Department of Communities and Justice & Kingsley

[2020] FamCA 937

FAMILY COURT OF AUSTRALIA

Department of Communities and Justice & Kingsley [2020] FamCA 937

File number(s):

SYC5852 of 2020

Judgment of:

REES J

Date of judgment:

11 November 220

Catchwords:

FAMILY LAW – CHILD ABDUCTION – Child brought to Australia – Where the child was habitually resident in Canada at the time of her removal – Where the father did not provide consent or acquiesce to the child remaining permanently in Australia – Where the child was not at grave risk if she returned to Canada – Orders made for return of the child to Canada.

Legislation:

Family Law Act 1975 (Cth) s 4AB

Family Law (Child Abduction Convention) Regulations 1986 (Cth)

Evidence Act 1995 (Cth) s 140

Cases cited:

DP v Commonwealth Central Authority (2001) 206 CLR 401

DW & Director General Department of Child Safety (2006) FLC 93-255

LK v Director General Department of Human Services (2009) 237 CLR 582

P v Secretary for Justice [2007] 1 NZLR 40

Wenceslas v Director General, Department of Community Services (2007) FLC 93-321

Number of paragraphs:

104

Date of hearing:

5 November 2020

Place:

Sydney

Counsel for the Applicant:

Dr Barnett with Ms Seric

Counsel for the Applicant:

Mr Anderson

Solicitor for the Respondent::

Merridy Elphick Lawyers

ORDERS

SYC5852 of 2020

BETWEEN:

DEPARTMENT OF COMMUNITIES & JUSTICE

Applicant

AND:

MS KINGSLEY

Respondent

ORDER MADE BY:	REES J
DATE OF ORDER:	11 NOVEMBER 2020

THE COURT ORDERS:

1.That the Central Authority and the respondent mother, Ms Kingsley, make such arrangements as are necessary to cause the return of the child X (female) born … 2019 to Canada forthwith.

2.That the respondent pay the costs of the return of the child, including airfares and any other necessary travel expenses to Canada.

3.That the respondent pay the costs of her own airfares and expense of the return trip to Canada.

4.That the parties have liberty to apply by arrangement with the associate to the Honourable Justice Rees in relation to any application for conditions of return.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Department of Communities and Justice & Kingsley has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

Rees J:

1. In these proceedings the Secretary of the Department of Communities and Justice (“the applicant”) seeks orders pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (Cth) for the return of a female child, X to Canada.

2. The respondent is the mother of the child, Ms Kingsley.

3. The father of the child is Mr B who is a Canadian citizen and resident in Canada.

4. When X was born in Canada in late 2019, the parents were living together.

5. X travelled to Australia with the respondent on 1 February 2020.

6. The relevant provision of the Regulations is regulation 16, which is set out below:

   FAMILY LAW (CHILD ABDUCTION CONVENTION) REGULATIONS 1986 - REG 16

   Obligation to make a return order

   (1)If:

   (a)an application for a return order for a child is made; and

   (b)the application (or, if regulation 28 applies, the original application within the meaning of that regulation) is filed within one year after the child's removal or retention; and

   (c)the responsible Central Authority or Article 3 applicant satisfies the court that the child's removal or retention was wrongful under subregulation (1A);

   the court must, subject to subregulation (3), make the order.

   (1A)   For subregulation (1), a child's removal to, or retention in, Australia is wrongful if:

   (a)the child was under 16; and

   (b)the child habitually resided in a convention country immediately before the child's removal to, or retention in, Australia; and

   (c)the person, institution or other body seeking the child's return had rights of custody in relation to the child under the law of the country in which the child habitually resided immediately before the child's removal to, or retention in, Australia; and

   (d)the child's removal to, or retention in, Australia is in breach of those rights of custody; and

   (e)at the time of the child's removal or retention, the person, institution or other body:

   (i)was actually exercising the rights of custody (either jointly or alone); or

   (ii)would have exercised those rights if the child had not been removed or retained.

   (2)If:

   (a)an application for a return order for a child is made; and

   (b)the application is filed more than one year after the day on which the child was first removed to, or retained in, Australia; and

   (c)the court is satisfied that the person opposing the return has not established that the child has settled in his or her new environment;

   the court must, subject to subregulation (3), make the order.

   (3)A court may refuse to make an order under subregulation (1) or (2) if a person opposing return establishes that:

   (a)the person, institution or other body seeking the child's return:

   (i)was not actually exercising rights of custody when the child was removed to, or first retained in, Australia and those rights would not have been exercised if the child had not been so removed or retained; or

   (ii)had consented or subsequently acquiesced in the child being removed to, or retained in, Australia; or

   (b)there is a grave risk that the return of the child under the Convention would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation; or

   (c)each of the following applies:

   (i)the child objects to being returned;

   (ii)the child's objection shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes;

   (iii)the child has attained an age, and a degree of maturity, at which it is appropriate to take account of his or her views; or

   (d)the return of the child would not be permitted by the fundamental principles of Australia relating to the protection of human rights and fundamental freedoms.

   (4)For the purposes of subregulation (3), the court must take into account any information relating to the social background of the child that is provided by the Central Authority or other competent authority of the country in which the child habitually resided immediately before his or her removal or retention.

   (5)The court is not precluded from making a return order for the child only because a matter mentioned in subregulation (3) is established by a person opposing return.

7. As can be seen, the return of the children is mandatory if the conditions of return are satisfied, unless one of the defences in subregulation (3) has been established.

8. In his Summary of Argument, counsel for the respondent relied on the following defences:

   ·That at the time of the alleged retention the child was habitually resident in Australia. (Regulation 16 (1A)(b);

   ·That the father, before the child left Canada, had consented to her remaining permanently in Australia. (Regulation 16(3)(a)(ii);

   ·That, after the child arrived in Australia, the father acquiesced to the child’s remaining permanently in Australia. (Regulation 16 (3)(a)(ii);

   ·That there is a grave risk that the return of the child would expose the child to physical or psychological harm (Regulation 16(3)(b).

   THE EVIDENCE

9. The respondent travelled to Canada on about 19 May 2018 on a two year Working Holiday Visa. The respondent is an Australian citizen.

10. The father is a Canadian citizen and has, at all relevant times, been resident in Canada.

11. The parents started to live together in late March 2019

12. In May 2019, the parents travelled together to Australia and visited the respondent’s extended family. The respondent deposed that, during that visit, the father said to her grandparents, in her presence:

    We’re going to put a deposit on a house here. I’m going to sell my café and rent out my house to move here after summer.

13. She deposed that, at about the same time, the father said to her:

    I’d be able to grow my own crops all year around here. I have always wanted land and to be self-sustainable.

    and

    How great would it be to raise our baby here. I can see why you want to come back here to live.

14. They returned to Canada in June 2019.

15. The respondent deposed that they continued to have discussions about moving to Australia after they returned to Canada.

16. They were living together in Canada when X was born in late 2019.

17. In late November or early December 2019, the father and the respondent booked tickets for the respondent to travel to Australia with X in February 2020. The father paid for the tickets. The respondent deposed that she asked the father “if he had any issue with how long X and I would be in Australia”, and he replied:

    Why are you asking me?

    and

    …do what you want.

18. The respondent deposed that, as the departure date neared, she asked the father to provide a letter stating that he consented to X travelling to Australia without him and he replied:

    You write it and I’ll sign it.

19. The respondent deposed that she wrote the letter and the father signed it. The respondent also signed the letter. The letter stated that X would be returning to Canada on 2 March 2020.

20. The father deposed:

    I signed a consent form for their travel from January 30, 2020 to March 2, 2020…

    The purpose of the trip was so that [the respondent] could bring X to Australia and introduce X to her family. I was not able to travel with them because it was peak season for business and I was anticipating having a medical procedure within the next few months of [the respondent’s] departure date. …

    When I signed the consent form allowing [the respondent] and X to travel to Australia, I had no concern whatsoever. I was completely surprised and dismayed by this turn of events.

21. The respondent, in cross-examination, said that at the time she signed the letter, it was her intention that she would return with X to Canada on 2 March 2020.

22. Before the trip to Australia, the father and the respondent were in the process of applying for permanent residency for the respondent in Canada. A lawyer had been instructed and fees had been paid. The father was the respondent’s sponsor. The father deposed:

    We had assessed the advantages and disadvantages of [the respondent] moving to Canada or me moving to Australia, and we decided that [the respondent] should move to Canada. [The respondent] seemed enthused to do so. Together, we decided that since X was to be born in Canada, and because I owned both a home and a business, and had 3 pets, that it would be best for [the respondent] to ger [sic] her Canadian residency and that we should remain in Canada for the next few years. We also discussed the potential of a move of our entire family to Australia with my getting residency there.

23. The respondent deposed:

    In the lead up to the departure date, on a number of occasions I said to [the father] words to the effect of, “I think I’d like to stay in Australia” and “I want to move to Australia. You know that was our plan. You can join us over there?” He would reply with words to the effect of, “Whatever you want to do” and “Do what makes you happy, we’ll make it work”.

24. On 26 January 2020, the respondent sent a text message to the father saying, inter alia:

    Would you mind if I used your [credit card] to pay for Xs [sic] dual citizenship application?

25. The father responded:

    Ya [sic] for sure don’t worry about it.

26. The respondent and X left Canada for Australia on 30 January 2020.

27. On 2 February 2020, there was the following exchange of texts:

    Respondent:    [I don’t know] how realistic this would be but wanted to kind of pitch the idea to you before I left… seeing as though you’re closing the café in summer was going to talk to you about possibly moving here after my Visa ends and set up and stuff so you can move over on a work visa for a while? You can get them up until you’re 35 now.. something to think about. But I am already so much happier and relaxed here I don’t feel stressed out and I feel much more level headed and I think it would be good for you too… could resume my residency later down the track when we go back to Canada if that’s something you wanna do too…but it would mean everything to me to be close to my family again. And I can even make more money here too…we both can.

    Like me move here with X and get set up for when you do close the café and you can just come straight over no hassle with anything other than just getting here.

    Father:           So all the money spent on lawyer and that shit

    And mat leave

    What ever do what u want no point trying to stop you

    I’ll just deal with my health alone thank cheers

    Thanks for adding more stress love u too

    Respondent:     wasn’t supposed to be a bad thing

    And no not waste of money it would still happen but later

    Just thinking of what’s best and less stress for everyone

    Not like I’m saying I don’t want you to come I definitely do I thought I made that clear

    Father:           Whatever you clearly haven’t been happy here for ages so

    Respondent:    And you’re not alone you can’t make me feel bad for wanting to be with my family.. I care about you a lot so don’t try to say I’m leaving you in the dust and making you “deal with your health alone”

    No I haven’t and I’m trying to suggest a solution

    Father:           I’ll just leave my the animal behind no problem

    Respondent:     Instead of ignoring it    

    And neither have you so don’t pretend you’ve been happy I’m not stupid… I want us both to be happy so instead of just reacting how about you take time to think about it and have a conversation with me instead of just retaliating in defence please

    As I said before don’t need an answer from you but rather for you to just think about it for a while instead

    Father:Thanks babe cuz I do t have enough shit to think about and on my plate why couldn’t we just finish one thing at a time.

    U want to go and move in a couple of months

    Respondent:     We can but I just can’t keep my thoughts to myself forever

    And I don’t want to wait another couple of years that’s for sure

    I can’t do it mentally

    Father:           Fine

    Respondent:     I thought I could but I can’t do it for another year or so

    Father:           You can go there I get X for equal time in Canada

    Respondent:     What I’m saying I want you to come

    Father:           I’ll get my [lawyer] to start writing up some Papers

    Respondent:     [what the fuck]

    (As per the original)

28. I infer from that exchange that the possibility of the respondent’s remaining in Australia with X had not been raised with the father by her before she left Canada. The terms of the exchange do not support the proposition that the father had consented to X’s removal from Canada before she left.

29. It cannot be inferred from that exchange that the father either consented to X’s remaining in Australia or that he acquiesced to it.

30. In cross-examination, the respondent agreed that, in the first text sent by her, she was clearly indicating that she proposed to return to Canada on 2 March 2020 and then, after her visa expired on 19 May 2020, to return to Australia. She confirmed that this was the proposition that she put to the father in the text exchange.

31. She conceded that the father’s response, “So all money spent on lawyer and that shit” indicated his displeasure with her proposal that she would return to Australia from Canada in May 2020.

32. She also conceded that his response, “What ever do what u want no point trying to stop you” was a response to the proposal that she would leave Canada in May.

33. On 16 February 2020 there was a telephone call between the respondent and the father. The respondent deposed:

    …I was speaking with [the father] on the phone and said to him, “I’m going to stay here… I’ve missed my family so much. I want you to know what my intentions are so that we can work something out for X”. [The father] replied, “Ok, I get it. I understand” or words to that effect.

34. The father denies that conversation took place as alleged but even on the respondent’s evidence the father’s response is no more than an indication of understanding her position and could not be interpreted as clear consent to X’s remaining permanently in Australia.

35. On 18 February 2020 X was granted Australian citizenship by descent. The respondent deposed that she informed the father of this and he responded “OK”.

36. On 19 February 2020, the respondent sent a text message to a friend in Canada stating that she was not returning to Canada. In answer to the friend’s asking why, the respondent replied:

    Well I asked [the father] if he could move here after he sells the café and I come here when my visa ends to set up for us and he legit threatened to not let me leave the country again and that he was going to try to get X 50/50

    So I got her citizenship and I’m staying

37. Later in the same text exchange, the respondent wrote:

    I’m with this guy and have been since mid feb, saw him first week of feb after I got back. Told [the father] I wasn’t coming back on the first day I got here ffs after he refused to move here and threatened legal action

    Nothing else to tell

    I infer that “ffs” means “for fuck’s sake”.

38. The terms of that exchange do not support the respondent’s contention, in this application, that the father had consented to X’s moving permanently to Australia before the respondent left Canada.

39. On 30 April 2020 the respondent sent to the father by email a document, in dot form, entitled “Parenting Agreement”. Relevantly, the document provided:

    ·As the Father of X… resides in Canada, majority of decisions regarding upbringing and welfare will be finalised by [the respondent]. [The father] may voice his opinion and both parents will come to an agreement on big decisions in her life while she is underaged [sic].

    ·X will attend school in her country of residence. (Australia)

40. The document provided for X to visit the father in Canada accompanied by the mother and spend time with him there and for the father to spend time with X in Australia.

41. The father responded by an email on 11 May 2020 stating:

    Remember this is about X and equality in the upbringing of our child.
    Please take a couple of days to think about it.

    
    

    (Emphasis in the original)

42. Annexed to the email was a document entitled “Co-Parenting Agreement” which contained the following relevant provisions:

    Failure to comply with the Co-Parenting agreement will result in X… to reside with her father…

    Legal and Physical Custody

    X… will reside with her mother… under the following conditions:

    •While Co-parenting agreement is being finalized, X… will be immediately returned to C Province Canada where she will reside for a 3-4 month period during the decision making process.

    •…

    •With this Co-Parenting Agreement, both parents… will discuss and make joint decisions on the upbringing and concerns of their daughter…

    •…

    •When age appropriate, X… will attend pre-school and kindergarten in C Province Canada and grades 1-12 in Australia where [the mother] resides.

43. The document made provision for contact between X and the father in Australia during periods when she is living in Australia but there is no provision for the respondent to spend time with X in Canada when X is living with her father. The father proposed that, when X is 12 years of age, she can decide where she lives and contained a provision that the father pay an agreed amount of child support for X when she lives with the respondent.

1. The respondent conceded in cross-examination that the father, in that document, was seeking X’s immediate return to Canada.

2. The respondent replied on 23 May 2020, with a lengthy document which provided, relevantly, for X to remain in Australia during ‘the decision-making process” and for her to attend school, including pre-school, primary and secondary school, in Australia. It was proposed that the father spend time with X in Australia and that the mother take X to Canada to spend time with the father in school holiday periods.

3. There is no evidence that the parents communicated thereafter.

4. The father made an application for the return of X on 17 June 2020.

5. The respondent’s Canadian visa expired on 19 May 2020. However, evidence relied on by the applicant suggests that the respondent will be allowed to enter Canada provided appropriate quarantine arrangements are made.

6. The application for the return of X to Canada was filed in the Family Court on 25 August 2020.

7. The defences fall to be considered in the light of that evidence.

8. It is the respondent’s case that, if an order is made for X to return to Canada, the respondent will accompany her.

9. Also on behalf of the respondent, counsel conceded that, because of the serious consequences of any finding, the standard of proof is that set out in s 140 of the Evidence Act 1995 (Cth).

   HABITUAL RESIDENCE

10. In DW & Director General Department of Child Safety (2006) FLC 93-255 the majority quoted with approval that:

    …habitual residence refers to the parents’ habitual abode in a country:

    Which they have adopted voluntarily and for settled purposes as part of the regular order of their life for the time being whether it is of short or long duration.

11. In LK v Director General Department of Human Services (2009) 237 CLR 582, the High Court determined that habitual residence is a matter of fact, to be determined having regard to:

    … a wide variety of circumstances that bear upon where a person is said to reside and whether that residence is to be described as habitual.  Secondly, the past and present intentions of the person under consideration will often bear upon the significance that is to be attached to particular circumstances like the duration of a person's connections with a particular place of residence.

12. Their Honours stated at [28] and following:

    Although intention is a necessary element in deciding domicile of choice, and "habitual residence" is chosen as a connecting factor in preference to domicile, examination of a person's intentions will usually be relevant to a consideration of where that person habitually resides.  Sometimes, intention will be very important in answering that question.  The example of a person who leaves a jurisdiction intending not to return is one such case.  But unlike domicile, considerations relevant to deciding where a person is habitually resident are not necessarily confined to physical presence and intention, and intention is not to be given controlling weight.

    First, individuals do not always act with a clearly formed and singular view of what it is intended (or hoped) that the future will hold.  Their intentions may be ambiguous…

    …

    Secondly, because a person's intentions may be ambiguous, in asking whether a person has abandoned residence in a place it is necessary to recognise the possibility that the person may not have formed a singular and irrevocable intention not to return, yet properly be described as no longer habitually resident in that place.  Absence of a final decision positively rejecting the possibility of returning to Israel in the foreseeable future is not necessarily inconsistent with ceasing to reside there habitually.

    Thirdly, when considering where a child is habitually resident, attention cannot be confined to the intentions of the parent who in fact has the day‑to‑day care of the child.  It will usually be necessary to consider what each parent intends for the child.  When parents are living together, young children will have the same habitual residence as their parents.  No less importantly, it may be accepted that the general rule is that neither parent can unilaterally change that place of habitual residence.  The assent of the other parent (or a court order) would be necessary.  But again, if it becomes necessary to examine the intentions of the parents, the possibility of ambiguity or uncertainty on the part of one or both of them must be acknowledged.

    It follows from each of the three considerations just mentioned that to seek to identify a set list of criteria that bear upon where a child is habitually resident, or to attempt to organise the list of possible matters that might bear upon the question according to some predetermined hierarchy of importance, would deny the simple observation that the question of habitual residence will fall for decision in a very wide range of circumstances.  And examination of decided cases in the area does not require the identification of a closed set of criteria, or the attribution of predetermined weighting between them.

    (Emphasis added)

13. Their Honours referred with approval to P v Secretary for Justice [2007] 1 NZLR 40 and in particular quoted the finding of the majority of the Court of Appeal of New Zealand who said:

    Such an inquiry should take into account all relevant factors, including settled purpose, the actual and intended length of stay in a state, the purpose of the stay, the strength of ties to the state and to any other state (both in the past and currently), the degree of assimilation into the state, including living and schooling arrangements, and cultural, social and economic integration…

14. It is not, and could not, be asserted that on the date immediately before she left Canada, X’s habitual residence was not in Canada.

15. The relevant date of the asserted wrongful retention of the child in Australia was 2 March 2020, the date on which the respondent told the father that she did not intend to return X to Canada.

16. By that time, X had been in Australia for no more than a month, during which time she had not become settled in Australia, formed ties with Australia, started any child care arrangement, assimilated with Australia or achieved “social and economic integration”.

17. The evidence does not support an assertion that, by 2 March 2020, the respondent had established “the degree of assimilation into the state, including living and schooling arrangements, and cultural, social and economic integration…”

18. The respondent does not state that she came to Australia with the intention of remaining. She had no employment and, on her own evidence, until 16 February 2020, she regarded herself as being in a committed relationship with the father.

19. More importantly, X’s father had not consented to a change of habitual residence and her habitual residence could not be unilaterally changed by her mother.

20. I do not accept that, on 16 February 2020, the child was habitually resident in Australia.

    CONSENT TO RETENTION IN AUSTRALIA

21. Their Honours May and Thackray JJ in Wenceslas v Director General, Department of Community Services (2007) FLC 93-321 (“Wenceslas”) considered the question of whether consent for the purposes of regulation 16(3)(a)(ii) could be inferred by conduct alone. Their Honours stated:

    250.As his Honour did not expressly address the relevant issue, it falls to us to determine whether or not there was sufficient evidence to establish that the father had consented to the child’s removal. There is, of course, no suggestion that the father expressly consented to K’s removal from New Zealand. The mother’s argument was that such consent could be inferred from the father’s conduct. This raises a preliminary issue as to whether, for the purposes of the Regulations, consent can be inferred from conduct or whether it must be express.

    251. The only relevant authority to which we were directed was Department of Health and Community Services, State Central Authority v Casse (1995) FLC 92-629 (“Casse”). Although Casse related to the question of whether or not acquiescence can be inferred from conduct, it is a useful starting point for our discussion.

    252. In Casse, Kay J adopted (at 82,311) what he understood to be the views expressed by the English Court of Appeal in Re R (Child Abduction: Acquiescence) [1995] 1 FLR 716 at 727 that “there needs to be clear and unequivocal words and conduct which could properly be interpreted as acquiescence”.

    253. Lindenmayer J in Director General, Department of Families, Youth and Community Care v Thorpe (1997) FLC 92-785 has drawn attention (at 84,672) to the fact that Kay J did not accurately paraphrase Re R, since the Court of Appeal in that case was of the view that acquiescence may be evidenced by clear words or conduct. Having considered the authorities on this point, Lindenmayer J concluded at 84,672–84,673 that there was “very good authority for the proposition that acquiescence may be passive, by conduct, as well as active by words”.

    254. Lindenmayer J went on to say at 84,674 that acquiescence may be inferred by the Court from a course of conduct by the party now seeking to rely upon the Convention or the Regulations, without any words expressed to the other party such as might otherwise be thought to be involved, at least in a consent.

    255. Lindenmayer J’s reference in the final sentence of that passage to the evidence that would be required to establish consent is clearly obiter, since his Honour was dealing with a defence of acquiescence, not consent.

    256. Kay J had occasion, in the meantime, to return to consider the issue of acquiescence in Ayob (supra at 84,074 to 84,076), where his Honour discussed at some length the English authorities on the issue. In dealing with that matter, Kay J clearly accepted that acquiescence could be inferred from conduct alone.

    257. We have not been referred to, and our own enquiries have not revealed, any cases before the Full Court of this Court dealing directly with the issue of whether or not consent to the removal of a child can be inferred from conduct. The matter has, however, been considered in the United Kingdom, where there appears to been a divergence of opinion amongst judges dealing with the equivalent provision of the Convention.

    258.     In Re W (Abduction: Procedure) [1995] 1 FLR 878, Wall J said at 888:

    It follows, in my judgment, that where a parent seeks to argue the Art 13(a) “consent” defence under the Hague Convention, the evidence for establishing consent needs to be clear and compelling. In normal circumstances, such consent will need to be in writing or at the very least evidenced by documentary material. Moreover, unlike acquiescence, I find it difficult to conceive of circumstances in which consent could be passive: there must in my judgment be clear and compelling evidence of a positive consent to the removal of the child from the jurisdiction of his habitual residence.

    259. Holman J disagreed with the views expressed by Wall J when determining an issue of consent in Re C [Abduction: Consent] [1996] 1 FLR 414. His Honour said at 418–419 he was unable to agree with the proposition that “in normal circumstances, such consent will need to be in writing or at the very least evidenced by documentary material”. He went on to point out that the Convention itself does not use the words “in writing” and that:

    parents do not necessarily expect to reduce their agreements and understandings about their children to writing, even at the time of marital breakdown. What matters is that consent is ‘established’. The means of proof will vary.

    260. Holman J disagreed also with the suggestion made by Wall J that “it is difficult to conceive of circumstances in which consent could be passive”. He went on:

    If it is clear, viewing a parent’s words and actions as a whole and his state of knowledge of what is planned by the other parent, that he does consent to what is planned, then in my judgment that is sufficient to satisfy the requirements of Art 13. It is not necessary that there is an express statement that “I consent”. In my judgment it is possible in an appropriate case to infer consent from conduct.

    261. Notwithstanding Holman J could conceive of circumstances in which consent could be established by evidence somewhat less clear and compelling than Wall J would have required, he nevertheless acknowledged that the defence of consent must be made out on the balance of probabilities and that the evidence in support of that defence “needs to be clear and cogent”. In the absence of such clear and cogent evidence, the defence of consent must fail.

    262. Hale J drew attention to this divergence of opinion in Re K (Abduction: Consent) [1997] 2 FLR 212. She expressed her agreement with the views expressed by Holman J. In doing so, Hale J said at 217 – 8:

    It is obvious that consent must be real. It must be positive and it must be unequivocal. But that is a separate issue from the nature of the evidence required to establish it. There will be circumstances in which the court can be satisfied that such consent has been given, even though it has not been given in writing. It stands to reason, however, that most people who wish to retain or remove a child would be well advised to get written consent before they do so to place the matter beyond argument. There may also be circumstances in which it can be inferred from conduct.

    263. The views expressed by Hale J appear to be in accord with the preponderance of first instance judicial opinion in the United Kingdom — see T v T (Abduction: Consent) [1999] 2 FLR 912 and the authorities there mentioned at 917. Her Honour’s view that consent can be inferred from conduct was also recently approved in the unanimous decision of the Supreme Court of Ireland in R v R [2006] IESC 7.

    264. It seems to us that the views expressed by Hale J allow for the vagaries often associated with the way in which parents communicate in matters relating to their children. As presently advised (since the matter was not the subject of any submissions before us), we are of the view that consent can be inferred from conduct; however, we are also of the view that the consent must be real and unequivocal and can only be made out by clear and cogent evidence.

    (Emphasis added)

22. In relation to the difference between consent and acquiescence, May and Thackray JJ in Wenceslas stated:

    246. We should begin by observing that the defences of “consent” and “acquiescence” are quite distinct. Regulation 16(3) makes clear that mere “acquiescence” in the removal of the child would not enliven the discretion of the court to refuse to order the return of the child. As Wall J said in Re M (Abduction) (Consent: Acquiescence) [1999] 1 FLR 171 at 173, “[c]onsent … has to arise before the act of removal or retention: acquiescence can only arise after such an act”.

    (Emphasis added)

23. It was clearly stated by counsel for the respondent at the commencement of the hearing that it is the respondent’s case that the father consented to X’s permanent removal from Canada before the child left Canada.

24. The father accepted that, when the parents were in Australia in May 2019, they discussed eventually making their permanent home in Australia.

25. He also accepted that, after their return to Canada, they continued to have those discussions which were predicated on his selling his business in Canada so that they had funds to put a deposit on a property in Australia and that, at all times, the proposal was that they would go to Australia together.

26. In relation to those discussions, the respondent on cross-examination, said that she had raised the issue of moving to Australia with the father “with little response” and that she wanted to have an “in-depth discussion” about the proposal. She conceded that the in-depth discussion had not occurred.

27. The father conceded that, leading up to the respondent’s departure, she said that she would like to move to Australia and that he said “Do what makes you happy. We’ll make it work”. However, he said he was referring to the respondent’s wanting to move to Australia earlier than they had planned, not consenting to her travelling to Australia without him and remaining there.

28. The exchange of text messages on 2 February 2020 does not support the respondent’s assertion that the father had already given his consent to X remaining permanently in Australia but rather suggests that this was being raised as a possibility for discussion.

29. The text exchange between the respondent and her friend on 19 February 2020 clearly suggests that the father had not consented to X’s permanent removal, and had threatened to “not let her leave” and that he only learned of the respondent’s intention to remain in Australia on the first day she arrived in Australia.

30. The respondent bears the onus of demonstrating that the father consented to X’s permanent relocation to Australia and removal from Canada. That consent must be shown to be real and unequivocal.

31. The onus has not been met.

32. I do not accept that the father consented to X’s permanent removal from Canada.

    ACQUIESENCE

33. It is also clear from the authorities referred to above that acquiescence can only arise after the child had been wrongfully removed or retained.

34. I do not accept that the text exchange between the respondent and the father on 2 February 2020 constitutes evidence of real, positive and unequivocal consent by the father to the child’s remaining in Australia.

35. It is not the respondent’s subjective interpretation of that exchange that is relevant but an objective consideration, having regard to the need for the consent to be “clear and cogent”.

36. The text exchange, in so far as the father’s responses are concerned, is at best equivocal and sarcastic.

37. The proposition, to which the father is said to have consented, is not that X remain permanently in Australia but that the respondent would return on 3 March 2020 to Canada and come to Australia sometime after 19 May 2020. The exchange cannot be interpreted as giving unequivocal consent to X’s remaining in Australia. So much is clear from the final exchange where the father states that he will engage lawyers and the respondent replies “Wtf” which is inferred to mean “What the fuck”, an expression of disbelief.

38. Nothing in the subsequent exchanges could be interpreted even to imply consent, let alone be clear and unequivocal evidence of consent.

39. The father’s response to the mother’s advice that X had been granted Australian citizenship is not evidence of acquiescence. The father had agreed before X left Canada that she should have dual citizenship and had paid the fees associated with the application.

40. Nothing in the subsequent exchanges could be interpreted as acquiescence. Rather, the father’s position, maintained after 16 February 2020, was that X should be returned to Canada, even if the respondent remained in Australia.

    GRAVE RISK

41. Regulation 16(3) does not mandate the making of an order to return if the court finds a grave risk.

42. The terms of the Regulation make it clear that the grave risk is to the child, in that the child would be exposed to physical or psychological harm, or otherwise placed in an intolerable situation.

43. In DP v Commonwealth Central Authority (2001) 206 CLR 401, Gleeson CJ stated:

    43.Because what is to be established is a grave risk of exposure to future harm, it may well be true to say that a court will not be persuaded of that without some clear and compelling evidence.  The bare assertion, by the person opposing return, of fears for the child may well not be sufficient to persuade the court that there is a real risk of exposure to harm.

    …

    That is not to say, however, that reg 16(3)(b) will find frequent application. It is well‑nigh inevitable that a child, taken from one country to another without the agreement of one parent, will suffer disruption, uncertainty and anxiety. That disruption, uncertainty and anxiety will recur, and may well be magnified, by having to return to the country of habitual residence. Regulation 16(3)(b) and Art 13(b) of the Convention intend to refer to more than this kind of result when they speak of a grave risk to the child of exposure to physical or psychological harm on return.

1. In his Summary of Argument, counsel for the respondent formulates his submission in relation to risk in the following terms:

   The evidence of the mother identifies the conditions in which she lived in Canada. In contrast when the mother initially retuned to Australia she felt no longer depressed and in despair. Since the proceedings commenced the mother has experienced significant anxiety and low feelings. The mother experiences what appear to be panic attacks. The mother has recently had a return of suicidal thoughts and has sought assistance from her general practitioner…

   …

   The father regularly uses illicit drugs and has not been able to provide proper and adequate care for X prior to the mother’s departure from Canada. Return of the child in those circumstances would place X in an intolerable situation.

2. In submissions, counsel for the respondent identified the grave risk of harm as being the risk that the mother’s mental health would be compromised thus detrimental to her ability to care for X and having a deleterious effect on the child.

3. The evidence does not support the proposition that the respondent was depressed in Canada. The respondent relied on a text message sent by her to the father when X was eight weeks old and the respondent took her for immunisation. The text stated:

   They think I have anxiety and could possibly get depression without a vitamin D supplement and spending time with friends and family haha.

4. There is no evidence that the respondent either sought or received treatment for depression in Canada.

5. The respondent relies on a medical certificate from a general practitioner dated 9 October 2020 which states:

   This is to certify that [the respondent] attended the surgery today & is suffering from anxiety and depression. She has agreed to a [mental health care plan] and psychology referral. Given time constraints today I have rebooked her in next week to complete [the mental health care plan].

6. On 15 October 2020, the general practitioner completed a document entitled “GP MENTAL HEALTH CARE PLAN”. Under the heading “Assessment” the document records:

   Presenting Problem/s: Anxiety/depression

   Struggling to cope with family stressors, low motivation and self-worth.

   Past domestic violence relationship-

   Has current court case pending. Father of her 11month old baby is trying to gain full custody of child and take back to Canada.

   Fleeting intermittent suicidal ideation. Child is a protective factor. No plans. No previous [mental health] admissions. Denies [deliberate self harm]. Becomes very anxious especially in social situations around strangers.

7. The general practitioner does not identify the information which she received from the respondent in order to make her diagnosis. Whatever that information might have been, it was insufficient to prompt a referral to either a psychiatrist or a mental health facility.

8. In relation to the assertion of past family violence, there is no evidence in the respondent’s affidavit of behaviour on the part of the father within the definition of family violence found at s4AB of the Family Law Act 1975 (Cth).

9. Neither does the general practitioner assert that there is any risk to the respondent’s mental health posed by her returning to Canada to allow a Canadian court to determine where X should live.

10. Further, there is no evidence that any condition which the respondent experiences would prevent her from providing adequate care to X, whether in Australia or in Canada.

11. The evidence upon which the respondent relies falls far short of the “clear and compelling” evidence which is required.

12. I do not accept that the respondent has established that an order for return would expose the child to physical or psychological harm.

    CONCLUSION

13. The respondent has failed to establish any of the defences upon which she relies.

14. Counsel for the respondent submitted that, in the exercise of discretion under Regulation 16(5), the Court would not order the return because:

    There is little utility to returning the child to Canada and the Court there determining that the mother and child may move to Australia in circumstance where that is a realistic outcome given the child’s attachment to her mother and the father, and the father’s statements. X would in all probability be placed in her mother’s primary care. Since X is already living in Australia with her mother, there is little utility in ordering a return.

15. I accept that the scenario posited by counsel for the respondent is one of a number of possible outcomes of the substantive proceedings.

16. However, the purpose of these proceedings is not to determine the outcome of the substantive proceedings but rather to determine in which jurisdiction that determination will be made.

17. The outcome for which the respondent advocates is the very situation which the convention seeks to avoid and defeats its purpose.

18. Orders will be made as sought by the applicant for the child’s return to Canada.

I certify that the preceding one hundred and four (104) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rees.

Associate:

Dated:       11 November 2020