Department of Communities and Justice & Austin - [2025] FedCFamC1F 18

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Department of Communities and Justice & Austin [2025] FedCFamC1F 18

File number(s): SYC 7190 of 2024

Judgment of: WILLIAMS J

Date of judgment: 22 January 2025

Catchwords: FAMILY LAW – HAGUE CONVENTION – CHILD ABDUCTION – Return application to New Zealand – Where the father alleges wrongful removal – Whether the father consented to the mother relocating the children to Australia – Where the mother has a mild intellectual disability and is reliant on her family for daily support – Where the maternal family have relocated to Australia –Where the mother has established a reasonable and acceptable reason for her refusal to return to New Zealand – Grave risk of exposure to physical or psychological harm or intolerable situation established – Grave risk of harm cannot be adequately ameliorated by available protective measures – Discretion to return not exercised – Application dismissed.

Legislation:
Evidence Act 1995 (Cth) s 140

Family Law Act1975 (Cth) s 111B

Family Law (Child Abduction Convention) Regulations 1986 (Cth) regs 15, 16, 26

Convention on the Civil Aspects of International Child Abduction

Cases cited:
De L v Director General, NSW Department of Community Services (1996) 187 CLR 640; [1996] HCA 5

DP v. Commonwealth Central Authority; JLM v. Director–General, NSW Department of Community Services (2001) 206 CLR 401; [2001] HCA 39

Gsponer v Director–General of Community Services, Victoria (1989) FLC 92-001; [1988] FamCA 21

HZ & State Central Authority (2006) FLC 93-264; [2006] FamCA 466

Re C (A Minor) (Abduction) [1989] 1 FLR 403

Re C (Abduction: Grave Risk of Psychological Harm) [1999] 1 FLR 1145

Re H (Minors) [1998] AC 72

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

Re K (Abduction: Consent) [1997] 2 FLR 212

Re M (Abduction) (Consent: Acquiescence) [1999] 1 FLR 171

Regino & Regino (1995) FLC 92-587

Secretary, Department of Communities and Justice & Caladine (No 2) [2022] FedCFamC1F 51

Secretary, Department of Family and Community Services & Prim [2015] FamCA 16

Secretary, Department of Family and Community Services & Zadeh [2017] FamCA 44

State Central Authority & Handbury [2019] FamCA 668

StateCentral Authority v Papastavrou [2008] FamCA 1120

Walpole & Secretary, Department of Communities and Justice (2020) FLC 93-950; [2020] FamCAFC 65

Wenceslas & Director-General, Department of Community Services (2007) FLC 93-321; [2007] FamCA 398

Division: Division 1 First Instance

Number of paragraphs: 129

Date of hearing: 9, 10 and 13 December 2024

Place: Melbourne

Counsel for the Applicant: Ms Hartstein

Solicitor for the Applicant: Department of Communities and Justice

Counsel for the Respondent: Ms Mahony SC

Solicitor for the Respondent: Legal Aid New South Wales

Counsel for the Independent Children's Lawyer: Mr Scarlett

Solicitor for the Independent Children's Lawyer: Mahony Family Lawyers
ORDERS

SYC 7190 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
DEPARTMENT OF COMMUNITIES AND JUSTICE

Applicant

AND:
MS AUSTIN

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

WILLIAMS J

DATE OF ORDER:

22 JANUARY 2025

THE COURT ORDERS THAT:
1.The Application filed by the State Central Authority on 12 September 2024 is hereby dismissed.
2.The Registrar of the Federal Circuit and Family Court of Australia release to the respondent mother or her nominee all current passports relating to the children and the mother.
3.All previous orders are discharged.
4.The Independent Children’s Lawyer be discharged.

AND IT IS REQUESTED THAT:
5.The Australian Federal Police remove the names of the respondent mother, Ms Austin born 1992 and the children, X born 2017 and Y born 2018 from the Airport Watch List at all points of international arrivals and departures in Australia.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Department of Communities and Justice & Austin has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
WILLIAMS J
INTRODUCTION

This is an application by the Department of Communities and Justice (“the State Central Authority”) filed on 12 September 2024, seeking the return to New Zealand of X born 2017 and Y born 2018 (“the children”) pursuant to the provisions of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”).
The respondent is the mother of the children and the requesting parent, Mr B, who lives in New Zealand, is their father.
The relevant regulations are made pursuant to s 111B of the Family Law Act1975 (Cth) (“the Act”), to make such provision as is necessary or convenient to enable the performance of the obligations of Australia under the Convention on the Civil Aspects of International Child Abduction, which is generally referred to as the Hague Convention.
The Convention provides a framework for the prompt return of children, where it is alleged there has been a wrongful removal/retention of a child from his/her country of habitual residence. Both Australia and New Zealand are signatories to the Convention.
Upon establishment of the pre-requisites to a return order, the jurisdictional facts, as prescribed by reg 16(1A), there are limited circumstances or exceptions to return which may be relevant in response to an application to return the child/ren to his/her country of habitual residence. Those regulatory exceptions must be read in the context of the fundamental obligation to return the child.
If the court is satisfied on the requisite standard of proof that one or more of the regulatory exceptions to return are made out, then the Court has a discretion to return the child. The matters relevant to the exercise of that discretion include some consideration of the best interests of the child: HZ & State Central Authority [2006] FamCA 466.
The Regulations provide as follows:
Reg 16 Obligation to make a return order
(1)      If:
(a)an application for a return order for a child is made; and
(b)the application (or, if regulation 28 applies, the original application within the meaning of that regulation) is filed within one year after the child’s removal or retention; and
(c)the responsible Central Authority or Article 3 applicant satisfies the court that the child’s removal or retention was wrongful under sub-regulation (1A);
the court must, subject to sub-regulation (3), make the order.
(1A)For sub-regulation (1), a child’s removal to, or retention in, Australia is wrongful if:
(a)the child was under 16; and
(b)the child habitually resided in a convention country immediately before the child’s removal to, or retention in, Australia; and
(c)the person, institution or other body seeking the child’s return had rights of custody in relation to the child under the law of the country in which the child habitually resided immediately before the child’s removal to, or retention in, Australia; and
(d)the child’s removal to, or retention in, Australia is in breach of those rights of custody; and
(e)at the time of the child’s removal or retention, the person, institution or other body:
(i)was actually exercising the rights of custody (either jointly or alone); or
(ii)would have exercised those rights if the child had not been removed or retained.
(2)      If:
(a)an application for a return order for a child is made; and
(b)the application is filed more than one year after the day on which the child was first removed to, or retained in, Australia; and
(c)the court is satisfied that the person opposing the return has not established that the child has settled in his or her new environment;
the court must, subject to subregulation (3), make the order.
(3)A court may refuse to make an order under sub-regulation (1) or (2) if a person opposing return establishes that:
(a)       the person, institution or other body seeking the child’s return:
(i)was not actually exercising rights of custody when the child was removed to, or first retained in, Australia and those rights would not have been exercised if the child had not been so removed or retained; or
(ii)had consented or subsequently acquiesced in the child being removed to, or retained in, Australia; or
(b)there is a grave risk that the return of the child under the Convention would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation; or
(c)each of the following applies:
(i)the child objects to being returned;
(ii)the child’s objection shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes;
(iii)the child has attained an age, and a degree of maturity, at which it is appropriate to take account of his or her views; or
(d)the return of the child would not be permitted by the fundamental principles of Australia relating to the protection of human rights and fundamental freedoms.
Note 1:In considering whether the matter mentioned in paragraph (3)(b) is established:
(a)the court may have regard to any risk that the return of the child under the Convention would result in the child being subject to, or exposed to, family violence; and
(b)the court may have regard to the extent to which the child could be protected from any such risk if the child was returned under the Convention; and
(c)the court may have regard to the matters mentioned in paragraphs (a) and (b) of this note regardless of whether the court is satisfied that family violence has occurred, will occur or is likely to occur.
Note 2:For the definition of family violence, see section 4AB of the Act.
(4)For the purposes of sub-regulation (3), the court must take into account any information relating to the social background of the child that is provided by the Central Authority or other competent authority of the country in which the child habitually resided immediately before his or her removal or retention.
(5)The court is not precluded from making a return order for the child only because a matter mentioned in sub-regulation (3) is established by a person opposing return.
(6)If:
(a)the court is considering whether to refuse to make an order under subregulation (1) or (2) on the basis of the matter mentioned in paragraph (3)(b); and
(b)a party to the proceedings, or an independent children’s lawyer who represents the interests of the child in the proceedings, raises in the proceedings any condition that could, for the purpose of reducing a risk mentioned in paragraph (3)(b), be included under paragraph 15(1)(c):
(i)in a return order for the child; or
(ii)in any other order that the court proposes to make under paragraph 15(1)(b) in relation to a return order;
the court must consider whether it would be appropriate to include the condition.
(7)In considering whether to refuse to make an order under subregulation (1) or (2) on the basis of the matter mentioned in paragraph (3)(b), the court may have regard to any other measures that would be reasonably likely to reduce the risk mentioned in paragraph (3)(b).
(8)Subregulations (6) and (7) do not limit the matters to which the court may have regard in considering whether to refuse to make an order under subregulation (1) or (2) on the basis of the matter mentioned in paragraph (3)(b).
The Regulations require that applications for return of children, when it is alleged that they have been wrongfully removed/retained from their habitual residence, are dealt with expeditiously and as quickly as proper consideration of each matter permits (reg 15(2)).
In De L v Director General, NSW Department of Community Services (1996) 187 CLR 640, the High Court of Australia cautioned against the need for expedition resulting in insufficient hearing of issues in dispute. Some disputes are appropriate for summary determination and others require cross-examination.
In this case, the mother was cross-examined by counsel for the State Central Authority, and the father was cross-examined by counsel for the mother. Both parents were cross-examined by counsel for the Independent Children’s Lawyer.
All three counsel cross-examined the author of the Hague Report, Ms C. The mother’s friend, Ms D, sister, Ms E, and High School “support person”, Ms F, were also cross-examined.
The State Central Authority asserts that the children have been wrongfully removed from New Zealand in accordance with regs 16(1) and (1A), on the following basis:
(a)the application was made within one year of the children’s removal;
(b)the children are under the age of 16;
(c)the children were habitually resident in New Zealand as at the date of removal;
(d)the requesting parent, the father, has rights of custody in relation to the children, which he was exercising immediately prior to the children’s removal; and
(e)the removal of the children was in breach of the fathers’ rights of custody.
The mother conceded the jurisdictional facts but opposes the application for return. She relied on reg 16(3)(a)(ii) to assert that the father consented to the children’s removal, and in the alternative, relied on reg 16(3)(b) to assert there is a grave risk that returning the children to New Zealand would expose them to physical or psychological harm or otherwise place them in an intolerable situation.
Onus of proof
The requisite standard of proof, as required by s 140 of the Evidence Act 1995 (Cth), is the balance of probabilities.
If contested, the State Central Authority bears the onus of proving the jurisdictional facts which establish that the retention was wrongful: DP v. Commonwealth Central Authority; JLM v. Director–General, NSW Department of Community Services (2001) 206 CLR 40.
Because the mother bears the onus of proof to establish the regulatory exceptions to return, the trial was procedurally conducted on the basis that the mother was required to prove her case, with the State Central Authority responding to the evidence relied upon by her, to establish the regulatory exceptions to return.
PRELIMINARY MATTERS
The hearing was conducted electronically via Microsoft Teams, including evidence and cross-examination of all witnesses. An electronic hearing enabled the father to participate in the proceedings.
I wish to express my appreciation to all counsel for the professional, competent and courteous manner in which the proceedings were conducted.
Evidence and documents relied upon by the parties
The State Central Authority relied upon the following documents:
(a)Form 2 Application filed 12 September 2024 including:
(i)Affidavit of Ms G affirmed 10 September 2024;
(ii)Application for return of the children dated 19 June 2024;
(iii)Affirmation of the father affirmed 19 June 2024;
(iv)Affirmation of the father affirmed 30 July 2024.
(b)Affidavit of Mr H affirmed 22 November 2024 annexing:
(i)Affirmation of the father affirmed 12 November 2024;
(ii)Affirmation of Ms J affirmed 12 November 2024;
(iii)Affirmation of Mr K affirmed 12 November 2024;
(iv)Affirmation of Mr L affirmed 12 November 2024;
(v)Affirmation of Ms M affirmed 12 November 2024;
(vi)Affirmation of Mr N affirmed 12 November 2024;
(c)Affidavit of Ms G affirmed 2 December 2024 annexing;
(i)Affidavit of the father affirmed 2 December 2024.
(d)Affidavit of Ms G affirmed 5 December 2024 annexing;
(i)Email from Central Authority concerning counselling services available in City O, NZ;
(ii)Information sheet from NZ for parents returning to NZ.
(e)Outline of Case document filed 5 December 2024.
The respondent relied upon the following documents:
(a)Form 2A Response filed 25 October 2024;
(b)Affidavit of Ms Austin filed 24 October 2024;
(c)Affidavit of Ms E filed 24 October 2024;
(d)Affidavit of Mr P filed 24 October 2024;
(e)Affidavit of Ms D filed 24 October 2024;
(f)Affidavit of Ms Q filed 24 October 2024;
(g)Affidavit of Ms Austin filed 25 November 2024 (leave sought);
(h)Regulation 26 Report of Ms C dated 8 November 2024;
(i)Outline of Case document filed 5 December 2024; and
(j)Documents tendered by counsel.
The Independent Children’s Lawyer relied upon the following documents:
(a)Regulation 26 Report filed 11 November 2024; and
(b)Outline of Case document filed 5 December 2024.
Counsel for the mother tendered the following documents during the trial:

Exhibit Number

Description

M-1

Father’s New Zealand Care Application filed 21 May 2024.

M-2

Extract from Judicial Commission NSW Bench book on intellectual disabilities.

M-3

Social media posts and comments.

M-4

Video of children taken May 2024.

Regulation 26 enables the Court to direct a Family Consultant to report to the Court on such matters that are relevant to the proceedings as the Court considers to be appropriate and that such a report may be received in evidence in any proceedings. In this matter, a reg 26 report was ordered to address:
(a)What (if any) objections the children have to returning to New Zealand;
(b)Whether the children have attained an age and degree of maturity, at which it is appropriate to take account of his/her views;
(c)The impact on the children of separation from the respondent mother and their attachment to her.
Credit of witnesses
Prior to turning to my comments about the witnesses and their credibility, I pause here to observe that there were difficulties with interpretation during the trial. Rather than strictly interpreting the questions asked of the witness and the response, frequently there was a conversation between the witness and the interpreter, which was not interpreted to the court, despite repeated directs from me not to do so.
Mothers’ witnesses
The mother gave evidence and was cross-examined by counsel for both the father and Independent Children’s Lawyer. Because she required an interpreter to give her evidence, and because of the deficiencies referred to above, it was difficult to gauge her level of understanding of the questions, and the extent of her intellectual capacity. I gained the impression the mother attempted to respond directly to questions asked, and she had a clear and consistent recall about the events surrounding the issue of whether the father had consented to the children leaving New Zealand. I consider her generally to be a witness of truth, who did her best to recount relevant events accurately and consistently, to the best of her ability.
Ms D is a friend of the mother who gave evidence about her conversations with both the mother and father, her observations about the packing up of the mother’s house and her capacity to assist the mother should be return to New Zealand. She was cross-examined by counsel for both the State Central Authority and the Independent Children’s Lawyer. She was responsive and direct, and I accept her as a witness of truth.

Ms F was the mother’s “support person” during her time at High School. She was cross-examined by counsel for both the father and Independent Children’s Lawyer about the mother’s learning disability and capacity to function independently. She did not swear an affidavit, but an email from her was treated as a proof of evidence. There was no objection to this course of action. Her evidence was largely historical in nature, as she conceded she had not seen the mother in several years. Nevertheless, she was an insightful witness who was able to provide specific examples of the mother’s learning and comprehension difficulties, including her then inability to follow simple tasks such as measuring and sieving flour in a cooking class. She was forthright and responsive, and I accept her as a witness of truth.
The mother’s sister, Ms E, gave evidence and was cross-examined by counsel for both the father and Independent Children’s Lawyer. She was an impressive witness who was direct and responsive to questions asked. Her evidence during cross-examination highlighted the extent of the mother’s reliance on her sister and the mother’s inability to independently manage daily tasks, other than cooking and cleaning. She impressed as a caring and insightful witness, who selflessly has incessantly assisted her sister. I accept her evidence.
None of the mother’s other witnesses were required for cross-examination.
Fathers’ witnesses
The father gave evidence and was cross-examined by senior counsel for the mother and counsel for the Independent Children’s Lawyer. He was self-evidently sufficiently proficient in English to understand and respond to questions asked during cross-examination. He occasionally said he needed assistance from the Country R interpreter, but that seemed to be only when he was faced with a difficult question, the answer to which would be detrimental to him. He did not impress as an honest and forthcoming witness, and he was reluctant to make concessions contrary to his interests. An example of this was his adamant denial that his social media post stating “[Warning!! Reptile] from New Zealand has run away to Sydney, it might bite you/anyone, you may not know” referred to the mother leaving New Zealand. Rather, he insisted he “just wrote it for the sake of writing it” and that the comment was not about anyone in particular. When asked what other reptiles had moved from New Zealand to Australia, he was unable to provide an adequate explanation, and it is clear this post was in relation to the mother. Where the evidence of the mother and father differs, I prefer the mothers, taking into account the obvious difficulties with the interpreter.
None of the father’s other witnesses were required for cross examination.
Independent Childrens Lawyers witness
Ms C, a Child Court Expert employed by the court prepared the reg 26 Hague Report pursuant to my order of 3 October 2024. Ms C was cross-examined by counsel for the State Central Authority and senior counsel for the mother. She was a most impressive witness who gave direct and responsive answers and expanded on the observations in her report in a thoughtful and professional manner. I accept her evidence unequivocally.
BACKGROUND
The father was born in Country S in 1987 and is aged 37 years old. The mother was born in Country S in 1992 and is aged 33 years, although her exact date of birth is unknown.
When the mother was about a year old, she fled Country S to Country R with her parents to escape the civil war. They remained in a refugee camp in Country R for about 16 years. In 2009, the mother and her family took part in a resettlement program and moved to New Zealand. In the same year, the father also moved to New Zealand.
Shortly after the mother’s arrival in New Zealand, she was assessed as having a mild intellectual disability by her school and received regular in-class support.
The parents met in City O in 2009 and commenced a relationship in 2011. They participated in a civil Country S cultural ceremony in 2013 to recognise their relationship. Subsequent to this ceremony, the mother and father commenced living together.
In 2017 the parents first child, X, was born. Shortly after the birth of X, the mother became pregnant with their second child and moved back to the maternal grandmother’s house. In 2018 their second child, Y, was born.
In late 2018 or early 2019, the mother took over the maternal grandmothers’ lease on the property they were living in from Housing New Zealand. The mother says the father moved into the property with her. The father deposes that he did not live with the mother but had contact with the children at least three times per week and stayed in the home at least one night per week. Either way, the mother asserts that the father did not play a large role in caring for the children.
In April 2023, members of the maternal family travelled to Australia. Upon their return to New Zealand, the mother’s brother-in-law informed the father that the family were intending to relocate to Australia. This was denied by the father during cross-examination. In early 2023, members of the extended maternal family bought a house and land package in Australia.
It is common ground that the parents had a fight in February 2024, and the father left the home as a result. The father did not have contact with the mother or children until April 2024. During this time, X was admitted to hospital for a week, and the father did not contact the mother nor visit the child.
The father returned to the home in April, and it was around this time the mother deposes to informing the father of her intention to move to Australia with her family. The mother posits that during this conversation, the father agreed that she could move to Australia with the children, and that he would go at a later date. This version of events is denied by the father.
The father’s version of events is that he had a conversation with the mother in April 2024 in her home. According to the father, upon the mother telling him she was taking the children to Australia, he told her he did not agree and her response was that she wanted to go anyway.
In early May 2024, the mother’s brother-in-law booked flights for the mother, children and extended maternal family to travel to Australia. In early May 2024, the mother advised the children’s school that they were moving to Australia, and advised Housing New Zealand that their last day in their rental property would be a date in late May 2024.
Two weeks prior to the mother’s departure from New Zealand, she asserts that the father assisted her to sell furniture from the home including the fridge, washing machine, bed, and dining table, as well as assisting the mother to collect suitcases from her friend. The father also assisted the mother to clean the home and collected the children from their last day of school.
The father asserts that in mid-May 2024, he visited the children at the home and noticed the mother had suitcases, bedding and household belongings packed. The following day, when he again attended the mother’s house, the father saw that everything in the house was completely packed up and the mother apparently informed him that she was packing up the house to move in with her mother. The father contends he again told the mother that he did not agree to the children going to Australia and the mother’s response was to do whatever he had to do to stop them going.
The father filed an application in the Family Court of New Zealand on 21 May 2024 seeking an order preventing the childrens removal which noted his “real concern that the children will be taken to Australia [in] or around [late May]”. The Court did not make such an order, nor any injunction preventing the mother from leaving New Zealand, and the matter was stood over to 17 July 2024.
In late May 2024, the mother departed New Zealand for Australia with the children. Since arriving in Australia, the mother and children have been living with the maternal grandmother, aunt, uncle, and cousin in a five-bedroom property in Sydney.
According to the father, in late May 2024 he went to the home of the maternal grandmother, because the mother had apparently told him that was where she was going to live and found the house empty.
Two days later 2024, the mother sent the father a photograph of the children outside a school in New South Wales, where it was proposed the children would attend.
The father made an application to the State Central Authority for the return of the children pursuant to the Hague Convention on 19 June 2024. The Form 2 was filed on 12 September 2024.
The trial was heard by me on 9, 10 and 13 December 2024.
REGULATORY EXCEPTIONS TO RETURN
I now turn to consider the regulatory exceptions relied upon by the mother, and will first deal with consent and secondly, with grave risk of harm or intolerable situation.
Consent (reg 16(3)(a)(ii))
Relevant legal principles consent
The mother has the burden of proving on the balance of probabilities that the father has consented to the children being removed from New Zealand.
In Re H. (Abduction: Habitual Residence: Consent) [2000] 2 FLR 294, Holman J stated:
On the facts of a particular case, a court may consider that evidence of consent needs to be cogent before it can overcome the degree of improbability of consent having been given on those particular facts. But in the end there is only one question, namely has consent been established? And only one standard, namely the balance of probabilities.
In State Central Authority & Handbury [2019] FamCA 668 (“Handbury”), at [240] Bennett J said:
The evidence of consent or acquiescence may be by words or inferred by conduct however, the consent (and it is submitted the same applies to acquiescence) must be real and unequivocal and can only be made out by clear and cogent evidence…
Whether or not a wronged parent has acquiesced in the removal or retention of a child, depends upon their actual state of mind, which is a question of fact to be determined in all the circumstances of the case and where the burden of proof falls on the “abducting parent”: Bennett J in Handbury at [242], adopting Lord Browne-Wilkinson in Re H (Minors) [1998] AC 72 at [90].
In Wenceslas & Director-General, Department of Community Services [2007] FamCA 398 (“Wenceslas”), the Full Court of the Family Court at [257]–[263] reviewed the United Kingdom authorities as to whether or not consent can be inferred from conduct. At [262], the Court referred to the statements of Hale J as she then was, in Re K (Abduction): Consent [1997] 2 FLR 212. At [217]-[218], her Honour said:
It is obvious that consent must be real. It must be positive and it must be unequivocal. But that is a separate issue from the nature of the evidence required to establish it. There will be circumstances in which the court can be satisfied that such consent has been given, even though it has not been given in writing. It stands to reason, however, that most people who wish to retain or remove a child would be well advised to get written consent before they do so to place the matter beyond argument. There may also be circumstances in which it can be inferred from conduct.
At [264] of Wenceslas, May and Thackeray JJ said as follows:
It seems to us that the views expressed by Hale J allow for the vagaries often associated with the way in which parents communicate in matters relating to their children. As presently advised…we are of the view that consent can be inferred from conduct; however, we are also the view that the consent must be real and unequivocal and can only be made out by clear and cogent evidence.
The mother contends that the father explicitly consented to the children travelling from New Zealand to live in Australia on a permanent basis, which consent was given during the parental conversation on 21 April 24, at the home of the mother. If the Court does not find that the father explicitly consented, then the Court should infer the father’s consent from his conduct.
The father contends he did not explicitly consent to the children leaving New Zealand to live permanently in Australia, and neither should consent be inferred from his conduct.
Both parties agree there was a conversation on 21 April 2024 at the mother’s home. As submitted by senior counsel for the mother, and I accept, whether or not the father consented during the conversation depends upon which parties’ evidence is accepted by the Court, and the reasons for that acceptance.
The mother’s evidence about the conversation is at paragraphs 58 to 62 of her affidavit filed 24 October 2024. Her evidence is detailed and particular in multiple aspects including the father’s knowledge of the maternal family’s intention to move to Australia, who would travel, where the maternal family was planning to live, who they knew in Australia, the type of property they intended to rent, their transition plan pending construction of the family home and options for the father to see if he would permanently relocate to Australia. At paragraph 61, the mother deposes to the father telling her “to go with the girls and see how it was” and that he told her “he would come later”. The mother’s evidence also details the reasons why she attempted to convince the father to join the maternal family in Australia, which were that the family had lived in New Zealand for 15 years, it was cold and the children were always sick and if he did not like it in Australia, the father he could always return to New Zealand and visit the children in Australia which was only a three hour flight from New Zealand.
The father’s evidence, in paragraph 12 of his affidavit affirmed 19 June 2024 is that on 21 April 2024, when the mother told him that she was taking the children to Australia, he said that he did not agree to the children going, and told her she could leave, but the children had to stay in New Zealand with him. He denied having discussed anything else with the mother, during that conversation. His affidavit does not refer to any additional subsequent conversations with the mother about her desire to move to Australia with the children.
In his affidavit of 30 July 2024 at paragraph 8, the father refers to the mother telling him in early April 2024 that her family intended to move to Australia and that she would like to go too. He also refers to the conversation later in April 2024, and that he told the mother that she could not take the children to Australia. At paragraph 9 of the affidavit, he refers to his belief that the mother was packing up the house for “what [he] believed to be a return to live with her mother”. The father’s belief is clearly inconsistent with the conversation in early April 2024 when the mother told him her family was moving to Australia.
Contrary to his own evidence, and despite his denial of having a detailed discussion with the mother during that the conversation, or any subsequent conversations, the father refers in other evidence, to details and information which he deposes were not traversed in the conversation of 21 April 2024. In his Care Application filed in the New Zealand Family Court, on 21 May 2024 (Exhibit M-1) at paragraph 9, the father deposes to maternal family members moving to Australia and the conversations with the mother as the source of his knowledge. The father’s evidence about a short and blunt conversation with the mother are inconsistent with his affidavit filed in support of the New Zealand Family Court proceedings.
During cross-examination, the father attempted to resile from his position of only having had one conversation with the mother, and sought to qualify his earlier evidence by saying he did not truly believe what the mother had told him in April until 19 May 2024, when the house was completely packed up.
Senior counsel for the mother submitted that if the Court accepts the mother’s evidence of the conversation of 21 April 2024, then the Court must find the father gave his express consent to the children moving to Australia.
Senior counsel for the mother further submitted that if the Court did not find that the father had expressly consented to the mother’s removal of the children to Australia, then findings should be made, which enable the Court to infer the father’s consent by his conduct.
The relevant findings include the father knew the mother’s family intended to travel to Australia, the father knew the mother and children were going, and he facilitated the arrangements to enable them to do so.
As to the father’s knowledge that the mother intended to move to Australia with the maternal family, the mother relied on the following evidence:
·The father’s statements in his application to the New Zealand Family Court filed on 21 May 2024 (Exhibit M-1) that he knew the mother’s family and the mother intended to move to Australia, which evidence is irreconcilable with his later evidence that he thought the mother was moving into the home of the maternal grandmother;
·The conversation between Mr T and the father referred to at paragraph 75 of the mother’s affidavit of 24 October 2024, which was not challenged in cross examination. According to the mother, Mr T asked the father, “so the house is empty now, what is the plan?” and the father replied, “[Ms Austin] is moving to Australia with the kids”, Mr T then said “what are you doing? If your wife and kids are going, you must go with them” and the father replied, “I haven’t thought about it yet”;
·The evidence of Ms D at paragraphs 10 and 13 of her affidavits filed 24 October 2024. At paragraph 10 she refers to the mother telling her in April 2024, that she had told the father about her plans to move to Australia, and at paragraph 13, Ms D refers to a conversation with the father at the children’s school, on the day prior to the mother’s travel to Australia, when he said to her “[Ms Austin] flies tomorrow and she is moving to Australia” and “she can’t take the kids, I have done something”;
·The evidence of the mother’s brother-in-law, Mr P in his affidavit of 24 October 2024 at paragraph 6 pertaining to a conversation with the father about the family’s plan to relocate to Australia and talking about asking the father to go with them. The conversation also included a discussion about job prospects in Australia, the weather, the father’s close friend living in Melbourne and his other friend in Adelaide who had bought a house in Australia within a year of moving there. Mr P deposes to several other conversations with the father regarding moving to Australia and having shared his experiences with him, “having visited Australia more time than the rest of the family”. During cross-examination, the father denied talking to Mr P about the move to Australia and said that he was “making a story”.
As to the father’s actions, the mother relied on the following evidence:
·The father helped pack up the house and sold some of the furniture on social media including posting ads and arranging the sale of items such as the fridge, a cabinet and toys, as well is selling other items to his friends; much of which occurred prior to 18 May 2024. During cross-examination the father agreed he had assisted sell “two or three” items on social media;
·On 17 May 2024, the father was present at the mother’s home drinking a glass of wine in an almost empty house, as depicted in Exhibit M-4, which contradicts the father’s evidence that between 18 and 21 May 2024 he believed the mother’s move to Australia was not a reality;
·On 22 May 2024, the father was again present at the mother’s house after both parents dropped the children at school. He was waiting for his friend to collect the washing machine from the mother’s home. When they arrived around 10.00am, the father tried to detach the washing machine which resulted in water gushing everywhere. Because neither the father nor his friend could fix the leak, a plumber was called, and the mother and father attempted to clean up the water. During that time, the father’s sister and her husband arrived at the mother’s home to collect the dining table and a red rug. The car was not big enough to accommodate the table, so the father delivered the dining table to his sister’s home.

In response to the evidence relied upon by the mother to support a finding that the father knew the mother, children, and maternal family were intending to relocate to Australia, in his reply affidavit filed 22 November 2024, the father again denied he knew about the mother’s plans to move to Australia with the children, he said he did not know the move was imminent and he did not tell the mother she could relocate with the children and he would follow at a later time. His evidence was that he thought the mother was moving to live with the maternal grandmother.
He also denied the contents of the conversation with Ms D as deposed by her. He accepted that a conversation did take place, but Ms D apparently told him she wasn’t sure when the mother and children were going to Australia, and “possibly in a few months”.
The father denied the conversation with the mother’s brother-in-law during cross-examination, but did not respond to the evidence in his reply affidavit. Mr P was not required for cross-examination and his evidence was not challenged, both as to the occurrence and contents of the conversations deposed to.
In response to the mother’s evidence about him assisting to pack up the mother’s furniture and household, the father maintained he thought the mother was moving into the home of the maternal grandmother. He also relied upon the evidence of his brother, Mr N, that Mr N was unaware the mother and children were planning to move to Australia, although the father had told him the maternal family were planning on moving to Australia. Similarly, the father relies on the evidence of his friend, Mr K, who deposed he does not believe the father knew the mother was intending to remove the children from New Zealand, that he was present at the mother’s home on 20 May 2024 when he noticed the lounge was empty, and that the mother apparently said she was planning to move into her mother’s house, and at no time during that visit did the mother say she was moving to Australia with the children. Neither of these witnesses were required for cross-examination.
After considering the evidence referred to above, I am satisfied and so find that the father knew the maternal family, mother, and children were intending to relocate to Australia at the relevant time. I so find having regard to the following factors (in no particular order):
·The father’s statements in his application to the New Zealand Family Court filed 21 May 2024 that he was aware the maternal family intended to move to Australia;
·I accept and prefer the evidence of Ms D to the evidence of the father about the conversation which occurred at school in late May 2024, the day prior to travel to Australia, and that Ms D informed the father that the mother and girls were intending to depart the next day. Ms D impressed me as a responsive and truthful witness who had no vested interest in the outcome of the proceedings, contrary to the father’s lack of candour during cross-examination and his evident interest in the outcome of the proceedings;
·I accept and prefer the evidence of Mr P to the evidence of the father about his various conversations with the father, particularly as he was not required for cross-examination and his evidence is therefore unchallenged;
·I do not accept the father’s evidence that he was unconcerned between 18 and 21 May 2024 about the prospect of the mother relocating the children to Australia, when he clearly knew as at 17 May 2024 the mother’s home was nearly empty;
·The very fact the father filed an application in the New Zealand Family Court on 21 May 2024, and by extrapolation must have obtained legal advice prior to that day, is inconsistent with his evidence that he had no knowledge the mother was intending to fly to Australia with the children, but rather thought she was moving into the home of the maternal grandmother;
·The fact the father failed to turn up at the airport on the proposed date of departure, in an attempt to stop the mother leaving or to alert authorities of the departure of the children, in circumstances where I have found the father knew the date of departure via his conversation with Ms D;
·The failure of the father to arrange for a copy of his application to the New Zealand Family Court to be brought to the personal attention of the mother, rather than just have the document emailed to the mother;
·The evidence of the father’s brother, Mr N, that the father told him the maternal family were intending to relocate to Australia, is contradictory to the father’s evidence that the mother was ostensibly moving into the maternal grandmother’s home to live with her;
·The fact that the mother did not disclose to Mr K on 20 May 2024 her intention to move to Australia, is irrelevant to a determination of what anterior conversations had occurred between the mother and the father and the father’s knowledge about the mother’s proposed relocation;
·The evidence of the father’s brother, Mr N, that the father had not told him the mother was relocating to Australia, is consistent with the submissions of senior counsel for the mother that the father selectively disseminated information to different witnesses and was not candid and truthful in his conversations with friends and family members.
Having found that the father knew of the mother’s plans to relocate the children to Australia, I do not accept the father’s evidence that he thought the mother was moving into the maternal grandmother’s home. In the context of the rejection of that evidence, I also accept and find that the father’s actions in assisting the mother to pack up her home and sell many of the contents, are consistent with the father consenting to the mother relocating the children to Australia.
I consider it more likely than not that the conversation which occurred on 21 April 2024 was in the terms as deposed by the mother, and not as deposed by the father. Taking into account my finding of the father’s knowledge of the mother’s proposed move to Australia with the children and his subsequent actions, I am satisfied to the requisite standard that the father clearly and unequivocally consented to the mother relocation the children to live in Australia and that consent may be inferred from the father’s knowledge and conduct. I pause to comment that consent does not imply that “the person concerned is happy or content with the outcome that has been agreed”; see Secretary, Department of Family and Community Services & Zadeh [2017] FamCA 44 (“Zadeh”) per McClelland J (as he then was) at [163] citing Secretary, Department of Family and Community Services & Prim [2015] FamCA 16 [83]; Re M (Abduction) (Consent: Acquiescence) [1999] 1 FLR 171 at 188 and 190.
I accept the father’s actions by filing an application to the New Zealand Family Court may possibly be construed as an attempt by the father to revoke his consent, as may be the conversation between the parents on the eve of the departure, however, consent once provided and acted upon cannot be taken away. Specifically, in Re K (Abduction: Consent) [1997] 2 FLR 212, Hale J stated that “consent is not taken away by the [aggrieved party] subsequently thinking better of it”; see also Zadeh [164] and Regino & Regino (1995) FLC 92-587.
Having found that the father consented to the removal of the children from New Zealand, as submitted by senior counsel for the mother, I am not required to address the second regulatory exception relied upon by the mother. However, in the event I am wrong about the father’s consent, I intend to address whether there is a grave risk of physical or psychological harm or an intolerable situation for the children.
Grave risk of physical or psychological harm or placing the child in an intolerable situation (reg 16(3)(b))
I now turn to exposure to grave risk of physical or psychological harm or placing the children in an intolerable situation.
Relevant legal principles
The leading authority in Australia pertaining to this regulatory exception is DP v. Commonwealth Central Authority; JLM v. Director–General, NSW Department of Community Services (2001) 206 CLR 401 (“DP”) Gaudron, Gummow and Hayne JJ stated [39]:
39.… Of course it must be recalled that the onus of proof lies on the party opposing return. It will be for that party to demonstrate a grave risk of exposure to harm. Many factors may be relevant to that inquiry…
…
41.… On its face reg 16(3)(b) presents no difficult question of construction and it is not ambiguous. The burden of proof is plainly imposed on the person who opposes return. What must be established is clearly identified: that there is a grave risk that the return of the child would expose the child to certain types of harm or otherwise place the child in “an intolerable situation”. That requires some prediction, based on the evidence, of what may happen if the child is returned. In a case where the person opposing return raises the exception, a court cannot avoid making that prediction by repeating that it is not for the courts of the country to which a child has been removed or retained to inquire into the best interests of the child. The exception requires courts to make the kind of inquiry and prediction that will inevitably involve some consideration of the interests of the child.”
42.Necessarily there will seldom be any certainty about the prediction. It is essential, however, to observe that certainty is not required: what is required is persuasion that there is a risk which warrants the qualitative description “grave”. Leaving aside the reference to “intolerable situation”, and confining attention to harm, the risk that is relevant is not limited to harm that will actually occur, it extends to a risk that the return would expose the child to harm.
43.Because what is to be established is a grave risk of exposure to future harm, it may well be true to say that a court will not be persuaded of that without some clear and compelling evidence. The bare assertion, by the person opposing return, of fears for the child may well not be sufficient to persuade the court that there is a real risk of exposure to harm.
44.These considerations, however, do not warrant a conclusion that reg 16(3)(b) is to be given a “narrow” rather than a “broad” construction. There is, in these circumstances, no evident choice to be made between a “narrow” and “broad” construction of the regulation. If that is what is meant by saying that it is to be given a “narrow construction” it must be rejected. The exception is to be given the meaning its words require.
45.That is not to say, however, that reg 16(3)(b) will find frequent application. It is well-nigh inevitable that a child, taken from one country to another without the agreement of one parent, will suffer disruption, uncertainty and anxiety. That disruption, uncertainty and anxiety will recur, and may well be magnified, by having to return to the country of habitual residence. Regulation 16(3)(b) and Art 13(b) of the Convention intend to refer to more than this kind of result when they speak of a grave risk to the child of exposure to physical or psychological harm on return.
Further at paragraph [132], his Honour Justice Kirby considered the language used in reg 16(3)(b) and said:
132.The adoption of the word “grave” to qualify “risk” plainly contemplates that in some cases, an order of return will be made although there is a real, even significant (but not “grave”) risk of the kinds of harm contemplated. Similarly, the use of the word “otherwise” in reg 16(3)(b) indicates that the types of “physical or psychological harm” referred to must also be such as to place the child concerned in an “intolerable situation”. Therefore, the language in question, as well as its appearance in a provision enumerating limited exceptions to the general rule, make it clear beyond argument that orders of return will be made to uphold the principal object of the law in circumstances where, were the matter simply a custody dispute (however described), in all likelihood, on the evidence provided, the child's current arrangements would not be altered. Only a circumstance where the party resisting the order can establish, in the context presented by the ordinary rule of return, that that result would expose the child to a grave risk that was “intolerable … extreme and compelling”, will invite the application of the exception.
(Citations omitted).
Ryan and Aldridge JJ in Walpole & Secretary, Department of Communities and Justice [2020] FamCAFC 65 at [58] referred to comments of Gaudron, Gummow and Hayne JJ, at paragraph [40] of DP:
So far as reg 16(3)(b) is concerned, the first task of the Family Court is to determine whether the evidence establishes that “there is a grave risk that [his or her] return … would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation”. If it does or if, on the evidence, one of the other conditions in reg 16 is satisfied, the discretion to refuse an order for return is enlivened. There may be many matters that bear upon the exercise of that discretion. In particular, there will be cases where, by moulding the conditions on which return may occur, the discretion will properly be exercised by making an order for return on those conditions, notwithstanding that a case of grave risk might otherwise have been established. Ensuring not only that there will be judicial proceedings in the country of return but also that there will be suitable interim arrangements for the child may loom large at this point in the inquiry. If that is to be done, however, care must be taken to ensure that the conditions are such as will be met voluntarily or, if not met voluntarily, can readily be enforced.
In Re C (Abduction: Grave Risk of Psychological Harm) [1999] 1 FLR 1145 at 1154, the Court of Appeal stated that:
…There is, therefore, an established line of authority that the court should require clear and compelling evidence of the grave risk of harm or other intolerability which may be measured as substantial, not trivial, and of a severity which is much more than is inherent in the inevitable disruption, uncertainty and anxiety which follows an unwelcome return to the jurisdiction of the court of habitual residence”
In Walpole & Secretary, Department of Communities and Justice [2020] FamCAFC 65, Watts J at [90] made it clear that the regulations are to be interpreted according to Australian legal standards and the fact that in DP the High Court of Australia did not give a restrictive meaning to the defence of grave risk that made clear that the words of reg 16(3)(b) are to be given their natural meaning and not a narrow construction.
Additionally, in Gsponer v Director–General of Community Services, Victoria (1989) FLC 92‑001 (“Gsponer”), the Full Court of the Family Court stated Australian Courts should be reluctant to find there would be a grave risk of harm to a child if it were returned to a convention country, at least where it is reasonable to expect that the prospect of harm could be prevented by appropriate judicial remedies in the requesting state. The Full Court said at 77,160:
There is no reason why this court should not assume that once the child is so returned, the courts in that country are not appropriately equipped to make suitable arrangements for the child’s welfare. Indeed the entry by Australia into this convention with the other countries may justify the assumption that the Australian government is satisfied to that effect.
The High Court of Australia said in De L v Director General, NSW Department of Community Services (1996) 187 CLR 640 at 658:
The Regulations reflect the objects of the Convention to settle issues of jurisdiction between the Contracting States by favouring the forum which has been the habitual residence of the child. The underlying premise is that, once the forum is located in this way, each Contracting State has faith in the domestic law of the other contracting states to deal in a proper fashion with matters relating to the custody of children under the age of 16.
In this case, the mother contends the children would be at grave risk of physical or psychological harm and placed in an intolerable situation if they were returned to New Zealand. Counsel for the Independent Children’s Lawyer supported the mother’s contention in this regard.
In her Case Outline, the mother contends the risk to the children is because of the following reasons:
(a)The children would be separated from their mother, with whom they have always lived, in circumstances where she is unable to return to New Zealand because of her intellectual disability, limited ability to communicate in English, lack of support, and economic circumstances;
(b)The children would be separated from their maternal family with whom they have shared a close relationship since birth;
(c)The children will be placed in the care of their father who has not made appropriate arrangements for their care, and who may not be sufficiently available to them due to his work commitments;
(d)The children’s health, safety, and well-being will be placed at risk by reason of the father’s history of alcohol use and poor parenting decisions.
Although the mother acknowledges authority (Re C (A Minor) (Abduction) [1989] 1 FLR 403 at 410) which support the proposition that a parent who is unwilling to return with a child to the state of habitual residence, in the event a return order is made, should not be able to rely on that circumstances which they themselves have created, senior counsel for the mother distinguished the facts of this case from those authorities. She submitted the factual matrix of this case was not a deliberate and advantageous refusal by a primary carer to return with the child, but rather analogous to decisions where parents have been unable to return because of migration issues, the threat of incarceration or extreme family violence. In this case, the mother’s adamant refusal to return to New Zealand arises from the mother’s intellectual disability and her inability to live independently without the support of the maternal family and in particular her sister, rather than a capricious refusal on the part of the mother.
As to the facts relied upon, I adopt the very helpful summary of the mother’s evidence set out at paragraphs 43 to 50 of the mother’s Outline of Case, as follows:
(a)The mother has an IQ of 50 to 70 and has been diagnosed with a mild intellectual disability. When the mother left school in 2012, she began to receive an Invalid’s Pension. Between 2013 and May 2024, she was in receipt of a Supported Living Payment.
(b)Whilst at school the mother “really struggled with the simplest of tasks” unless it was explained to her “over and over” and even then “it didn’t always work”.
(c)In the most recent Work and Income Capacity Certificate completed by her general practitioner in New Zealand, it is recorded that the mother has “no current capacity to work” and this will “remain unchanged” in the future.
(d)According to the mother she has difficulty reading and writing and understand English. She says her family members, in particular her sister, help her with filling in forms, reading and explaining letters and emails, corresponding on her behalf and taking her to appointments.
(e)In her affidavit dated 24 October 2024, the mother’s sister Ms E sets out the extensive support she has provided to the mother in both Australia and New Zealand. Among other things, she corresponds on behalf with the mother in relation to housing and supports her to attend medical appointments.
(f)Prior to leaving New Zealand, the mother relinquished a long-term lease on a property through Housing New Zealand. She has also stopped her Supported Living Payment.
(g)Although the mother has not always lived with her family, she has never lived far from them. She is unable to return to New Zealand without the ongoing, practical support. Consequently, if the children are ordered to return to New Zealand they will be separated from her, and from their maternal family, with whom they share a very close relationship.
(h)The mother breastfed Y until she was around four years old. Y sleeps with her every night has only ever spent one night away from her. Even though she is five, she wants the mother to feeder and to help her shower and dress.

The mother relied upon her evidence and the evidence of both her sister Ms E, and her former high school “support person”, Ms F, as to the extent of her disability and the assistance she requires for daily living.
The mother was cross-examined by counsel for the State Central Authority about, amongst other matters, her ability to send text messages in English, her capacity to obtain a driver’s licence, and her attendance at medical appointments as indicated in the medical records of the children produced to the court.
The mother’s evidence was that her English remains limited, she had required the assistance of her sister to obtain a driver’s licence, send emails and some text messages in English, and sometimes her English text messages were sent with predictive text. As to her capacity to independently shop for food, she said the father had the day off from work on Tuesdays, when they would do the shopping together. She agreed she did the cooking and cleaning and was able to get the girls ready for school on days when the father was not available. She said she could not take the children to the doctor alone and needed help from her sister to do so, including driving her there. In response to the comments in the children’s medical records which indicated the mother had, amongst other matters, provided an informed verbal consent to immunise X, she said she was unable to go alone, and she mostly took her sister with her. Occasionally the maternal grandmother and the father went to doctors’ appointments with her. When it was suggested to her that she had communicated in English on particular days in 2018, as indicated in the records, unsurprisingly, she said she was unable to remember the particular day. She repeatedly stressed her sister, who lived ten minutes from her, mainly took her to the doctors with the children, and if the records indicate the mother had said something to the doctor or nurse, generally her sister would accompany her and interpret for her.
Ms F was the mother’s “support person” between 2009 and 2012 when the mother attended high school. She described the mother’s English skills as very low, and when she left high school her English had not improved as much as would have been expected, despite having English tuition every day. She described the mother as barely able to get by and that she needed to explain in great detail what was expected of her. She referred to the mother’s difficulties in cooking class, including inability to weigh food, put it in the oven, or follow step-by-step instructions to complete simple tasks. She said instructions had to be explained over and over to the mother, and she provided an example about baking scones in a cooking class when she told the mother to put two cups of flour into a bowl and sieve, which the mother was unable to understand. She observed that other students seemed to know what to do with the flour, but the mother did not. The mother was unable to manage writing English, even when she dictated and spelt it to her. She expressed surprise that the mother was able to obtain a driver’s licence and said that she must’ve had an interpreter with her to fill out the forms. She was also surprised that the mother had managed to live in a house by herself with the two children.
When cross-examined by counsel for the Independent Children’s Lawyer, Ms F described the extent of her support, which was every day and during all classes attended by the mother. As to her learning disability, Ms F said she definitely could not do the work other students were able to do, although she eventually did show some limited progress. She said, “[Ms Austin] didn’t seem to get there”.
Ms E, the mother’s sister, was cross-examined by counsel for both the State Central Authority and the Independent Children’s Lawyer. She was a very impressive witness, and her cross-examination demonstrated the extent of her involvement in the mother’s life and the daily assistance she rendered to her sister. Cross-examination did not establish that Ms E had exaggerated her role in her sister’s life, or that she had embellished her evidence for the purposes of this case.
According to Ms E, and I accept, she lived about ten minutes away from her sister in New Zealand and regularly interpreted for her. She said that every morning she had a telephone conversation with her sister for about ten minutes to plan the day ahead, and she also went to her house almost every day. She agreed her sister would on occasions leave the house without her, such as going for a walk in the park, but if she needed to be driven somewhere Ms E would do so. The maternal grandmother did not really assist other than looking after the children if the mother and father were out and the mother’s brother occasionally took things to her. Importantly, Ms E said she regularly took the mother and children to medical appointments and because she is a health professional, the mother trusted her to explain the system and medical advice. She acknowledged that on occasions the father had accompanied the mother to medical appointments, but said she accompanied the mother to every appointment including medical appointments for the children.
When counsel for the State Central Authority suggested she was attempting to minimise the role of the father in the mother’s life, she said she was always there to help the mother, the father was never there to help, and he regularly put her down when she needed somebody to be kind calm and patient with her and not insult her. Despite Ms E being pregnant with a baby and having a four-year-old child, she did not see any impediments to her continuing to assist the mother if the children remained in Australia. She said the maternal grandmother was prepared to help with her children, her son attended childcare, and she has a very supportive husband who worked from home.
In response to the suggestion that if the mother returned to New Zealand, she would be able to live on her own if the maternal grandmother accompanied her, Ms E said the maternal grandmother would not return to New Zealand, she lived with her son, her children were in Australia, she had no income nor housing in New Zealand, and she was happily settled in Australia. She was adamant the maternal grandmother would not return to New Zealand.
Ms E said the mother could not shop for food and she had never done so on her own. The mother could use a telephone, but as far as emails were concerned, she and other family members would sit the mother down and check emails for her and Ms E had created the mother’s email account, because the mother was unable to do so.
In response to the proposition that the mother could get by and was able to speak English to some extent, Ms E’s description of the mother’s capabilities was that she could cook for herself and the children and clean the house, she could not do anything online despite Ms E having tried to teach the mother for many years to do so, and she was also unable to go to school and talk to the children’s teachers because she did not understand what they were saying. Despite her strong friendships in New Zealand, Ms E said these friends work and have family obligations of their own. The mother needs somebody to check on her all the time, and she provided an example that the mother needed to be telephoned every morning to plan the day, including conversations about the weather and appropriate clothing, and a lot of time and energy was required to support the mother. I implicitly accept Ms E’s evidence about the extent of assistance the mother requires for her daily activities. Ms E was articulate, objective, and realistic about her sister’s capabilities and had evidently selflessly assisted her sister for many years.
The tenor of the father’s evidence in this regard was the mother had exaggerated the extent of her disability for the proceedings. The father described the mother as being more capable, and understanding English better than she had portrayed to the Court, which attitude was supported by his family members. The father’s brother and sister were not cross-examined, and their evidence was not challenged. The father’s siblings were not involved with the mother to the same extent as Ms E and neither was the father, who insisted he did not live with the mother on a fulltime basis. I therefore prefer and accept the evidence of Ms E who was involved on a daily basis with the mother, and whose role could aptly be described as a daily support person.
Having regard to all of the available evidence, and in particular the oral evidence of Ms F and Ms E, both of whom gave exemplary evidence when vigorously cross-examined, and the fact that the mother received New Zealand Government benefits because of her disability which required her general practitioner to certify the extent of the disability, I accept the mother has not exaggerated the extent of her disability and dependence on a support person to function adequately in her daily life, and I so find. The prospect of the mother being able to adequately function and appropriately care for the children absent considerable daily support is negligible.
I find that the mother has established a reasonable and acceptable reason for her refusal to return to New Zealand. The suggestion by counsel for the State Central Authority that the maternal grandmother could readily return to New Zealand to provide the requisite assistance for the mother is inconsistent with the proposition that the mother is able to function independently of intense family support. I observe the mother’s case is that her sister, Ms E, previously provided the intense daily support she required, not the maternal grandmother. I therefore reject the implication espoused by counsel for the State Central Authority, that because of the absence of evidence from the maternal grandmother as to her capacity or willingness to return to New Zealand, I should infer that evidence would not have assisted the mother.
Turning now to consider the affect on the children if they are separated from their mother.
Evidence of Ms C
On 3 October 2024, I made an order for the preparation of a reg 26 Hague Report. Ms C, Court Child Expert, interviewed the children in person at the Sydney Registry of the Federal Circuit and Family Court of Australia on 25 October 2024 and was assisted by a Country R interpreter. She prepared a report dated 8 November 2024, which at page two identifies the documents reviewed by her when preparing her report.
At paragraph 18 of her report under the heading “the impact on the children’s separation from the respondent and their attachment to her”, Ms C said:
It would appear that the children have been primarily cared for by their mother throughout their lives and, from what the children said in the interview, and the brief informal observations of them with their mother, they appear to feel very close and loving towards their mother. While children of [X] and [Y]’s ages are developing their independence, family is still central to their world and they are still reliant on their attachment figures, particularly their primary attachment figure (who would seem to be their mother) to help provide them with a sense of safety and security. Given the children’s history of care and their observed close and loving relationship with their mother, it would likely be extremely distressing and disruptive to the children to be separated from her. Their grief at being separated from their mother may be likely to have a significant negative impact on their emotional state in the short term. This could interfere with their ability to engage in school and other activities important for their development. The distress caused by being separated from the person who has been their primary source of love and nurturing, particularly at their young ages, could also have long-term repercussions on their emotional health and relationships throughout their life.
Ms C was cross-examined by counsel for the State Central Authority about possible factors which could mitigate their distress at being separated from their mother. These include being reunited with their father and paternal relatives, returning to the same school and environment, and attending counselling. Ms C agreed these factors could possibly mitigate the children’s distress, but said that considering the relationship with their mother, the children would be significantly distressed, and although their grief could be somewhat mitigated, it would still be incredibly significant.
When cross-examined by senior counsel for the mother, Ms C agreed that if it were demonstrated that the father had a negative attitude towards the mother and would likely make derogatory comments about her if the children were returned to his primary care, that would cause serious distress and negatively impact on the children. Senior counsel for the mother informed Ms C of the father’s social media post regarding the “[reptile]” and his denial that it referred to the mother, and of the father’s demands that the mother’s family take down family photos on social media, which had been posted three years prior.
Ms C also agreed that because the children’s primary relationship was with their mother, the father’s inability to foster such a relationship would have a negative impact on the children. In terms of the long-term impact on the children, if the children returned to New Zealand absent their mother, the children could internalise abandonment which would affect their long-term ability to trust and form healthy relationships. At this age children are very egocentric, everything is about them, and they are unable to understand complex situations. They could suffer low self-esteem and their sense of trust may be affected because the one person they had been reliant upon for love and a sense of security could be perceived as having abandon them. The long-term impact would be the children’s inability to trust, form healthy relationships, and a lack of self-worth.
It is common ground the mother has been the primary carer and attachment figure of the children since birth. Whilst they may have a good relationship with their father, according to his own evidence he has not lived fulltime with the children, nor been responsible for their fulltime care. He has not spent time with them since their removal to Australia in May 2024.
The impact of separation from their mother on the children’s emotional and psychological wellbeing is self-evident, and as articulated by Ms C the children would not be at a stage of cognitive nor emotional development to understand why their mother would not accompany them to live in New Zealand, with the consequential emotional turmoil and distress.
Senior counsel for the mother cross-examined the father about the proposed arrangements for the children upon return to New Zealand, and separation from their mother. He demonstrated acute lack of insight into the emotional needs of the children returning without their primary care and thought the children would not require any professional help or counselling if separated abruptly from their mother. As a result of his evidence, I do not accept the father has adequately turned his mind to the proper future care of the children and appropriate arrangements for them. His proposals were vague, unsatisfactory, and over reliant on the goodwill of his family members, who have not in the past provided primary care for the children.
There may be instances where the circumstances of the child’s return would expose the child to a grave risk or place them in an intolerable situation, including because of the prospect of separation from their primary carer as a result of incarceration: see StateCentral Authority v Papastavrou [2008] FamCA 1120; Secretary, Department of Communities and Justice & Caladine (No 2) [2022] FedCFamC1F 51.
In this case, the refusal of the mother to return is somewhat analogous to the authorities above. Her refusal cannot be regarded as a capricious decision not to return, but rather as inability to function independently, absent significant assistance from the maternal family. I accept the reasons why the mother would not return to New Zealand as genuine and returning the children would separate them from their mother, which together with the uncertainty of the father’s proposals about their future care arrangements upon return, satisfy me that to return the children to New Zealand would place them in an intolerable situation. The mother’s inability to return is not a factor that can be ameliorated by any action on the part of the authorities or courts of the requesting country, as contemplated by Gsponer.
After carefully considering the evidence of Ms C in particular, the mother and the father and their respective relatives, where relevant, I conclude for the reasons expressed above, returning the children to New Zealand without their mother will place the children at a grave risk of psychological and emotional harm and will place them in an intolerable situation, and I so find.
Because I have found the mother has satisfied the Court, to the requisite standard, a regulatory exception has been established, I now turn to consider the exercise of the discretion.
DISCRETION TO RETURN
At paragraph 29 of HZ & State Central Authority [2006] FamCA 466, the Full Court of this Court referred to the factors relevant to the exercise of discretion to refuse return as follows:
… In TB v JB (formerly JH) [2000] EWCA Civ 337 Laws and Arden LJJ, Hale J dissenting, upheld an appeal from a decision of Singer J and ordered the return of children aged 14, 13 and 10½ to New Zealand in circumstances where the mother had brought the children to England seeking to escape from what she said was an abusive relationship with her second husband. It was clear that the eldest child did not wish to return to New Zealand. Hale LJ accepted and applied a list of factors suggested by Waite J (as he then was) in W v W (Child Abduction: Acquiescence) [1993] 2 FLR 211 and later adopted by him in the Court of Appeal in H v H (Abduction: Acquiescence) [1996] 2 FLR 570 at 574 which were:
(a)the comparative suitability of the forum to determine the child's future in the substantive proceedings;
(b)the likely outcome (in whichever forum) of the substantive proceedings;
(c)the consequences of the acquiescence;
(d)the situation which would await the absconding parent and the child if compelled to return;
(e)the anticipated emotional effect upon the child of an immediate return (a factor which is to be treated as significant but not paramount); and
(f)the extent to which the purpose and underlying philosophy of the Hague Convention would be at risk of frustration if a return order were to be refused.”
In this matter, the forum which would determine the child’s future in the substantive proceedings is New Zealand, which is a jurisdiction where the best interests of the child and the children’s welfare are paramount in proceedings. Both parents can access proceedings in both New Zealand and Australia, although it may be electronically.
There was no expert evidence about the suitability of New Zealand to determine the children’s future nor the likely outcome of any substantive proceedings between the parents in New Zealand. However, as the mother has always been the children’s primary carer, it may be orders are made to reflect historical care of the children, despite the father’s evidence that he thought he should care for the children four nights a week and the mother three nights.
It is not known what impact the mother’s removal of the child from New Zealand will have on the substantive proceedings. If the proceedings were determined in Australia, then the father is entitled to seek orders that the children return to New Zealand. The mother would be entitled to seek orders that the children live with her in Australia and to spend time with the father, both electronically and in person. The father would be able to participate electronically in such an application in Australia even if he were unable to travel to the country, as he participated electronically in these current proceedings.

The consequence of exercising discretion in favour of the mother is that the children would remain with their mother in Australia, where they have lived with the maternal family since the removal of the children from New Zealand in May 2024, until further order of the Court in substantive parenting proceedings.
As referred to in these reasons, the situation which would await the absconding parent and the children if a return order were made, is entirely uncertain. I have grave doubts the mother would be able to cope on a day-to-day basis, without the assistance of her family and in particular, her sister, if she changed her position and returned to New Zealand with the children. Whilst I accept her friends may provide some assistance, the level of assistance she requires would not realistically be provided by anyone other than close family members.
If the children returned without their mother, the following factors, as referred to in paragraph 63(b)-(h) of the mother’s Outline of Case, are highly relevant:
·The impact of removing the children from the care of their mother, who has always been their primary career and with whom they have a close and loving relationship;
·The mother has been able to care for the children appropriately, with the help of her family;
·The impact on the children of being separated from their maternal family with whom they have been living, and in particular the impact of separating X from her maternal grandmother;
·The difficulty that the mother would have in travelling to New Zealand to see the children, without a support person;
·The impact on the children of being placed in the care of their father, who is untested as a primary caregiver, who the children do not regard as someone who generally cared for them, and who X described as “angry”;
·The lack of insight that the father and his family have in relation to the impact that the mother’s intellectual disability has upon her functioning and the impact this may have on her being able to maintain a relationship with the children if they are living in New Zealand with their father;
·The father’s attitude and behaviour towards the mother, which although of itself may not give rise to a “grave risk”, may impact on the mother’s ability to maintain a relationship with the children if they are in their father’s care.
The very real possibility of the children’s separation from their mother and removal from her primary care would have a significant and immediate detrimental impact on the emotional and psychological well-being and functioning of both children.
In terms of the extent to which the purpose and underlying philosophy of the Hague Convention would be at risk of frustration if a return order is not made, there was no evidence or indeed any submissions by either counsel. However, in this case an exception to return, as provided by the regulations, has been satisfied.
For the reasons set out herein, I propose to exercise my discretion not to return the child to New Zealand and will make the relevant orders dismissing the application.

I certify that the preceding one hundred and twenty-nine (129) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Williams.
Associate:
Dated: 22 January 2025

File number(s):	SYC 7190 of 2024
Judgment of:	WILLIAMS J
Date of judgment:	22 January 2025
Catchwords:	FAMILY LAW – HAGUE CONVENTION – CHILD ABDUCTION – Return application to New Zealand – Where the father alleges wrongful removal – Whether the father consented to the mother relocating the children to Australia – Where the mother has a mild intellectual disability and is reliant on her family for daily support – Where the maternal family have relocated to Australia –Where the mother has established a reasonable and acceptable reason for her refusal to return to New Zealand – Grave risk of exposure to physical or psychological harm or intolerable situation established – Grave risk of harm cannot be adequately ameliorated by available protective measures – Discretion to return not exercised – Application dismissed.
Legislation:	Evidence Act 1995 (Cth) s 140 Family Law Act1975 (Cth) s 111B Family Law (Child Abduction Convention) Regulations 1986 (Cth) regs 15, 16, 26 Convention on the Civil Aspects of International Child Abduction
Cases cited:	De L v Director General, NSW Department of Community Services (1996) 187 CLR 640; [1996] HCA 5 DP v. Commonwealth Central Authority; JLM v. Director–General, NSW Department of Community Services (2001) 206 CLR 401; [2001] HCA 39 Gsponer v Director–General of Community Services, Victoria (1989) FLC 92-001; [1988] FamCA 21 HZ & State Central Authority (2006) FLC 93-264; [2006] FamCA 466 Re C (A Minor) (Abduction) [1989] 1 FLR 403 Re C (Abduction: Grave Risk of Psychological Harm) [1999] 1 FLR 1145 Re H (Minors) [1998] AC 72 Re H. (Abduction: Habitual Residence: Consent) [2000] 2 FLR 294 Re K (Abduction: Consent) [1997] 2 FLR 212 Re M (Abduction) (Consent: Acquiescence) [1999] 1 FLR 171 Regino & Regino (1995) FLC 92-587 Secretary, Department of Communities and Justice & Caladine (No 2) [2022] FedCFamC1F 51 Secretary, Department of Family and Community Services & Prim [2015] FamCA 16 Secretary, Department of Family and Community Services & Zadeh [2017] FamCA 44 State Central Authority & Handbury [2019] FamCA 668 StateCentral Authority v Papastavrou [2008] FamCA 1120 Walpole & Secretary, Department of Communities and Justice (2020) FLC 93-950; [2020] FamCAFC 65 Wenceslas & Director-General, Department of Community Services (2007) FLC 93-321; [2007] FamCA 398
Division:	Division 1 First Instance
Number of paragraphs:	129
Date of hearing:	9, 10 and 13 December 2024
Place:	Melbourne
Counsel for the Applicant:	Ms Hartstein
Solicitor for the Applicant:	Department of Communities and Justice
Counsel for the Respondent:	Ms Mahony SC
Solicitor for the Respondent:	Legal Aid New South Wales
Counsel for the Independent Children's Lawyer:	Mr Scarlett
Solicitor for the Independent Children's Lawyer:	Mahony Family Lawyers

SYC 7190 of 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	DEPARTMENT OF COMMUNITIES AND JUSTICE Applicant
AND:	MS AUSTIN Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	WILLIAMS J
DATE OF ORDER:	22 JANUARY 2025

Exhibit Number	Description
M-1	Father’s New Zealand Care Application filed 21 May 2024.
M-2	Extract from Judicial Commission NSW Bench book on intellectual disabilities.
M-3	Social media posts and comments.
M-4	Video of children taken May 2024.