”, if the Respondent’s concern related to COVID-19. English is not the father’s first language. Unlike the Respondent, he is not legally trained. I accept that the father was attempting to persuade the Respondent to return voluntarily to [the United Kingdom], because she had said she intended to remain permanently in Australia, consistent with his message.
Thirdly, the exchange of communications does not establish an agreement between the parents for the children to remain in Australia. The Respondent simply dictates terms to the father, accusing him of being selfish and telling him he can “take [her] to court”. The Respondent’s remarks are compatible with her understanding that the father did not agree to the children remaining in Australia.
114A broader review of the communications between the parents, does not assist the Respondent. They demonstrate the Respondent telling the father that the children would remain in Australia, despite the father’s opposition. For example, the Respondent wrote:
(a)On 16 September 2020, “the children want to stay here. They like going to school and don’t want to be locked down again”, followed by “I can’t waste my time on this. We will stay here until the epidemic is over. That is that”.[56]
(b)On 9 December 2020, “I’m not going to fight with you, but we are not going back to the UK while COVID is not under control”.[57]
(c)On 9 December 2020, “I will wait for the application and contest it. I can’t engage meaningfully with one as deranged as you”.[58]
[56] Exhibit 6, page 14 of the bundle of documents produced for father’s cross-examination.
[57] Affidavit of the Respondent filed 11 January 2021, annexure KI-2, iMessage from the Respondent to the father dated 9 December 2020 at 8:22:38am.
[58] Affidavit of the Respondent filed 11 January 2021, annexure KI-2, iMessage from the Respondent to the father dated 9 December 2020 at 8:45:38am.
115Such communications are not indicative of any agreement. Contrary to the Respondent’s claims, the communications reveal that she knew the father did not agree to the children remaining in Australia.
116I am not satisfied the father’s message constitutes unambiguous and cogent evidence that he sanctioned the children remaining in Australia. His communications are unwavering and consistent with his recurring requests for the children to be returned to the United Kingdom. For example:
(a)On 21 October 2020, he messaged the Respondent, writing “Please give a correct [sic] information about COVID-19 and convince them to come back”;[59]
(b)On 22 October 2020, he wrote “Please come back here before finishing the half term here so that I can pick you up at Heathrow”;[60]
(c)On 24 November 2020 he wrote “can you please come back to [the United Kingdom] when [Child A] finishes his grad ceremony”;[61] and
(d)On 8 December 2020 he wrote “as I told you, I can wait until [Child A’s] graduation. But, I want to have Christmas with my kids here in [the United Kingdom]”.[62]
[59] Affidavit of the Respondent filed 11 January 2021, annexure KI-2, email from the father to the Respondent dated 21 October 2021 at 23:40:34pm.
[60] Affidavit of the Respondent filed 11 January 2021, annexure KI-3, iMessage from the father to the Respondent dated 22 October 2020 at 4:37:54am.
[61] Affidavit of the Respondent filed 11 January 2021, annexure KI-3, iMessage from the father to the Respondent dated 24 November 2020 at 2:45:59pm.
[62] Affidavit of the Respondent filed 11 January 2021, annexure KI-6, iMessage from the father to the Respondent dated 8 December 2020 at 4:28:46am.
117Many of the father’s messages sought to convince the Respondent that it was safe to return to the United Kingdom, including:
(a)“Rate of infections per 100,000 people in the 7 days to Oct 10th in [Area B] is 50.6. That means, around 5 people in 10,000 or 1 person in 2,000 in 7 days. That is why you hardly see the infected people there. It is safe to come back”;[63]
(b)“Can you tell the kids about COVID-19? The death rate for kids under 20 years old is 0.0000025%...Please give a [sic] correct information about COVID-19 and convince them to come back”;[64]
(c)“The life in [the United Kingdom] is more like normal. You just need to wear masks, not a big deal. Kids don’t need to though”;[65] and
(d)“COVID-19 is under control in [the United Kingdom] and schools are open and almost all kids are attending at [School C] and [School B]”.[66]
[63] Affidavit of the Respondent filed 11 January 2021, annexure KI-2, email from the father to the Respondent dated 15 October 2021 at 15:37:51pm.
[64] Affidavit of the Respondent filed 11 January 2021, annexure KI-2, email from the father to the Respondent dated 21 October 2021 at 23:40:34pm.
[65] Affidavit of the Respondent filed 11 January 2021, annexure KI-6, iMessage from the father to the Respondent dated 8 December 2020 at 4:28:46pm.
[66] Affidavit of the Respondent filed 11 January 2021, annexure KI-2, iMessage from the father to the Respondent dated 9 December 2020 at 8:38:31am.
118The father’s message on 21 October 2020, asking the Respondent whether she would return to the United Kingdom “if the pandemic gets better or vaccines are invented?” is congruent with the father’s attempts to secure the children’s voluntary return. It is not evidence of the father sanctioning the children remaining in Australia.
119I accept the father was hopeful that the Respondent would agree to return the children, and that he wanted to be reunited with them. The father’s communications are consistent with his position seeking the children be returned to the United Kingdom. In my view, they do not constitute evidence that the father sanctioned the children remaining in Australia.
120The father’s proposal for the children to return after Child A’s graduation, was made after he had applied for the children’s return to the United Kingdom, on 3 November 2020. I accept the father’s explanation that he did so, because he did not expect his application would be determined prior to Child A’s graduation. Further, the father considered it appropriate to allow Child A, and Child B, to finish the school year. I do not accept the father’s communications are inconsistent with his requests for the children to return.
121The Respondent alleged that in October 2020, the father told the children not to return to [the United Kingdom], which the father denied. Child A reported to the Family Consultant, that his father had told him they could remain in Australia. The father denied ever making such statements, which I accept. I found the father’s denials to be genuine, and consistent with his communications to the Respondent.[67] For the reasons that follow,[68] I have concerns about the reliability of Child A’s statements, in circumstances where the Respondent has shown Child A the father’s affidavit, and where she has discussed and involved Child A in the proceedings. The evidence supports a finding that Child A is aligned with his mother, and has been the subject of significant influence by her.
[67] Affidavit of the Respondent filed 11 January 2021, annexure KI-2, email from the father to the Respondent dated 21 October 2021 at 21:38pm.
[68] See paragraphs 160-161 of these Reasons.
122In conclusion, I am not satisfied that the father sanctioned, or consented to the children remaining in Australia, as claimed by the Respondent. I have already found that the children were wrongfully retained on or about 1 September 2021. It is necessary to now consider where the children were habitually resident, immediately preceding the date of the alleged wrongful retention.
Where were the children habitually resident immediately preceding the date of the alleged wrongful retention?
123The law in Australia relating to habitual residence for the purposes of the Convention was authoritatively settled by the High Court in LK v Director General, Department of Community Services (2009) 237 CLR 582. The Full Court of the Family Court of Australia have recently confirmed that position.[69]
[69] Yardlay and Commissioner of Police [2020] FamCAFC 186, [30] (Strickland, Austin and O’Brien JJ).
124The High Court wrote, at [34] 595 - 596:
… 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.
125The authorities make it clear that:
(a)Habitual residence is a question of fact, which requires an evaluation of all relevant circumstances;[70]
(b)The time at which the Court is to determine a child’s habitual residence, is immediately prior to retention;[71]
(c)The inquiry into habitual residence is a “broad factual inquiry”, taking into account all relevant factors, including settled purpose, the actual and intended length of stay in a state, the purpose of the stay, the strength of ties to the state and to any other state (both in the past and currently), the degree of assimilation into the state including the living and schooling arrangements, and cultural, social and economic integration;[72]
(d)The application of the expression “habitual residence” permits consideration of a wide variety of circumstances which bear upon where a person is said to reside and whether that residence is to be described as habitual;[73]
(e)The past and present intentions of the person under consideration will often bear upon the significance that is to be attached to particular circumstances, including the duration of a person’s connection with a particular place of residence;[74]
(f)When a child is in the lawful custody of only one person, or of two people who live together, the child’s country of habitual[75] residence is the same as that of this person, or those persons. If a young child is in the lawful custody of two people who previously lived together until one of them abandoned the country of habitual residence, taking the child away at the same time, the child’s country of habitual residence ordinarily remains that of the other person. The general rule is that one parent is unable to unilaterally change the child’s country of habitual residence;[76]
(g)The Full Court has acknowledged the “shift away from the concentration on shared parental intention in determining habitual residence”,[77] while confirming that in determining the question, attention should be paid to whether the child’s presence at a place has a “degree of settled purpose from the child’s perspective”;[78]
(h)To find that a person is habitually resident in a place, they must generally have lived there for an “appreciable period”,[79] noting that what amounts to an appreciable period will differ from case to case, and will be dependent, to some extent on the intentions of the parents; and
(i)In cases of wrongful retention, the ultimate question of habitual residence is to be determined by reference to the time of the alleged wrongful retention.[80]
[70] LK (supra), [23] 592; McCall and McCall; State Central Authority (Applicant); Attorney-General of the Commonwealth (Intervener) (1995) FLC 92-551.
[71] LK (supra), [48] 600.
[72] LK (supra), [44] 599 where the High Court affirmed the observations made in Punter v Secretary for Justice [2007] 1 NZLR 40, [88].
[73] LK (supra), [23] 592.
[74] LK (supra), [23] 592.
[75] LK (supra), [34] 595.
[76] LK (supra), [34] 595; Cooper v Casey (1995) FLC 92-575.
[77] Secretary, Department of Family and Community Services & Padwa (2016) FLC 93-701.
[78] LK (supra), [44]–[45] 599-600, citing the Court of Appeal in New Zealand in Punter v Secretary for Justice [2007] 1 NZLR 40.
[79] Zotkiewicz & Commissioner of Police (No 2) (2011) FLC 93-472.
[80] LK (supra), [48] 600.
126Counsel for each party drew the Court’s attention to the divergence of approach between the United Kingdom and Australia, about whether one parent can unilaterally change the habitual residence of a child, and the length of time ordinarily required to establish habitual residence.
127The Respondent’s counsel submitted that since 2009, there had been a significant shift in the approach to identifying a child’s habitual residence, and that the focus of attention is now on the situation of the child, and parental intention is no longer regarded as determinative,[81] in reference to the possibility that during a stay abroad, a child may become habitually resident in the destination state if the stay “is more than just a holiday and lasts long enough for the child to become integrated into the destination state”. He referred to the comments of Bennett J in State Central Authority and Metin[82] at [172] where her Honour found:
… one parent can act unilaterally of the other parent to bring about a change in the habitual residence of a child by facilitating the child’s integration and assimilation into the new environment. It is, however, the child’s assimilation, rather than the taking parent’s intention or mindset, which drives the change in habitual residence.
[81] Case Summary for the Respondent, paragraph 39. He directed the Court’s attention to the comments of Lord Hughes in the matter of In re C (Children) (supra), [12].
[82] [2020] FamCA 535.
128The Supreme Court of the United Kingdom in Re R (Children) (Reunite International Child Abduction Centre intervening) [2016] AC 76 have stated there is no rule, that one parent cannot unilaterally change the habitual residence of the child.
129McClelland J (as he then was) noted[83] the broader approach adopted in the United Kingdom, in contrast to the approach of the High Court of Australia in LK, concluding if the broader approach was to be applied in Australia, it should be done at the appellate level.
[83] In Secretary, Department of Family and Community Services v Zadeh [2017] FamCA 44.
130I acknowledge there is a divergence of approach. I am bound by the decision of the High Court in LK, which the Respondent’s counsel acknowledged authoritatively settled the law in Australia.[84] I accept the general rule that neither parent can unilaterally change the place of habitual residence.[85]
[84] Case Summary of the Respondent filed 4 May 2021, paragraph 42.
[85] Noting that is consistent with the approach adopted by Bennett J in State Central Authority and Metin [2020] FamCA 535, and Williams J in Secretary, Department of Communities and Justice and Paredes [2021] FamCA 128.
131In turning to the question of the habitual residence, the Respondent asserted that immediately prior to the children’s wrongful retention, they were habitually resident in Australia. Her case was predicated on the basis that the children were not wrongfully retained on or around 1 September 2020. She focused on what the children said to the Family Consultant, the Respondent and their aunt, about their perception of their life in Australia, in contrast to their life in [the United Kingdom]. She submitted the father’s intentions in relation to the children’s place of habitual residence could not “prevail over the children’s life experience and outlook”[86] and “on any view, what the children have said demonstrates an affection for and degree of assimilation into, life in Australia that far exceeds the limited attractions that [the United Kingdom] holds for them”.[87]
[86] Case Summary of the Respondent filed 4 May 2021, paragraph 52.
[87] Case Summary of the Respondent filed 4 May 2021, paragraph 53.
132I have found that wrongful retention occurred or around 1 September 2020, contrary to the position of the Respondent. Having had the opportunity to carefully consider the evidence, I am readily satisfied that the children were habitually resident in the United Kingdom, immediately before they were wrongfully retained in Australia on or around 1 September 2020, for the following reasons:
Firstly, Child A was born in the United Kingdom, in 2009 and has lived in the United Kingdom since that time, apart from a short period in 2012. While Child B was born in Australia, she has lived in the United Kingdom since January 2013, when she was less than a year old. Between January 2013 and until June 2020, both children continued to reside in the United Kingdom, which is an appreciable period of time, given their ages. The children were settled into life in the United Kingdom. The children’s lives have remained integrated in the United Kingdom, following their parents’ separation in 2015, including:
(a)Living and spending time with both of their parents, in their respective homes;
(b)Frequently spending time with the father, both during the week and over the weekends, both with and without the Respondent;
(c)During the lockdown in the United Kingdom, the father frequently stayed in the Respondent’s flat, between March and June 2020, and was actively involved in caring for the children;
(d)The children attended all of their schooling in the United Kingdom, to which I have referred;
(e)The father’s unchallenged evidence is that the children enjoyed and were involved in various activities in the United Kingdom, including picnics, outings, birthday parties for themselves and their friends, parties on other special occasions such as Halloween, Christmas and New Year’s Eve and play dates with friends. The children also participated in numerous activities, such as [music] lessons, [and recreational sports]. Child A played [a team sport];
(f)Each parent was employed from time to time in the United Kingdom, and continued to reside in the United Kingdom, together with the children;
(g)The children had established lives in the United Kingdom, including forming friendships. It was accepted that Child B had a number of friends. The evidence in terms of Child A’s friendships was more controversial, with the father asserting Child A had made a number of friendships, which was disputed by the Respondent and Child A, who referred to being bullied and without friends;
(h)Each of the parents and Child B have permanent rights to reside in the United Kingdom. Child A has British citizenship; and
(i)When the children travelled to Australia in June 2020, they had lived the majority of their lives in the United Kingdom. The mother confirmed the children were ‘ordinary resident’ in the United Kingdom, in her communications with School C.[88] Apart from the children’s holidays, including a two month trip to Australia in 2018, both Child B and Child A have spent most of their lives in the United Kingdom.
[88] See paragraph 79 of these Reasons.
The reality for Child A and Child B, their actual experiences, and viewed from their perspective, was that until September 2020, the United Kingdom was unquestionably their home. The children’s lives were fully integrated in the United Kingdom. Further, the children would have understood their trip to Australia was for a holiday only, given the arrangements of the parents.
Secondly, intention is not determinative of habitual residence, however it is one of many factors to be considered. I do not accept that the habitual residence of an eight and 12 year old child, can be unilaterally changed by the Respondent, consistent with the High Court’s decision in LK. I accept the father never agreed to change the children’s place of habitual residence from the United Kingdom, and that the Respondent has acted unilaterally, in seeking to achieve such an outcome. The evidence clearly establishes a difference in the respective intentions of each parent, such that there is no single purpose of intention. There is no ambiguity or uncertainty about their differing intentions.
Thirdly, there is ample evidence to support a finding that the father’s agreement to the children stay in Australia was temporary, and they were to return to the United Kingdom, to commence the new school year. The subsequent communications between the parents, affirm the father’s position seeking the children’s return to the United Kingdom. There was no joint purpose, intent or agreement between the parents, for the children to remain permanently in Australia. There was no agreement between the parents to change either child’s place of habitual residence.
Fourthly, I do not consider the children’s presence in Australia between June 2020 and 1 September 2020 can properly be characterised as an appreciable period of time. The period of less than three months, must be viewed in the context of the ages of the children, both of whom have spent almost all of their lives in the United Kingdom.
Fifthly, the children continue to have ties to the United Kingdom. It is where the father resides. They have maintained contact with the father, albeit there are questions as to the nature and quality of their relationship at this time. Child B retains friendships in the United Kingdom.
Sixthly, while I acknowledge the comments made by each child in terms of their disenchantment with their life in the United Kingdom, I consider those comments have been influenced by the Respondent, either indirectly or directly. I do not accept the Respondent’s attempts to minimise the children’s connections with the United Kingdom, particularly when viewed in light of the children’s level of integration and attachment to the United Kingdom. The children’s complaints, are also inconsistent with the observations of their school, who described both children as happy and settled.[89]
Finally, the Respondent’s decision to remain in Australia with the children did not, and could not have the effect of changing the children’s habitual residence from the United Kingdom to Australia.[90]
Was the children’s retention in breach of the father’s rights of custody?
[89] Affidavit of the Respondent filed 11 January 2021, annexure KI-17, KSCB Request for Support from Tamara Reeves, Designated Safety Lead at School B.
[90] LK (supra), [34] 595.
133The meaning of “rights of custody” for the purposes of reg 16(1A)(c) – (e) is set out in reg 4, which provides that a person has rights of custody in relation to a child if, rights of custody in relation to the child are attributed to the person, either jointly or alone, under a law in force in the Convention country in which the child habitually resided immediately before his or her removal.
134It is common ground that the father has joint rights of custody in respect of the children, under the law in the United Kingdom,[91] and that he was exercising those rights when the children were retained in Australia on or about 1 September 2020.[92]
[91] Affidavit of law and extracts from the Children Act 1989 (UK), attached to the application pages 24–35.
[92] Affidavit of the Respondent filed 11 January 2021, paragraph 5(b).
135The Respondent again relies on communications between the parents, which she says demonstrates the father exercised his rights of custody by agreeing the children could remain in Australia, and that at the time of the father’s application on 3 November 2020, and the application made in this Court, on 3 December 2020, the children were lawfully present in Australia.
136She claims the communications between the parents, the children’s report of what they assert the father said to them, coupled with the father deposing that he “agreed (and I still do agree) that to return in the middle of this serious pandemic would not be safe”[93] makes it impossible to identify a date on which the Respondent repudiated the father’s rights of custody. She asserts it is likely that after 1 September 2020, the father extended his permission to allow the children to remain in Australia, on the basis of the impact COVID-19 was having in [the United Kingdom], until after Child A’s graduation, on the basis the father expected the children to be back in the United Kingdom for Christmas 2020.[94]
[93] Reply affidavit of the father filed 22 January 2021, paragraph 21.
[94] Case Summary of the Respondent filed 4 May 2021, paragraph 31.
137If the Court accepts the Respondent’s position, she says there was no breach of the father’s rights of custody. She further submits, that by the time of Child A’s graduation from School D on 17 December 2020, the Respondent was unable to comply with the father’s requirement to return the children, because of the injunction granted on 10 December 2020, restraining the children from leaving Australia.
138I do not agree with the Respondent’s submissions. I prefer and accept the position of the Applicant. I am satisfied there was a clear, agreed intention by both parents that the children’s visit to Australia was for a temporary holiday. It was agreed the children would return to the United Kingdom by 1 September 2020, to commence the new school year. The communications, to which I have referred, evidence the father was repeatedly pleading for the Respondent to return the children to the United Kingdom.
139At the time the children were retained on or about 1 September 2020, the father had rights of custody in relation to the children. The father was exercising those rights of custody, and would have continued to do so, had the children not been wrongfully retained. I am satisfied the children’s ongoing presence in Australia, was in beach of the father’s rights of custody, in circumstances where Child B and Child A’s continuing presence in Australia is contrary to the father’s wishes, and is without his consent or authority.
[153] TS Day 1, page 127.
[154] TS Day 1, page 127.
[155] TS Day 1, page 128.
[156] TS Day 1, page 128.
[157] TS Day 1, page 130.
[158] TS Day 1, page 128.
[159] TS Day 1, page 131.
[160] TS Day 1, page 132.
[161] TS Day 1, page 134.
192At trial, the Respondent conceded that Child A and Child B had successfully managed the flight from the United Kingdom, via Country B, to Perth,[162] they had coped with the required hotel quarantine upon their arrival, with her assistance[163] and they had managed the two periods of lockdown, while in Western Australia. She agreed that the United Kingdom was in a very different situation at the time of trial, compared to when she had left the country, when most schools remained closed and most people, apart from essential workers, were required to work from home.[164]
[162] TS Day 1, pages 110 and 111.
[163] TS Day 1, page 111.
[164] TS Day 1, page 121.
193The Respondent deposed that her concern about returning to the United Kingdom, to the extent she was worried about the risks imposed by COVID-19, had now gone.[165] Despite that concession, the Respondent maintained that COVID-19 posed a grave risk.
[165] TS Day 1, page 121.
194The risks posed by the COVID-19 pandemic have been raised in a number of reported cases under the Convention. The Court was referred to the decision of the High Court in Ireland in C v G (Approved) [2020] IECA 233. In that case, the trial judge refused to make a return order for an eight-year-old child, on the basis there was a grave risk the child would be exposed to physical and psychological harm, including as a consequence of the COVID-19 pandemic. The child was born in Poland, was a Polish national and his habitual place of residence was Poland. Following the breakdown of the parents’ relationship, orders were made in Poland on 5 November 2018, for the child to live with his mother and spend time with the father. On 8 December 2018, the Respondent took the child from Poland to Ireland, conceding that the child’s removal was wrongful.
195On appeal, the court ordered the child return to Poland. Her Honour Justice Power, in addressing the impact of the COVID-19 pandemic as a ground for exception to return, wrote:
[80]…Moreover, a distinction must be drawn between a grave risk of harm and a probability of infection. Whereas gravity qualifies the risk referred to in Article 13(b) it is, nevertheless, linked to the harm envisaged in the defence set out therein. Care must be taken, therefore, not to conflate a moderate or even high risk of contracting Covid-19 with a grave risk of harm should one become infected with the virus. In this regard, it seems to me that the trial judge fell into error in conflating those respective risks. While I accept that the risk of contracting Covid-19 is a relevant factor in the assessment of grave risk, that risk cannot, in and of itself, be equated with a grave risk of harm.
[81]In assessing the defence that arises in this appeal a distinction must, therefore, be drawn between the likelihood of Jan becoming infected if exposed to the virus and the possibility of a grave risk of harm being visited upon him should such infection occur.
(citations omitted)
196Her Honour then considered whether a child would be exposed to a grave risk of contracting the disease if a return order were made, would involve the child being return to a “zone of disease” as referred to in C v G quoting from Friedrich v Friedrich[166]:
[84]… To my mind, ‘disease’ as contemplated by the US Court of Appeals for the Sixth Circuit, has to be seen in the context of its comparator dangers, namely, war and famine. It cannot, reasonably, be contended that the return of the child to Poland during the current pandemic constitutes the same or a similar risk as returning a child to a zone of war or famine.
[166] [1996] USCA6 311;78 F3d 1060.
197The Court concluded that any increased risk to the child contracting the virus, either from air travel or from being in Poland if established, was not sufficient in itself to prove that a grave risk of physical harm would arise in the circumstances.
198Turning to the present case, the Australian Government have issued a mandatory travel ban. All Australians are presently prohibited from leaving the country, for non-essential reasons. While the travel ban remains in place, international travel has continued.
199In undertaking the predictive task required, I have carefully considered the evidence. Dr F’s view is that COVID-19 is not under control anywhere in the world. His assessment of the risks imposed by COVID-19, must be viewed in that context. Dr F opined that the risk of contracting COVID-19 in the United Kingdom, while significantly reduced, remained higher than in Australia. The comparison between the two countries is not the appropriate test.
200I am mindful not to conflate a moderate or high risk of the children or the Respondent contracting COVID-19, with a grave risk of harm should they become infected with the virus. Having reflected on the available evidence, I find the risk to the children, and the Respondent, of contracting COVID-19 either from air travel or from being in the United Kingdom, is not a grave risk of physical harm, in circumstances where:
•The evidence establishes the low rates of mortality for children with COVID-19, the few reported cases of children having contracted COVID-19 and limited evidence of children suffering acute disease with COVID-19. There is no evidence to demonstrate that Child B or Child A are particularly susceptible to the risks of developing long COVID-19, should they become infected. There is an absence of detailed evidence about the long term symptoms of long COVID-19, such that they cannot be considered grave.
•If the Respondent were infected with COVID-19, it is impossible to predict what symptoms she may experience. While the Respondent has asthma, Dr F confirmed mild or moderate asthma are not categorised as respiratory conditions which render a person more vulnerable to serious disease, with COVID-19. If the Respondent is prepared to participate in the vaccine program presently underway in the United Kingdom, that can mitigate both her risk of exposure and symptoms.
•The United Kingdom has taken significant steps towards reducing the impact of the global pandemic, through the commencement of their vaccine program, together with other public health measures. Those strategies have resulted in an easing of restrictions. As a consequence of those steps, the United Kingdom’s health system is in a better position, to manage and assist those requiring medical attention.
201There are many measures in place, together with the strategies which can be adopted by the Respondent and the children, to minimise the risk of exposure to COVID-19 and the prospect of being infected. The Respondent was vigilant and took all precautions to manage the safety and health of herself and the children, when they lived in the United Kingdom, and during their travel to Australia. I am confident she will continue to do so.
Family Violence
202The Respondent did not suggest that if a return order was made, that either child would be subjected to family violence, or that the United Kingdom would be unable to protect them.[167] She asserted the family violence related to the psychological harm the children may suffer, maintaining it was unnecessary to engage in an enquiry as to the causes, origins or responsibility for the family violence, but “the mere fact of them having been exposed to it is the evidential foundation of that submission”.[168] As a consequence, there was limited attention directed at trial, to the conflicting evidence in terms of family violence.
[167] TS Day 1, page 15.
[168] TS Day 1, pages 15–16.
203Child A reported to the Family Consultant that the father had “angry fits and beat me up”, describing him as “annoying, mean and unkind”. He described his father as behaving in an angry, aggressive manner, raising his voice, hitting Child A on his arms with sufficient force to leave bruising, “neck locked” him, calling him derogatory names as well as being physically and verbally abusive towards the Respondent.
204Child B told the Family Consultant the father raised his voice in public, bullied her and Child A, including hitting her, hurting Child A and was mean to the Respondent.
205The Respondent alleged the father had punched her when she was pregnant with Child A, and over the years, his behaviour deteriorated, including him “smashing her head into a wall”.
206In July 2019, the Respondent says an incident occurred where the father hit Child A with a closed fist.[169] She says the children were due to spend the night with the father, she went upstairs to collect their belongings and when she returned, the father was holding both children as they “screamed and struggled to with him to get away”. The Respondent says Child A reported the father “punched him in the arm”.
[169] Affidavit of the Respondent filed 11 January 2021, paragraph 111.
207The father says Child A had smacked Child B “really hard” in the car. When the father had shouted at him to stop, Child A had grabbed the father’s neck from behind, while he was driving and started to choke him.[170] The father did not think the Respondent was in the car, but she must have been if this was the same occasion. The father said he regretted being too rough with Child A, and says it has never happened again.[171]
[170] Reply affidavit of the father filed 22 January 2021, paragraph 67.
[171] Reply affidavit of the father filed 22 January 2021, paragraph 68.
208The school observed the bruise on Child A’s arm and made a report,[172] noting:[173]
•Child A did not want to discuss the bruises on his arm, but he had disclosed to another child, that his father had caused them “when he had been cross”. He told the school he did not want to say anything, as he did not want to get his father in trouble “or have him end up in court”.
•The school contacted the Respondent, who reported the father had caused the bruises when he had to pull Child A away from Child B during “particularly rough play”. She had spoken with the father about the incident and said “he couldn’t just grab [Child A] like that”. The Respondent advised she would prefer the information was not shared.
•Prior to this incident, the school held no concerns regarding Child A, or Child B and that both children appeared happy and settled.
[172] Affidavit of the Respondent filed 11 January 2021, paragraph 112.
[173] Affidavit of the Respondent filed 11 January 2021, annexure KI-17, KSCB Request for Support from […], Designated Safety Lead at School B.
209Country A Social Services and the local police visited the children at school, and the Respondent at her home. The father was contacted by the police. The redacted police report noted, “the suspect… visited by both police and social [sic] services… have been smacking the children which has been deemed lawful, however words of advice has been given about the level of force used”.[174] The case was then closed.
[174] Reply affidavit of the father filed 22 January 2021, Attachment 9.
210The father admitted to having yelled in public, in the children’s presence. He acknowledged he had shouted at Child A when teaching him maths. He claimed the children’s negative comments were fabrications, influenced by the Respondent. He alleged the Respondent was physically violent towards him, noting that she was physically larger than him.
211The Family Consultant’s unchallenged evidence was that both children have been exposed to family violence, including after separation, based upon the children’s disclosures.[175] The Family Consultant opined based on the congruence of the information provided by the Respondent and the children, the father’s behaviour including shouting, his physical abuse of Child A and the alleged denigration of Child A, had caused Child A considerable distress, and to a lesser extent, also caused Child B distress.
[175] Report of the Family Consultant dated 23 March 2021, page 5.
212Child B reported to Dr G that one of her biggest concerns returning to the United Kingdom, was the way in which the father treated Child A,[176] saying he was “always fighting” with Child A. By the second report, both children reported what Dr G described as “essential themes of not liking aspects of their father’s behaviour (him shouting in public, physical aggression to [Child A])”.[177]
[176] First report of Dr G filed 11 January 2021, paragraph 18.
[177] Second report of Dr G filed 7 May 2021, paragraph 6.
213Dr G considered the children had been exposed to “lower end” family violence[178] and based upon the Family Consultant’s report, the father appeared to normalise his behaviour. If the children were returned to the United Kingdom, Dr G considered the children may perceive “no sense of safety because the person who was the instigator does not take responsibility, but they are then made accountable to him, and that then increases his control and legitimates the behaviour”.
[178] Second report of Dr G filed 7 May 2021, paragraph 9.
214Following the recommendations of the Family Consultant, the father has completed eight cognitive behavioural therapy sessions, with two further sessions planned. The father deposed with the benefit of the input from his therapist, he acknowledged his actions were inappropriate, and explained he had learnt better strategies to handle similar situations in the future, which he was able to articulate.[179]
[179] TS Day 1, pages 29–30.
215The available evidence suggests that the Respondent, the children’s schools, and social services have responded appropriately, in relation to concerns for the children’s safety. There is no suggestion that the mechanisms in the United Kingdom, are inadequate to ensure the safety of the Respondent, or the children, should a return order be made.
216It is unnecessary for the Court to make any findings in relation to the incidents of family violence, on the basis the Respondent does not suggest that either she, or the children, are at risk of ongoing family violence from the father, which risks them being exposed to physical harm or placing the children in an intolerable position.
217I will take the allegations into account, including the unchallenged evidence that the children have been exposed to family violence, in considering the risk of the children being exposed to psychological harm.
Psychological Harm
218It is the Respondent’s case that the making and implementing a return order would expose the children to a grave risk of psychological harm, or would otherwise place Child B and Child A in an intolerable situation.
Risk to Child B of psychological harm
219Dr G initially considered that Child B would cope if a return order was made, despite that being contrary to her wishes. In his updated report, he opined that Child B would likely be upset and distressed, to a degree that was more than trivial, which may take a reasonably substantial time to resolve. He confirmed that Child B’s primary attachment was to her mother, and if the Respondent returned to the United Kingdom with Child B and was reassuring, then the psychological impact on Child B was “quite low”.[180]
[180] Second report of Dr G filed 7 May 2021, paragraph 18.
220Child B expressed worries about her father’s behaviour, for which the Family Consultant considered she may benefit from counselling[181] and knowing the father had commenced therapy as part of his commitment to change behaviours.[182] It is unclear whether Child B is aware of the steps her father has taken. In any event, the relevant question is not whether Child B is at grave risk in returning to the father’s care, but a return order to the United Kingdom.
[181] Report of the Family Consultant dated 23 March 2021, page 9.
[182] Report of the Family Consultant dated 23 March 2021, page 8.
221In my view, the risk of psychological harm to Child B cannot be considered grave. While she has reported a desire to remain in Australia, and expressed she would be “very sad”[183] if a return order was made, there was no cogent evidence to support a finding that Child B would be at risk of psychological harm, should a return order be made. While Child B may experience disruption, uncertainty and anxiety in having to return to the United Kingdom, the evidence falls short of establishing that she is at grave risk of psychological harm.
[183] Report of the Family Consultant dated 23 March 2021, page 3.
222I expect the Respondent will do all she can to support Child B, if a return order is made, consistent with her evidence. If she perceives that Child B will benefit from professional support, I am confident that the Respondent will access assistance for her.
Risk to Child A of psychological harm
223The Family Consultant concluded that Child A was vulnerable to considerable distress and mental ill health, if the outcome of the proceedings did not accord with his views. She predicted that Child A may reject any relationship with the father, if he were to return to the United Kingdom.[184]
[184] Report of the Family Consultant dated 23 March 2021, page 6.
224The Family Consultant confirmed she had not conducted a mental health assessment, and had relied primarily on Child A’s self-assessment in terms of his mental health. She would not be drawn on the probability of Child A experiencing a significant deterioration in his mental health if a return order was made,[185] while maintaining that Child A would likely require psychological support to prepare him for a return order, and ongoing support upon his return to the United Kingdom.
[185] TS Day 2, pages 42-43.
225Dr G predicted a return order would likely impact on Child A’s psychological and educational functioning, due to the level of arousal he would experience.[186] He considered Child A would experience distress, which may result in minor self-harming or irrational behaviour, including acting out, which would likely destabilise him psychologically.[187] He noted when Child A was anxious, he engaged in self-harming behaviours such as picking and scratching, and there was a danger those behaviours may escalate, if Child A was forced into a situation he did not like.[188]
[186] First report of Dr G filed 11 January 2021, paragraph 25.
[187] First report of Dr G filed 11 January 2021, paragraph 28.
[188] First report of Dr G filed 11 January 2021, paragraph 24.
226In his updated report, Dr G maintained his prediction that Child A was likely to experience considerable anxiety, feelings of hopelessness and despondency, if a return order was made. The Respondent’s presence would be a major mediating factor, but that would not prevent the prospect of Child A experiencing anxiety and depression, in the longer term.[189]
[189] Second report of Dr G filed 7 May 2021, paragraph 20.
227Dr G noted a defining feature of ASD was difficulties in social relationships.[190] Based on Child A’s comments to the Family Consultant about enjoying greater friendships and social connections in Australia, he deposed a return order would have a significant impact on Child A, in the short, medium and long term,[191] including the immediate loss of those friendships, the question as to whether he would build new relationships and if so, the time that would take, which was unlikely to be easy or natural for Child A.
[190] Second report of Dr G filed 7 May 2021, paragraph 23.
[191] First report of Dr G filed 11 January 2021, paragraph 23.
228If a return order was made, and Child A was forcefully placed on a plane, Dr G considered Child A would likely ruminate over such events, and hold them against his father.[192]
[192] Second report of Dr G filed 7 May 2021, paragraph 31.
229Dr G, in his oral evidence, maintained that there was a high likelihood that Child A would experience psychological harm if he was required to return to the United Kingdom,[193] which would be worse if the Respondent was not present.[194] If Child A was prepared for a return order, including through support from the Respondent, psychological preparation prior to departure and ongoing assistance on his return, that would assist.[195]
[193] TS Day 2, page 52.
[194] TS Day 2, page 64.
[195] TS Day 2 page 65.
230I have already referred to the reasons Child A gave for wanting to remain in Australia, including his perception he enjoys better mental health, he feels calmer and more supported, both at school and with his peers.
231It is not sufficient for the Respondent to simply establish that Child A will suffer some degree of psychological harm. The harm must be substantial or weighty, and comparable to an intolerable situation.
232Having carefully reflected on the evidence, I accept Child A will likely suffer psychological distress, if a return order is made. Child A is likely to obsess, dwell and ruminate over a decision, which does not accord with his wishes. He is likely to experience anxiety and depression, where a return order goes against his wishes. Child A’s mental health may decline if he is required to return to the United Kingdom, for which he will require professional support.
233Child A will likely struggle being separated from the friendships he has formed in Australia, and the support he receives from his school and extended maternal family. If Child A is physically forced onto an airplane, that is likely to add to his distress, and potentially have long-term consequences.
234There is a risk that Child A may display minor self-harming behaviours if a return order is made. There is no evidence to suggest that Child A may do something dramatic if he is ordered to return.
235If a return order is made, Child A is likely to hold that decision against the father, which may have long-term consequences on their future relationship. The risk that Child A may reject is father, is a possible outcome.
236While the psychological risks to Child A are real, and I am satisfied that he will experience a degree of psychological harm, the Respondent has not established that the return on Child A to the United Kingdom would expose him to a grave risk of psychological harm, or place him in an intolerable situation. In my view, the evidence falls short of establishing that the degree of psychological harm could be characterised as substantial, weighty and comparable to an intolerable situation.
237The Respondent led no independent evidence from any treating mental health practitioner in relation to Child A. There is no suggestion that Child A is at risk of self-harm, should a return order be made. The Respondent and Child B will accompany Child A, if a return order is made. While that will not ameliorate the risks in their entirety for Child A, the company and support of both of them, will reduce the risks.
238The Respondent is Child A’s primary attachment and from whom he derives significant emotional support. The Respondent confirmed she would do all she could, to support and assist Child A should a return order be made. I accept Dr G’s evidence that the mother’s support and encouragement of Child A, will be a significant protective factor.
239Based upon Child A’s self-assessment, the support he has received from his school in terms of his mental health, has been of assistance. I have every confidence, having heard the Respondent’s evidence, that she will be proactive in seeking support for Child A, to assist him in managing his mental health moving forward.
240The evidence suggests there are supports available for Child A in the United Kingdom, which have not yet been accessed or explored, to which I will refer in more detail later. With the benefit of updating information as to Child A’s needs, I expect the Respondent will do all that she can, to obtain assistance for Child A, in the same manner that she has done in Australia.
241I find there is no grave risk that a return order would expose Child A to psychological harm or otherwise place him in an intolerable situation.
Risk to Child A’s mental health and ASD
242The Respondent says Child A will not receive the same support in the United Kingdom as that he enjoys in Australia, in relation to his ASD and mental health, should a return order be made.
243The Respondent’s case is that in 2013, Child A had problems with his hearing and was referred to a speech therapist, who first raised the possibility of ASD. She took Child A to see an unnamed paediatrician, when he was in year two[196] who thought Child A had ASD, but there was no formal diagnosis.
[196] TS Day 1, page 105.
244In 2018, Child A underwent an educational assessment with Mr H. It is the Respondent’s case the assessment came about because School B noted a disparity between Child A’s cognitive ability, and his academic performance. The report did not conclude that Child A experienced any learning difficulties, nor was Child A diagnosed with ASD.
245The Respondent then spoke with [Ms I], the special educational needs and disabilities (SEND) teacher at School B, about what support may be available for him. In the absence of any formal diagnosis, it appears Ms I indicated there were no supports available, resulting in the Respondent then pursuing a formal diagnosis, which was made in October 2019.
246The Respondent deposed “I received no support for Child A’s autism while we were in [City A]”.[197] That statement was misleading. Until late 2019, Child A had not been formally diagnosed. In such circumstances, it is unsurprising that he was not offered support.
[197] Affidavit of the Respondent filed 11 January 2021, paragraph 45.
247Child A is highly intelligent and has been described as high functioning. Since his ASD diagnosis, no steps have been taken by the Respondent to access specific services to assist Child A in terms of his diagnosis, nor his mental health, apart from one conversation with Ms I.[198] Having made that finding, I accept that with the lockdowns in the United Kingdom due to COVID-19, there were limitations on the ability of the Respondent to pursue such assistance.
[198] TS Day 1, page 107.
248The father’s unchallenged evidence is that the Respondent did not tell him of Child A’s diagnosis, nor provide him with the report, until the commencement of these proceedings. Unsurprisingly, the father has not taken any steps to seek support for Child A. In the circumstances, I do not accept the Respondent’s complaint that the father refused to acknowledge the diagnosis, or prevented Child A from receiving assistance.
249The Respondent conceded she did not formally seek assistance with School B, nor did she make any inquiries with School C about what support they could provide for Child A, in light of his diagnosis.
250The Respondent did not pursue assistance through the National Health Service (NHS) or the National Autistic Society, in the United Kingdom. The National Autistic Society have provided a guide, to assist parents in terms of accessing additional help for the SEND of children.[199]
[199] Exhibit 11, the bundle of documents from the National Autistic Society SENDIASS pages 1-23.
251The Guide notes that since 2015, there is a SEND code of practice to provide support for children, including the provision of extra support within the school environment. If a child’s needs are assessed as being such that cannot be met though the school’s resources, the local authorities can prepare an education, health and care plan, which is to be reviewed on an annual basis, and facilitate additional supports. Schools have a Special Educational Needs Co-Ordinator (SENCO), to ensure, amongst other matters, that a child’s needs are identified and met.[200]
[200] Exhibit 11, page 7.
252The Guide identifies children with autism potentially experiencing difficulties with communications and interaction, cognition and learning, as well as social, mental and emotional health and use of professional services within the school environment.[201] Following a child being identified as having SEND, the school is required to put in place necessary supports, which require an assessment of the child’s needs, the formulation of a plan for the supports, the implementation of the plan, with the support of the teachers and SENCO, together with ongoing reviews, involving both the child, the parents and school.[202] In addition to those reviews, parents can request meetings with the school, if they have concerns that a child’s needs are not being met.[203]
[201] Exhibit 11, page 8.
[202] Exhibit 11, page 9.
[203] Exhibit 11, page 10.
253I am not satisfied that the United Kingdom lacks the necessary supports and services to assist Child A, given the evidence. On the Respondent’s own case, she has not approached School C to explore what assistance or interventions they can provide Child A. It was unclear whether School C are aware of Child A’s diagnosis.
254On 6 January 2021, the Respondent obtained a mental health care plan for Child A, which noted Child A presented with anxiety and skin picking, with no risks, or any aggression. The plan recorded Child A’s goals were to not be anxious and to obtain assistance with his emotional regulation, for which he was referred to a psychologist.
255The Respondent contacted [Mr J], but was told he could not see new patients until March 2021. There was no admissible evidence from Mr J, nor any evidence that Child A was receiving specific support, in light of his ASD diagnosis.
256Having heard the Respondent’s evidence, I am satisfied she will seek out support for Child A on his return, and that there are support services available in the United Kingdom, which she has not yet explored. I expect the Respondent will be proactive in doing so, should a return order be made, given her conduct while in Australia and where I am satisfied that she is motivated to ensure that Child A achieves his potential, and manages his health.
257The Respondent has not established an absence of appropriate support services for Child A in the United Kingdom, such that Child A is at grave risk, should a return order be made.
The psychological risks to the children of being separated from one another and/or the Respondent
258There was no suggestion that the Respondent would not return with the children, if that was an order made by the Court. The Respondent’s counsel submitted if the Court was satisfied Child A had reached an age and degree of maturity at which his views ought be taken into account, and/or that making an order for Child A’s return would cause serious psychological harm, there was the prospect of the children being separated.
259For the reasons already articulated, I am not satisfied the Respondent has established either of those exceptions. On that basis, there is no need to consider the potential separation the children. There was no suggestion by the Respondent that she would not return to the United Kingdom, should a return order be made.
260In conclusion, the Respondent has not established that any of the reasons she has raised, and which I have considered above, either individually or collectively, constitute a grave risk that a return order would expose the children to a physical or psychological harm, or otherwise place them in an intolerable situation.
CONCLUSIONS
261These are not parenting proceedings. The Court is not armed with the task of determining arrangements which are in the best interests of Child A and Child B.
262It is the responsibility of the Court to apply the Regulations, in the context of the Convention. In respect of the task before the Court, in DP v Commonwealth Central Authority (supra), Kirby J noted that applying the principles of the Convention:
…requires decision-makers to face up to what will necessarily, on many occasions, be an unpleasant obligation where there may be a suspicion that the child’s best interests, viewed purely as a custody determination, might suggest the child’s retention within the jurisdiction, although the proper operation of the Regulations, implementing the Convention, requires an order of removal.[204]
[204] DP v Commonwealth Central Authority (supra) at [131] 442.
263For the reasons expressed, having considered all of the evidence, the jurisdictional factors are satisfied. The Respondent has not established any of the relevant grounds pursuant to reg 16(3) upon which she sought to rely. Accordingly, I am obliged to order the children’s return to the United Kingdom.
CONDITIONS
264The Applicant simply sought an order for the children’s return, at the Respondent’s cost. The father has provided an offer of conditions.[205] He has agreed to pay the return flights for the Respondent and the children and to collect them upon arrival, to avoid the requirement to quarantine in a hotel. The father also confirmed the Respondent and children could return to reside at [Property B, Area B], being the Respondent’s flat, on the basis he would vacate the property upon the children’s return to the United Kingdom, he would pay the following two months’ rent, and child maintenance.
[205] Exhibit 1.
265The father suggested, subject to the Respondent’s consent, he continue to reside in the flat, with the Respondent and the children. In light of the evidence, I do not anticipate that will be acceptable to the Respondent. Given the condition requires the Respondent’s consent, nothing more needs to be said.
266I consider the undertakings offered by the father in terms of physical and financial support are appropriate. The evidence demonstrates that both children would benefit from some professional support, prior to their return, and further support put in place for Child A upon his return. No submissions were made in that regard, nor generally in terms of conditions of return. As a result, I propose to hear from the parties, in terms of the form of orders and the conditions, in light of my Reasons.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.
CD
Secretary
18 JUNE 2021
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