Department of Communities and Justice & Hays - [2022] FedCFamC1F 752

Federal Circuit and Family Court of Australia
(DIVISION 1)
Department of Communities and Justice & Hays [2022] FedCFamC1F 752

File number(s): SYC 2382 of 2022

Judgment of: STRUM J

Date of judgment: 30 September 2022

Catchwords:
FAMILY LAW – CHILD ABDUCTION – HAGUE CONVENTION – Children brought to Australia from the United Kingdom – Where it is disputed that the children are habitually resident in the United Kingdom – Where it was disputed that the children were wrongfully retained - Where the children were not wrongfully removed but were wrongfully retained – Where it is disputed that the requesting mother had and was exercising her rights of custody before the removal of the children from the United Kingdom – Where all the jurisdictional facts have been satisfied - Where the respondent father disputed every possible ground of jurisdiction and relied on every regulatory exception in reg 16(3) – Whether there is a grave risk of physical or psychological harm or an intolerable situation should the children return to the United Kingdom – Whether the children’s objections show a strength of feeling beyond mere expression of preference or ordinary wishes – Whether the children have attained an age and maturity such that their wishes should be taken into account – Whether there would be an impermissible breach of the children’s fundamental human rights should they be returned – Where none of the reg 16(3) defences found – Held, the father has not discharged his onus – Children to return to the United Kingdom.

PROCEDURE – EVIDENCE – Whether the respondent father could rely on a unilaterally obtained psychological report of the children – Where the father took the children for psychological assessment in Australia in breach of orders made in the United Kingdom – Where the orders in the United Kingdom were binding on the father in personam – Held, the father was not given leave to rely on evidence improperly obtained.

Legislation:
Acts Interpretation Act 1901 (Cth) ss (2(2), s15AA, 21(1)(b)

Evidence Act 1995 (Cth) ss 132, 138, 140

Family Law Act 1975 (Cth) s111B

Family Law (Child Abduction Convention) Regulations 1986 (Cth) rr14, 16, 15(1), 29

Federal Circuit and Family Court of Australia (Family Law Rules) 2021 r 10.13

Listening Devices Act1984 (NSW) s 5(1)

Child Abduction Act 1984 (UK) ss 1(1)

Children Act 1989 (UK) ss 1(1) 2(1), 3(1), s7, s 13

Convention on the Civil Aspects of International Child Abduction signed at The Hague on 25 October (1980)

International Covenant on Civil and Political Rights 1976

United Nations Convention on the Rights of the Child 1989

Dictionary to the Evidence Act, Clause 9 pt 2

Cases cited:
Ames v Ames (2009) 42 Fam LR 95; [2009] FamCA 825

Australian Competition and Consumer Commission v Apple Pty Ltd (No 3) [2018] FCA 617

C v C (Minor Abduction: Rights of Custody Abroad) [1989] 2 All ER 465

Central Authority & Wageman (2012) 48 Fam LR 254; [2012] FamCAFC 176

Commonwealth Central Authority & Sangster [2018] FamCA 765

De L v Director General, NSW Department of Community Services (1996) 187 CLR 640

De L v Director General, NSW Department of Community Services (1980) FLC 92 - 706

De L v Director General, NSW Department of Community Services (1990) 187 CLR 640

De L v Director General, NSW Department of Community Services (1980) FLC 92 - 706

Department of Children, Youth Justice and Multicultural Affairs & Golub [2021] FamCA 435

Department of Community Services v Crowe (1996) 21 135 FLR 443; (1996) FLC 92-717; 21 Fam LR 159

Department of the Family and Community Services & Raelson [2014] FamCA 131

Director of Public Prosecutions v Carr [2002] NSWSC 194 ; 127 A Crim R 151

Director-General, Department of Community Services and Crowe & Others (1996) 21 Fam LR 159; [1996] FamCA 123

Director-General, Department of Families, Youth & Community Care v Bennett [2000] FAMCA 253; 155 FLR 121 ; (2000) FLC 93-011 ; 26 Fam LR 71

DP v Commonwealth Central Authority [2001] HCA 39; (2001) 206 CLR 401; (2001) FLC 93-081; (2001) 180 ALR 402; (2001) 75 ALJR 1257; (2001) 27 Fam LR 569

HZ v State Central Authority [2006] FamCA 466; (2006) FLC 93-264; (2006) 35 Fam LR 489

In re R (Children) (Reunite International Child Abduction Centre intervening) [2015] UKSC 35; [2016] AC 76; [2015] 3 All ER 749; [2015] 2 WLR 1583

In the Marriage of Gazi [1992] FamCA 80; (1993) FLC 92-341; 111 FLR 425; 16 Fam LR 180

In the Marriage of Gsponer [1988] FamCA 21; (1989) FLC 92-001; 94 FLR 164; (1988) 12 Fam LR 755

In the Marriage of Regino 122 FLR 314; (1995) FLC 92-587

In the matter of C (Children) [2018] UKSC 8; [2019] AC 1

Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 ; [1959] ALR 367

LGM & CAM [2011] FamCAFC 195; (2011) FLC 93-481; (2011) 46 Fam LR 118

LK v Director-General, Department of Community Services [2009] HCA 9; (2009) 237 CLR 582; (2009) FLC 93-397; (2009) 253 ALR 202; (2009) 40 Fam LR 495; (2009) 83 ALJR 525

McCall v State Central Authority (1995) FLC 92-551; 121 FLR 45; (1994) 18 Fam LR 307

Murray v Director, Family Services (ACT) [1993] FamCA 103; (1993) FLC 92-416; (1994) 116 FLR 321; (1993) 16 Fam LR 982

MW v Director-General, Department of Community Services [2008] HCA 12; (2008) 244 ALR 205; (2008) 82 ALJR 629; (2008) 39 Fam LR 1

Parker v Comptroller-General of Customs [2007] NSWCA 348; 232 FLR 362; (2007) 243 ALR 574; 83 ALJR 494

Police Commissioner of South Australia v Temple [1993] FamCA 146; (1993) 113 FLR 375; (1993) FLC 92-365

R v Workman [2004] NSWCCA 213; (2004) 60 NSWLR 471

Re Bassi; Bassi and Director-General, Department of Community Services [1994] FamCA 163; (1994) 116 FLR 45; (1994) FLC 92-465; (1994) 17 Fam LR 571

Re C (Abduction: Grave Risk of Physical or Psychological Harm) [1999] 2 FLR 478

Re D (a Child) (Abduction; Rights of Custody) [2007] 1 AC 619

Re M (A Minor) (Child Abduction) [1994] 1 FLR 390

Re M (Children)(Habitual Residence: 1980 Hague Child Abduction Convention) [2020] EWCA Civ 1105; [2020] 4 WLR 137

Re R (Child Abduction: Acquiescence) [1995] 1 FLR 716

Re T. (Abduction: Child's Objections to Return) [2000] 2 FLR 192

Ridgeway v R [1995] HCA 66; (1995) 184 CLR 19; (1995) 129 ALR 41; (1995) 69 ALJR 484; (1995) 78 A Crim R 307;

Secretary, Department of Communities and Justice & Paredes [2021] FamCA 128

State Central Authority & Abdalle [2012] FamCA 1151

State Central Authority & Del Rosario [2019] FamCA 607

State Central Authority & Hotzner(No 2) [2010] FamCA 1041

State Central Authority v Sigouras [2007] FamCA 250; (2007) 37 Fam LR 364

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

Division: Division 1 First Instance

Number of paragraphs: 445

Date of hearing: 18 – 21 September 2022

Place: Heard in Sydney; delivered in Melbourne

Counsel for the Applicant: Mr Guterres

Solicitor for the Applicant: DCJ Legal, Department of Communities and Justice

Counsel for the Respondent: Dr Ward SC with Mr O’Brien

Solicitor for the Respondent: JB Solicitors

Counsel for the Independent Children's Lawyer: Mr Moore

Solicitor for the Independent Children's Lawyer: Legal Aid NSW
ORDERS

SYC 2382 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
DEPARTMENT OF COMMUNITIES AND JUSTICE

Applicant

AND:
MR HAYS

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

STRUM J

DATE OF ORDER:

30 SEPTEMBER 2022

THE COURT ORDERS THAT:
1.The Application filed by the New South Wales Department of Communities and Justice (“the applicant”) be granted, and the children X (born in 2011) and Y (born in 2014) (“the children”) be returned to England pursuant to reg 16(1) of the Family Law (Child Abduction Convention) Regulation 1986.
2.The amended Form 2A Answer and Cross-Application filed by the father on 10 May 2022 be dismissed.
3.The father be at liberty to return to England with the children, provided he does the following:
(a)Within 7 days he provides notice to the applicant, in writing, of his intention to travel.
(b)Within 14 days he books and pay for flights for himself and the children, flying Sydney - Perth - City B and departing Australia not later than 35 days from the date of these orders, and provides a copy of his airline tickets to the applicant.
(c)Travels with the children on the nominated flight, in accordance with 3(b).

4.In the event that the respondent does not take the steps set out in paragraph 3 above, the applicant be at liberty to make arrangements for the children to return to England, subject to the following conditions being met by the requesting parent, Ms Hays:
(a)Ms Hays is to take steps to relist the matter before the Family Court at County C and is to take all necessary steps to finalise the arrangements for the children upon their return to England.
(b)Ms Hays is to provide the applicant with a copy of the plan that has been endorsed by the relevant Court in England, setting out the arrangements for the children upon their return, and confirmation as to how such a plan will be funded.
(c)Ms Hays is to nominate, in writing, a suitable person(s) who can travel with the children from Sydney to City B, in accordance with the plan.

Injunctions pending return
5.Pending the children’s departure from Australia for return to England, the respondent continue to be restrained and an injunction issue, restraining him from causing or permitting or suffering the children:
(a)To be removed from the Commonwealth of Australia and in this regard all officers of the Australian Federal Police be directed to enforce, if required, the provisions of this order;
(b)To apply for any further or any other passports for the children;
(c)To be removed from the State of New South Wales, or
(d)To reside other than at his present residential address or any other address at which the applicant has agreed that the children can reside.
(e)To be assessed by a psychologist, counsellor, medical practitioner or like health professional for the sole or ancillary purpose of obtaining evidence for use in this or any related proceeding without the prior written consent of the applicant.

6.Paragraph 5(a) of these orders remain in force until a letter from the applicant is received by the Australian Federal Police advising of the travel arrangements made for the return of the children to England AND IT IS REQUESTED that the Australian Federal Police remove the names of the children X (female) born in 2011 and Y (male) born in 2014, from the Airport watchlist upon presentation for boarding the nominated flight to England on the date nominated for the said travel.
7.If the respondent does not take the steps set out in paragraph 3, he (and his agents) be restrained by injunction from entering or approaching the international terminal of the airport from which the children are booked to depart Sydney and Perth, 12 hours before and after the scheduled flight time.
8.Until further order the respondent be restrained by injunction from discussing the outcome of this proceeding, or these orders, with the children.

Passports
9.The Registrar of the Court release the children’s passports to the applicant and the applicant be responsible for ensuring that the passports are available to the respondent or any other person travelling with the children prior to travel.

Other orders
10.Leave is granted to the applicant and the respondent to release the documents from these proceedings, including any transcripts of the proceedings, to the Central Authority in England, to the Family Court sitting at County C in proceedings …, and to the High Court of Justice, Family Division, in proceedings ….
11.A sealed copy of these orders be provided forthwith to the Marshall of the Family Court of Australia, the Commissioner of the Federal Police and the police forces and services of the states and territories of the Commonwealth of Australia and the Secretary of the Commonwealth Department of Foreign Affairs and Trade.
12.The Marshall of the Family Court of Australia and the Commissioner and all federal agents of the Australian Federal Police and officers of the police forces and services of the states and territories of the Commonwealth of Australia are requested and empowered to take all necessary steps to give effect to these orders.
13.The Independent Children’s Lawyer be at liberty liaise with Ms E of the Court Children’s Service, Sydney Registry, in relation to the arrangements that should be made to advise the children of the court’s decision, including the timing of such discussions.
14.Ms Hays shall provide an undertaking to the Federal Circuit and Family Court of Australia and to the Family Court at County C (or a court of comparable competence in the United Kingdom) City B, England, that she will not press criminal or any punitive sanctions against the respondent in respect of any prior breaches or alleged breaches of orders made in proceedings … in the Family Court at County C.
15.There be liberty to each of the applicant, respondent and Independent Children’s Lawyer to apply urgently to relist the matter in relation to implementation of this order and in respect of any machinery provisions.
16.The Independent Children’s Lawyer be discharged upon the children departing 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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 & Hays has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
STRUM J:
Introduction

This is an application by the Secretary of the Department of Communities and Justice of New South Wales, the State Central Authority acting for the Commonwealth Central Authority, filed on 8 April 2022, seeking the return to the United Kingdom (which comprises England, Wales, Scotland and Northern Ireland) of the children, X born in 2011 and Y born in 2014, pursuant to reg 14 of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“Regulations”). The Regulations implement into law in Australia this country’s obligations under the Convention on the Civil Aspects of International Child Abduction (“Convention”) signed at The Hague on 25 October 1980, pursuant to s 111B of the Family Law Act 1975 (“Act”). Accordingly, the best interests of the children, although not irrelevant, are not the paramount consideration. Rather, these proceedings are merely to determine in which forum their best interests will be litigated between their parents.
The respondent, Mr Hays, is their father. The requesting parent is the children’s mother, Ms Hays, who lives in the United Kingdom.
For the reasons that follow, I find that, as pleaded by the New South Wales State Central Authority, the children were wrongfully retained in Australia not earlier than 7 January and not later than 28 January 2022 in that, as required by reg 16(1A) of the Regulations:
(a)they are under 16 years of age; and
(b)they habitually resided in a Convention country, namely, the United Kingdom, before their retention in Australia; and
(c)the mother, who is seeking their return, had rights of custody in relation to them under the laws of the United Kingdom immediately before their retention in Australia; and
(d)their retention in Australia is in breach of those rights of custody; and
(e)at the time of their retention, the mother was actually exercising the rights of custody, jointly with the father, or would have exercised those rights if they had not been retained.
The respondent father joins issues with these jurisdictional facts and, by his amended Answer and Cross-Application filed 10 May 2022, pleads all of the defences in reg 16(3) of the Regulations, namely, that:
(a)at the time the children were removed to, or first retained in, Australia, the mother was not actually exercising rights of custody, and those rights would not have been exercised if the children had not been so removed or retained (reg 16(3)(a));
(b)there is a grave risk that the return of the children to the United Kingdom would expose them to physical or psychological harm or otherwise place them in an intolerable situation (reg 16(3)(b));
(c)the children object to being returned to the United Kingdom and their objections show a strength of feeling beyond the mere expression of a preference or of ordinary wishes and they have attained an age, and a degree of maturity, at which it is appropriate to take account of their views (reg 16(3)(c));
(d)the return of the children to the United Kingdom would not be permitted by the fundamental principles of Australia relating to the protection of human rights and fundamental freedoms (reg 16(3)(d)).
For the reasons that follow, I find that none of the defences have been made out. Further, even if any of the defences had been made out, such that my discretion to refuse to make an order for the return of the children to the United Kingdom were enlivened, I would not do so. In the circumstances, I will make an order for the return of the children to the United Kingdom, subject to certain conditions, pursuant to the Regulations.
Preliminary observations – credit
Evidence was given by a number of witnesses, including the respondent father and the mother, who was called by the State Central Authority as part of its case. The parents were the only lay witnesses who were called to give evidence. The other witnesses who were called and cross-examined were all professionals, namely: Dr D, clinical psychologist, the appointed Family Report writer in proceedings between the parents in the United Kingdom; Ms E, a Senior Court Child Expert / Family Consultant attached to the Sydney Registry of this Court, the appointed Family Report writer in these proceedings; Ms F, social worker, employed by the G Service (“G Service”), who was involved with the family in the United Kingdom and also gave evidence in the England proceedings; and Ms H, a specialist psychotherapist and clinical social worker who has been appointed by the Family Court in County C in the United Kingdom proceedings as the single expert to prepare a plan to transition the children into the care of the mother (“reunification plan”).
There were a number of factual disputes, which will be decided issue by issue. This is not a case where such disputes can necessarily be resolved by a blanket finding of credit in favour of one witness over another. That said, however, as the respondent to the State Central Authority’s application, the father’s evidence and his credit in relation thereto loomed the largest.
A number of issues, discussed below, gave me great concern about the father’s credit-worthiness. In summary, some of these issues included:
(a)whether the father ever had any real intention of returning the children to the United Kingdom when he removed them therefrom to Australia, purportedly for a 10 day visit;
(b)whether the father, as a person with parental responsibility for the children and, he says, a responsible parent to them, genuinely attempted and was unable to procure their return to the United Kingdom at the supposed end of their short visit to Australia;
(c)whether the father genuinely believes that the children, aged 7 and 11 in January 2022 (and now aged 8 and 12), have attained an age, and a degree of maturity, at which it is appropriate to take account of their views;
(d)whether the father was honest, in his evidence to me, that he could not “fathom” the children being returned to the United Kingdom by the Court;
(e)whether the father was honest, in his evidence to me, that, between 10 - 18 January 2022, he was unable to obtain any legal representation whatsoever for the parenting proceedings between the mother and him which commenced on that latter date.

My concerns regarding the father were heightened by the fact that he resorted to every conceivable objection to jurisdiction and ground of defence to the return of the children to the United Kingdom, when some of those grounds were clearly without merit at the commencement or the conclusion of the case. This included his arguments that:
(a)within less than a week after the children’s arrival in Australia, they had become habitually resident here, rather than in the United Kingdom, where X had lived for all but the first nine or so months of her life and where Y had always lived;
(b)the mother did not have rights of custody in relation to the children under English law immediately before their removal from the United Kingdom or their retention in Australia or, alternatively, was not actually exercising those rights or would not have exercised them if the children had not been retained in Australia;
(c)there is a grave risk that the return of the children to the United Kingdom would expose them to physical or psychological harm or otherwise place them in an intolerable situation, which harm or intolerable situation (if any) could not be properly addressed in that country;
(d)the return of the children to the United Kingdom, a Convention country, would not be permitted by the fundamental principles of Australia relating to the protection of human rights and fundamental freedoms;
(e)the return of the children to the United Kingdom would breach a number of articles of the United Nations Convention on the Rights of the Child 1989 (“Convention on the Rights of the Child”) which, although ratified by Australia, has not been incorporated into Australian law in the same manner as has the Hague Convention on the Civil Aspects of International Child Abduction, including, the father asserts, the right to attend religious gatherings;
(f)the return of the children to the United Kingdom would breach Article 17 of the International Covenant on Civil and Political Rights 1976, namely, that no one shall be subjected to arbitrary or unlawful interference with, relevantly, his/her family, and that everyone has the right to the protection of the law against such interference. The father argued that I should have regard to and place weight upon the fact that his family, including his parents, with whom it is said the children have a good relationship, live in Australia and that the return of the children to the United Kingdom would interfere with their relationship with their paternal family. The fact that their mother lives in the United Kingdom, albeit that their relationship with her is presently fractured, seemed to be of no importance to him.
As I observed to Senior Counsel for the father, towards the end of his closing submissions, when he raised those penultimate and final matters, it seemed that his client had thrown the proverbial “kitchen sink” at the State Central Authority’s application. I do not resile from that observation. The father, by his conduct generally and, in particular, of this case, including his evidence, gave me the impression that he will stop at nothing to retain the children in Australia and certainly has not proactively sought to return or secure the return of the children to the United Kingdom. Accordingly, I approach his case and his evidence with caution.
Unlike the respondent father, the mother is a not a party to these proceedings; she was called as a witness by the State Central Authority. However, her evidence was of more limited compass and, in some respects, of less relevance than that of the husband. Whilst I address her evidence in greater detail below, when considering the various issues, suffice it to say at this stage that I found her to be a honest, credible and forthright witness, who made appropriate and, understandably, manifestly painful concessions. Insofar as it is suggested that I should view her evidence with, at least, caution because she admittedly initially lied to the children regarding her extra-marital affair, I wholly reject that submission.
I found Ms E and Ms H to be impressive witnesses, who gave considered answers and made appropriate concessions in cross-examination. This evidence was of considerable assistance to the Court.
I discuss below my concerns regarding the evidence of Dr D. However, his unchallenged evidence in one regard was of great assistance to the Court. Much of Ms F’s evidence was predicated upon that of Dr D and was therefore of limited assistance.
Evidentiary provisions
Regulation 29 of the Regulations provides:
29       Evidentiary provisions
(1)This regulation applies in a proceeding in a court under regulation 14, 19A or 25 in which the applicant is a responsible Central Authority.
(2)The application under regulation 14, 19A or 25, or a request under regulation 13, 24 or 25 relating to that application, or any document attached to or given in support of that application or request, is admissible as evidence of the facts stated in that application, request or document.
(3)An affidavit of a witness who resides outside Australia that is filed in the proceeding is admissible as evidence even if the witness does not attend the proceeding for cross‑examination.
(4)A statement contained in a document that claims:
(a)to set out or summarise evidence given in a proceeding in a court in a convention country, or before a competent authority of that country, in relation to the custody of a child and to have been signed by the person before whom the evidence was given; or
(b)to set out or summarise evidence taken in a convention country for the purpose of a proceeding under these Regulations (whether in response to a request made by the court or otherwise) and to have been signed by the person before whom the evidence was taken; or
(c)to have been received as evidence in a proceeding in a court in a convention country or before a competent authority of that country in relation to the custody of a child and to have been signed by a judge, an officer of the court or that authority;
is admissible as evidence of any fact stated in the document to the same extent as oral evidence of that fact, without proof of that person’s signature or official position.
(5)      The court may take judicial notice of the following matters:
(a)a law in force in a convention country;
(b)a decision of a judicial or administrative character made by a judicial or administrative authority of a convention country.
(6)      A document that claims:
(a)to be an order, or a copy of an order, of a court in a convention country, or a decision of a competent authority of that country, in relation to the custody of a child; and
(b)to have been signed by a judge, an officer of the court or that authority;
is admissible as evidence of that order or decision without proof of that person’s signature or official position.
(7)      In this regulation:
custody, in relation to a child, includes:
(a)guardianship of the child; and
(b)responsibility for the long‑term or day‑to‑day care, welfare and development of the child; and
(c)responsibility as the person or persons with whom the child is to live.
This is of particular relevance given that, in early 2022, the Recorder in the Family Court at County C made orders and delivered reasons for judgment in parenting proceedings between the mother and the father. I consider and discuss the Recorder’s reasons for judgment below, together with evidence given in those proceedings (including the transcript thereof).
FACTUAL MATRIX
The father was born in Australia in 1980. The mother was born in 1981. They married in England in 2008. X was born in City J in 2011. The family returned in England in mid-2012 and lived there thereafter. Y was born in 2014 in England. The parties separated in about the third quarter of 2019.
In 2019, the father and Y travelled from the United Kingdom to Australia for a few days to attend a funeral.
In late 2019, the father applied in the United Kingdom for a divorce. In November 2019, the parents informed the children that they were separating. In December 2019, the mother moved out of the family home and the children commenced living with each parent on a week- about basis. At about that time, the children first came to the attention of G Service, whose involvement with them, including by Ms F, continued until their removal to Australia in late 2021, due to concerns about each of the parents.
On 11 March 2020, a decree absolute was granted in the United Kingdom.
In mid-2020, the father sent an email to G Service, outlining difficulties with changeovers.
In mid-2020, the children travelled to Country K with the father for a holiday.
In mid-2020, a Child and Family Assessment was completed by G Service. Allegations regarding each of the parents’ care of the children had been made. In relation to the father, it was alleged that he had physically chastised Y. This was confirmed by both children. However, it was concluded that “concerns around physical chastisement could not be substantiated”. The assessment also recorded that:
… [X] whispered to the Social Worker saying, “I’m allow to live with my dad permanently”. She said that she is more happier [sic] at her dad’s home than at her mum’s home. [X] [sic] was reassured that both of her parents love her and that it is important for her to continue with the contact/care arrangements that her parents have agreed to. When asked why she doesn’t want to live with [Ms Hays], [X] could not give a reason, she only say she loves [Mr Hays] and she is happy in their home. She also said that there is a lot of fun at [Mr Hays’] home.
(Emphasis added)
The assessment also recorded that there was concern about the impact on the children of the ongoing conflict between their parents:
The children are now saying that they are not happy at [Ms Hays’] home and they wish to live permanently with [Mr Hays]. They appear to be conflicted and their loyalty to their parents seem [sic] to be divided.
In mid-2020, the children were placed on a Child-in-Need Plan.
In late 2020, the children were due to return from the care of the father, after a week with him, to that of the mother. The mother alleges that the father failed or refused to return them to her. The father alleges that it was the children who refused to go with her and that he was trying to encourage them. The incident was recorded on the father’s home CCTV and the footage thereof was played to the Court. Whilst it is clear from the footage that the children were resistant to returning to the mother’s care, it is not at all clear that the father was trying to encourage them to do so. Although I accept that he did not refuse to return them to her, I cannot be satisfied that he did not fail to do so. At that time, X was aged nine years and Y was aged 6 years. The father’s purported inability to procure the children’s compliance with his directives has been a consistent theme of this case. Responsible parenting involves sometimes making children, particularly in their younger years, do something which they may not necessarily or apparently wish, including spending time with the other parent, especially if this has been ordered by a court. I acknowledge that, at that stage, there were no parenting orders in place; however, this does not detract from what I would consider to be responsible parenting by the father. Indeed, in the absence of compulsion by an order of a court, it may increase the responsibility.
In late 2020, Y mentioned moving to Australia to a teacher and said: “Don’t tell Dad I have talked about it as he says its [sic] private stuff”.
In late 2020, the father filed an application in England, seeking that the children live with him and spend time with the mother.
Also in late 2020, the mother filed an application there, seeking that the children be returned to her care and that the father be prohibited from removing them therefrom.
In October 2020, according to the father, X ceased speaking to the mother and has not done so since.
In late 2020, Y told a schoolteacher:
… i can’t remember what [the mother] lies about but she tells lies about my dad. i love my dad. he loves me. he is getting married again, you know. we want to move to australia to get away from mum.
(As per original)
That was seemingly a reference to an apology by the mother to the children, in the latter half of 2019, for lying to them about where she had been on a weekend which, in fact, she had spent with the gentleman with whom she was having an extra-marital affair. Much was made, at trial, by and on behalf of the father, about this lie to the children which, in my view, was not inappropriate in the circumstances. Without condoning lying, as a general proposition, the rhetorical question might be posed: what else was she to do? To my mind, this lie does not reflect adversely upon either the mother’s credit or her parenting.
In late 2020, G Service drafted an agreement in relation to contact arrangements, proposing that the children live with the father and that they spend time with the mother twice a week, for a few hours after school. It does not appear the parents entered into that agreement.
In late 2020, at the unilateral request of the father, Dr L, a child psychiatrist, prepared a report in relation to the children. In late 2020, the mother filed an application seeking that the father be prohibited from permitting Dr L from undertaking any further assessment or work with the children without her consent. She also sought a defined Child Arrangements Order. In late 2020, the father filed an application for a specific issues order, namely, that Dr L provide ongoing therapy to the children and that he have permission to adduce expert evidence from her in the proceedings. In early 2021, the mother filed an application for a joint single expert to be appointed to assess the children and the parents and to provide report.
A file note prepared by Ms F in late 2020 states:
Session today on self esteem with [Y].
Completed "Things that make me..." sheet and under Angry [Y] wrote "My Mum lies and left the family".
Later we revisited this idea - how did he know? - "she told us. I can't remember what she lies about but she tells lies about my dad. I love my Dad. He loves me. He is getting married again, you know.
We want to move to Australia to get away from Mum.
I suggested that his Mum really did love him. "Well she doesn't love my dad, and I love him". When I said again that even though they didn't love each other they both still loved him, [Y] started to well up and repeated that "she doesn't, she left the family".
He also referenced an incident re a phone call between Mum and [X] where Mum had texted to say that she was sorry she had not picked up the call but [Y] said she had Hung up on [X].
In early 2021, being the first return of the proceedings in the English court, a declaration was made that the court was satisfied it had jurisdiction in respect of the children based on them being habitually resident in England and Wales. Orders were made, inter alia, for Dr D to be appointed as a single expert in those proceedings and prohibiting both parties from arranging for the children to be seen or assessed by Dr L “or any other professional”, save for Dr D, unless otherwise agreed by the other party in writing or ordered by the court. The orders made that day also contained a “warning”, in the following terms:
Where a Child Arrangements Order is in force and the arrangements regulated by it consist of, or include, arrangements which relate to either or both (a) with whom the children concerned shall live and (b) when the children shall live with any person, no person may cause the children to be known by a new surname or remove the children from the United Kingdom without the written consent of every person with parental responsibility for the children or the leave of the court.
However, this does not prevent the removal of the children, for a period of less than 1 month, by a person named in the Child Arrangements Order as a person with whom the children shall live (Sections 13(1), (2) and (4) Children Act 1989).
It may be a criminal offence under the Child Abduction Act 1984 to remove the child from the United Kingdom without the leave of the court.
(As per original)
Although that “warning” was included in those orders, at that stage, it appears there was no Child Arrangements Order in force. Rather, those orders provided that G Service “support and advise the parents as regards interim children arrangements”.
Pursuant to those orders, in early 2021, Ms F of G Service sent an email to the parents confirming their agreement that the mother would collect the children twice a week from school and that they would spend at least an hour with her, after which she would return them to the father’s home.
In early 2021, the mother collected the children from their respective schools. Y kicked, punched and bit her and tried to run away. He pulled her hair whilst driving. When they arrived at her home, he threw his shoes at her. X did not speak to her, but held her phone and pointed it at her, as though she was recording her.
In early 2021, the mother contacted G Service expressing concern about Y’s behaviour that day. She reported that he was becoming increasingly aggressive, hitting and kicking her, pulling her hair and saying that he hated her. The father also reported that X had run away from the mother and that the mother had recorded the children whilst they were distressed.
A day later, the father took the children to the mother’s home to have a discussion about the incident the previous day. When I asked him what he had discussed with the children, prior to taking them to the mother’s home, he said he talked to them about morals, values and ethics.
A few days later, in 2021, the mother again contacted G Service reporting that during the last visit, the children had run out of the front door and she had to chase them. Y picked up a brick and tried to throw it at her. She contacted the father to collect the children. A decision was made by G Service to temporarily cease contact.
In mid-2021, Dr D completed his first report. In summary, he raised concerns about the children’s welfare in the care of their father. He opined that the children were living with a view that the mother was self-interested and abusive and did not care about them and that this was a view largely held by the father and echoed by the children. Further, he opined that the mother was caring and concerned about the children and that the father’s presentation of the marriage was one in which the mother was denigrated as both a mother and a partner. He suggested that a change of residence, from the father to the mother, might need to be considered if he could not “change his stance and support contact”. Dr D was called and cross-examined at the trial before me. I have considerable reservations about his evidence, which I address below. Although he prepared subsequent reports, he agreed they were all predicated on the first one.
In mid-2021, interim orders were made which provided, inter alia, that the children live with the father and spend time with the mother for not less than one hour (and up to 8 hours in holiday times) on Monday and Wednesday of each week and for daily indirect contact. Again, those orders contained a declaration that the Court was satisfied it had jurisdiction in respect of the children based on them being habitually resident in England and Wales.
In mid-2021, the children’s contact with the mother resumed, as did the difficulties associated therewith, which subsequently came to a head later that year.
In mid-2021, Dr D completed an addendum psychological report, in which he addressed questions posed by each of the parents in relation to his earlier report including, on the part of the mother, in relation to a change of the children’s residence to her.

In mid-2021, the children travelled to Country N for a holiday with the father, with the mother’s agreement, albeit belatedly, he complains.
In late 2021, Ms F of G Service prepared a report pursuant to s 7 of the Children Act 1989 (UK). Ms F reported (at [11]), inter alia, that over the preceding 12 months, during which she saw the children on a monthly basis, they consistently repeated “we hate mummy” and “mummy left the family”. When meeting the children for the first time, they gave her a handwritten piece of paper, in which they stated that they wanted to live with their father. In this regard, Ms F stated that in her “professional opinion, this particular action appeared distinctly rehearsed and to that [sic] to have a performative aspect to it”.
Ms F continued (at [12]):
When discussing contact with their mother, this has remained to be a composition of the following statements; “We want to live with daddy”, “We hate mummy”, when asked why they want to live with daddy, both children will say “Because we hate mummy and mummy left the family”. I am worried that the children have been positioned into the narrative that their mother is not their mother at all, and therefore there is no role for [Ms Hays].
Nevertheless, Ms F recommended a shared care arrangement, with “a 50/50 division of time between [Y] and [X] and their parents, and for the parents to formulate a timetable on how the shared the care arrangement will be managed during school terms, term holidays and summer holidays”.
The difficulties in the mother’s time with the children came to a head in late 2021. During a contact visit, Y ran away from the mother’s home. The mother went out to find him, taking X with her. X alleged that, during this time, the mother tried to strangle her. The mother’s evidence, which was tested in cross-examination but which I accept, is that it was night time and dark outside and they were on a busy road. X refused to stand close to her. The mother, who was frantically calling out for Y, grabbed X by her hood to keep her close by. Whilst it may have been X’s perception that the mother tried to strangle her, I do not accept that she did so or even that she tried to do so. Given the circumstances described, there was nothing untoward in the mother seeking to so restrain X.
The police was called to help find Y. He was found. The mother reported the incident to G Service.
The following day, the father filed an application in the English court seeking to vary the contact order, to provide for supervision. That application was never dealt with and, therefore, the contact order made in mid-2021 was never suspended or varied. Nevertheless, the father unilaterally suspended contact between the children and the mother. He asserts that the police who attended the incident in late 2021 instructed him to do so. However, despite all the evidence that he was able to muster in support of his Answer and Cross-Application (which forms part of the Court Book comprising 1405 pages), he did not adduce any corroborative evidence from the English police that he was so advised by them. Further, Ms F gave evidence that G Service was routinely advised by the police of the incident and there was no mention of any advice or directive to suspend contact. To my mind, given my concerns regarding the father’s credit, he has not established, to the requisite standard of proof, that he received such a direction or advice from the police.
In late 2021, the children last spent time with the mother, supervised by Ms F.
The trial of the parents’ financial dispute proceeded in the English court over four days in late 2021 and judgment was delivered in late 2021.
The trial of the parenting dispute was listed in the English court in early 2022. Ahead of that trial, each party provided a statement to the court in late 2021 in which they each addressed, inter alia, the incident that had occurred the previous month in 2021. Further, in his witness statement, the father painted a glowing picture of the children in his care and at their schools, which is at odds with subsequent accounts.
In late 2021, the father applied for a British passport renewal for X, her passport having expired. A new passport issued in late 2021. In reasons for judgment in the parenting proceedings, delivered in early 2022, to which I refer below, the Recorder said (at [74]):
I find that [Mr Hays] obtained a British passport renewal for [X], and that he hid this fact from [Ms Hays]. He made no effort to obtain her prior consent despite her parental responsibility and the existence of these proceedings. It is irrelevant, for the purpose of this judgment, whether the passport agency/ies were prepared to issue a passport/s without a signature from both parents because [Mr Hays] knew he should have obtained [Ms Hays] consent in advance and informed her of his intentions. He acted unilaterally and in disregard of her parental responsibility. He was indifferent to her views.
In cross-examination before me, he said (in my view, extra-ordinarily) that he did not see any need to tell the mother about his passport renewal application.
In late 2021, the parties participated in a pre-trial review in respect of the forthcoming parenting trial the following month. In the order made that day, the court again declared that it was satisfied it had jurisdiction in respect of the children based on them being habitually resident in England and Wales. Amongst the applications listed in the order were the father’s application for a suspension of contact dated late 2021 and an oral application made on his behalf that day for an adjournment of the trial the following month to permit the family to undertake family therapy. The recitals to the order noted, inter alia:
The father proposes that interim contact be restarted on the previous times and dates but with supervision by an agreed ISW. The mother does not agree that contact should be suspended nor that there should be any supervision. The social worker [Ms F] does not support any suspension or supervision of contact.
The Court did not deal with the father’s application filed in late 2021 and confirmed the trial would commence in early 2022.
The events which gave rise to the State Central Authority’s application to this Court, the subject of these reasons for judgment, commenced on 28 December 2021. On that day, the father booked return tickets from City B to Sydney for the children and himself, departing the following day, 29 December 2021, and returning on 8 January 2022. There was no suggestion whatsoever that the father, the children or anyone else informed the mother of the trip, or that she otherwise became aware thereof, prior to 30 December 2021. It is therefore remarkable that in the joint chronology, which I directed to be prepared, the father and/or his lawyers saw fit to strike out the words “(without the mother’s knowledge)” which had been included by the State Central Authority and the Independent Children’s Lawyer. It was never part of the father’s case that the mother had any knowledge of the children’s removal from the United Kingdom prior to the date thereof, on 29 December 2021, or indeed until 30 December 2021. True it is, that the extant orders made in mid-2021, which provided that the children live with the father and have contact with the mother, stipulated that nothing prevented the removal of the children, for a period of less than one month, by a person with whom they were specified by those orders to be living. However, that is a very different thing to the mother having no knowledge of their removal, albeit lawful. She nevertheless had parental responsibility for them. Section 2(1) of the Children Act 1989 (UK) provides that “[w]here a child’s father and mother were married to … each other at the time of [the child’s] birth, they shall each have parental responsibility for the child”. Further, s 3(1) of that Act defines parental responsibility as “all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property”. Whilst the father was entitled to lawfully remove the children from the United Kingdom for a period of less than one month, in my view that did not absolve him, at least as a matter of responsible co-parenting (if not as a matter of law) from informing the mother of the trip to Australia which he had unilaterally (and, in the circumstances, surreptitiously) booked.
The father’s evidence is that he did not disclose the children’s and his travel plans to the mother prior to their departure because she had created difficulties for him in relation to his travel with them to Country N in mid-2020. However, that was prior to the order that the children live with him, which entitled him to remove them from the United Kingdom for a period of less than one month. I do not accept the father’s excuse; in late 2021, the children lived with him and, accordingly, by this time he was entitled to remove them for this limited period without the mother’s consent. He should have told her; his lack of transparency in this regard, together with Y’s earlier disclosures to his teachers and the events which unfolded in early 2022, lead me to the conclusion that, on balance, notwithstanding a nominal return date on 8 January 2022, the father was at least considering not returning the children to the United Kingdom at the time of their removal. The fact that he unilaterally applied for a passport renewal for X in or about late 2021, without disclosing same to the mother, fortifies in my mind that conclusion.
The father’s parents and his sister live in Sydney. He had not visited Australia since mid-2019, prior to the outbreak of the Covid-19 pandemic. His evidence is that, around late 2021, he spoke with his mother in Australia, during which he heard her coughing uncontrollably and became concerned about her health. He deposes that “she has had [surgery] and suffers from a chronic […] disease”. What he did not tell the Court, until it was elicited in cross-examination, was that his mother underwent surgery more than 20 years ago, whilst he was still living in Australia and prior to his marriage to the children’s mother. His mother, Ms O, filed an affidavit in these proceedings on 28 April 2022. Nowhere in that affidavit does she mention her surgery. In relation to her coughing, she deposes that she told the father: “It’s a result of [a chronic illness]. My doctor has told me it will not get any better and is incurable”. There was no evidence as to her prognosis or whether it was life-threatening. I infer that it was not the latter, as she deposes that she was “shocked” (as well as delighted) when the father told her on 28 December 2021 that the children and he would be arriving shortly. Had it been otherwise, she would not have reason to be surprised by their visit.
The father’s sister, Ms P, also filed an affidavit on 28 April 2022, in which she makes no mention whatsoever of their mother’s health issues.
On 29 December 2021, the father and the children departed the United Kingdom and they arrived in Sydney the following day, on 30 December 2021.
On 30 December 2021, the mother first learned that the children were in Australia. Her evidence is that, in a telephone conversation with Y that day, he told her that he was in Australia and would “never be coming back”. According to her, immediately afterwards, the father sent her a WhatsApp message confirming that the children were in Australia to see his mother who was ill. According to him, he sent that message before the telephone call. In my view, nothing turns on which of the telephone call or the WhatsApp message preceded the other; either way, that was when the mother first learned that the children had been removed from the United Kingdom to Australia.
The father’s evidence is that, very shortly after arriving in Australia, X said to him: “It’s so beautiful here. It’s so much warmer and everything seems so much better” and Y said to him: “I am never leaving. I kept talking about my last trip her [sic] and I hate England”.
I infer that these statements were made prior to 3 January 2022, because the husband proceeds to depose that, on that date, when he was putting X to bed:
… she began crying and she said “I don’t want to fly back. I hate my life. I want to stay here”. [The father] said “We have 5 days here so let’s really enjoy it”. [X] said “I’m never leaving. I’m not going”. [X] began crying uncontrollably and hyperventilating. Her skin became very red and she was shaking. She spoke to me about the events of [late 2021] and said “she tried to kill me. I don’t feel safe and no one listens to me. I’m not going”. She said “I’m sorry daddy you cannot make me go. I will lock myself in the bathroom. I’ll run away if I have to. I hate it. I’m not going. I’m going to live in Australia”.
When asked, in the course of his cross-examination, how he had responded, he recounted that he said to her that he was “really sorry” for what she had “gone through”, without any attempt to disabuse her or reassure, notwithstanding his glowing accounts of her (and Y’s) life in his care and at school in the UK. Later in his evidence, he said that he often adopts the children’s views and also that he believes he needs to “campaign” for them. I find the father’s actions and / or inaction in this regard wholly inappropriate and, at best, an abrogation of his parental responsibility.
I think it unlikely that those extremely negative sentiments about the mother and England allegedly expressed by X to the father on 3 January 2022 would have preceded the somewhat more measured, positive sentiments about Australia voiced by her to which he deposes.
As I have found above, I do not accept that the mother tried to kill X. Further, I do not accept that the father genuinely believed (or believes) that the mother would do so. On the evidence, as I have found it to be, he had no reasonable basis to do so. As I have found, nowhere is there any evidence that the father tried to disabuse X of this alleged belief; it behoved him to do so. He seems to have accepted her allegation unquestioningly; I do not need to decide whether he did so because it suited his desire to live in Australia (which Y had disclosed to be the case) or because of ineffectual parenting on his part.
Elsewhere, the father deposes that, after several days in Australia, Y said: “I am never leaving Australia. I’m going to live here forever”, and X said: “I hate the UK and I will never go back”.
In early 2022, the father took X to see Dr Q, who he deposes diagnosed her as suffering from severe anxiety. Exhibited to the father’s affidavit filed 28 April 2022 is a medical certificate from Dr Q, dated 4 January 2022, which stated as follows:
THIS IS TO CERTIFY THAT
[X] has a medical condition and will be unfit for fly [sic] from 04/01/2022 to 04/02/2022 inclusive. severe anxiety with family issues [sic]
It is a strangely worded medical certificate. In particular, it does not disclose whether Dr Q observed any manifestation or symptoms of severe anxiety, or whether he was merely told by X or the father that she was suffering therefrom.
Notwithstanding Dr Q’s medical certificate, which opined that X would be unfit to fly until 4 February 2022, on 5 January 2022, at 7:03am, the father sent an email to X’s school in the United Kingdom advising that, inter alia, the children and he were in Australia “with a return flight booked for Saturday”, namely, 8 January 2022. Inexplicably, that email was not copied to the mother. However, at 10:23pm that day, an email was sent by the school in response to the father and copied to the mother which stated, inter alia:
Thank you for letting us know; [Ms R] has authorised [X’s] absence on Thursday and Friday this week and we look forward to seeing [X] back in school on Monday.
I am of the view that, by reason of the inconsistency between the medical certificate and the father’s email to the school, he was, at least by then, proverbially “hedging his bets”.
On that same day, at 2:07pm, the mother’s English lawyers sent the father’s English lawyers a covering letter and a proposed order. Omitting the salutations, the letter stated:
My client has, after much careful thought, come to the conclusion that she cannot proceed with her application at present.
The recent final hearing on the financial matters was deeply traumatising for my client, as your client is well aware, and my client does not at this stage have the resilience which [Dr D] identified in his report she would need in order to challenge your client and support the children through a change of residence, if one were ordered. This is particularly so given the severity of the parental alienation in this case.
I attach a draft order which is self-explanatory. Please let me know if you have any comments or amendments. As you will see, my client would like to have a meeting with the children in the February half term which is long enough to be meaningful.
I will address the issue of parental alienation below. The order proposed by the father contained the usual declaration that the English court was satisfied it had jurisdiction in respect of the children based on them being habitually resident in England and Wales. It also proposed that, by consent, the final hearing listed to commence in early 2022 be vacated and that:
The children will live with the father and spend time with the mother as follows:
a.for at least 3 hours on a date to be agreed during the February 2022 school half-term;
b.such other time as may be agreed.
Whilst all the parties agree, in the chronology initially prepared by the Independent Children’s Lawyer, that the times referred to in the previous paragraphs relating to the mother and the parents’ English lawyers were United Kingdom time, that is not readily apparent from those emails which are annexed to the Affidavit of Ms T affirmed 8 April 2022 and filed on behalf of the State Central Authority, nor is there any other evidence to this effect. However, I accept that agreed fact.
It was argued by the father at trial that the children’s habitual residence had changed from the United Kingdom to Australia by 3 January 2022. However, as will become shortly apparent, he consented to and pressed for orders to be made in the terms initially proposed by the mother, which included the declaration that the English court had jurisdiction in respect of the children, based on them being habitually resident in England and Wales. In the circumstances, I find that, at least as at 5 - 7 January 2022, both parents considered the children to be habitually resident in the United Kingdom.
It was also argued by the father at trial that, by the orders proposed by the mother in early 2022, she had relinquished her rights of custody in relation to the children under the law of the United Kingdom, such that she was no longer actually exercising such rights or she would not have exercised those rights if the children had not been removed or retained from that country. Notwithstanding Y’s protestations to the mother in late 2021, she had no reason in early 2022 to believe that the children would not be returned to the United Kingdom on 8 January 2022. That was, at least, implicit from the proposed order drawn by her English lawyers which referred to the children being habitually resident in England and Wales. Contrary to the father’s argument, by the orders proposed by the mother, there was no suggestion whatsoever of any relinquishment by her of parental responsibility for, or rights of custody in relation to, the children. The proposed orders provided for her to spend time with the children for one period of at least three hours during the February 2022 school half-term holidays and at such other times as might be agreed and she had no reason, at that time, to believe that the children would not be returned to the United Kingdom on 8 January 2022, as the father had represented he would do.

The father deposes that he informed his English lawyers that he would sign the minute of orders that the mother had proposed and that matters were therefore concluded. Therefore, he had the benefit of legal advice available to him in deciding to consent to the orders and the notation that the children were habitually resident in the United Kingdom. Further, he deposes that:
They informed me that they would therefore move on to other work as fees needed to be deemed urgently at that point if the hearing were to go ahead. We did not utilise that week, as planned, for preparing for the hearing.
In early 2022, at 12:17pm, the father’s English lawyers sent an email to the mother’s English lawyers attaching a notice of change of address for service and advising them to “please liaise directly with [Mr Hays] from here on unless otherwise informed”.
The following day, at 12:51pm, the mother’s English lawyer sent an email directly to the father relevantly stating: “… I look forward to hearing from you urgently in relation to my letter and draft order of yesterday (further copies attached)”.
Following receipt of that email, the father signed the proposed order and returned it to the mother’s English lawyer that day. He deposes that he did so urgently and “in good faith”. Although it is not necessary for me to determine the father’s bona fides in this regard, given the matters referred to above, I have considerable doubts.
Clearly in response to that email, as is manifest from the email chain, albeit dated early 2022 at 3.36pm, the father in Australia sent an email to the mother’s English lawyer attaching the proposed order signed by him.
At some stage in early 2022, the father took Y to see Dr U, at the same clinic as Dr Q. He deposes that the previous day, Y had said to him: “I’m going to light the aeroplane on fire or I’ll stab the pilot. I am not going” to the United Kingdom. Dr U merely stated as follows:
THIS IS TO CERTIFY THAT
[Y] has a medical condition and will be unfit to fly from 07/01/2022 to 08/02/2022 due to familial issue
Dr U’s medical certificate in relation to Y is even less helpful than that of Dr Q in relation to X. Y’s medical condition was not specified; Dr U did not explain what the “familial issue” was or how it rendered him unfit to fly; and he did not report any of the statements or behaviour of Y alleged by the husband during the consultation.
It is surprising, to say the least, that the husband, whose case was very well prepared and who saw fit to take every conceivable point in opposition to the return of the children to the United Kingdom, even those which manifestly had little or no merit, did not call either Dr Q or Dr U to give evidence, given the apparent importance of their evidence. Rather, he merely relied on the certificates on their face. It is open to me to infer, and I do, that their evidence would not have been of assistance to him: Jones v Dunkel (1959) 101 CLR 298. This is especially so in circumstances where the husband:
(a)deposes that when Dr Q asked X why she did not wish to return to the United Kingdom, she apparently replied: “My mother strangled me and I hate my life there. I hate everything about it. It’s freezing. It’s dark. It’s miserable. I’m not going. I just want to live here and be happy”, albeit that Dr Q did not report same; and
(b)deposes to statements and behaviour by Y during the consultation with Dr U, albeit that Dr U did not report same.
Included in the Court Book (at p 1312), as part of the father’s evidence, is a letter headed “Medical Certificate” by Dr Q to the father’s solicitor at the time, Mr S, dated 27 April 2022, in response to an email from that solicitor. That document was clearly prepared for the purposes of this proceeding. Dr Q confirmed that X attended upon him in the father’s presence, that it was the only attendance by her upon him and that “[X’s] mental and physical maturity is matching her age (10 years [sic] old girl)”. Dr Q advises that he recommended counselling and provided a referral to an unnamed psychologist. Dr Q’s account of what X told him does not accord with the father’s evidence. He records that X told him she “did not like go [sic] overseas to meet her mother and [Mr Hays] supporting that”; “[X] disliked the idea travel / fly [sic] to the United Kingdom to visit her mother”; “[X] did not like to go to the United Kingdom”; and the “trip was too long for her”. He also reported that the trip was making her very distressed, with a high level of anxiety; however, this was in answer to a question asking him about “any views that [X] may have expressed about returning to the United Kingdom and the strength of those views”. What is not clear is whether Dr Q observed distress and anxiety of whether it was merely thus described to him by X or, indeed, whether it was the father’s account to him.
On 7 January 2022, at 9:22am, the father sent a WhatsApp message to the mother in the following terms:
Hi [Ms Hays], as [Y] told you yesterday he was refusing to return today and that remained the case. He and [X] are both experiencing extreme anxiety about flying to [City B] and they are not fit to fly. If you would like to speak to them later then as usual please let me know.
It is not clear whether, at that stage on 7 January 2022, Y had yet attended upon Dr U. If he had, the father made no mention at all to the mother of Dr U’s medical certificate or that of Dr Q.
About half an hour later, at 9:53am on 7 January 2022, the mother sent a WhatsApp message to the father, replying (in my view, understandably) in the following disgruntled, somewhat sarcastic terms:
Oh dear. What a mess. The children were taken out of the country without notifying me prior to this action. And now they’re in Australia and you say they’re too anxious to come home and not fit to fly home.
Whats [sic] your plan [Mr Hays]. What are you going to do now with the children? They should be in school. All of this is without my approval and without telling social services. Tell me what you are planning to do with my children. When are they coming back to [City B?]
Straight answers only. Just a date will suffice.
Of course I wanted to speak to the children still. Silly question.
On 10 January 2022, the father sent an email to X’s school, which was merely copied to the mother, in which he advised that the children and he were still in Australia, that they were “presently deemed not fit to fly” and that he would provide an update the following day.
Further, on 10 January 2022, the mother’s English lawyer sent an email to the father stating, inter alia:
The children have not been returned to their schools for the start of the new term and you have declined to confirm to my client when they will be returned.
Unless we have your confirmation by return that you will return the children to England forthwith, my client will make an immediate application under the Hague Convention for the return of the children.
In light of these extreme actions, my client has also reconsidered her decision to withdraw her application. The final hearing will therefore be proceeding [in early 2022].
The father deposes that he was “shocked at her duplicitous actions”, that he no longer had a lawyer retained and that he was told his Senior Counsel, who was intimately familiar with his case, was no longer available. This gives rise to two matters.
First, I do not at all accept that the mother’s actions were, or could fairly be described as, “duplicitous”. The father’s criticism of the mother is, in my view, entirely unwarranted. I am satisfied that, when the mother made and conveyed her settlement proposal to the father, she was unaware that the children would not be returned to the United Kingdom on or about 8 January 2022. To the contrary, insofar as there was any duplicity, such criticism might justifiably be levelled against the father. As I have observed above, it is not clear whether, on 7 January 2022, when the father first advised the mother that the children were not fit to fly home to the United Kingdom, Y had yet attended upon Dr U. Further, the father made no mention at all to the mother of the medical certificate of Dr Q (or Dr U), nor did he convey any indication to her that, if and when the children were able to fly to the United Kingdom, he would ensure they did so. He was mysteriously silent in this regard.
Secondly, as at 10 January 2022, the father could be under no misapprehension that the parenting trial, listed to commence in the United Kingdom in early 2022, would in fact be proceeding. Insofar as he asserts he was told that his Senior Counsel, who was “intimately familiar” with his case, was no longer available, he had a week to secure other legal representation at trial. He asserts that he was unable to do so; however, there was not a skerrick of evidence that not a single other barrister at the English Bar, whether junior counsel or Senior Counsel, was not available to appear for him at trial in the United Kingdom. That seems inherently implausible. As I observed, when this issue was raised before me, legal representation is a privilege, not a right, and this applies all the more so to legal representation by Senior Counsel. Further, as I have observed above in other respects, it is surprising, to say the least, that the husband did not adduce any evidence, either from his English lawyers (who have resumed activity for him there) or, for example, from barristers’ clerks who were approached as to the availability of counsel.
Nevertheless, on 10 January 2022, the father sent an email to the English court in the following terms:
Please find attached my agreement to vacate the hearing as was urgently requested and my signature for the draft order.
I am sending this myself because after receiving this I no longer have lawyers instructed.
In my view, it is remarkable that the father submitted the proposed order, signed by him, to the English court in the knowledge that the mother had withdrawn her consent thereto. The mother’s lawyers responded to the court and the husband, later that day, as follows:
The mother has not signed the draft order and she does not consent, at this time, to the final hearing being vacated. Circumstances have moved on, in light of the father’s very recent abduction of the children to Australia.
On 11 January 2022, the mother’s lawyer sent a further email to the father advising that, in circumstances where he had not responded to the previous day’s email, the mother would therefore be proceeding with an application under the Convention and seeking information about the children. The following day, on 12 January 2022, the mother submitted an application to the International Child Abduction & Contact Unit of the office of the Official Solicitor of the United Kingdom, seeking the return of the children.
Further, on 12 January 2022, the listing manager of the County C court wrote to the mother’s English lawyer and to the father by email advising, inter alia, that the final hearing remained listed; both parents were required to attend the hearing and, if not, orders might be made in their absence; and, if the father wished to do so by video link from Australia, he was required to provide “written evidence to the court in support of his position on the issue of remote attendance by no later 4pm [sic] Thursday 13 January”.
That same day, namely, on 12 January 2022, at 1:46 AM, Mr S, solicitor, of V Lawyers in Sydney, sent an email to the father, providing him with the details of Ms W, consulting psychologist, stating that he had “briefly discussed your situation” with her. Mr S further stated:
I have advised [Ms W] that if she can meet with the children, I may require a report from her, in relation to the children’s views.
It is not clear why, at that stage, with the parenting trial due to commence in the United Kingdom some days later, Mr S, an Australian lawyer, might require a report from Ms W in Australia in relation to the children’s views.
However, this was clearly not the first occasion on which the father had heard of Ms W. That is because, about 1.5 hours earlier, at 12:15 AM on 12 January 2022, the father emailed Mr S, stating as follows:
Hi [Mr S]
Can I ask you to kindly make the request / appointment. I have been strongly advised this is the better approach.
The children are free and available any time and I would like them to be seen urgently.
I attach the doctor notes and referrals.
Regards,
[Mr Hays]
Mr S did as he was instructed by the father to do, as by letter dated 26 January 2022 to him, Ms W thanked him “for referring [Mr Hays] to me for counselling on 12th January last” and said: “Following your letter of briefing by email dated 25th January, here with my report prepared, as treating psychologist, in response”. In that letter dated 25 January 2022, sent under cover of email, Mr S advised Dr W:
Kindly note that we act for [Mr Hays]… who is the applicant in pending proceedings before the [County C] Family Court in the United Kingdom.
It is unclear whether Mr S’s referral on 12 January 2022 was, in fact, for counselling or for a report. His contemporaneous correspondence that day tends to suggest the latter; however, Ms W’s subsequent correspondence, about a fortnight later, states that it was for the former.
The father attended upon Ms W on 13 January 2022 and the children first attended upon her on 20 January 2022, as well as on 10 and 24 February 2022 and 17 March 2022. Therefore, when the children first attended upon Ms W, she saw them with the prior knowledge of the father’s account. On the first return of the proceedings in this Court, on 12 April 2022, the Honourable Justice Bennett made an order, until further order, restraining the father from causing or permitting or suffering the children, or either of them, to be assessed by a psychologist, counsellor, medical practitioner or like health professional for the sole or ancillary purpose of obtaining evidence for use in this proceeding without the prior consent of the State Central Authority. It will be recalled that the order made in the English court in early 2021, prohibited both parents from arranging for the children to be seen or assessed by Dr L “or any other professional”, save for Dr D, unless otherwise agreed by the other party in writing or ordered by the court.
At trial before me, the father sought to rely upon an affidavit of Ms W filed on 28 April 2022. I ruled that he could not do so and said that I would provide my reasons for so overall in this judgment. I now do so.
Section 138(1) of the Evidence Act 1995 (Cth) provides:
(1) Evidence that was obtained:
(a)improperly or in contravention of an Australian law; or
(b)in consequence of an impropriety or of a contravention of an Australian law;
is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
Section 138(2) provides:
(2)Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning:
(a)did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning; or
(b)made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission.
I was not taken to any authority dealing with the question whether the words “Australian law” in paragraphs (a) and (b) of s 138(1) are referable only to a contravention thereof, or also to an impropriety under Australian law. However, as a matter of construction, I am of the opinion that, whilst any contravention must be in respect of an Australian law, any impropriety is not so constrained. To hold otherwise would not only be to read paragraphs (a) and (b) grammatically incorrectly, but would also render the use of the words “improperly” and “impropriety” otiose; there could be no distinction between evidence obtained improperly or in consequence of an impropriety under Australian law and evidence obtained in contravention or in consequence of a contravention of an Australian law.
The term “Australian law” is defined in the Dictionary to the Evidence Act as a “law of the Commonwealth, a State or a Territory”. The word “law” is defined in clause 9 of part 2 of the Dictionary, as follows:
(1)A reference in this Act to a law of the Commonwealth, a State, a Territory or a foreign country is a reference to a law (whether written or unwritten) of or in force in that place.
(2)A reference in this Act to an Australian law is a reference to an Australian law (whether written or unwritten) of or in force in Australia.
There is no definition of “impropriety” in the Evidence Act. It has been held that, ultimately, it is for the courts themselves to determine whether methods used to obtain evidence are proper or improper: see Ridgeway v The Queen (1990) 184 CLR 19 at [36] - [37] per Mason CJ, Deane and Dawson JJ.
In Parker v Comptroller-General of Customs (2009) 83 ALJR 494 at [28], French CJ noted that the meaning of “improper” in the Oxford English Dictionary includes “not in accordance with truth, fact, reason or rule; abnormal, irregular; incorrect, inaccurate, erroneous, wrong”.
It has been held that the word “improperly” in s 138(1)(a) and the phrase “in consequence of an impropriety” in s 138(1)(b) should not be narrowly construed: Director of Public Prosecutions v Carr [2002] NSWSC 194 at [34].
In Australian Competition and Consumer Commission v Apple Pty Ltd (No 3) [2018] FCA 617 at [69], Lee J observed that:
… the weight to be given to public policy favouring the exclusion of the evidence (including the public interest in maintaining standards of propriety by those entrusted with statutory powers) will necessarily vary depending upon the context, including whether one is considering criminal law enforcement or the activity of civil regulators. It seems to me that this context will not only be relevant at the second stage which has, as its point of departure, evidence obtained improperly or in contravention of an Australian law, but also in the anterior, first stage of value to the assessment of what is, in fact, improper in all the circumstances.
In Ames v Ames (2009) 42 Fam LR 95 at [96], Dawe J held that obtaining a swab from a child by telling him a deliberate lie that it was for a medical test, and not related to paternity, was evidence obtained in consequence of an impropriety.
Similarly, in LGM v CAM [2011] FamCAFC 195, the Full Court held that the failure of a trial judge to comply with the obligation under s 132 of the Evidence Act to ensure that a witness understood the effective s 128, and her rights under it, fell within the definition of “impropriety”.
In R v Workman [2004] NSWCCA 213, it was not contended that evidence was obtained “in contravention of an Australian law”. The evidence was obtained as the result of actions which were explicitly lawful in Queensland, where they took place. Rather, it was argued that the obtaining of the evidence was “improper” because, had the recording been made in New South Wales, it would have been illegal, being a contravention of s 5(1) of the Listening Devices Act 1984 (NSW).
Grove J said at [13] - [14]:
13.It was contended that the statutory prohibition in New South Wales was no matter of mere regulation but a legislative condemnation of defined conduct by categorizing it as criminal and providing for available punishment both by fine and a significant term of imprisonment. It was therefore argued that conduct so categorized, which was the source of evidence sought to be tendered in a New South Wales court in respect of offences alleged to have been committed in New South Wales, should be regarded in terms of s138 as improperly obtained.
14.Section 138 is directly focussed upon the obtaining of evidence and in this instance that must refer to the creation of the recording which became the subject of tender, the obtaining of which was indisputably lawful as it was the product of actions in the State of Queensland and governed by Queensland law. The invitation to consider the criminality of what occurred, if it occurred in New South Wales, is to place focus upon the presentation of evidence in distinction from focussing upon its being obtained. I do not need to draw upon it for my conclusion that the appellant’s submission should be rejected, but that conclusion seems to me to be more in harmony with the spirit of s 118 of the Commonwealth of Australia Constitution than a conclusion that conduct leading to the obtaining of evidence, expressly declared lawful in Queensland, should be held to have produced improperly obtained evidence by a New South Wales court.

Further, I agree with the submission on behalf of the State Central Authority that the intensity of the children’s wishes is disproportionate to their actual experience, as I have found it to be on the balance of probabilities. For example, their expressed views about England appear to have commenced within days of arriving in Australia. Their descriptions of life in England do not accord with even the father’s evidence in the proceedings there.
This was further explored by counsel for the State Central Authority in his cross-examination of Ms E, where the following exchange between them occurred:
[COUNSEL FOR THE STATE CENTRAL AUTHORITY]: And in this case, [Ms E], it’s that strength of feeling that they project, that’s precisely one of the indicators that there’s something perhaps not right. Would you agree with that?
[Ms E]: As I said – yes, I think the fact that there isn’t that ambivalence or balance is – is of concern and the fact that they’re thinking was so polarised – all good or all bad, you know, that – that “the UK and mum is completely bad”. There’s no redeeming features in any of it, versus Australia being wholly positive.
[COUNSEL FOR THE STATE CENTRAL AUTHORITY]: And that reflects their views about mum and dad?
[Ms E]: Yes.
[COUNSEL FOR THE STATE CENTRAL AUTHORITY]: … That’s a reason, isn’t it, that perhaps less weight might be attributed to those – the expression of those views because of the ideologised nature of their perception of Australia and of their father?
[Ms E]:Yes. I think I – I made reference to that in my report that – that sort of splitting or – or lack of tolerance of any sort of difference or – or gives caution in – in attributing too much weight to their views.
Ms E continued in this regard, as follows:
[Ms E]: I think the – the interesting thing was the fact they didn’t miss their peers at all, which at – at their ages in middle childhood, peers are becoming – you know, they have a very big part in – in most children’s lives. So often children of these ages would have – sort of, best friends that they would want to maintain connections with, that they would miss if they were separated from. And that was striking to me, that there was no sadness or sense of loss or acknowledgement of any loss with – with those kind of relationships.
It was further put to Ms E, by counsel for the State Central Authority, that there was nothing the children had said to her, when they were explaining why they hold the views they do in relation to their mother, that would reasonably explain their response to her. She responded:
[Ms E]: Look, they certainly spoke about negative experiences with … their mum. … But their behaviours and their comments seem disproportionate to – to that.
[COUNSEL FOR THE STATE CENTRAL AUTHORITY]: And what’s the significance of that in your view?
…
[Ms E]: …look, when children are rejecting a parent – and children can reject parents for any number of reasons. Sometimes they can be realistically estranged because of abuse or – or negative experience, on a continuum right through to where children could be alienated from a parent. One of the markers of – of children being extremely aligned or alienated from a parent is that disproportionality, is the fact that their negative views aren’t explained or justified by the behaviour they’ve experienced. So that can be a marker of that sort of distorted perception.
[COUNSEL FOR THE STATE CENTRAL AUTHORITY]: And in this case, for example, [Y] – I think you described it, he tells you a story about him cracking his head open, but it’s jumbled?
[Ms E]: Yes.
[COUNSEL FOR THE STATE CENTRAL AUTHORITY]: So it didn’t really make sense, what he was saying; is that fair?
[Ms E]: Yes. It was hard to follow, yes.
[COUNSEL FOR THE STATE CENTRAL AUTHORITY]: And he also told you that “Mummy betrayed us. She was being evil and mean”?
[Ms E]: Yes.
[COUNSEL FOR THE STATE CENTRAL AUTHORITY]: Did he explain to you – or did you ask him what he met by the – what – how she betrayed him, or them?
…
[Ms E]: Look, he didn’t go into detail about that. That – it – and some of the comments about hating his mother seem to lack depth…So there was this kind of comment, this superficial comment of, you know, when we were talking about who you would talk to if you were upset or sad about something. And he said, you know, “Dad. I talk to Dad. He’s so nice and loyal, or my sister. I can trust her. And I love them. But Mummy betrayed us; she was being evil and mean. She’s minus a trillion out of ten.” And then he – he went onto these negative comments about what he would do to Mum.
[COUNSEL FOR THE STATE CENTRAL AUTHORITY]: But struggles to tell you what Mum did to him?
[Ms E]: Yes, yes.
[COUNSEL FOR THE STATE CENTRAL AUTHORITY]: Yep. The same – would that same apply to [X]? She struggled to described the actual – any event or incident that the mother was involved in that might have led to her views, other than, perhaps, I think she said she – the mother tried to kill her?
[Ms E]: Yes. Well, she – she spoke about “[Ms Hays]”; she referred to her mum as [Ms Hays], that, “She was horrible and mean to me. She makes fun of me. She tried to kill me and I hate her.” Then she spoke about her pulling the back of her hood and choking her, that she tried to smash her brother’s head, that she was rude. And then this comment about being a timer, calling [X] a timer, that [X] would stare at the floor and want to go home, and was forced to stay there.
[COUNSEL FOR THE STATE CENTRAL AUTHORITY]: And the comment about the timer, that’s really the only comment that – of detail – of any particular detail that she gives you, doesn’t she? She doesn’t say, for example, what mean things her mother had said to her?
[Ms E]: No.
In the circumstances, I dismiss the father’s defence under regulation 16(3)(c).
Regulation 16(3)(d) - The return of the children would not be permitted by the fundamental principles of Australia relating to the protection of human rights and fundamental freedoms.
Senior Counsel on behalf of the father submitted that an order for the return of the children to the United Kingdom would breach, inter alia, the following articles of the United Nations Convention on the Rights of the Child:
a.It would not in their best interests [Art. 3 a.] (as the term is used internationally and not by reference to s.60CC of the Family Law Ac 1975 (Cth);
b.It would subject the children to cruel, degrading treatment and punishment [Art. 37 (a)];
c.It would result in the arbitrary deprivation of their liberty, which fails to consider the particular needs of the children and prohibits them from having contact with their father [Arts 10. 2. And 37. (b) and (c)]; and
d.It woule have the effect of prohibiting the children from attending religious gatherings which is a staple of their life [Art. 14].
That argument was primarily predicated upon the children being returned pursuant to the regime initially proposes by Ms H, which would see the children placed into foster care for a period of time in the United Kingdom, pending reunification with their mother. Notwithstanding that Ms H gave evidence that, if the children were not the subject of parental alienation by the father against the mother, that initial plan would no longer be relevant, Senior Counsel for the father nevertheless persisted with this ground of defence. Indeed, he added to it in closing submissions, further referring to and relying upon the 1976 International Covenant on Civil and Political Rights and the children’s right to family. It should have been obvious that, even if that were a consideration, it worked equally (if not more so) against the father; by his wrongful retention of the children in Australia, he has deprived them for some nine months of their mother, her family, the opportunity to spend time with her and / or to repair their relationship with her.
In DP v Commonwealth Central Authority [2001] HCA 39 at [102], Kirby J, albeit in obiter dicta, said:
102.… Regulation 16(3)(d) was not invoked, either at trial or in the Full Court, in the present cases. It would apply where the person opposing the order established that, in the country of habitual residence, matters regarded in Australia as fundamental to the protection of human rights and freedoms would not be observed were the child returned. Amongst other things, this would include a case where it was demonstrated that, notwithstanding formal adherence to the Convention, the authorities and officials of the country of habitual residence were corrupt, that due process would be denied to the child or to the custodial parent or that, otherwise, basic human rights would not be respected.
This is clearly not such a case. It could not be sensibly submitted that the authorities and officials of the United Kingdom are corrupt, that due process would be denied to the children or the father or that, otherwise, basic human rights would not be respected there.
In Director-General, Department of Families, Youth and Community Care v Bennett (2000) 26 FamLR 71 at [56], in an application (as in this case) for a return to the United Kingdom, the Full Court held that:
56.The Reg 16(3)(d) exception is extremely narrow and is limited to circumstances in which the return of the child ought not be permitted by the fundamental principles of Australia relating to the protection of human rights and fundamental freedoms. There is nothing demonstrated whatsoever in respect of a return of an English born child to England which would resemble any breach of any human right or fundamental freedom which this child possessed. Regulation 16(3)(d) derives from Art 20 of the Convention. According to the Report of the Second Special Commission meeting to review the Convention's operation, Art 20 was inserted because the Convention might never have been adopted without it, and it was intended as a provision which could be invoked on the rare occasion that the return of a child would utterly shock the conscience of the court or offend all notions of due process.
In McCall v State Central Authority (1995) FLC 92-551, the Full Court declined to find that the return of a child to England, without treating its individual welfare is paramount, would be in breach of reg 16(3)(d). Rather, that defence requires not simply that the return of the children would be incompatible, even manifestly incompatible, with human rights and fundamental freedoms, but that these rights and freedoms simply do not permit the children’s return at all (at 81,519). The Full Court noted (at 81,518) that the provision in the regulation is intended to apply to “rare occasions that the return of the child would utterly shock the conscience of the Court or offend all notions of due process”. I do not find that to be so in this case.
Further, the Full Court in McCall said at 81,519:
The point is made that to be able to refuse to return a child on the basis of this Article, it would be necessary to show that the fundamental principles of the requested State concerning the subject matter of the Convention do not permit it; it will not be sufficient to show merely that its return would be incompatible, even manifestly incompatible with these principles.
It is clear that the applicant in the present case could not satisfy these tests and indeed it is difficult to imagine a situation in which this test could be satisfied as a distinct test from that set out in Regulation 16(3)(b). However, that issue can no doubt be resolved in the future.
During the hearing, I noted my concern at the suggestion on the half of the father that a return to the United Kingdom would be in violation of the children’s human rights. I do not resile from that concern; it is difficult to comprehend how the circumstance of the children’s return to the United Kingdom, a Commonwealth country, in accordance with Australia’s obligations to the Convention of, could or would “utterly shock the conscience of the Court or offend all notions of due process”.
The State Central Authority submits, and I agree, that there is no basis for the proposition that any principle of Australian domestic law relating to the protection of human rights would preclude a return order in this case and, additionally, the English court is well-equipped to make any further parenting orders in relation to the children.
In Murray v Director, Family Services, ACT, the Full Court distinguished between the Hague Convention and the UN Convention on the Rights of the Child saying that the former stands in a different position to the latter. Whilst the latter Convention has been ratified by Australia, it has not been given specific statutory recognition and its provisions do not have a significant role to play in cases under the Hague Convention, which is different in that it has been the subject of specific recognition. The Full Court further said that it is at least arguable that, by reasons of s 111B of the Family Law Act, which clearly recognises that Australia has obligations under the Hague Convention, this gives those parts of the Convention as a whole which are not specifically incorporated by the regulations, a higher status in domestic law than a Convention which has merely been ratified by Australia but has not been given specific statutory recognition.
Whilst, to date, the defence under regulation 16(3)(d) has not been successfully argued in any case in Australia, that does not mean it can or will never succeed. However, it confirms the very narrow applicability of that defence. On the facts of this case, the defence cannot and does not succeed, and I dismiss it.
Conclusion as to father’s defences
I have rejected each of the father’s defences. However, even if I had found one or more of the defences to be made out, such that a discretion to decline to order the children’s return to the United Kingdom were enlivened, I would not exercise such discretion in the father’s favour.
Section 16(3) provides that the Court may refuse to make an order under subregulation (1) if a person opposing return establishes one of the defences set out in subregulation (3). In HZ & State Central Authority [2006] FamCA 466 at [29], 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.”
…
See also Regino v Regino (1995) FLC 92-587 at 81,820-81,821 and De L v Director General, NSW Department of Community Services (1980) FLC 92 - 706 at 83, 456.
Accordingly, I turn to briefly consider issues relevant to the exercise of discretion, had it been enlivened.
As to the comparative suitability of the forum to determine the children’s future in the substantive proceedings, I am of the view that, notwithstanding these proceedings in this Court, which have overwhelmingly been directed to issues of forum, the English court is the more suitable forum in which to determine the children’s future, in substantive parenting proceedings. Proceedings have been pending in that court for two years. A trial of those proceedings took place there early this year which, although largely undefended by the father, were so by reason of his actions and election, as I have ready found. There are appellate proceedings in England, instigated by the father, arising from that trial. The father adduced no evidence whatsoever as to his prospects on appeal. Whilst a final order was made by the Recorder in early 2022, providing for the children to live with the mother, the operation of that order has been stayed pending approval by that court of a plan for the children to transition to her care. I am not at all satisfied that the father is without other rights in the United Kingdom, other than his appeal. The onus was on him to adduce such evidence, and he did not do so. The father saw fit to adduce evidence from his English barrister, Mr CC QC; however, that evidence did not touch upon this issue. It was confined to the “lawfulness in English law of his action in removing the children from the jurisdiction of England and Wales to Australia on 29 December 2021”. I have found that removal to have been lawful. The father cannot rely upon an evidentiary void created by him. It may very well be that there are similar legal principles in the United Kingdom to those enunciated by the High Court of Australia in Taylor v Taylor (1979) FLC 90 - 674, that there is (at least) an inherent power in the England court to set aside orders having been made without having heard from both sides, or to those contained in r 10.13 of the Federal Circuit and Family Court of Australia (Family Law Rules) 2021, namely, that the court may at any time vary or set aside an order if it was made in the absence of a party.
It is difficult to predict, at this stage, the likely outcome, in whichever forum, of the substantive proceedings. However, there is no reason why, in the English court, that being the proper or natural forum, the father will not be able to prosecute an application for relocation, rather than achieving it in breach of the Convention.
I have addressed the situation which would await the father and the children if compelled to return under the rubric of his “grave risk” defence and am not satisfied, to the requisite standard, that situation would lead me, in the exercise of any discretion, to decline to order their return.
Similarly, I have also addressed the anticipated emotional effect upon the children of an immediate return under the rubric of the father’s “grave risk” and “objection” defences and, again, I am not satisfied that such emotional effect upon the children would lead me, in the exercise of any discretion, to decline to order their return. That is because, in my view, such emotional effect must be weighed against the emotional effect upon the children of remaining in Australia without any meaningful chance of repairing their relationship with their mother. I have been unable to find, to the requisite standard of proof, on the evidence of Dr D, that the children have been alienated from the mother, by the father. However, I do find that the children are otherwise alienated from her, but do not accept the reasons therefor proffered by the father as explaining why such alienation has arisen. It is beyond debate, at least in this Court, that, as a general proposition, children should have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with their best interests, and that children have the right to know and be cared for by both their parents, and to spend time and communicate on a regular basis with both their parents and other people significant to their care, welfare and development. I see no reason why, in the exercise of any discretion, the objects of Part VII of the Family Law Act 1975, cannot be taken into account, in a general sense, in the same way that the best interests of children (provided for in s 60CA and 65AA of that Act) may be taken into account at this stage. Notwithstanding the father’s professed desire for the children’s relationship with the mother to be repaired, if possible, through family therapy, I do not accept that such therapy could be undertaken anywhere nearly as effectively by video-conference between City B and Sydney as would be the case if the parents and children were all in the same location. Further, by reason of my findings above, I do not accept that the father would be truly supportive of such therapy from a distance.

I am far from impressed by the father’s conduct. At the very least, I am critical of aspects his exercise of parental responsibility for the children. The term “parental responsibility” is not just a bundle of responsibilities to be exercised; implicitly, if not explicitly, it imports the notion of acting responsibly. The children the subject of these proceedings are aged 10 and 8 years respectively. They are just that: children. At the very least, I find that the father has not acted responsibly in merely passively acquiescing to their wishes. There is no evidence of what firm, active steps he has taken to make them return to England. In my view, he has merely pandered to their wishes, if not contributed to them.
Lastly, in the circumstances of this case, as I have found them to be, I am comfortably satisfied that the purpose and underlying philosophy of the Convention would be at risk of frustration if a return order were to be refused.
Orders and conditions
Regulation 15(1) provides:
(1)If a court is satisfied that it is desirable to do so, the court may, in relation to an application made under regulation 14:
(a)make an order of a kind mentioned in that regulation; and
(b)make any other order that the court considers to be appropriate to give effect to the Convention; and
(c)include in an order to which paragraph (a) or (b) applies a condition that the court considers to be appropriate to give effect to the Convention.
The State Central Authority and the ICL are substantially in agreement as to the orders to be made and the conditions to be imposed in the event a return order is made. The father agrees with some of these and, accordingly, I do not need to address them, save to note that the State Central Authority and the father agree (and the Independent Children’s Lawyer does not oppose) that the mother be required to provide an undertaking to this Court, as well as to the English courts, that she will not press criminal or any punitive sanctions against him in respect of any prior breaches or alleged breaches of orders made in the English proceedings. In the circumstances, albeit with some reservations, I will require the provision of such an undertaking.
The father does not agree that, in the event he does not comply with my return order, the State Central Authority be at liberty to make arrangements for the children to return to England, subject to taking all necessary steps to finalise the arrangement for the children upon their return to England, including the provision of a plan, endorsed by the English court, setting out those arrangements and confirmation of how such a plan will be funded, together with the nomination by the mother of a suitable person(s) who can travel with the children from Sydney to City B, in accordance with the plan.
The father does not propose any other default provision such that, on his proposal, the return of the children to the United Kingdom might be delayed and/or frustrated. I am not prepared to allow such a situation to arise.
The father, possibly inexplicably, opposes the continuation of the interlocutory injunctions made by this Court since the institution of these proceedings, restraining him from causing or permitting or suffering the children to be removed from the Commonwealth of Australia or the state of New South Wales; from applying for any further or other passports for them; or from being assessed by a psychologist, counsellor, medical practitioner or like health practitioner for the sole or ancillary purpose of obtaining evidence for use in this, or any related, proceeding without the prior written consent of the State Central Authority. He also opposes being restrained, until further order, from discussing the outcome of this proceeding or my orders with the children. In the absence of any evidence by, or submission on behalf of, the father as to why such injunctions ought not to be made, I propose to make them. Not only are they eminently sensible and of the type usually made in return orders, but I am troubled by his opposition to them.
Similarly, I am troubled by his unexplained opposition to the order sought by the State Central Authority and the ICL that, in default of compliance by him with my return order, he (and his agents) be restrained from entering or approaching the international terminal of the airport from which the children are booked to depart in Sydney and Perth, 12 hours before and after the scheduled flight time. In my view, on the evidence, it could lead to mischief by him or at his behest.
He also inexplicably opposes these orders being provided to the Marshall of this Court, the Commissioner of the Australian Federal Police and the police forces and services of the States and Territories of the Commonwealth of Australia; and the Secretary of the Commonwealth Department of Foreign Affairs and Trade. He also opposes the Marshall of the Court, the Commissioner of the Australian Federal Police and officers of the police forces and services of the States and Territories of the Commonwealth of Australia being requested and empowered to take all necessary steps to give effect to these orders. I shall make such orders in the terms sought by the State Central Authority and the ICL. They are eminently sensible and reasonably necessary.
The State Central Authority and the ICL both seek an order that the ICL be at liberty to liaise with the Family Report writer, Ms E, in relation to the arrangements that should be made to advise the children of my decision, including the timing of such discussions. The father opposes such an order and, instead, seeks an order that the children be informed of the return orders “in a session with [Dr W] within 14 days of the date of the making and that [he] be permitted to take the children for counselling with [Dr W] prior to their departure as she advises [sic]”. I am very troubled that the father seeks such an order. He remains prohibited, in personam, from doing so by the orders of the English court (as well as by the orders made by Bennett J). I cannot interfere with that order in the United Kingdom, nor would I do so. I have expressed my considerable reservations regarding [Dr W’s] involvement with the children and the father, and her lack of involvement with the mother. She is not supportive of the children’s return to the United Kingdom. In any event, she last saw the children in March of this year, whereas Ms E saw them more recently, two months later, in May. In the course of her oral evidence in chief, Ms E said that informing the children of any return order would have to be a “really considered process”. When I asked her whether she could think of anyone better qualified than her to undertake the task, she said: “probably not”, and that usually such discussions happen in conjunction with an Independent Children’s Lawyer and a Court Child expert. In the circumstances, I shall make an order in the terms sought by the State Central Authority and the ICL.
The father seeks that any orders made by this Court for the return of the children be stayed for a period of 28 days. I will not make such an order in the absence of any appeal. If the father brings an appeal and applies for a stay of my orders, I will, of course, consider such application.
The father seeks that the mother provide an undertaking to this Court to do all things necessary to approach the English court to seek a suspension/stay of the operation of all orders made by the Recorder for a period of 16 weeks following the return of the children to the United Kingdom, or until a competent court in the United Kingdom has become seized of the matter, provided that the State Central Authority provides to such court the transcript of these proceedings and my reasons for judgment, and that the children live with him in the interim. Given my findings as to the present state of the children’s relationship with the mother, it would not be appropriate (if even possible) for them to go into the mother’s care immediately upon their return to England, without the parents and the Court there having the opportunity to ventilate the matter, including putting before the English court these reasons for judgment, the transcript of these proceedings, the Court Book and other documents tendered before me. However, it has been held that such orders should only be made for a very short period of duration, and there is no evidence before me as to why a period of 16 weeks is required. I propose to provide in the first instance for a period of one month.
Lastly, the father seeks the provision of an undertaking by G Service that “they will not take any action to approach any court or exercise any statutory power to cause the removal of the children from the care of the father arising from those matters raised or arising from [the proceeding in the English court]”. No time limit is imposed on such abstention. It is not for a court in one country to interfere with the child protection services in another country. In any event, having heard the evidence of Ms F and Ms H, I am satisfied that G Service, will act it appropriately. However, I shall order that these reasons for judgment and the transcript of these proceedings be provided to G Service, especially (but not limited to) by reason of the evidence of Dr D and my findings in relation thereto.
I shall make orders to reflect these reasons for judgment.

I certify that the preceding four hundred and forty-five (445) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Strum.
Associate:
Dated: 30 September 2022

File number(s):	SYC 2382 of 2022
Judgment of:	STRUM J
Date of judgment:	30 September 2022
Catchwords:	FAMILY LAW – CHILD ABDUCTION – HAGUE CONVENTION – Children brought to Australia from the United Kingdom – Where it is disputed that the children are habitually resident in the United Kingdom – Where it was disputed that the children were wrongfully retained - Where the children were not wrongfully removed but were wrongfully retained – Where it is disputed that the requesting mother had and was exercising her rights of custody before the removal of the children from the United Kingdom – Where all the jurisdictional facts have been satisfied - Where the respondent father disputed every possible ground of jurisdiction and relied on every regulatory exception in reg 16(3) – Whether there is a grave risk of physical or psychological harm or an intolerable situation should the children return to the United Kingdom – Whether the children’s objections show a strength of feeling beyond mere expression of preference or ordinary wishes – Whether the children have attained an age and maturity such that their wishes should be taken into account – Whether there would be an impermissible breach of the children’s fundamental human rights should they be returned – Where none of the reg 16(3) defences found – Held, the father has not discharged his onus – Children to return to the United Kingdom. PROCEDURE – EVIDENCE – Whether the respondent father could rely on a unilaterally obtained psychological report of the children – Where the father took the children for psychological assessment in Australia in breach of orders made in the United Kingdom – Where the orders in the United Kingdom were binding on the father in personam – Held, the father was not given leave to rely on evidence improperly obtained.
Legislation:	Acts Interpretation Act 1901 (Cth) ss (2(2), s15AA, 21(1)(b) Evidence Act 1995 (Cth) ss 132, 138, 140 Family Law Act 1975 (Cth) s111B Family Law (Child Abduction Convention) Regulations 1986 (Cth) rr14, 16, 15(1), 29 Federal Circuit and Family Court of Australia (Family Law Rules) 2021 r 10.13 Listening Devices Act1984 (NSW) s 5(1) Child Abduction Act 1984 (UK) ss 1(1) Children Act 1989 (UK) ss 1(1) 2(1), 3(1), s7, s 13 Convention on the Civil Aspects of International Child Abduction signed at The Hague on 25 October (1980) International Covenant on Civil and Political Rights 1976 United Nations Convention on the Rights of the Child 1989 Dictionary to the Evidence Act, Clause 9 pt 2
Cases cited:	Ames v Ames (2009) 42 Fam LR 95; [2009] FamCA 825 Australian Competition and Consumer Commission v Apple Pty Ltd (No 3) [2018] FCA 617 C v C (Minor Abduction: Rights of Custody Abroad) [1989] 2 All ER 465 Central Authority & Wageman (2012) 48 Fam LR 254; [2012] FamCAFC 176 Commonwealth Central Authority & Sangster [2018] FamCA 765 De L v Director General, NSW Department of Community Services (1996) 187 CLR 640 De L v Director General, NSW Department of Community Services (1980) FLC 92 - 706 De L v Director General, NSW Department of Community Services (1990) 187 CLR 640 De L v Director General, NSW Department of Community Services (1980) FLC 92 - 706 Department of Children, Youth Justice and Multicultural Affairs & Golub [2021] FamCA 435 Department of Community Services v Crowe (1996) 21 135 FLR 443; (1996) FLC 92-717; 21 Fam LR 159 Department of the Family and Community Services & Raelson [2014] FamCA 131 Director of Public Prosecutions v Carr [2002] NSWSC 194 ; 127 A Crim R 151 Director-General, Department of Community Services and Crowe & Others (1996) 21 Fam LR 159; [1996] FamCA 123 Director-General, Department of Families, Youth & Community Care v Bennett [2000] FAMCA 253; 155 FLR 121 ; (2000) FLC 93-011 ; 26 Fam LR 71 DP v Commonwealth Central Authority [2001] HCA 39; (2001) 206 CLR 401; (2001) FLC 93-081; (2001) 180 ALR 402; (2001) 75 ALJR 1257; (2001) 27 Fam LR 569 HZ v State Central Authority [2006] FamCA 466; (2006) FLC 93-264; (2006) 35 Fam LR 489 In re R (Children) (Reunite International Child Abduction Centre intervening) [2015] UKSC 35; [2016] AC 76; [2015] 3 All ER 749; [2015] 2 WLR 1583 In the Marriage of Gazi [1992] FamCA 80; (1993) FLC 92-341; 111 FLR 425; 16 Fam LR 180 In the Marriage of Gsponer [1988] FamCA 21; (1989) FLC 92-001; 94 FLR 164; (1988) 12 Fam LR 755 In the Marriage of Regino 122 FLR 314; (1995) FLC 92-587 In the matter of C (Children) [2018] UKSC 8; [2019] AC 1 Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 ; [1959] ALR 367 LGM & CAM [2011] FamCAFC 195; (2011) FLC 93-481; (2011) 46 Fam LR 118 LK v Director-General, Department of Community Services [2009] HCA 9; (2009) 237 CLR 582; (2009) FLC 93-397; (2009) 253 ALR 202; (2009) 40 Fam LR 495; (2009) 83 ALJR 525 McCall v State Central Authority (1995) FLC 92-551; 121 FLR 45; (1994) 18 Fam LR 307 Murray v Director, Family Services (ACT) [1993] FamCA 103; (1993) FLC 92-416; (1994) 116 FLR 321; (1993) 16 Fam LR 982 MW v Director-General, Department of Community Services [2008] HCA 12; (2008) 244 ALR 205; (2008) 82 ALJR 629; (2008) 39 Fam LR 1 Parker v Comptroller-General of Customs [2007] NSWCA 348; 232 FLR 362; (2007) 243 ALR 574; 83 ALJR 494 Police Commissioner of South Australia v Temple [1993] FamCA 146; (1993) 113 FLR 375; (1993) FLC 92-365 R v Workman [2004] NSWCCA 213; (2004) 60 NSWLR 471 Re Bassi; Bassi and Director-General, Department of Community Services [1994] FamCA 163; (1994) 116 FLR 45; (1994) FLC 92-465; (1994) 17 Fam LR 571 Re C (Abduction: Grave Risk of Physical or Psychological Harm) [1999] 2 FLR 478 Re D (a Child) (Abduction; Rights of Custody) [2007] 1 AC 619 Re M (A Minor) (Child Abduction) [1994] 1 FLR 390 Re M (Children)(Habitual Residence: 1980 Hague Child Abduction Convention) [2020] EWCA Civ 1105; [2020] 4 WLR 137 Re R (Child Abduction: Acquiescence) [1995] 1 FLR 716 Re T. (Abduction: Child's Objections to Return) [2000] 2 FLR 192 Ridgeway v R [1995] HCA 66; (1995) 184 CLR 19; (1995) 129 ALR 41; (1995) 69 ALJR 484; (1995) 78 A Crim R 307; Secretary, Department of Communities and Justice & Paredes [2021] FamCA 128 State Central Authority & Abdalle [2012] FamCA 1151 State Central Authority & Del Rosario [2019] FamCA 607 State Central Authority & Hotzner(No 2) [2010] FamCA 1041 State Central Authority v Sigouras [2007] FamCA 250; (2007) 37 Fam LR 364 Walpole & Secretary, Department of Communities and Justice [2020] FamCAFC 65
Division:	Division 1 First Instance
Number of paragraphs:	445
Date of hearing:	18 – 21 September 2022
Place:	Heard in Sydney; delivered in Melbourne
Counsel for the Applicant:	Mr Guterres
Solicitor for the Applicant:	DCJ Legal, Department of Communities and Justice
Counsel for the Respondent:	Dr Ward SC with Mr O’Brien
Solicitor for the Respondent:	JB Solicitors
Counsel for the Independent Children's Lawyer:	Mr Moore
Solicitor for the Independent Children's Lawyer:	Legal Aid NSW

SYC 2382 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	DEPARTMENT OF COMMUNITIES AND JUSTICE Applicant
AND:	MR HAYS Respondent
INDEPENDENT CHILDREN'S LAWYER

order made by:	STRUM J
DATE OF ORDER:	30 SEPTEMBER 2022