Department of Communities and Justice & Mangal
[2021] FamCA 118
•9 March 2021
FAMILY COURT OF AUSTRALIA
Department of Communities and Justice & Mangal [2021] FamCA 118
File number(s): SYC 8105/2020 Judgment of: BENNETT J Date of judgment: 9 March 2021 Catchwords: FAMILY LAW – CHILD ABDUCTION – Hague Return Application – facilitation of safe return to the United Kingdom Legislation: Convention of 25 October 1980 on the Civil Aspects of International Child Abduction
Evidence Act 1995 (Cth)
Family Law (Child Abduction Convention) Regulations 1986 (Cth)
Cases cited: Director General, Department of Families, Youth & Community Care &Thorpe (1997) FLC 92-785
HZ & State Central Authority [2006] FamCA 446
In Re B (a minor) (habitual residence) [2016] EWHC 2174 (Fam)
Kardos & Harmon [2020] FamCA 328
M (Children) (Habitual Residence: 1980 Hague Child Abduction Convention) [2020] EWCA Civ 1105
McGregor & McGregor [2012] FamCAFC 69
MW v Director General, Department of Community Services (2008) 244 ALR 205
Re B (A child) (Habitual Residence: Inherent Jurisdiction) [2016] UKSC 4
Re C and another (Children) International Centre for Family Law, Policy and Practice intervening) [2018] UKSC 8
Re L and B (Children) [2013] UKSC 8
Re S (A Minor) (Custody: Habitual Residence) [1998] AC 750
Re S (Minors) (Abduction: Wrongful Retention) [1994] 1 FLR 82
State Central Authority & Handbury [2020] FamCA 668
State Central Authority & Metin [2020] FamCA 535
TB v JB [2000] EWCA Civ 337
Wenceslas and Director-General Department of Community Services [2007] FamCA 398
Number of paragraphs: 172 Date of hearing: 16 December 2020 Place: Melbourne Counsel for the Applicant: Mr Gould Solicitor for the Applicant: Department of Communities and Justice Counsel for the Respondent: Ms Goodchild Solicitor for the Respondent: Hague Convention Legal Practice Counsel for the Independent Children's Lawyer: Mr Moore Solicitor for the Independent Children's Lawyer: Legal Aid New South Wales ORDERS
SYC 8105/2020 BETWEEN: DEPARTMENT OF COMMUNITIES AND JUSTICE
Applicant
AND: MS MANGAL
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
BENNETT J
DATE OF ORDER:
9 MARCH 2021
THE COURT ORDERS THAT:
IT IS ORDERED THAT:
Return order
1.The application filed by the NSW Department of Communities and Justice (“the applicant”) on 11 November 2020 be granted, and the child X born … 2011 (“the child”) be returned to the United Kingdom, as soon as practicable, pursuant to Regulation 16(1) of the Family Law (Child Abduction Convention) Regulations 1986, the United Kingdom being the child’s state of habitual residence.
Injunctions pending return
2.Pending the child’s departure from Australia for the return to the United Kingdom, orders 2, 3, 4, 5 and 6 of the orders made on 19 November 2020 remain in force.
The father’s travel to Australia
3.The applicant is to liaise with the father in respect of arrangements for him to book and pay for an economy flight from the United Kingdom to Australia.
4.That within 7 days of the applicant receiving confirmation of the father’s flight details and expected date of arrival in Australia, the applicant provide a copy of the father’s ticket and itinerary to the respondent and the independent children’s lawyer.
The father’s quarantine in Australia
5.The respondent be and is hereby responsible for the reasonable cost of compulsory quarantine for the father consequent upon his arrival in Australia and, for that purpose, within 7 days of being provided with a copy invoice for the cost of the father’s compulsory quarantine, the respondent transfer funds to the father in the amount specified in the invoice NOTING that it was indicated that the cost will be in the vicinity of $3,000.
6.During the period in which the father is in quarantine, the mother and the father do all acts and things necessary to facilitate communication between the father and the child for at least 15 minutes each day, using Facebook video messenger (or similar) at a time agreed between the father and the respondent or, failing agreement, at 5.00pm (AEST).
Travel to the United Kingdom
7.The applicant liaise with the father in respect of arrangements for him to book economy flights for himself and the child, from Australia to the United Kingdom, on a route that does not include travel through a country on the travel ban red list or that would otherwise result in the child and/or the father being required to spend time in hotel quarantine upon re-entry into the United Kingdom.
8.Within 48 hours of the applicant receiving confirmation of the booking details for the return flight, the applicant provide a copy of the tickets and itinerary to the respondent and the independent children’s lawyer.
9.For the purpose of the child being returned to England, England being the child’s state of habitual residence, the mother and the applicant do all acts and things necessary to place the child be placed into the care of the father, as follows:
(a)The handover take place in New South Wales not less than three days prior to the scheduled departure of the flight to the United Kingdom (or in the event that there are not three clear days between the father’s release from quarantine and the scheduled departure of the flight, upon his release from quarantine).
(b)The applicant liaise with the respondent and the father in relation to the logistics of the handover including a suitable venue and time. In the event that there is no agreement, handover will take place in New South Wales at a venue and time to be nominated by the applicant.
(c)The respondent be responsible for making arrangements for the child to attend the venue agreed or nominated for handover to take place.
10.If the respondent does not bring the child to the venue for handover, at the agreed or stipulated time in accordance with order 9(c) above, the applicant be at liberty to make an urgent application for a Warrant for the Apprehension or Detention of the Child to issue, pursuant to regulations 14, 15 and 31 of the Family Law (Child Abduction Convention) Regulations 1986, authorising and directing the Marshal of the Family Court of Australia and the Commissioner and all Federal Agents of the Australian Federal Police and Officers of the New South Wales Police Force and all other Police Officers in all other states and territories of the Commonwealth to find and recover the child, and to deliver the child to the father or caseworkers or managers employed by the Department of Communities and Justice.
11.If the period between the father’s release from quarantine and the scheduled departure of the flight to the United Kingdom is greater than three days, and the father is able and willing to travel to Northern New South Wales, unless otherwise agreed in writing between the respondent and the father:
(a)The child is to spend time with his father for a period of not less than two hours, every second day;
(b)The father will nominate a venue for time to occur that is not further than a 30 minute drive from the respondent’s current residential address and advise the respondent in writing;
(c)The respondent will transport the child to and from the venue, and
(d)The child’s time with his father shall not occur during school hours.
12.The respondent be restrained by herself, her servants or agents from from being at or within 10 kilometres of the airport from which the child’s flight is booked to depart Australia for the period of 12 hours before and after the scheduled departure time.
13.That the name of the child, X (male) born … 2011, be removed from the Family Law Watch List in operation at all Australian international points of arrival and departure to allow the child to board the scheduled flight from Australia to the United Kingdom AND IT IS REQUESTED that the Australian Federal Police give effect to this order by removing the name of the child from the Airport Watch List upon presentation of the child for boarding.
Cost of air travel
14.Within 48 hours of the date of these orders, the respondent is to apply for a refund of the return ticket that she holds for both herself and the child to fly from Brisbane to London on R Airlines, and provide confirmation that she has done so to the applicant and the independent children’s lawyer.
15.The respondent mother be and is hereby restrained by injunction from causing, permitting or suffering the unused portion of the return air tickets to be dealt with other than as provided in paragraph 14 of this Order AND IT IS DIRECTED that a copy of this Order be served on the proper officer of R Airlines by the applicant State Central Authority, such service to be effected electronically and as soon as possible.
16.Within 48 hours of receiving any refund from R Airlines, the respondent transfer those funds to the father (unless she has already complied with paragraph 17 below) and provide confirmation to the applicant and the independent children’s lawyer that she has done so.
17.Within 7 days of receiving a copy of the tickets referred to in orders 4 and 8, the respondent reimburse the father for the cost of his quarantine and return ticket from London to Sydney or Brisbane, and for the cost of the child’s ticket to London. The total cost will be reduced by any money the mother has already transferred to the father in accordance with paragraph 5 and 16 of this Order.
Passports
18.In furtherance to paragraph 6 of the orders of her Honour Justice Williams made on 19 November 2020, within 7 days of this order the mother surrender all current passports relating to the child (including the child’s Australian and British passports) to the Brisbane or Sydney Registry of the Family Court of Australia.
19.The Registrar of the Court release the child’s passport to the applicant and the applicant be responsible for ensuring that the passport is available to the child and the father within good time to travel.
Other orders
20.That 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.
21.The independent children’s lawyer is discharged upon the child departing Australia.
22.That the name of the respondent, Ms Mangal (formerly Ms B) born … 1975, be removed from the Family Law Watch List in operation at all Australian international points of arrival and departure following the child’s departure on the scheduled flight from Australia to the United Kingdom AND IT IS REQUESTED that the Australian Federal Police give effect to this order by removing the name of the respondent from the Airport Watch List upon the departure of the child.
23.In the event that any proceedings (including contravention proceedings or proceedings relating to child support) are instituted in relation to the child in the Family Court of Australia within three years from the date of these orders, the parties to those proceedings (or any of them) be at liberty to seek that the application be listed before her Honour Justice Bennett for directions as soon as practicable with a view to having the proceedings determined without delay.
IT IS DIRECTED:
24.That the minute be marked Exhibit “C1” and remain on the Court file.
IT IS FURTHER ORDERED THAT:
25.The application of the Department of Communities and Justice be and is hereby otherwise dismissed and the matter removed from the docket of the Honourable Justice Bennett.
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 Mangal has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Introduction
[1]
Issues for determination
[8]
Onus of proof
[12]
Standard of proof
[15]
Findings of fact
[16]
Electronic Court Book
[17]
Evidence & credibility
[18]
Relevant history
[27]
Regulation 26 Report
[80]
Was X retained by the mother on 4 July 2020?
[83]
Was X habitually resident in the United Kingdom on the alleged date of wrongful retention, namely, 4 July 2020 within the meaning of reg 16(1A)(b)?
[103]
Did the father consent to the mother’s retention of X in Australia, within the meaning of reg 16(3)(a)(ii) on 20 March 2020 or otherwise?
[120]
Would the returning of X to the United Kingdom expose X to a grave risk of harm or otherwise place X in an intolerable situation within in the meaning of reg 16(3)(b)?
[134]
Conditions to return
[145]
The exercise of the discretion to refuse return in the event that I had found either or both exceptions to mandatory return to be engaged (which I do not)
[151]
Mediation
[152]
Form of final order
[156]
Conditions on return
[162]
Cost of return
[164]
Location of handover and port for return
[166]
Covid-19
[168]
Start of the English school year
[171]
Conclusion
[172]
INTRODUCTION
By application filed on 11 November 2020, the Department of Communities and Justice for NSW (“State Central Authority”, “SCA” or “the applicant”) applies for the return of X born in 2011 to the United Kingdom pursuant to reg 14 of the Family Law (Child Abduction Convention) Regulations 1986 (“the Regulations”). The Regulations give effect to Australia’s obligations under the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (“the 1980 Convention”) which entered into force between Australia and the United Kingdom on 1 January 1987.
The application is made on the request of the father, Mr C (“father” or “requesting parent”) against the respondent mother, Ms Mangal (“mother” or “respondent”). The mother and the father are jointly referred to as “the parents”.
On 24 November 2020, I requested that an Independent Children's Lawyer be appointed to represent X’s interests. In due course, Ms Phillips, solicitor, was appointed of Legal Aid New South Wales. She has done an exemplary job. She has demonstrated a keen awareness of the role of an Independent Children's Lawyer in a Hague return application.
The hearing proceeded for one day on the Court’s Microsoft Teams platform. There was no oral evidence or cross examination of any witnesses. The requesting parent in London was able to observe the proceedings from London.
X’s father, Mr C, consented to the mother taking X out of the United Kingdom to accompany her on a three month visit to Australia from 11 January 2020 until 13 April 2020. The SCA’s application alleges that on 13 April 2020 the mother wrongfully retained X in Australia. On 11 December 2020, the mother filed an answer and cross-application in which she opposed the return of X to the United Kingdom. The respondent mother records her opposition to return as including, “at the time the child was retained in Australia the child was habitually resident in Australia”. At an early mention before me on 30 November 2020, the legal practitioner for the respondent mother conceded that, as at 13 April 2020, X was not habitually resident in Australia and that all threshold (jurisdictional) facts were met. At that juncture it was considered that the mother would have carriage of the proceedings because the State Central Authority had established wrongful retention and a prima facie case for mandatory return.
By way of exceptions to return, the mother relied on what she alleged was X’s objection to being returned to the United Kingdom within the meaning of reg 16(3)(c) and alleged that his return to the United Kingdom would expose him to a grave risk of physical or psychological harm or otherwise place him in an intolerable situation within the meaning of reg 16(3)(b). In the alternative, the respondent mother was prepared “to consent to an order requiring the child to be returned to the United Kingdom providing that the following arrangements are put in place to receive the child”:
(a)a delay of X’s return to London until lockdown had been lifted;
(b)that the father provide evidence of having appropriate housing and a bedroom for X;
(c)that X could be registered in a school, that universal credit is in place to maintain X;
(d)the return date be arranged when the number of COVID cases in London has reduced significantly and lockdown is over; and
(e)that, in any event, “X not return before the athletics season ends in March 2021.”
The mother also sought a parenting plan be perfected: “So X knows what contact there will be with me moving forward”. Finally, the mother sought an order that the father:
…demonstrates that he is mentally and physically able to look after X, given his disability, Autism, and unemployment status. This might be demonstrated by a psychological report and Personal Independence Payment disability assessment. I believe he had such an assessment earlier this year and his benefits were increased as a result.
ISSUES FOR DETERMINATION
Within a short time of the final hearing commencing before me, the applicant SCA and the respondent each altered their positions. The applicant State Central Authority amended its position to allege a wrongful retention as at 4 July 2020 (rather than 13 April 2020). The mother abandoned her allegation that X objects to return to the United Kingdom but added that the father had consented to X remaining in Australia as a further exception to mandatory return.
In the result, the following issues now fall for determination:
(a)Was there a retention by the mother on 4 July 2020?
(b)Was X habitually resident in the United Kingdom on the alleged date of wrongful retention, namely, 4 July 2020, within the meaning of reg 16(1A)(b)?
(c)Did the father consent to the mother’s retention of X in Australia, within the meaning of reg 16(3)(a)(ii) on 20 March 2020 or otherwise?;
(d)Would the return of X to the United Kingdom expose X to a grave risk of harm or otherwise place X in an intolerable situation within in the meaning of r 16(3)(b)?
(e)If either of the exceptions for which the mother contends (consent and grave risk) is made out, should I exercise my discretion to refuse return?
The issue of habitual residence is a jurisdictional fact. If I am satisfied that X has acquired habitual residence in Australia by 4 July 2020, the retention would not be wrongful and the return application must be dismissed. If X was habitually resident in the United Kingdom as at 4 July 2020, the mother’s retention would be wrongful.
If the retention is wrongful, the mother relies on consent and grave risk as exceptions to mandatory return. If either or both exceptions are held to apply, the Court has a discretion to refuse return (see reg 16(3)).
ONUS OF PROOF
The applicant SCA bears the onus of proving the jurisdictional facts which are the necessary elements of a “wrongful” retention. Here the elements are whether there was a retention and, if there was, X’s habitual residence at that date. The balance of jurisdictional facts, pertaining to X’s age, the father’s rights of custody, the exercise of rights of custody etc. are admitted.
The respondent mother bears the onus of proving the exceptions of grave risk and intolerable situation and that, as at the date of the alleged wrongful retention, the father had given his consent to X remaining in Australia.
On the issue of the exercise of any discretion I may have to refuse return, the parties bear the onus of proving the facts which support the outcome for which they contend.
STANDARD OF PROOF
As required by section 140 of the Evidence Act 1995 (Cth) I will apply the balance of probabilities as the standard of proof.
FINDINGS OF FACT
In these reasons, a statement of fact is a finding of fact.
ELECTRONIC COURT BOOK
This matter was ordered to proceed with an Electronic Court Book. All parties cooperated in the preparation of the Electronic Court Book. Where an Electronic Court Book is to be used, it is incumbent on all relevant practitioners to ensure that he or she is proficient in the use of the Electronic Court Book before the trial commences. Practitioners are also required to ensure that any witness whom it is contemplated could be referred to a document whilst giving evidence can at least navigate the Electronic Court Book. Fortunately, whilst counsel in this case were caught unawares, they had the good humour and professionalism to learn in the job.
EVIDENCE & CREDIBILITY
The State Central Authority relies on:
(a)Form 2 Application filed 11 November 2020 which annexes:
(i)Affidavit of Ms D affirmed 11 November 2020;
(ii)Affidavit of Ms E apparently sworn August 2020, who is a solicitor of the Supreme Court of the judicature in England and Wales; and
(iii)Affidavit of Mr C, sworn 17 July 2020.
(b)Ms D’s affidavit affirmed 15 December 2020 which annexes the father’s affidavit at annexure “A” being an affidavit sworn on 14 December 2020.
The respondent mother relies on:
(a)Form 2A Response filed 11 December 2020;
(b)Affidavit of Ms Mangal filed 11 December 2020; and
(c)Affidavit of Ms F filed 11 December 2020.
Regulation 26 provides that the Court may direct a Family Consultant to undertake an assessment and to report to the Court on such matters as the Court considers to be appropriate and for the Court to receive the report into evidence. A Family Consultant is an expert psychologist or social worker with a high level of training and experience in child development and parenting after separation and divorce. Family Consultants are employed directly and exclusively by the family courts’[1] Child Dispute Services, which is located within the Registry.
[1] The Family Court of Australia is the superior court and the Federal Circuit Court of Australia is the trial court.
A Regulation 26 Report by Family Consultant Ms S prepared on 4 December 2020 deals with X’s alleged objection to return (as then alleged by the mother). The reg 26 report is in evidence. The Family Consultant was not required for cross examination by any of the parties. I will return to the reg 26 report later in these reasons.
Regulation 29(2) provides that any document attached to or given in support of the State Central Authority’s application is admissible as evidence of the facts stated in the application. The applicant State Central Authority extended the same latitude to the respondent mother which rendered documents obtained from X’s school admissible. It was a fair and reasonable course for the applicant to take as a model litigant.
There were also a number of exhibits.
There is not much evidence in dispute which is relevant to the determination of the case. The court allowed time for cross examination but no party sought to cross examine any other party’s witness. Most of the evidence upon which the mother and applicant SCA rely is correspondence passing between the parents and is self-explanatory. I have set out their communications extensively in these reasons. I make no findings of credibility.
Neither parent impressed me as being disingenuous, deceptive or as lying to achieve an advantage in the proceedings. They present very differently from one another. The factual discrepancy over the extent of the father’s forbearance for X to remain in Australia when the return flight to the United Kingdom was cancelled, is not referrable to one parent being less honest than the other. Each gave evidence from their recollections and impressions. Both believe that what he/she deposes to is correct. Evidence of this nature is always subjective and the parents are people with very different attitudes to one another.
The parents have very different writing styles to one another. My impression is that the father’s frank and straightforward style of expression is more accessible and provides a more reliable record than the mother’s style which is considered and reflective but frequently not responsive.
RELEVANT HISTORY
The father was born in Country BB and is 53 years old. The mother was born in Australia and is 45 years old. The mother’s name at birth was Ms G which has now been changed to Ms Mangal. In 1986, the father moved from Country BB to London. In 1996 the mother travelled to Europe for six months and then settled in London where she subsequently married and divorced.
The mother says that she met the father at a festival in August 2007, whereas the father’s evidence is that he met the mother at music festival in England in 2010. Nothing turns on this discrepancy. The mother’s evidence goes into detail about the father’s shock at her pregnancy and his disinclination to become a father which, in the context of this case, is also not relevant.
X was born in 2011 in England. The mother and X moved to J Town in November 2011. The father spent time with X regularly on weekends as well as for extended periods of four, five or six weeks when the mother travelled and the father moved into her residence to care for X. The first extended period was for four weeks whilst the mother travelled out of England and the father cared for X in the mother’s home. In July 2016, the mother left X in the care of the father for five weeks, in her home. Later in 2016, the mother and father jointly took X to India for a holiday for five weeks. In November 2018, the mother travelled to Australia for six weeks, leaving X in the care of the father again in her home. During this time the father expressed his exasperation and exhaustion at looking after X without assistance. The father has high functioning autism. His written expression is spontaneous and unguarded.
In December 2018, the mother informed the father that she wanted to relocate to Australia. The father was not agreeable. In January 2019, the mother instituted proceedings in the Family Court in Y City, N County, United Kingdom, for permission to relocate X’s residence to Australia on a permanent basis. The maternal grandmother had supported the father’s opposition to the mother’s relocation application. The maternal grandmother, Ms F, resides in V City in Queensland, Australia. The maternal grandmother wrote a letter for the UK relocation proceedings which is annexed to the father’s affidavit which is annexed to the Form 2. The letter reads:
… I am aware that [my daughter] is keen to return to Australia after 23 years in the UK and I would be very pleased to have her closer if it weren’t for the fact that her son, X, would be taken away from his father, Mr C.
If X’s father had played no part in his life or was a dead beat I would be wholeheartedly behind her move to Australia, but X has had a very close and loving relationship with his dad since the day he was born and continued to do so.
Both Ms B and Mr C are very good parents and although Ms B is X’s primary carer, Mr C plays an extremely important role in X’s life. I believe that a good loving father is so important to a child and it would seem crazy to take a child away from such a dad.
I have been the position of being able to visit Ms B and X once or twice a year since X was born but if Ms B moved back to Australia I don’t think Mr C would be in a similar position to visit.
[…]
While I sympathise with Ms B’s wish to return to Australia, I cannot support it at this time. I feel that such a move would be detrimental to X’s well-being. He may learn to cope with the separation from his dad in time; I don’t think he would thrive.
[…]
The maternal grandmother’s evidence painted a picture of the father’s involvement in X’s life which differs significantly from the mother’s description.
On 7 March 2019, Cafcass provided a letter to the Y City Family Court Hearing Centre:
The subject of this application is X (7). The applicant mother Ms Mangal applied to the court for a Specific Issue Order to remove X from the jurisdiction and relocate to Australia on a permanent basis. The respondent father is Mr C. X lives with Ms Mangal and spends time with Mr C.
According to our records the family have not been previously known to Cafcass.
The C100 and attached documents raise no safeguarding concerns
Safeguarding
Police
Neither party have a police trace
Local Authority
The family are unknown to the Royal Borough of Suburb CC
T Services
2011- Initial assessment following referral from midwife Ms Mangal had gone against medical advice and discharged herself wanting to have her baby at home. Assessment concluded. Case closed.
2018 – School referral regarding concern from parent X may have forced a girl to engage in sexual activity – enquiries undertaken – both children had limited knowledge about their behaviours. No further action.
Summary of any risk identification contacts made by Cafcass
Both parties have contacted Cafcass to confirm Ms Mangal has withdrawn her application [for relocation].
Mr C advised Cafcass the parties will be engaging in mediation.
The mother deposes to discontinuing her application to relocate X to Australia in February 2019 because she decided that “for X’s sake [she] should keep living in England for at least a few more years.”[2]
[2] Mother’s affidavit signed 11 December 2020, [60].
In July/August 2019 the mother decided to move from her dwelling in J Town and enrolled X at a different school, being L School in M Town, N County, to commence on 21 April 2020.
On 15 September 2019, the mother sent the father an email asking him, amongst other things, whether he would be interested in renting her home for a year, and, “Sharing child care half the time with X?”
On 24 September 2019, the mother sent the father an email confirming that she had booked flights to Australia departing 11 January 2020 and returning on 13 April 2020.
On 3 October 2019, the father sent the mother an email setting out the terms of his agreement for X to travel to Australia for a holiday. The father wrote:
Hi Ms Mangal. I just wanted to be clear about Australia and have it on record that I was with this email.
I am only giving permission for you to take X to Australia for three months and not a day more.
I can’t and won't accept any changes to the plan no matter what the circumstances are. Whether it's job related for you, school related for X, as in, "he is doing well in school out here so best allow him to finish it by staying in Australia for remaining year". It can't be family related or work related or don't have a house to come back to related etc.
Jam not suggesting that you are going to act in this manner and try and pull a fast one when you are out there, i am simply protecting myself and X by being clear as opposed to not.
Given what happened earlier this year I am forced to act like this so please understand.
Also, if 1am planning on moving closer to X i would really like a response to the text i sent about home education. I am his dad with equal say so please respect and give me your views on it.
As matters have developed, the father’s correspondence was prescient.
The mother replied to the father’s letter on 4 October 2019, as follows:
Regarding homeschooling, I am not in a position to commit to anything. I need to feel into it closer to the time and look into all the variables. Right now, I don't feel it would work or be in X's best interest.
We have return tickets for 13 April, so I don't intend to stay longer.
The father responded the next day:
Ok cool, we can talk about it next year. I don’t think school is going to suit X but anyhow, let's see.
In November 2019, the mother put her home in J Town in the United Kingdom on the market for sale and it was subsequently sold.
The mother and X left England bound for Australia on 11 January 2020 and the mother left her house, which was subject to an incomplete contract of purchase, full of furniture.
On 29 January 2020, X commenced school at K School in W Town which was the beginning of the Australian school year. W Town is about one hour drive from the maternal grandmother’s residence in V City. It is my impression that the parents would expect that X attends school wherever he is located.
In February 2020, the mother entered into a contract to purchase a home in W Town which she then rented until she completed the sale in May 2020.
On 14 February 2020, the mother sent the father a message proposing that he become a primary carer for X. By this stage, X had only been in Australia for one month. The mother wrote:
I am writing to share my thoughts about me, X, our living situation, schooling etc.
We are in quite a massive time of transition with selling the house, being here for a few months, X starting at L School and looking to move house on our return. Being back in Australia has confirmed to me that I need to be here more, Of course it's not new, it's been here for a few years.
The difference now is I feel it may be time that X lives with you for a period. You've said many times that you would be happy to have X live with you and I feel it would be good for X to be with you at this age, which would also allow me to follow my heart and live here some of the year. X could also spend some time here with me. I know he would be happy as long as he can see both of us.
Once I complete on the house and move out mid-May I don't feel to lock myself into a lease. Rather, I am feeling to live out of the van over the summer whilst I sort things out and then come back to Australia for a period. Maybe I can stay in the van, then X can keep his connections with the kids in the community.
As the primary carer, you would be entitled to housing, child benefit, child tax credit and council tax reduction on top of ESA which would allow you to get a 2 bedroom place for you and X.
So, I just wanted to write to you to express where I’m at and give you space to sit with it. If it feels good for you, we can talk more and sit together with X once we are clear about how this could happen, for what period etc, I am happy to sign an agreement so you have some security and peace of mind.
On 17 and 18 March 2020, the father and mother discussed the COVID-19 pandemic and the imposition of travel restrictions between the United Kingdom and Australia. The father sent the mother three messages on 18 March 2020:
By the way if you do get stranded in oz don't go renting a place for more than one month at a time. Once the restrictions are lifted I want X home and no excuses like “I have signed a six month contract” etc is going to change my mind. If X ends up three more months in oz then lam not letting him go next year. Too much time away from dad is not good. X anyhow hopefully It will all be okay
Ms Mangal I want you to bring X home in case the world shuts down. I know you think it’s all serving your needs right now but it changes nothing. The f X [sic] ends up a year in oz he will never be let go again. And it won't favour you in a court either by saying he is used to living there now etc
I know it is difficult but you already told a lie in front of X in regards saying your area was safe. Don't try and paint a clear picture of oz just to get your way when my son is part of the picture. Transparency only please. If you are forced to stay in oz then fair enough but I will be checking up, on why. I will check to see if you could have made it back etc
On 20 March 2020, the mother and father had a discussion on Facebook, with the mother writing:
We are safe, we are relaxed and well. We have family nearby and somewhere to live. I can extend where we are and take it week by week.
There is no game here [Mr C]. I planned only to come for 3 months. None of us knew this would happen. We are here now and need to do what’s best given the global chaos.
It will all work ok and when we get back we will work out a plan together.
In the meantime, let’s stay calm and deal with what’s here now.
The father replied on 19 March 2020:
Okay fair enough. Do what you have to do to best serve you and X remaining safe. It’s hard for me to keep saying when governments are saying travel might be stopped for months etc. at a time of crisis it is a nightmare of emotional street [sic] wanting your child near. X [sic] I appreciate you having to stay if that is how it is.
The mother relies on this communication as the father’s consent to X remaining in Australia until the COVID-19 Pandemic has passed. Furthermore, having allegedly given that consent, he cannot now withdraw it.
On 20 March 2020, Australia went into lockdown in response to the COVID-19 pandemic and the mother and child’s return flight to the United Kingdom on 13 April 2020 was cancelled. The mother raised delaying her and child’s return to the United Kingdom “until the COVID-19 situation settled down in Australia and England.”
On 29 March 2020, the father wrote to the mother:
Hi Ms Mangal. I am just going to relay this point to be clear about everything. I am not suggesting you are intending this, but I want you to be clear with things. It could be claimed that you are employing a tactic. You create a problem by buying a house over there and then you can claim: that you don't have money to live now in England. Everyone then is forced to bend to your problem and somehow oblige you by working around it. The court will see this as contempt of the law. If it worked every woman who wants to move somewhere would just go and ignore the court etc. By suggesting X is settled there now too won't work either. A court will work on behalf of what the kid needs but in this case you will be called out for creating the problem in the first place. There is basically no alternative to coming home with X to live in England until we decide what way to move forward. I will not shy away from using the court if I have too and no amount of problems that you have created will sway me. Again I am not intending court and I know you are coming back. I just wanted you to be clear because I am.
The mother responded:
[Mr C] There are no problems I have created, just the uncertainty of life. We are in a constantly changing situation because of the virus. What I thought was solid yesterday has changed today. Anyway it's not your concern. We will be back when we can. I am not trying to do anything other than keep us well, housed, happy and safe until we can do so.
On 5 April 2020, the father wrote to the mother:
Morning. I want you to please make a heart felt conscious effort to get X home ASAP. Once the trend over here turns I want you to book a flight. No excuses for staying there please. The world is changing and soon planes could be down for a year. I know you will be thinking about what you are coming back to. The country is in trouble etc so what are you to do. But none of that matters. I want my son home. The courts have already said that the virus cannot be used to keep parents apart from their kids. I am not suggesting you are doing that. I just want you act and come home soon. It is unnatural for me to be outside of X now and vice versa.
On 8 April 2020, the father wrote two emails to the mother:
Hope you are well. Just checking the news. Virus is now peaking in England so hopefully will start to fall by end of next week. Might be a good idea to start thinking about fights back for around end of April. Xx let me know what you are thinking about doing in regards coming back.
Actually sorry its going to peak April 17, So maybe you could be home for early may. Preferably before X’s birthday
The mother replied on 9 April 2020:
In response to your message, I know you were hoping that we could return soon. However nothing has changed from a couple of weeks ago (in fact it's got worse) and I am not intending or able to fly back during lockdown in Australia/UK. Everything is too unstable at the moment.
Rebooking flights is not possible in any case as R Airlines have suspended flights until further notice and I can’t get through to the travel agent.
I know it is really hard for you to be so far away from X and to miss his birthday but please know that we are safe, healthy and grounded in a calm place with family support nearby if needed. I am doing everything I can to maintain stable ground for me and X during a time of great global instability and fear.
We will just have to wait and see what unfolds with the corona pandemic.
In the meantime, I would like to work towards a shared parenting agreement that allows for me to be in Australia. Can you let me know the two options that you had in mind. Where did you get to with looking into benefits and housing?
If you want to talk via messenger we can do so in the evening after X's gone to bed (between 11am and midday your time).
Please don’t message me about your concerns on FB Messenger. I don't feel it's appropriate for X to be reading, especially if you are venting, accusing or blaming, I will not respond. it's your responsibility to hold yourself through this, as it is for everyone, We are all in the same boat. Please use email if you want to write.
In its Form 2 Application, the State Central Authority particularised 13 April 2020 as the date of wrongful retention. This was the date advised by the mother to the father on 24 September 2019 as the date of the return flights back to the United Kingdom for herself and X. Before me, the applicant SCA altered its position to allege that 4 July 2020 was the date of wrongful retention.
On 16 April 2020, the father sent the mother a WhatsApp message asking the mother to make plans and book plane tickets back to the United Kingdom. He asked the mother to not “put it off for a day longer than you need to please”. He added that: “this virus could go up and down and keep coming back. So please get your tickets and come home. You don’t have permission to keep X out there any longer… I think you should aim for first week in may to be on a flight”. The mother responded that there are no flights. The father then replied:
Ms Mangal I am doing my best to stay sane. Ignore the emails I sent you the truth is I do not know how to make this work. Eleven thousand miles is inconceivable. It’s up to you to come up with an optional plan not me. I just wasn’t my son…
On 19 April 2020, the mother emailed the father:
Thank you for your messages. I really appreciate working together on this. Please can we continue this conversation via email it's too hard to read long messages via WhatsApp.
Firstly, I would like to set the record straight. I didn't say that I would buy a house in M Town - I never had any any intention to do that. I was planning to rent in M Town/Z Town and for X to go to L School.
Of course so much has changed since then. I have bought a house [in Australia] and we find ourselves in the middle of lockdown during global pandemic. The whole situation is very unstable. As I said before, I don't intend to return whilst there is lockdown in both Australia/UK. We don't have a home in England and my priority is safety, stability and security for X - that means schooling, a home and support here until there is a stable environment for X to return to, both with you and in the wider scheme of things. That is my responsibility as primary carer.
Yes in an ideal world, we would live around the corner from each other so X could come and go as he pleased, but that is not the case and we need to accept the reality that we find ourselves in, both in the short and long-term. I cannot live in England any longer, I need to be here for my health and wellbeing. I have not been happy in England for a long time.
I do not intend to stay in England other than to sort my stuff out and return to Australia to create a home, so it really is imperative that we come to an agreement between us in terms of X's living arrangements as soon as possible. We both have his best interests at heart and I feel positive we can agree something between us.
X's welfare is paramount. That is my primary concern. He needs a stable home/s, education, extra-curricular activities, connection with friends, family and quality time with both of us.
We both agree he needs the love, input and support of both parents, so I feel the best way forward is for X to live here for 6 months and with you for 6 months. I would be happy to return to England once a year for a visit during the 6 months with you and you could do the same this way, The school here is willing for X to be enrolled half of the year and I'm sure H School would be ok with that too.
In terms of the school year between 2 countries, I feel Jan - Jul in Australia and Jul - Jan in the UK would work best allowing him to begin the school year in both places. That means summer and Christmas in England and his birthday in Australia. Of course I can come for Christmas and you could come here for his birthday.
I do recognise how difficult it is for you to embrace change, to think with how to move, where to move to, deal with benefits etc. but I do believe where there's a will there's a way. X is adaptable and wants to be with both of us. He is happy when we're happy.
I can't say where you should live, but either Country BB or Z Town makes sense, In Z Town, both you and X have connections in the area, with the school and within the community which offers support for you both. In Country BB, of course you have your family and friends. Depending where you decide to be, mum Is also willing to help out when she is over there. I know you will be supported on benefits as a single parent.
I am happy to be guarantor on your tenancy agreement as long as you have benefits in place (or in process). I have a whole house of furniture which I will gladly give you to create a home. It would help X to have some familiarity around him. Layla is packing up my house over the next few weeks so it would be good to know what you might want, if anything and I can store it until needed - I was thinking beds, sofa/s, X's furniture, toys, bookcase and desk. The car will be available to use until I sell it.
Please trust that this will all work out [Mr C]. Life is calling for change right now in so many ways and it makes no sense to resist life's flow. X is happy, bright, flexible and will be content if we are at peace
On 19 April 2020, the father wrote to the mother via WhatsApp messenger (in spite of her request for correspondence to be by email):
…If you don’t bring him home you will go to jail so please don’t do that to yourself. Anyhow I will take custody of X and you can go and come when you please. Revealing that you cannot be in England is unbelievable… Like I said sigh [sic] him over to me and do not act from out there to bring me to court because it means I won’t see X for over a year and if you do that I will press charges against you. I have already spoken with free advice lawyer and in a word you have buried yourself. I am not out to do anything against you just bring home my son. Thanks
On 22 April 2020, the father sent the mother a Whatsapp message:
Awesome the virus count is dropping. Lockdown will be eased soon. Flights back from Dubai are in flow to London. Might be a good idea to start looking into flights now because it will probably be a few weeks before you can get one.
On 24 April 2020, the mother sent the father an email:
Thanks for your message via WhatsApp. I want to be clear where I am at with regard to returning.
I know you really want X back asap, but from my perspective as primary carer going back to instability (no home, no school, no plan from your side and living in a van) is not responsible nor viable. As I said in my previous email, there are things that need to be in place first:
1. We need a formal parenting agreement.
Are you happy to agree 50/50 arrangement as per my email? You haven't responded to my email other than to say we'll sort it out, I want an agreement in place before I return so there is some security for everyone and so we can set things in motion. Saying you will work with me is not the same as a firm agreement and practical action. I need to know what your intention is moving forward.
2. The wider COVID situation must be safe and stable. ie. no virus, no lockdown, schools open, free movement etc.
3. X needs a secure home, enrolment in school and you need the financial means to look after him. He can stay with you for a while, but then what? You can’t afford to keep X for any length of time currently and I am not going to lock myself into a lease in England for an unknown period of time. I have nothing to go back to.
Living out of a van is not viable with a child. You mentioned getting a council house to X this evening. Have you applied for that? Are you applying for Universal Credit? Please let me know your plans.
So what I am saying is that I will return when these things are in place. Until then, I am staying here where X can go to school, where we have a roof over our head and where we have family support. It's my responsibility as primary carer to provide all of these things and that’s what I'm doing. I am not placing ourselves in a risky, unstable situation unnecessarily.
As I said before, I will help you secure a flat and give you some furniture. You need to decide where you are going to live, apply for benefits and find a home.
I have now applied for Jobseekers and Family Benefit here which will replace what I receive currently in the UK. I will advise them of the change of circumstances once X is with you half-time and it will be adjusted accordingly. Once benefits are in place here, I can cancel it in the UK. It would be wise for you to apply for benefits now as a single parent in the UK as it could take time to process.
The Australian International Child Support Service need to speak to you in order for me to receive benefit here. They will be in touch by telephone to check your income (i.e. benefits) and you will need to provide them with proof. Given the time difference, they will ring early in the morning. I would be grateful if you can give them a call on … instead as it's unlikely that they'll catch you so early in the morning. You need to give them the case number (…) and your benefit details.
Please update me with you plans and let's get an agreement in place so we can have it witnessed by a solicitor.
On 24 April 2020, the father responded:
I agreed to nothing more than you going to Australia for three months for a break, for which I have written evidence and witnesses. You cannot help the COVID situation and your flights being cancelled. But as of the moment where the lockdown in the UK is lifted, and there are R Airlines flights coming back to the UK, you will be in breach of that agreement, and have officially have abducted my child.
Given the severity of this crime, there is free legal support for abduction cases in this country. The family lawyer said to me that it looks like I have a clear case of abduction. If you do not wish me to press abduction charges against you, you have 24 hours to reply to this message stating that you will return our son to the UK as soon as the lock down is lifted by the British Government. There are absolutely no condition on this. You are to bring home my child, end of story.
Just to be clear, you do not have my permission to make any arrangements for him to live there beyond the period between now and when you can catch the fight home, as per the above.
Furthermore, as primary carer for X, it is your legal obligation to provide a stable home for your son in his habitual country of residence, which is the UK until there is legal agreement otherwise. You stopped court proceeding last year in this regard, but nonetheless, in order to achieve your end have constructed a situation where our son does not have a suitable home in which to return home. Not only does this show a criminal level of negligence in the care for our son, you are directly flouting British Law.
[…]
As I said, I want it disclosed in writing, within twenty four hours (and it is now 17.33 BST), that you intend to bring home our son, no questions asked, or I will start criminal procedures against you. There will be no going back.
The mother wrote to the father on 27 April 2020 which was two weeks after the date on which X and the mother had been supposed to return to the United Kingdom. She wrote:
I am tired too. I agree it is challenging, but where there's a will there's a way. We must trust in life.
I had no plan to come for 3 months and stay, Not at all. And clearly I didn’t plan a global pandemic! After letting go of the path towards court last year, I really did my best to embrace life in England.
When I sold my house, I did so because it felt right to make a change. It was obvious that life wanted me out of J Town, but I really had no idea where to go - there wasn’t anywhere in England I truly wanted to be. I chose M Town/Z Town because I felt L School would be good for X and we have connections in the area.
The pull Australia is strong [Mr C]. I just can't be in England anymore to live. I expressed this to you soon after arriving in February when I realised again how important it is for me to be here. At that point, I thought might be able to live in both countries, but it’s just not viable for many reasons, I need to work and ground in one place. It is better for X that I am settled where I can provide familiarity, stability and a home for him.
I am sorry it is bringing challenge, but I must remain true to my heart and my heart is here. I really have done my best to make it work in England, but over the past few years even my work has dried up.
I didn’t plan to buy a house and didn’t go looking. It found me and I responded because it felt right. It is clear life is calling for me to be here. I've not felt happier in years and not for any reason other than I feel ‘at home’. I am living in my own home for the first time ever in Australia and near my family for the first time in 24 years - it is deeply grounding and healing and I see X is happy. He is adaptable and loves it here.
I really think we can work this out and X will benefit from experiencing the fullness of life in Australia, England and Country BB. After all, he is bi-cultural. (emphasis added)
The mother has a certain literacy style but her turn of phrase in the parts of her email in italics is remarkable in that it expresses a professed lack of agency, which suggests an unwillingness to accept full responsibility for matters initiated, controlled and executed by her.
The mother deposes at paragraphs 77 and 78 of her affidavit that, by May 2020, she had decided that she would not return to the United Kingdom but had not decided that she would not send X back to the United Kingdom. She says that she “tried to make arrangements with [Mr C]”. The mother added that she made the decision to not to return herself “because here [she has] stability and [is] close to [her] family in Australia”. The father deposes that he believes the mother sold her home in the United Kingdom in April/May 2020 for £480,000 GBP and that the home was unencumbered.
On 10 May 2020, the father wrote to the mother three times via Facebook:
When the quarantine and lock down is up I am happy to travel to quatar [sic] or Dubai or wherever to pick him up and bring him home. We could then begin to sort out how we can operate between the two of us which we will sort out for definite. Just a thought.
You could drop him to Dubai etc and I take him from there.
I also need him six weeks back before school for enrolling etc. H School said they would be delighted to have X back but six weeks prior is needed for enrolling.
On 14 May 2020, the father sent an email to the mother:
Morning, hope you're doing good. I am just sharing thoughts because I feel I need to. I am not saying any of this is the case. I am just relaying it because I am in this side of the water and I want to make sure X is safe and protected from all things.
I say things to him about home sometimes and he appears distant from the answer, Like he is a little bag of subtle confusion. I just wanted to make sure you are not subtly creating confusion for him. Perhaps planting ideas about dad not having money or a home onto take care of him, Or dad has nine years and he never got a place etc.
Point being: subtle confusion can create an uncertainty in a child and a child will naturally stay where they feel most safe. Again I am not saying this is going on. However, if it is, I will find out as soon as he is in my arms again. X loves his dad to bits. Everyone knows that,
My nephew Mr AA rang me and suggested I watch out for things like that. He was taken away from my brother when he was eight too. He said he remembers all the subtle things his mum places in him about my dad and why he had to remain in England. By the time he was a teenager he was in a rage because trust was destroyed. As an adult, he knows exactly what went on and I won't share his truth about it now.
Please understand my need to express this. You just don’t know what its like to be on the receiving end of such uncertainty about one’s child and so far away from him. I just wanted to make sure he is safe and his you g developing mind is respected.
By the way, the your airline is flying from Sydney to Lon from next week. Be good for chat on fine soon if you fancy.
Don't take any of the above to heart, Just a dad doing what dads do.
The above provisions are suggestions for consideration by the parents. They may come up with other means by which to implement X’s return to the UK at the mother’s expense. If the SCA, the mother and the Independent Children's Lawyer are unable to reach agreement by late-January 2021, I will reconvene and determine all issues then outstanding. To that extent, I do not regard myself as functus officio. As indicated by me at the hearing, I would not countenance X being required to serve a quarantine period in the United Kingdom either alone or accompanied by the mother or the father. Quarantine is not an appropriate place for a child. I did not consider the father’s proposal of meeting X at the airport on the other side of customs to be emotionally safe for X. If the mother will not escort X to England to settle him there, the father will have to come to Australia, clear customs, serve his quarantine at least 3 or so days before he and X depart Australia for the UK.
I suspect that the parents will be assisted by further mediation on these issues, now the main decision is known. If they can work out how the decision can be best implemented for X they should proceed to negotiate and try to agree on parenting arrangements going forward. The parents are an unusual pair. I do not have a clear picture of how they operate as a couple but I have a very clear picture of X having managed, to date, to obtain the best standard of parenting that each has to offer. I hope that will continue.
My Associate will be in contact with the parties in early February 2021 to arrange a re-listing of the matter so that it can be finalised.
CONDITIONS ON RETURN
The Court reconvened on 9 March 2021 to hear submissions in relation to the final form of the Order. Each party submitted a minute. The points of contention are:
(a)who should pay for the cost of returning X to the United Kingdom,
(b)where the handover of X should take place and whether X and the father take their return flight from Sydney or Brisbane
(c)what conditions precedent should bear on the child’s departure.
I refused leave to the applicant to file 420 plus pages of affidavit and annexures and for the mother to file an affidavit as to her financial circumstances. To do otherwise, would have required each to re-open their case. They have each had since late December 2021 to exchange information. Notably, the parents mediated with Q Services prior to the hearing, specifically to prepare for outcomes. Formulation of any conditions to return should have been considered by each parent on the basis of X returning to England and staying in Australia. The applicant and the respondent mother had ample opportunity to adduce evidence about conditions to return during the hearing. It is wholly inappropriate to expect the court to digest 450 pages of print on the morning of a hearing.
Cost of return
The mother’s position was that she and the father should share the costs of return. She was prepared to fund up to $5,469 payable as to $4,000 by way of forgiving child support arrears owing by the father to her and as to $1,469 in cash. The applicant sought an order that the mother be responsible for the cost of the father’s airfare to Australia and the return airfares for the father and X to England together with the cost of the father’s quarantine of $2,800 to $3,000 once he lands in Australia. In my view the costs of the father’s forward journey to Australia and compulsory quarantine are part of the costs of return. The mother presented bank balances to the court in support of submission that she could not afford to pay airfares. Ms Saladino submitted that the mother’s eligibility for legal aid ought to also satisfy me that her client is without funds for airfares over and above her offer to forgive child support and pay a very modest amount. Requests for previous statements on the three accounts disclosed by the mother produced a fourth account not previously disclosed through which the mother had received the $120,000 since last June. The statement of one Suncorp account which the mother produced to verify a balance of $1,057 disclosed that, immediately prior to providing the statement of balance she produced to the court, the mother had made payments from that account of totalling approximately $6,500 for work to be done on her laundry and some roof repairs. It was the mother’s case that the father has previously required financial support from her so she could not have thought that he would have funds at his disposal to recover X. In point of fact, however, the father has apparently accumulated some $7,000, which I also take into account.
In the last 12 months the mother has purchased her house in W Town for $740,000 which she holds unencumbered, she has had the use of about $120,000 of funds which represented the proceeds of sale of her van and the monies from the sale of real property in London which were not needed to complete her purchase in W Town. The mother expended those funds in the knowledge that it would be the father, not herself, who would need to take X back to England if this court so ordered. In the circumstances, the mother ought to pay the airfares and quarantine costs. That said, I do not want the recovery of the money to delay X’s departure. Any of the requesting parents own funds expended can be recovered from the mother in either this court or in the courts in the United Kingdom. Some will be offset by child support arrears. Other funds can be obtained from a refund of the un-used portion of the return air tickets which the mother purchased to come to Australia. Those monies will come from R Airlines which cannot be used as a carrier because that would entail the father and X having to serve a period of quarantine on return to England.
Location of handover and port for return
The next issue is the location of handover and at which port X should exit Australia. The mother sought Brisbane because the Family Consultant who prepared the Regulation 26 report is in Brisbane. However, the Family Consultant has no further task in this proceeding. The applicant sought flexibility for the father to be able to fly out of whichever port is most economical and convenient for him. I agree. The handover should be in the same state as the mother resides in case the Australian Federal Police have to intervene to collect X. However, the father should be free to arrange their return flight from whichever city he chooses.
The parties are agreed that X and/or the requesting parent should not serve a period of quarantine on arriving back in England and that X’s departure can be delayed until that is the case. Quarantine is distinct from being required to isolate at home which everyone anticipates both X and the father will have to do for ten days or five days if released early.
Covid-19
Finally, the mother sought that X not be required to return until Smartraveller indicates that conditions are “acceptable” in England. This is apparently in relation to the prevalence, dangers of and restrictions associated with the pandemic. Earlier in these reason,[7] I commented on the lack of evidence at trial relevant to the mother’s contention that the pandemic is a component of the grave risk of harm exception to return. It is to be noted that those comments were published to the parties, in draft, on 23 December 2020 and this mention to settle orders in final form takes place more than two months later.
[7] [133] and [134].
Earlier in these reasons I referred to Smartraveller’s status reports as something that the parties may have considered adopting as a benchmark. However, it is not a reference point which I would impose upon them. Smartraveller is designed for Australians travelling overseas, as X is. However, X is returning to England as his place of habitual residence. The relevant information is what requirements the authorities have imposed in England for travellers coming into England.
The parties are agreed that X and/or the requesting parent should not serve a period of quarantine on arriving back in England and that X’s departure can be delayed until that is the case. Quarantine is distinct from being required to ‘isolate at home’ which all parties anticipate both X and the father will have to do for ten days or five days if released early.
Start of the English school year
The mother sought that X’s return be close to the start of the English school year on 1 September 2021. I will not delay X’s return until just before the start of the English school year. X should be back at school in England as soon as possible.
CONCLUSION
I am satisfied that X be returned to the United Kingdom as soon as it is safe and practicable for him to do so. I am satisfied that the orders set out at the commencement of these reasons facilitate a safe return.
I certify that the preceding one hundred and seventy-two (172) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bennett. Associate:
Dated: 11 March 2021
Key Legal Topics
Areas of Law
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Family Law
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Administrative Law
Legal Concepts
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Judicial Review
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Remedies
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Injunction
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Jurisdiction
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Procedural Fairness
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Standing
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