Department of Communities and Justice & Wilmer - [2023] FedCFamC1F 202

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Department of Communities and Justice & Wilmer [2023] FedCFamC1F 202

File number: SYC 7496 of 2022

Judgment of: CARTER J

Date of judgment: 28 March 2023

Catchwords: FAMILY LAW – CHILD ABDUCTION – Hague Convention – child retained in Australia from the United Kingdom – where the date of wrongful retention was disputed – consideration of the principle of repudiatory retention – habitual residence – where there is a disagreement as to the nature and purpose of the parents’ travel to Australia – whether the father was exercising his rights of custody – jurisdictional facts established – where the mother asserted the father consented to the retention – where the mother asserted the father was not exercising his rights of custody – where the mother asserted there is a grave risk – where the mother has not discharged her onus – orders made for the return of child to the United Kingdom

Legislation:
Evidence Act 1995 (Cth) s 140

Family Law Act1975 (Cth) s 111B

Family Law (Child Abduction Convention) Regulations 1986 (Cth) regs 4, 15, 16, 25A, 26, 29

Children Act 1989 (UK)

Hague Convention on the Civil Aspects of International Child Abduction art 5

Cases cited:
Central Authority & Wageman and Anor 48 Fam LR 254

Director General, Department of Communities, Child Safety and Disability Services & Ibbott (No 2) [2015] FamCA 698

Director General, Department of Families v P (2001) FLC 93-077

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

Handbury & State Central Authority and Anor (2020) FLC 93–937

HZ & State Central Authority (2006) FLC 93–264

In the Matter of C (Children) [2019] AC 1

LK v Director-General, Department of Community Services (2009) 237 CLR 582

Punter v Secretary for Justice [2007] 1 NZLR 40

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

Re H (Minors) (Abduction: Acquiescence) [1998] AC 72

Re H. (Abduction: Habitual Residence: Consent) [2000] Fam Law 590

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

State Central Authority & Del Rosario [2019] FamCA 607

State Central Authority & Handbury [2019] FamCA 668

W v W (Child Abduction: Acquiescence) [1993] 2 FLR 211

Walpole & Secretary, Department of Communities and Justice (2020) FLC 93-950

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

Zotkiewicz & Commissioner of Police (No 2) (2011) FLC 93-472

Division: Division 1 First Instance

Number of paragraphs: 381

Date of last submission: 1 February 2023

Date of hearing: 30 – 31 January 2023; 1 February 2023

Place: Melbourne

Counsel for the Applicant: Mr Paul Guterres

Solicitor for the Applicant: Department of Communities and Justice Legal

Counsel for the Respondent: Mr Peter Hackett

Solicitor for the Respondent: Crane Paskins Law
ORDERS

SYC 7496 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
DEPARTMENT OF COMMUNITIES & JUSTICE

Applicant

AND:
MS WILMER

Respondent

order made by:

CARTER J

DATE OF ORDER:

28 March 2023

THE COURT ORDERS THAT:
Return of child
1.The Application under Regulation 16(1) of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) be granted, and the child, X born 2019 (“the child”), be returned as soon as practicable to the United Kingdom.
2.The Respondent’s Amended Form 2A and Cross Application filed 16 January 2023 be dismissed.
3.The Respondent be at liberty to return to the United Kingdom with the child.
4.The child is to leave the Commonwealth of Australia within 28 days of this order and for the purposes of this Order:
(a)within seven days of the date of this order, the requesting parent under the Hague Convention on the Civil Aspects of International Child Abduction, Mr B, is to provide the Respondent with the current flight tickets (being the return flights for the tickets originally booked in February 2022) for the Respondent and the child from Australia to the United Kingdom; and
(b)within seven days of receiving the tickets from Mr B, the Respondent is to rebook those flights for herself and the child departing no more than 28 days from the date of this order.

5.Order 4 above is subject to the following conditions being met by the requesting parent under the Convention, Mr B:
(a)that, no less than seven days in advance of the scheduled flight, Mr B shall make payment of GBP3,000 to the trust account of the Respondent’s solicitor on the condition that such funds are for the purpose of the Respondent to meet the costs of accommodation in the United Kingdom;
(b)that Mr B shall make available to the Respondent the sole use and occupation of the former matrimonial home at D Street, City C, United Kingdom for a period of three months, and that the Respondent inform Mr B in writing in advance of her departure from Australia of the dates she intends to occupy the home; and
(c)that Mr B shall make payment to Dr E (or, if Dr E is unavailable, another suitably qualified psychologist) for three psychological consultations which the Respondent shall be at liberty to use on her arrival in the United Kingdom and that Mr B shall provide to the Respondent proof of payment for such consultations in advance of the Respondent’s travel.

6.In the event that the Respondent does not comply with Order 4 above, the Applicant is at liberty to make arrangements for the child to return to the United Kingdom forthwith.
7.Pending the child’s departure from Australia for the United Kingdom, Orders 3, 4, and 5 of the orders made on 27 October 2022 remain in force.

Release of passports
8.G Lawyers in F Town release to the Applicant the passports of the Respondent and the child, and the Applicant be responsible for ensuring that the passports are available to the Respondent or any other person travelling with the child to enable the return of the child to the United Kingdom.

Airport Watch List removal
9.The name of the child, X born 2019, 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.
10.Upon the presentation of the child for boarding the scheduled flight to the United Kingdom, the name of the Respondent, MS WILMER born 1984 be removed from the Family Law Watch List in operation at all Australian international points of arrival and departure, 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 presentation of the child for boarding.
11.A sealed copy of these orders be provided to the Commissioner, Australian Federal Police.
12.The parties be at liberty to apply urgently to relist the matter in relation to the implementation of this order.
13.All other applications are hereby dismissed.

AND THE COURT NOTES THAT:
A.Mr B consented to Order 5.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUSTICE CARTER
INTRODUCTION

This is an application by the Secretary, Department of Communities and Justice (“the State Central Authority”) filed on 24 October 2022 seeking the return to the United Kingdom of the child, X born 2019, pursuant to the provisions of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”). The application is made in circumstances where the applicant asserts that X’s retention in Australia is wrongful within the meaning of reg 16(1A).
The Regulations are made pursuant to s 111B of the Family Law Act1975 (Cth). They enable Australia to perform its obligations under the Hague Convention on the Civil Aspects of International Child Abduction, which is generally referred to as the Hague Convention. The Hague Convention provides a mechanism for the prompt return of children who have been wrongfully removed or retained in other contracting states. It is in force between Australia and the United Kingdom.
The respondent, Ms Wilmer is the mother of the child (“the mother”). She is currently in Australia, with X. The requesting parent, Mr B, is the child’s father (“the father”). He lives in City C, in the United Kingdom.
The relevant provision of the Regulations which mandate when a court must order a child’s return to another contracting state is reg 16(1A) and (2). That regulation provides a number of jurisdictional facts - which must be proven by the applicant - to establish that a removal to or retention in Australia is wrongful. Those jurisdictional facts are:
(1A)…
(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.
If the conditions for a return order are established, then I am obligated to make a return order unless one of the matters in reg 16(3) is established by the mother.
Regulation 16(3) provides as follows:
(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.
…
If the mother is able to make out an exception, the court then has a discretion as to whether or not to order a return. That is confirmed in reg 16 (5) as follows:
(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.
If the court is considering whether to refuse to make a return order on the basis of the “grave risk” exception, the court may impose conditions to ameliorate the risks. Regulation 16(6)(b) provides if:
…
(b)a party to the proceedings, or an independent children’s lawyer who represents the interests of the child in the proceedings, raises in the proceedings any condition that could, for the purpose of reducing a risk mentioned in paragraph (3)(b), be included under paragraph 15(1)(c):
(i)in a return order for the child; or
(ii)in any other order that the court proposes to make under paragraph 15(1)(b) in relation to a return order;
the court must consider whether it would be appropriate to include the condition.
Pursuant to reg 16(7):
In considering whether to refuse to make an order under subregulation (1) or (2) on the basis of the matter mentioned in paragraph (3)(b), the court may have regard to any other measures that would be reasonably likely to reduce the risk mentioned in paragraph (3)(b).
The requisite standard of proof, as required by s 140 of the Evidence Act 1995 (Cth), is the balance of probabilities.
Preliminary Matters
The hearing was conducted electronically via Microsoft Teams. This was a matter in which it was appropriate that witnesses be cross examined. There was considerable conflict in the evidence, for instance regarding the intentions of the parents.
The few technical issues that were encountered were able to be dealt with quickly. I am satisfied that although all evidence was given in a virtual courtroom, the witnesses were able to give their evidence appropriately. I was able to hear and assess that evidence, as well as the submissions made by counsel.
I note that if a return order is made, the mother indicated she would return with X.
Evidence and Documents relied upon by the parties
The State Central Authority relied upon the following documents:
(a)Form 2 – Initiating Application filed 24 October 2022;
(b)Affidavit of Mr G filed 24 October 2022, which included the Affidavit of Mr B sworn 4 July 2022; the Affidavit of Ms J sworn 29 June 2022 and the Affidavit of Mr B sworn 9 October 2022;
(c)Affidavit of Mr B filed 19 December 2022;
(d)Affidavit of Mr H filed 19 December 2022;
(e)Affidavit of Ms K filed 19 December 2022;
(f)Affidavit of Mr L filed 19 December 2022; and
(g)Affidavit of Ms M filed 19 December 2022.
I did not permit the applicant to rely on an affidavit sworn by Mr B on 26 January 2023. That was objected to. There was no real explanation as to why that affidavit could not have been filed on time.
The respondent relied upon the following documents:
(a)Amended Form 2A – Response and Cross Application filed 16 January 2023;
(b)Affidavit of Ms Wilmer filed 8 December 2022;
(c)Affidavit of Dr E filed 6 December 2022;
(d)Affidavit of Ms N filed 5 December 2022; and
(e)Affidavit of Mr O filed 5 December 2022
There were a number of exhibits tendered during the trial. I was further provided with a copy of the Royal Australian and New Zealand College of Psychiatrists clinical practice guidelines for the treatment of specific mental health issues, and a copy of the relevant Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, diagnostic criteria, as aides. The guidelines were referred to by Ms N, and she was cross examined on the diagnostic criteria.
I note that the mother objected to parts of the evidence relied upon by the State Central Authority on various grounds including relevance and hearsay, or that the deponent had included opinions, conclusion, argument and submission. These objections were not pressed in light of the provision of reg 29 which permits the admission into evidence of any document in support of an application made for return. It is a matter for me as to the weight that I put on matters deposed to.
All witnesses were required to give evidence – save for Dr E. Arrangements had been made for her to attend, but she did not join the Microsoft Teams link, or respond to repeated calls by the mother’s lawyers on the day she was scheduled to give evidence. Sensibly, Mr Paul Guterres of counsel indicated that rather than the trial being adjourned, the State Central Authority would not seek to cross examine Dr E. Regulation 29(3) at any rate would have enabled Dr E’s affidavit to be admissible as evidence notwithstanding her non-attendance for cross-examination.
Credit of Witnesses
I found the father and his supporting witnesses to be credible and compelling witnesses. Their evidence was substantially internally and externally consistent. In particular, Ms M and Ms K were impressive witnesses.
The mother is clearly a vulnerable woman. She struggled significantly giving her evidence, requiring short breaks on occasion to compose herself. I am not of the view that she has deliberately misled the court, but I do note that at times, her own evidence was inconsistent and at times she had omitted matters from her affidavit material that did not support her contentions. As a result of those inconsistencies and omissions, I have concerns about the reliability of her evidence in relation to what she said was agreed between herself and the father regarding the purpose and duration of the travel to Australia, as well as her evidence regarding her own intentions.
Mr O impressed as a concerned parent and grandparent, and I generally accept his evidence.
I have some reservations as to the weight I can put on Ms N’s evidence. The basis for a number of critical conclusions was very competently challenged in cross examination by Mr Guterres. It became apparent that Ms N had based parts of her report on the premise that the mother had been diagnosed with a mental illness, which was incorrect. I will consider in more detail Ms N’s report and evidence when I consider the issue of grave risk.
Background
The father lives in City C, the United Kingdom. He is 45 years old. He is a dual citizen of the United Kingdom and Australia. He is employed as a professional with P Ltd. He said, and I accept, that since returning to the United Kingdom in 2015 he has not wanted to return to Australia to live.
The mother is currently resident at the home of her parents in F Town, in New South Wales with X. She is 38 years old. She is not in current employment. The mother is also a dual citizen of the United Kingdom and Australia.
The mother and father met in around 2013 in Australia and started living together. The father had been living here since around 2008. In 2015 the mother and father left Australia and moved to City C. The father purchased a property in City C in 2015 into which he and the mother subsequently moved after it was extensively renovated. The home is close to the father’s parents and situated near a field, where the mother agisted her horse.
Whilst living in City C the mother and father both obtained employment there – he as a professional and she as a technician. They were married in City C in 2016.

X was born in 2019 in City C. X commenced child care Suburb R, City C in early 2020. She also participated in various extra curricula activities in the area.
On a number of occasions from around late 2019 the mother told the father that she wanted the family to relocate to Australia. That was resisted by the father.
From early 2020 the family was unable to travel overseas to spend time with the mother’s family due to the COVID-19 pandemic. It is common ground that the mother’s mental health deteriorated at that time. She said at that time her requests to relocate to Australia became more pressing and was repeatedly discussed between the parents.
In late 2021 the mother told the father that her father was unwell, and she wanted to travel to Australia for an extended period.
When travel restrictions eased in January 2022, the mother and father agreed to travel to Australia. They do not agree as to the purpose or the duration of the travel.
The father asserted the travel was for an extended holiday, which he preferred only be for around six months. He said his agreement to travel was conditional upon:
(a)him being able to continue to work remotely for his employer whilst in Australia; and
(b)X being accepted into childcare in Australia for the period the family was here, commensurate with her peers in the United Kingdom, so her education upon her return was not impacted.
The father also asserted that the parents agreed they would return to the United Kingdom together as a family if either parent wanted to return earlier. The father acknowledged the mother did speak about wanting to move to Australia. However, the father said at no point did he ever agree to doing so.
The mother asserted the intention was to “trial” living in Australia for a period of up to 12 months in circumstances where since late 2019 she had repeatedly said she wanted to return to Australia to live. She said she never agreed to the travel being “a long holiday”, nor that the travel was subject to the conditions asserted by the father.
The father spoke with his supervisor at P Ltd, Ms M, in January 2022 about him traveling to Australia with the mother for an extended period. At that time, there was some discussion regarding the father being able to work remotely whilst in Australia.
In February 2022 the father purchased three flexible return airfares for the family to travel to Brisbane, Australia in early 2022, and returning to the United Kingdom in early 2023. It is common ground that the mother wanted the return flights to be 12 months after they departed the United Kingdom. The father wanted to purchase return tickets for six months after departure. The father said the return date in nine months was the longest time allowed by the booking agent when he booked the tickets which he felt provided a compromise between the parents’ competing desires. It is also common ground that the tickets were flexible and the return flight date could be extended or brought forward.
In early 2022 the parents were able to secure a place for X in the pre-school stream at the S Day Care Centre in T Town.
The family departed the United Kingdom on 6 April 2022.
The family home in City C was left unoccupied whilst the family was in Australia. It was also left fully furnished, with most of the family’s clothes and belongings. The mother left her horse there, and arranged for a friend to care for the animal in her absence.
The family arrived in early 2022 and stayed at the home of the maternal grandparents in F Town with X. X entered Australia on a three month visitor visa.
Approximately two weeks later the father became aware that his employer was not prepared for him to work remotely from Australia. I note Ms M’s evidence that she had understood the father would be permitted to work remotely whilst in Australia. However, she subsequently became aware that it was not permitted as a result of potential tax implications for the firm and the father’s return to the United Kingdom was required for him to retain his employment with P Ltd. In her email to him dated early 2022 Ms M advised the father that he would not be permitted to work outside of the UK, and said:
I am very sorry but I was un aware (sic) of these factors when we made arrangements for you to continue working whilst you were outside of the UK.
The father was subsequently placed on unpaid leave.
On 28 April 2022 the parents jointly submitted an application for X to become an Australian citizen by descent. That was granted on 20 June 2022. She now has dual citizenship.
X commenced attending childcare in mid-2022.
On 3 May 2022 the father was told he must return to the United Kingdom on or before 19 July 2022 or his employment would be terminated. The father said he repeatedly told the mother that the family needed to return to the United Kingdom. This became a source of conflict between him and the mother. The mother said she told the father that at that time it was too early to make a decision to leave Australia. The father said he attempted to secure alternate employment in Australia so the family had some income, but was not successful.
The father said he began asking the mother what her intention was long term, as he became concerned the mother’s plans had changed, or perhaps he had been misled into agreeing to travel to Australia in the first place.
On 10 June 2022 the father told the mother he wanted the family to return to the United Kingdom within four weeks. He had no income and no employment in Australia, and he wanted to return home. The mother informed him that she would not return to the United Kingdom with X as requested. The mother denied that on 10 June 2022 she said she would not return with X at all, just that she would not return within the four week timeframe stipulated by the father.
On 15 June 2022 the marriage was at an end and on 17 June 2022 the father left the house of the maternal grandparents where the family had been staying.
On 17 June 2022 the mother filed a parenting application in the Federal Circuit and Family Court of Australia. Those proceedings have been stayed pending the outcome of this application. In her Initiating Application, the mother sought that X live with her and spend time with the father. She also sought that X be placed on the Airport Watch List.
On about 18 June 2022, the father spent time with X.
On 21 June 2022 the father made an application for the return of X under the Hague Convention through the International Child Abduction and Contact Unit in the United Kingdom.
Soon after, the father left Australia. He arrived in the United Kingdom the following day and resumed living at the family home in City C. At that time the father advised this court that he would not be participating in the parenting proceedings and was seeking X’s return pursuant to the Hague Convention. He also issued proceedings for divorce in the United Kingdom at that time.
The mother remained in Australia with X. In her affidavit filed in the parenting proceedings on 28 June 2022 the mother deposed she had not made up her mind as to whether she would seek to remain in Australia long term after what she called the 12 month trial period had ended.
On 30 June 2022, interim undefended orders were made by this court that X live with the mother and spend time with the father at times agreed.
On 2 August 2022 the Australian Central Authority accepted the return application from the United Kingdom Central Authority. The State Central Authority then made the present application on 24 October 2022.
JURISDICTIONAL FACTS
The State Central Authority asserted that the child has been wrongfully retained in Australia as at about 11 June 2022. It is asserted that:
(a)the application was made within one year of the child’s retention;
(b)X is under the age of 16;
(c)X was habitually resident in the United Kingdom as at the date of the retention;
(d)the father had rights of custody in relation to X which he was exercising immediately prior to her retention; and
(e)the retention of X was in breach of those rights of custody.
The following jurisdictional issues required determination:
(a)whether X was habitually resident in the United Kingdom immediately before the date of the retention, reg 16(1A)(b); and
(b)whether the father was exercising rights of custody at the date of the retention, reg 16(1A)(e).
What is the date of retention?
It is the applicant’s case that the retention occurred on or around 11 June 2022. That followed a conversation in which the father expressed a view that he no longer agreed to X remaining in Australia, and the mother did not agree to his request to return with X to the United Kingdom.
At that time the applicant said:
(a)X was habitually resident in the United Kingdom;
(b)the father had rights of custody that he was exercising, or would have exercised but for the retention; and
(c)the retention was in breach of those rights.
Counsel for the applicant said that the retention therefore occurred in June 2022, as a matter of fact. Whether the father had previously consented to X remaining in Australia beyond that date, or acquiesced in her retention after that date is a matter that must be established by the mother. These are two separate enquiries that cannot be conflated.
The mother appeared to assert that there had been no retention within the meaning of the Regulations. As best I understood her argument, the mother said:
(a)as at 11 June 2022 the mother had not determined to remain permanently in Australia with X. Rather all she had determined at that point in time was that she was not then ready to leave Australia in the context of the previous agreement to stay for an extended period; and
(b)she and the father had agreed to travel for up to 12 months to trial a permanent relocation. As they left the United Kingdom in early 2022, there could not be a retention prior to early 2023.
Even if I was satisfied the parties had agreed to remain in Australia for 12 months, I do not accept the submission by counsel for the mother that there cannot be a retention until the expiration of the period of that 12 month period. That submission overlooks the concept of “repudiatory retention” which is now accepted law in Australia.
Repudiatory retention occurs when a retaining parent forms a subjective intention not to return the child to the state of habitual residence at the expiration of the period which was agreed between the parties as the date upon which the child would be returned. In In the Matter of C (Children) [2019] AC 1 (“Matter of C (Children)”) at [43], Lord Hughes said once the agreement for temporary travel has been repudiated, and the child retained without an intention to return, is effectively an attempt to unilaterally determine where the child is to live. It repudiates the other parent’s rights of custody and becomes wrongful. This was adopted by the Full Court in Handbury & State Central Authority and Anor (2020) FLC 93–937 (“Handbury”).
The mother’s evidence was that in June 2022 she did not repudiate the agreement to return in 2023, merely that she did not agree to return with X in the four week time frame nominated by the father. She pointed to her affidavit filed 28 June 2022 in the parenting proceedings, in which she deposed that she had not, at that time, made up her mind as to whether she would seek to remain in Australia long term, beyond the 12 months trial period.
However, in my view, there is evidence that demonstrates the mother had formed a subjective intention in June 2022 not to return X to the United Kingdom at the conclusion of what she called the “trial period”, and instead, to retain her permanently in Australia. This subjective intention was reflected in a number of actions undertaken and statements made by the mother. For instance, the mother included a statement she made to the Australian Government Department of Home Affairs (“Department of Home Affairs”) dated 12 June 2022 in her Amended Form 2A. In that statement the mother outlined her concern that X may be removed from Australia. The mother wrote:
We moved to Australia from UK [early] 2022…Things are not working out and my husband doesn’t want to stay. I don’t want to move back to UK.
There is no suggestion in that statement that the mother’s intentions at that time were in flux or unformed. There is no reference to a trial period. Instead she says the parents “moved” to Australia. This strongly supports a finding, in my view, that the mother had in fact as at that date formed a clear intention to remain in Australia and not return to the United Kingdom.
Similarly, the mother included her Parenting Questionnaire as part of the material before me. In that document, signed by her on 16 June 2022, the mother suggested time between X and the father might be “yearly visit. Due to living in other country”. That also does not support the mother’s subsequent assertions that her intention to remain was not yet formed.
On 17 June 2022 the mother filed parenting proceedings in this court. She sought orders that X live with her. The mother conceded in her oral evidence that at that time she intended for X to remain living with her in Australia on a permanent basis. It seems to me that the filing of those proceedings was an objective manifestation of the mother’s subjective intention to retain X in Australia.
I note the following exchange between counsel for the applicant and the mother:
Q: So it’s correct then that as at 17 or 20 June 2022 that you had already formed a view that [X] should live permanently in Australia?
A: I put those in due to the circumstances at the time because I didn’t know what else…I hadn’t had time to make a decision. Everything had changed. So that was what was I was informed to do and what I felt was best to do at the time
Q: You agree with me that as at 17 or 20 June 2022 your view was [X] should live permanently in Australia? It’s a simple question [Ms Wilmer].
A: At that time, yes, because of what was happening.
It was put to the mother later in cross examination that on her evidence, she had relocated to Australia permanently, to which she agreed. It was put to her again that at the time she filed her parenting application on 17 June 2022 she wanted X to live in Australia with the mother on a permanent basis, and the mother agreed.
On 24 June 2022 the mother’s solicitors wrote to the father. In that letter Ms Michelle Paskins said she failed to understand the basis of the Hague application: “in circumstances where, your unforeseen request for [X] to live in the UK can be properly considered in the parenting proceedings”. There was no reference in that letter to the asserted 12 month trial period. Nor was there any suggestion in that correspondence that the mother had not yet determined whether or not she would return to the United Kingdom with X at the expiration of what she now asserts was a trial period. The correspondence, in my view, is consistent with the mother having at that time formed an intention to retain X in Australia permanently.
On 29 July 2022, the mother filed a Further Amended Initiating Application. Regarding final orders sought, she again sought that X live with her and remain on the Airport Watch List order. In relation to time with the father, the mother sought an order that occur at times agreed in writing. The orders sought by the mother at that time are consistent with her and X remaining in Australia on a permanent basis. As at 2 August 2022, the mother sought to proceed on an undefended basis, including to seek orders restraining X from being removed from Australia. Again, it is difficult to regard the orders sought as other than evidencing a clear intention by the mother to remain in Australia with X on a permanent basis. Indeed, the mother conceded that in her oral evidence.
Notwithstanding these matters, in her oral evidence the mother remained somewhat vague and ambiguous regarding when she formed an intention to remain permanently in Australia. I have already referred to her concessions when cross examined that at the time she filed her parenting application she wanted X to remain permanently in Australia with the mother. However, in her oral evidence she also said her intention to remain permanently in Australia was “probably” formed “a couple of months” after the request to return was made in June 2022. I assume that meant that by September 2022 the mother conceded she had formed an intention to remain living in Australia permanently, remaining beyond early 2023, being the date she said was previously agreed between the parents as the end date of the ‘trial relocation’.
In my view, the representations the mother made to the Department of Home Affairs, her application to this court for parenting orders, and many of the representations she made in the course of those proceedings readily demonstrate that by the end of June 2022 the mother had formed an intention to remain here with X permanently.
I accept the assertion by counsel for the applicant that the application will not fail if the precise date of retention – whether that was on 11 June 2022 or sometime in the next two months or so – cannot be established. The Full Court made that clear in Central Authority & Wageman and Anor 48 Fam LR 254. Their Honours determined that provided there has been a wrongful retention and the application has been filed within one year of such retention, the court need not be satisfied that the wrongful retention occurred on the date asserted by the applicant. It is sufficient for the court to be satisfied that the wrongful retention occurred prior to the application being filed, which on any view of the evidence before me, it does. By the time this application was filed on 24 October 2022, it is clear that the mother had formed an intention not to return with X to the United Kingdom.
In relation to the assertion that the retention could not occur as the parties had agreed to ‘trial’ living in Australia for 12 months, I note further the decisions of Director General, Department of Families v P (2001) FLC 93-077 (“P”) and Director General, Department of Communities, Child Safety and Disability Services & Ibbott (No 2) [2015] FamCA 698 (“Ibbott”) (pre-dating the concept of repudiatory retention). In P, Jerrard J observed that a parent’s decision allowing a child to reside in another country for an indefinite period could not extinguish a right to reverse that decision at a later time. That is, a parent with rights of custody is able to change his or her mind. It is open to that parent to revoke consent and demand the return to that other convention country, for genuine reasons, either because circumstances have changed, or that parent’s view had altered. His Honour at [54] opined that an unreasonable decision might be:
…evidence of the capricious exercise of a whim rather than the exercise of rights of custody… In my judgment, so long as the changed view expressed is not simply and obviously the capricious exercise of a whim, then those rights of custody must include the right to declare an end to an agreement that a child live somewhere else for an indefinite period.
This analysis – that it is implicit in a parent’s rights of custody that a genuine decision can be changed for genuine reasons – was adopted by Kent J in Ibbott.
It does not seem to me that the father’s decision to seek X be returned in June 2022 was a capricious exercise of a whim. His employment was to be terminated. He had not secured alternate employment in Australia. In those circumstances it was not, in my view, unreasonable that he revoked his agreement to X remaining in Australia and sought the family’s return to the United Kingdom.
I am satisfied that X’s retention in Australia occurred:
(a)no earlier than 11 June 2022, being the day after the father revoked his earlier agreement to X remaining in Australia for a number of months beyond that date; and
(b)no later than September 2022, when the mother conceded she formed an intention to remain permanently in Australia.
Habitual residence
The law

The law in relation to habitual residence in Australia is well settled. The question of whether a person is habitually resident in a particular country is a question of fact. I must evaluate all relevant circumstances.
In the High Court of Australia decision of LK v Director-General, Department of Community Services (2009) 237 CLR 582 (“LK”), their Honours French CJ, Gummow, Hayne, Heydon and Kiefel JJ said, at [23], [27]-[29], [33]-[35], the:
…application of the expression "habitual residence" permits consideration of 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.
…
When speaking of the habitual residence of a child it will usually be very important to examine where the person or persons who are caring for the child live – where those persons have their habitual residence. The younger the child, the less sensible it is to speak of the place of habitual residence of the child as distinct from the place of habitual residence of the person or persons upon whom the child is immediately dependent for care and housing. But if, as the writings about the Abduction Convention and like instruments repeatedly urge, the question of habitual residence of a child is one of fact, it is important not to elevate the observation that a child looks to others for care and housing to some principle of law like the (former) law of dependent domicile of a married woman.
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 … 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.
Their Honours referred with approval to Punter 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 at [88]:
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.
Subsequent decisions have made it clear that there is no “rule” that a parent cannot unilaterally change a child’s habitual residence. Rather, the question of habitual residence remains one of fact, determined after an evaluation of all relevant circumstances. The many relevant factors include for instance:
(a)the intentions of the child’s parents particularly where the child is young and their parents are living together;
(b)whether there was any settled purpose from the child’s perspective;
(c)a consideration of physical presence including duration and length of stay; and
(d)the quality and duration of the child’s connection to a place including ties to the state, assimilation into the state, living and schooling arrangements, and cultural, social and economic integration.
No one consideration is necessarily determinative. It is a global analysis of all relevant circumstances that goes beyond consideration of the parents’ intentions and whether they travelled to Australia with a settled purpose.
I also note the case of Zotkiewicz & Commissioner of Police (No 2) (2011) FLC 93-472 (“Zotkiewicz”). In that matter, the parents and child had lived in Australia for three years before they travelled to Poland in October 2009. In February 2010 – after four months of living in Poland - the mother took the child back to Australia and the father sought the child’s return to Poland. There was disagreement between the parents as to the nature and purpose of the travel to Poland in 2009. The father asserted the relocation was to be permanent. The mother said the travel was for a temporary trip to Poland for up to two years.
After carefully considering the mother’s evidence, the Full Court was not satisfied that the child was habitually resident in Poland at the time of his removal. Rather, they said he remained habitually resident in Australia at all relevant times.
In that case, the Full Court highlighted that a determination of a child’s place of habitual residence, requires a consideration of both:
(a)parental intention and
(b)the degree of integration of the child, which occurs over an appreciable period of time.
As observed by their Honours at [76]-[82]:
There are, of course, cases where the acknowledged ambiguity or uncertainty in the intentions of one or both of the parents will become irrelevant because they have been pushed into the background by “the brute force of geography and duration” (Clive, supra at 140). Thus, in Zenel v Haddow [1993] S.L.T. 975, a child was found to be habitually resident in Australia after 15 months, notwithstanding assertions there was no settled intention on the part of the parents to remain in Australia. In that case Lord Marnoch said at 979:
It seems to me that, while intention is undoubtedly a very important consideration, there must come a stage when the objective facts point unequivocally to a person’s ordinary or habitual residence being in a particular place.
On the other hand, as Dr Clive recognised (at 142), “the most difficult cases on habitual residence are usually those where the question is whether there has been a recent change in habitual residence”. We agree with him that in those cases, “the element of adequate duration is absent or doubtful and it is necessary to have regard to such factors as purpose and intention”. We recognise that in examining factors such as “purpose” and “intention” there may be cases in which it could be said that habitual residence has been acquired immediately (for examples, see Re M (Minors) [1993] 1 FLR 495 at 503 (“Re M (Minors)”); however, we also consider such cases would have to be seen as the exception, even allowing for the fact that there may be policy reasons against finding that a child does not have a place of habitual residence (as to which see LK at 594 [26], but see also at 595 [32]).
We also accept that merely because the purpose of an international relocation may be to allow parents to work on their relationship does not mean their purpose in relocating cannot be regarded as “settled”. Re B is an example of one such case. Similarly, the fact one party may be reluctant to agree to a move to a new jurisdiction; has misgivings about the state of the marital relationship; and has taken advice about a divorce before departing, does not mean they will not acquire a place of habitual residence in the new jurisdiction (see Feder v Evans-Feder(1995) 63 F. 3d 217).
On the other hand, the High Court held in LK (at 595 [29]) that the mother could not be said to have either a settled intention to reside permanently in Israel or a settled intention to reside permanently in Australia in circumstances where she had left Israel and come to Australia with the children “on the understanding that if the marriage was reconciled she would return, but if it was not, she would not return”. The High Court went on to say (at 595 [32]), “Because the possibility of reconciliation and return was not excluded when the mother left Israel, it may be said that her intentions, when she left were to that extent ambiguous”.
Beaumont and McEleavy’s text, Beaumont, P & McEleavy, P, The Hague Convention on International Child Abduction, Oxford University Press, London, 1999, has been described as the “leading treatise on the Convention” (Mozes, supraat 1072). The learned authors …went on to suggest (at 107) that “ordinarily a period of six months residence should be required before a residence may be classified as being habitual”, albeit recognising that in England “the courts have, with few exceptions, adopted a very liberal interpretation of the time element required for the acquisition of a habitual residence”.
Whilst we accept there is no basis for selecting an arbitrary period such as six months, we consider there is nevertheless merit in the argument of Beaumont and McEleavy (at 101 and 108) that it is important to find a “strong and readily perceptible link” between the child and the country in which he is said to be habitually resident, as this recognises “that if children are to be linked to a State, and sent back there, they should have “a real and active connection with that place”.
…
In our view, the observations made by Beaumont and McEleavy sit very comfortably with what the High Court has said most recently in LK. Accordingly, we consider the task of the Judge was twofold. The first was to ascertain whether the parents had a shared intention that the child would live in Poland with a sufficient degree of continuity that their purpose could properly be described as settled. The second was to determine whether the period of time spent in Poland was sufficiently appreciable for it to be said that the underlying reality of the connection between the child and Poland was such as to justify a finding he was habitually resident in that country.
Discussion
The question I must decide is: was X habitually resident in the United Kingdom immediately before she was retained here by the mother? I must consider all the circumstances, including the intention of the parents, as well as the underlying reality of the connection between X and the United Kingdom, the period of time she has spent here, and the connection she has to Australia. As earlier indicated, I am satisfied that the retention occurred no earlier than 11 June 2022 and no later than September 2022.
There was no agreement at trial as to the intention of the parents regarding the nature, purpose or duration of the travel to Australia.
The father conceded that from 2019 the mother repeatedly expressed a view that she wanted to relocate to Australia. He also agreed that the parents had discussed that the trip to Australia could be for up to 12 months, depending on what occurred. However, he said there was never a mutual intention that they would remain living here permanently, or that they would “trial” living here for 12 months. He said he wanted to support the mother, and was prepared to spend an extended period of time in Australia, as the mother’s father was unwell, and the mother had missed her family during the COVID-19 pandemic. He also said the family would not have opportunities in the future to spend extended time in Australia once X started school. In those circumstances the applicant asserted the father’s agreement to the travel to Australia was for the purpose of an extended holiday, subject to certain conditions regarding his employment and X’s pre-school attendance, and was always on the basis that the family was to return home to City C.
It is a little difficult to understand what the mother said was the intention of herself and the father at the time that they left the United Kingdom. The mother deposed:
[The father] and I intended for Australia to be [X’s] habitual residence upon our arrival in Australia [in early] 2022.
In those circumstances, it was submitted by counsel for the respondent that X ceased being habitually resident in the United Kingdom as at the date the family departed for Australia. Accordingly, it was asserted that X’s place of habitual residence was not the United Kingdom as at the date of asserted retention, whether that retention occurred in June or in the months that followed.
I reject that proposition.
In my view, the mother’s evidence regarding what she said were the intentions of herself and the father were confusing and ambiguous. The mother said that in August 2021, and then again in November 2021, the parents discussed her request to live in Australia, and agreed to “trial living permanently in Australia for up to 12 months as a family” (emphasis added). She seemed to form a view that as – on her evidence – the father had agreed to trial living permanently in Australia in August 2021 and then in November 2021, that he could not change his mind.
In the mother’s Amended Form 2A filed 16 January 2023, it was asserted that the family moved to Australia with a settled intention to relocate to Australia “and trial permanently living in Australia from [early] 2022, for a period of up to 12 months, with a view to reassessing the arrangement, unless the [mother] and [the father] both agreed to return earlier”. It is implicit in that statement that if one parent did not want to return earlier and the other did, there would be no early return. There was no evidence that supported that contention.
In her affidavit filed 8 December 2022 the mother deposed:
Our decision to permanently live in Australia for a trial of up to 12 months, was not an extended trip…
and
I deny it was never meant to be a permanent relocation. It was a trial for up to 12 months and at such time, [the father] and I would reassess and make a decision…
I find difficult to reconcile the mother’s apparently competing and inconsistent assertions in which she simultaneously said:
(a)that the parents had a settled intention to relocate, denied that the travel to Australia was never meant to be a permanent relocation and said she had decided to live to Australia permanently; and
(b)that the parents came to Australia for up to 12 months to trial a relocation, with the parents to reassess their options after the expiration of those 12 months.
In her oral evidence the mother said that she “needed the 12 months to decide” where she wanted to live, and at the end of the trial period the parents would have a family discussion and decide what to do next. She did concede there was never any conversation where it was stated that the mother alone would make the determination as to whether the family would remain in Australia
On her own version, the mother herself asserted she had not decided where she wished to live when the family left the United Kingdom and needed a protracted trial period to determine that issue, suggesting a degree of ambiguity and uncertainty in relation to her own intentions. It could not, for instance, be said that the evidence demonstrated a singular and irrevocable intention on behalf of the mother to relocate to Australia permanently, or to leave the United Kingdom and not return.
It is also difficult to reconcile the mother’s assertions as to a mutual intention to relocate, or even to trial a relocation for 12 months with her concessions in oral evidence that in the months and weeks prior to leaving, the father:
(a)repeatedly expressed he did not want to live in Australia;
(b)made it clear he wanted the family to return to the United Kingdom and live there;
(c)intended to live in the United Kingdom; and
(d)wanted the family’s travel to Australia to be limited to three months.
None of these matters were acknowledged in the mother’s affidavit material. These inconsistencies between the mother’s affidavit and oral evidence were unexplained and undermined her credibility.
I am not satisfied that the father formed an intention to permanently relocate or to “trial” a permanent relocation to Australia for up to 12 months. Nor was there any mutual intention that X would remain in Australia at the end of that period unless the parents agreed otherwise. Ultimately, it may be, that the parents had different intentions.
In addition to the concessions the mother made in her oral evidence as to the father’s attitude to the travel to which I have just referred, a mutual intention to permanently relocate or trial a permanent relocation is not made out on the evidence for the reasons that follow.
The text messages between the mother and father
The mother and father both referred to a number of text messages exchanged between them prior to departure in an effort to elucidate what was intended regarding the travel. In early February 2022 the father expressed feeling anxious about not having a plan. The mother said the plan going forward is called Australia. The father responded that there were no details of what they will do in Australia, “Just waiting and waiting”. The exchange continued:
Mother:          Flying there
Staying at parents
Get job
[X] goes to preschool, gym, swimming
Move to our own place
Father:           Well yeah but can’t do any of that list as we aren’t getting anywhere
Mother:          What do you mean getting anywhere
Father:We have no clue of what school she can get in or anything else other than going to your parents we could be months away as we don’t know
I hate this constantly waiting and waiting
I’m fed up of been (sic) in limbo
Mother:Well I’m doing my best
Father:The hours and stress of all this working for what
Circles
Mother:I don’t want to pretend everything is okay if I stay here either as that’s just limbo land and not getting any where
Father:So we are both in limbo
And limbo continues
When will the limbo end?
That’s why I need a plan
Im (sic) just tired of thinking everything is okay and then we get another bombshell
Mother:We just got to go to Australia as planned if no nursery we will have to come back and it will be a long holiday
I note this exchange occurred on 4 February 2022, before X had secured a place at child care in Australia. Later in that exchange the father wrote:
I really think we just need to go on holiday. Keep [X] in school etc we can then enjoy a holiday
Long holiday

The mother asked:
How long is long holiday.
Still may not change the fact that I want to stay in Australia”.
The father responded:
So we may have to move to a place closer to Brisbane in a few months of been (sic) in Australia
If you want to stay you want to stay
In his oral evidence the father said he was referring to wanting to be closer to his friends who live in Brisbane, not to job opportunities. He said he also said he was referring to the possibility that if he had to return home, it might be that the mother could stay on a bit longer in Australia.
In her oral evidence, the mother acknowledged that as at 4 February 2022 in their conversations the father was maintaining that he did not want to go to Australia, and she understood at that time, he did not want to go.
A few days later on 15 February 2022 the mother wrote:
I feel free because I can finally go home as a family
…
Yep I’m still struggling to (sic) especially with the thought of what might happen in the future if we both can’t stay in same place. But we can’t control that until we moved forward as a family
There was also a text message discussion about a booking that had been made at U Hotel, Suburb V for a one night stay in 2022 for the mother and father to celebrate their fourth anniversary. On 1 March 2022, the father wrote:
I’ve just had a reminder pop up about cancelling [U Hotel] in [Suburb V] on [our] (anniversary) so should I cancel it?
Or leave it for our return?
The mother subsequently corresponded with Suburb V in April 2022 and re-booked for a date in mid-2023. It seems more likely the booking would have been cancelled if the family was actually intending to relocate to Australia permanently, rather than re-booked for a date in 2023. The mother conceded that the re-booking for mid-2023 suggested she contemplated being in the United Kingdom in mid-2023. The father also referred in that exchange to the parents “return”.
On 8 March 2022 the father sent a text message as follows:
Okay x just told the boss man and he’s fine with everything working temporary in Australia
I note the father’s reference to working temporarily in Australia.
On 7 March 2022 the father sent the mother a link to a property in City C that was for sale. The mother agreed that the father occasionally sent links to real estate to her. She said that was “in the event we decided to remain living in England” or that “he sent them as an option if we came back”. It makes limited sense that the father would send the mother links to a property for sale after booking tickets to Australia unless he anticipated returning to the United Kingdom. The mother also conceded in her oral evidence that she and the father had looked online at properties and had discussed purchasing a bigger property in the United Kingdom in the City C area. She further conceded this suggested the father’s intention was to live in the United Kingdom.
On 14 March the mother and father discussed what assistance they might be able to provide to refugees from Ukraine by providing a room in their house. In a text message the mother wrote:
Definitely need to be here to do it.
If [Ms Y] has to get her parents over we can help them.
That exchange also appeared consistent with an intention to return.
On 24 March 2022 the father texted:
Need to take pram on the plane and we can push her around in [Country W] if needed and use it on the way back to the UK or bin it in Australia if it’s not good.
That also suggested an intention to return.
A careful perusal of the text messages does not, in my view, establish any common intention on behalf of the parents to relocate to Australia or to trial a relocation in Australia. There is little in those text messages that points to an intention at least on behalf of the father to relocate on a permanent, or semi-permanent basis to Australia. There does not appear to be a common agreement as to the duration of the trip either, with the mother wanting to travel for up to 12 months, and the father wanting a far shorter trip, and wanting to return to the United Kingdom.
Arrangements made regarding the house and belongings
The father and mother discussed renting the house in City C out, possibly through Airbnb, Inc. They discussed furniture and other items they could purchase that would be suitable for tenants. In relation to some furniture the father suggested they might purchase, the mother responded:
Yeah good size and quality. At least we can keep it and use it when we come back.
He responded:
That’s what I was thinking
It is difficult to reconcile the mother’s reference to using the table themselves “when we come back” with her submissions regarding intention. She was not able to provide a plausible explanation in her oral evidence, asserting it was “an option if we decided to come back”, and her text message was “just the way I worded it at the time”. It makes little sense to me that the mother referred to using the table when they “come back” if the parents were relocating permanently. The mother accepted that the father would have interpreted the mother’s response as indicating an intention to return.
The mother also sought to arrange for a colleague of hers to rent out the house in the family’s absence, but the father did not agree to this. There is a text message exchange between the mother and father on 23 March 2022 regarding this. In response to the mother’s request to rent to a colleague of hers the father responded:
We made a decision to have it unoccupied so sorry but the answers (sic) no.
The mother responded:
No worries I know we where (sic) leaning that way but didn’t confirm X all good
The father said he ultimately did not agree to have the property tenanted, as he did not want to have issues with tenants refusing to vacate when the family returned.
Accordingly, the house remained vacant and fully furnished. The utilities remained connected. All items, save for a few expensive items that were moved to the father’s parents’ house, remained in the family home. That included the family’s personal effects and possessions, much clothing, X’s bed, toys, bedroom furniture and play equipment, trampoline, and trike. The mother acknowledged most items remained in the home, although she said some items, which she did not itemize, were put into about three or four boxes. The mother asserted the parents did speak about shipping belongings to Australia. However, she was unable to produce any evidence that either parent ever made enquiries in this regard. The father provided pictures of the house showing that drawers and cupboards remained full of the family’s belongings, including clothes, furniture, crockery, cutlery, pots and pans, and so forth, with no evidence that attempts were made to sort through or pack anything beyond what the parents took with them on the flight.
The family left Australia with just three suitcases of clothes and some of X’s toys.
The mother acknowledged the house was not left in any state where it could be tenanted. She said she and the father discussed that they could return to the United Kingdom, to pack the house up later “if the parties agreed to continue to permanently reside in Australia”. That is difficult to reconcile with her message regarding using the furniture when they returned.
The mother also deposed that she and the father did sell some furniture before they travelled. The father agreed they did sell things when they no longer needed them, as they had done with other items before the trip was contemplated. The mother relied on a post the father made to sell their vacuum cleaner, in which he described no longer needed the machine “as we are moving house”. The father acknowledged that the old vacuum cleaner was sold but could not recall that particular advertisement he had placed for its sale. He was able to produce an email confirming he had purchased a new machine on 10 February 2022 online. The purchase of a new vacuum cleaner in February 2022 does not sit comfortably with the mother’s assertions as the intentions of the parents.
The father had also recently installed some expensive, specialist technology which was left in the home. The mother conceded in her oral evidence that the time and cost incurred by the father in installing that equipment reflected an intention at least on his behalf to return to the home.
The mother left her horse in the field near the house, and had made arrangements for him to be tended by a friend. I will return to the arrangements for the horse shortly. One car, with X’s car seat, was left at the garage at the home, along with the father’s motorcycle. One car was sold before they moved. The father said that vehicle had required costly repairs, so it was sold rather than repaired.
In my view, all these matters point to an intention – and expectation – at least on behalf of the father that the family’s absence from the United Kingdom was to be temporary only.
Communications with third parties
The witnesses called on behalf of the applicant with whom the father had discussed the up‑coming trip further supported the applicant’s assertions regarding the intention and purpose of the travel to Australia.
Ms M was a former manager of the father. She was an impressive witness, and she gave her evidence in an open and genuine manner. I accept her evidence which significantly corroborated that given by the father.
Ms M confirmed that the father had expressed to her that the travel was to visit the mother’s family some of whom were experiencing health issues, and that they would return in around three months. However, she understood the travel might be for a longer period, depending on what occurred with the health of the mother’s father. In her oral evidence Ms M said the father told her on several occasion that it was not his wish to travel to Australia, but he was doing so to support the mother on what appeared to be an emergency visit given the state of health of some members of the maternal family.
There was some suggestion by counsel for the mother that the father did not know he could work remotely from Australia at the time the air tickets were booked. However, Ms M confirmed the father’s evidence that the first discussions about him being able to work remotely took place in January 2022, prior to the airfares being booked. That corroborated the father’s assertion that his agreement to travel was conditional on his ability to remain his employment notwithstanding being absent from Australia, and that this was known to him and the mother before the airfares were purchased. I note that Dr E also said the mother informed her of the father’s ability to work remotely in January 2022.
Ms M visited the family in early 2022 before their departure, offering her best wishes, and telling the father she wanted him to come back to the team as soon as he could. She said both the mother and father were present during her visit, and spoke about the temporary care arrangements they had made for the house and horse to be looked after whilst they were away. In her oral evidence, Ms M said that was a conversation she had with both the mother and father together.
It is clear from the evidence of Ms M that her understanding at all times was that the family would be returning home to the United Kingdom after an extended trip. Ms M also confirmed that in all her discussions with the father, he never gave her the impression that he would be remaining in Australia “for any longer than he absolutely needed to”, and that he had told her he did not even want to visit Australia. She said the father never suggested the family’s stay in Australia would be other than temporary, and he was going in order to support the mother. In her oral evidence Ms M said the father expressed a desire to return from the trip as soon as possible, that he wanted to retain his employment with P Ltd and wished to minimise the length of departure from the United Kingdom.
The mother said she mentioned to Ms M that she had arranged for a friend to look after her horse until the family decided whether they were going to sell him or transport him to Australia. Ms M said there was never any discussions that the mother would transport the horse to Australia. The discussion according to Ms M regarding the horse was solely about the arrangements that had been made for him to be cared for while she was away. As indicated, Ms M was a most impressive witness and I prefer her evidence to that of the mother’s regarding the discussion in early 2022.
The applicant adduced evidence from the father’s friend Mr H. Mr H also impressed as a candid and genuine witness, and I accept his evidence. He said the father made it clear to him that the family’s travel was temporary, so that the mother could visit her family, including her father who was unwell. Mr H attended a gathering in early 2022 before the mother and father left the United Kingdom.
Mr H said there was never any suggestion made by either the mother or the father at that gathering that there was a plan to move to Australia on a permanent basis. Mr H said the father also told him he wanted to return to the United Kingdom as quickly as possible, so as not to affect X’s education. In his oral evidence, Mr H conceded the mother had expressed a desire to return to Australia to live. However, he said that the father made it very clear to Mr H that the travel in 2022 was not a permanent relocation.
The applicant relied on an affidavit of Mr L, another friend of the father. He gave his evidence in a straightforward and open manner, and I accept his evidence. He and his wife regularly spent time with the mother and father. He said prior the family’s departure to Australia he and the father discussed activities such as music festivals and comedy shows that they would attend together after the family returned to the United Kingdom. He said the father described that he would return to his employment when the family came back from Australia and was relieved he had been able to arrange to work remotely on a temporary basis whilst overseas.
Mr L also attended the gathering in early 2022, describing this as informal drinks. He said as he left that gathering and said goodbye to the mother, she said words along the lines of “I don’t know if this will be for three months or six months, all I know is that I need to see my family” which the mother denied. In his oral evidence Mr L confirmed this is what the mother told him that evening, and I accept that evidence. It was certainly not Mr L’s impression that the parents were leaving the United Kingdom to permanently live in Australia as the mother deposed.
The applicant also adduced evidence from the paternal grandmother, Ms K. Ms K was a most impressive witness, whose evidence appeared to be authentic and reliable. Her evidence strongly supported the applicant’s contentions as to the intentions of the parents regarding the nature, duration and purpose of the travel to Australia.
Ms K said it was her understanding that the mother and father were taking a long visit to Australia so that the mother could see her relatives. Ms K said she saw the family frequently, living just a few doors away. She said neither the mother or father suggested to her that the trip to Australia was to be permanent. She also said that the father told her he did not want to go for more than three months, but was prepared to go for longer so he could support the mother, after he was able to make arrangements with his employer to work remotely. Ms K said she and her husband were not invited to the gathering in early 2022 as it was not a ‘going away’ event, in circumstances where the family was expected to return to their lives in City C as soon as practicable.
In her oral evidence Ms K acknowledged the mother wanted to travel for a longer period of time than the father did who did not want to go for more than three months. Ms K appeared very sympathetic towards the mother. She said she understood the mother’s desire to go for longer, and therefore encouraged the father to agree to a longer trip to be supportive of the mother who had been unable to see her family for a long time because of COVID-19 causing travel restrictions. Ms K said she felt very sorry for the mother at that time, and understood the mother needed to go to Australia for a period of time. Ms K also acknowledged when the tickets were purchased the father told her the return leg was booked for nine months, which was in between the shorter trip he wanted and the longer trip the mother desired. Ms K acknowledged the return date was flexible, and understood the family could return earlier or stay longer depending on what was occurring in Australia. Ms K confirmed that her understanding at all times was that the family was definitely going to return after having ‘a bit of a holiday’ and then staying a little longer to see her family. She said she was never told by either the mother or father that they were moving to Australia to trial living there as a family, and that the mother only said they were travelling to see her family.
Additionally, the father supplied text messages exchanged with various friends. He referred to the travel to Australia as temporary on 17 March 2022 to one friend. Additionally, the father has a friend Mr Z (“Mr Z”) who lives in Australia. The father provided a significant number of text messages exchanged between him and Mr Z from 10 February 2022 in which the father said the family was travelling to Australia. In none of those text messages did the father say the family was moving or trialling a move to Australia. In mid-2022 Mr Z asked the father “How long you over for?” The father responded:
Not sure, [the mother’s] dad has a [medical issue]. Got to wait and see what happens as he keeps getting scanned […].
The mother referred to the event in early 2022 as being organised “to say goodbye to our friends indefinitely”. She said the event was “to celebrate our decision to leave the United Kingdom to permanently live in Australia”. The mother asserted she received farewell gifts and cards from friends and colleagues including those who attended the gathering. She has, however, not adduced affidavit evidence from any friends who attended the function, or any other friends or colleagues to corroborate her assertions as to the terms of the family’s departure from the United Kingdom. The mother also did not produce any of the cards she said she received, advising she had left them in the United Kingdom.
In my view, it would not be unreasonable to expect the mother to have informed friends that the family was trialling a relocation or indeed if they were leaving to permanently live in Australia as she asserted. In her oral evidence, the mother said she did tell her friends and her boss at work. It is striking that she did not adduce evidence from any friends to corroborate her assertions about the intention behind the travel to Australia.
The mother exhibited a text message from one friend who said she would miss the mother and hoped she had “the bestest time in aus”. That message does not assist me in determining whether there was an intention to have an extended holiday or trip to Australia or whether there was an intention to relocate permanently or to trial a relocation.
The mother produced one email dated 29 November 2022 from Ms AA (“Ms AA”), the manager at BB Company where the mother had been employed prior to leaving the United Kingdom. Ms AA’s email was not written until several months after the mother had departed from the United Kingdom. Ms AA described that the mother “was looking forward to starting a new life” with the father and X “returning to her home country”. Ms AA further wrote:
I was informed that the move back to Australia was a mutual agreement and that the family would be finding work and trailing [sic] the lifestyle for a period of months to potentially stay over there.
Ms AA was not on affidavit. I do not know the circumstances in which that email was created. At any rate Ms AA does not corroborate that either parent had a clear intention to relocate to Australia. She described the family as staying for an undisclosed “period of months”. At best, it was possible the family might stay longer term.

It is not sufficient for the mother to assert – without evidence - that she will have limited funds and cannot afford accommodation. I accept that there will be financial strains on the mother if she is to return to the United Kingdom with X. It does not seem to me, however, that the mother’s financial circumstances if she were to return to the United Kingdom are such that there may be grave risks to X.
Additionally, the mother would, presumably, have remedies available to her to seek appropriate child maintenance in the English courts. I also note part of the material before me includes the pre-nuptial agreement signed by the mother and father in 2016. That makes provision for the payment of maintenance by the father to the mother of 10% of his net monthly income for three years after the marriage breakdown. In his evidence, the father said he earns a net income of around GBP4,000 per month. I was not provided with any evidence that the mother would be unable to seek enforcement of the agreement, or otherwise seek remedies to secure support for herself through the English courts if she wished to challenge the agreement.
Lack of supports
The mother will not have the benefit of the emotional and practical support of her family if she returns to the United Kingdom with X. Ms N noted the mother’s concerns that the father’s family “may continue to be critical and contemptuous to her”. In her oral evidence, however, the mother acknowledged that the paternal family would do their best to try and help the mother in the event of a return and described the paternal grandmother as having her “heart in the right place”.
It is common ground that X had a close and loving relationship with her paternal grandmother. Ms K was an involved and engaged grandparent, spending time with X on more than one occasion each week prior to her departure. There was nothing in the evidence of Ms K that suggested she was critical or contemptuous of the mother. Indeed, she impressed as a warm, loving and supportive grandmother and was clear that she has no animosity towards the mother with whom she had enjoyed a close relationship prior to the family travelling to Australia. I am satisfied she will do all she can to continue to support and assist X and the mother upon their return.
The mother’s concerns that Ms K did not have a car, which meant she could not collect X from school if the mother was caught up at work, and her age prevented her from being able to ‘keep up’ with X were not, in my view, significant. The father will also be able to assist in providing care for X.
In circumstances where there are no COVID-19 restrictions in place, it may also be that the mother’s family will be able to visit her in the United Kingdom to provide her with additional assistance and support.
In terms of the mother’s ability to financially manage the costs of obtaining appropriate psychologist support in the United Kingdom, I note Mr O’s indication that he expected to be able to provide a level of limited financial support to the mother which she could use to fund some appointments.
I note further that some of the mother’s worries about her ability to manage in the United Kingdom arise out of having to communicate with the father, in circumstances where she regards him as not child focussed and the co-parenting relationships is significantly strained. Ms N reported that the mother “expressed significant distress and concern about how [the father] was engaging with [X]”. These issues, and the mother’s distress regarding communication will be true wherever X and the mother live.
Mental health concerns
The main thrust of the mother’s argument in relation to this exception is the impact she said a return order would have on her mental and physical health and wellbeing and the impact that will then have on X. This argument is raised in the context of the mother’s history of anxiety, depression and disordered behaviour. Those issues are long standing for the mother, having first been diagnosed in relation to anxiety in 2011 and disordered behaviour in 2011. They emerged prior to the mother’s relationship with the father, and at a time when the mother was living in Australia and had the support of her family.
The mother’s mental health has fluctuated at times – and the mother has experienced significant issues both whilst living in Australia and whilst in the United Kingdom. That included the mother experiencing post-natal depression following X’s birth, and a time during COVID-19 that her mental health deteriorated. I note the mother has never been hospitalised as a result of mental health issues.
The mother said that the stress of these proceedings, and the possibility she will need to return to City C has resulted in her experiencing ongoing issues in managing her mental illness and anxiety. She said she has weight issues, and very anxious at the prospect of returning to the United Kingdom without family support.
Importantly, it is apparent the mother has good insight into her issues, and has sought professional assistance and complied with treatment advice including taking medication as prescribed. She advised in her oral evidence that she was not currently taking any medication, nor was there medication prescribed for her, but she was instead actively obtaining other assistance through her psychologist.
The mother relied on evidence of a Dr E a clinical psychologist upon whom she attended in the United Kingdom, and Ms N, a psychologist upon whom she attended in Australia.
Dr E
Dr E, commenced treating the mother on 5 July 2021. The mother attended 31 sessions in total, with the last session occurring in early 2022. The mother commenced seeing Dr E as she was experiencing anxiety and depression. Dr E described the mother as “having difficulties with low mood and anxiety”, with a history of anxiety and depression and a history of another mental illness. Dr E said the mother’s response to a medical examination questionnaire placed the mother’s concerns for her mental illness “at a clinical level of severity”.
The mother reported to Dr E early on that she was fixed on the issue of going back to Australia, and that:
…conversations with her husband about this matter (her desire to return to Australia) were controversial, difficult and unproductive.
The mother expressed to Dr E that she was deeply unhappy in the United Kingdom, and that this impacted her mood. As at November 2021 the mother was presenting with symptoms of mental illness, and acknowledged she was engaging in disordered behaviours which impacted on her energy levels. There was nothing in the report that suggested Dr E formed the impression that the mother’s parenting was compromised as a result of the mother’s lowered mood, energy levels or presentation. Indeed, Dr E noted that the mother was conscious of not wanting to repeat patterns with her daughter, providing a motivation for the mother to work on her disordered behaviours.
Ms N
The mother said she sought a referral to a psychologist on about 20 June 2022 as she was shocked at the father’s request to leave Australia. She also said that post separation she had started to experience high anxiety levels and engaging in disordered behaviours.
Ms N commenced treating the mother in July 2022, after receiving a referral from the mother’s medical practitioner on 21 July 2022 “for an opinion and management of anxiety”. That referral identified the mother’s past medical history as including:
2009              Anxiety
2010              [A physical condition]
30/11/2011     [Mental illness]
…
5/12/2019       [Another physical condition]
It is plain that the mother becomes distressed when she considers the prospect of returning to the United Kingdom. It is also clear that she feels anxious, overwhelmed and depressed. Indeed, Ms N said the mother presented in the extremely severe range for depression and anxiety and severe stress. The mother reported to Ms N that since the Hague application was filed, she felt an increased sense of helplessness, hopelessness and fear of loss of control over her life. The mother said this contributed to her disordered behaviours. The mother reported she was fearful of being overwhelmed and unsupported if she returned to the United Kingdom, and concerned about whether she would be able to provide “her immediate basic needs and [X’s] financial future in the long term”. The mother also reported concerns on how she could afford to access therapy in the United Kingdom.
According to Ms N, the mother had “disclosed some suicidal ideation”, but denied any intent to harm herself, “and cited being a good mother for her daughter was a primary reason for living, purpose and meaning in her life”.
At the time Ms N prepared her report on 29 November 2022, she had seen the mother on five occasions. She said the mother appeared to have experienced weight issues in the later sessions, and had fallen outside her ideal weight according to the mother’s general practitioner.
In her report, Ms N opined that the end of the relationship and subsequent litigation had precipitated and was perpetuating a deterioration of the mother’s mental health, and that the accompanying sense of loss of control contributed to her ongoing disordered behaviours. Ms N wrote:
…the literature highlights the importance of interpersonal relationships as a significant factor in both recovery and relapse of [mental illness]. Facilitators of recovery for [mental illness] include social support from professionals, family, and friends to encourage and promote recovery behaviours in an empathetic and non-judgmental manner. Experiences that increased positive emotions and self-esteem are also identified as helpful in maintaining change. Positive experiences nurture an identity separate from the [mental illness], which in turn supports recovery behaviours. Barriers to recovery include lack of social support from partners, friends. or family and societal insensitivity to [mental illness].
In her report, Ms N said that loneliness and disconnection from others are likely to contribute to mental illness and that families “play an important role in […] recovery”. She said further that “family involvement is a central component of most treatments”.
In her report, Ms N expressed concern that the mother’s mental health had deteriorated over the time she was treating the mother. However, she did not identify any way in which the mother’s parenting had deteriorated to the extent that X was impacted, or indeed any specific way in which X may be impacted if a return was ordered. She confirmed in her oral evidence that the mother’s parenting had never been impaired to the extent that X had been placed at risk of harm.
Whilst Ms N concluded in her report that if the mother returned to live in the United Kingdom, that would “likely have a significant negative impact on [the mother’s] mental health and functioning, and that this would negatively impact her capacity to co-parent with [the father], and parent [X]”, she did not explain how she came to those conclusions, nor what the asserted negative impact would be on the mother’s mental health or her ability to parent X. That is, she identified that there would likely be a negative impact on the mother’s mental health, but she did not identify in her report actual risks to X that would or could flow.
In her oral evidence, Ms N said her conclusion that returning to live in the United Kingdom would negatively impact the mother’s capacity to parent X was:
…based on [the mother’s] report that she’s concerned that …her parenting herself will be compromised. She’s concerned about whether she’ll be able to pay attention to [X], give her all the emotional needs …meet her emotional needs as well as her practical day to day needs in terms of finances, being able to provide for…the basic necessities of life. That’s what she’s concerned about.
In her oral evidence Ms N said it was likely the mother would further exhibit disordered behaviours and may end up in hospital. Ms N said the mother’s primary coping method is a “feature of [mental illness] as a way of maintaining some sort of control”.
Ms N was carefully cross examined by counsel for the applicant.
In relation to the mother’s diagnosis of a physical condition, Ms N conceded that condition is unlikely to be affected by whether the mother is living in Australia or the United Kingdom, although Ms N said there is some interconnection between the mother’s mood and mental health and physical functioning.
In relation to the mother’s anxiety, Ms N acknowledged that it was possible that the mother’s expression of concerns or anxiety may be out of proportion to the concern itself. Ms N acknowledged that anxiety is generally treated by talking therapies, exposure therapy and medication if appropriate. As observed, the mother is not prescribed medication to manage her anxiety, or her depression.
It was apparent that Ms N had made an assumption that the mother had been diagnosed with a mental illness. Whilst the mother certainly has a history of health issues, she has not received a formal diagnosis. Ms N also did not undertake a comprehensive diagnostic assessment of the mother in respect of mental illness. Ms N said she understood that diagnosis had been made based on the mother’s self-report, Dr E’s report and Dr KK’s documents. She said the mother told her she had a mental illness (although that does not appear to be reflected in Ms N’s notes). It is also not a diagnosis that features in the report by Dr E (who said the mother had symptoms of mental illness) or the notes of Dr KK (who referred to the mother having a mental illness).
Ms N ultimately acknowledged there was no evidence that the mother had been formally diagnosed by a medical or allied health professional as meeting the criteria for her claimed mental illness and she also had not undertaken that assessment. She said it was not her role “to actually clarify through medical evidence what people are telling me their experiences of” (sic) and it would be invalidating to ask for collateral information to confirm that.
Ms N was somewhat reluctant to concede the diagnostic criteria in the DSM-5 regarding her mental illness. She also resisted acknowledging that the mother did not meet the criteria stipulated, notwithstanding there has been no such diagnosis, and that Ms N herself had not undertaken a comprehensive assessment in that regard. Notably, Ms N did not know the mother’s basic information, being information which would assist a clinician to ensure that the criterion for the mental illness was met. She also conceded she did not have detailed information regarding the mother’s disordered behaviours and accordingly could not meaningfully comment on the level of disordered behaviour imposed by the mother. Ms N maintained that the mother’s responses to a tool used to assess mental illness were consistent with persons who have a specific mental illness.
When cross examined, Ms N accepted that she used a clinical term applied to a person who might meet some criteria of a particular disorder but does not meet all criteria for the diagnosis of a disorder. Ms N said the mother reported “symptoms consistent” with a mental illness, including that the mother reported specific disordered behaviours. Despite this, Ms N continued throughout her evidence to use differing terms for a disorder and mental illness interchangeably.
The distinction is important, as Ms N had stressed in her report the long term debilitating and potentially fatal consequences faced by those with severe and long-standing mental illness. Ms N said she had included this information to highlight the severity of the mental illness.
I agree with the submissions of the applicant, that in circumstances where the mother has not been diagnosed with a mental illness, or with severe and long standing mental illness, the reference to available literature including referring to alarming statistics and poor prognosis for those with that diagnosis is of limited probative value as a general consideration. What the court requires is evidence that identifies the specific grave risks to X that are applicable in the extant matter. I note that Ms N conceded the mother did not exhibit a number of characteristics outlined in the literature she quoted regarding people with severe and long-standing mental illness. That included that there was no evidence the mother had multiple medical complications, or repeated admissions to medical facilities. Nor was the mother a frequent user of primary care services placing considerable strains on the health system, carers and families.
Ms N further conceded she was not aware of any evidence that the mother was at risk of “significant multi-systemic organ damage, including cardiac abnormalities and structural and functional brain impairment” which she had outlined in her report as being potential risks that may face patients with the mental illness. Ms N conceded that these risks were only risks to the mother if she did have a mental illness.
In relation to Ms N’s assertion that a return order might result in the mother’s hospitalisation, Ms N said that was based on concerns that the mother had visibly engaged in disordered behaviour around August/September last year, that the mother reported she was trying to manage this behaviour and that the mother was worried about how she would cope if she was required to relocate without the supports of her family. Notably, however, Ms N confirmed the mother then was able to control some of this behaviour, and looked more healthy when she last saw her in December. That was in circumstances where the mother had the benefit of the support of her family in Australia. Ms N acknowledged that if the mother was able to afford and access appropriate treatment in the United Kingdom that was likely to benefit the mother, increase her quality of life and adaptive functioning.
Ms N said if the mother does continue to engage in disordered behaviours, there is a possibility she may be hospitalised. Ms N acknowledged the mother has not been hospitalised before.
In terms of Ms N’s reference to high suicide rates amongst those with the mental illness, Ms N acknowledged she included that to suggest the mother was at risk of suicide. However, she also conceded the mother had no history of deliberate self-harm. She said the mother had experienced suicidal ideation in the past, but also noted the mother denied any intent to harm herself and that being a mother provided her with a purpose and reason for living. Ms N’s notes dated 24 October 2022 referred to “past experiences of being overwhelmed and feeling unable to cope, fleeting thoughts of wanting to die”. That was not identified as being a current concern.
Indeed, at the foot of each of Ms N’s session notes that were tendered, Ms N recorded a risk assessment as;
•No/Low foreseeable risk
•No harm to self, to or from other identified
According to the notes of Ms N, the mother specifically said on 24 November 2022 that she “would never do it”, regarding suicide. Ms N confirmed that the mother reported no intention of self-harm.
The mother also did not articulate in her material how a deterioration in her mental health would impact her parenting capacity. In the session notes with Ms N that were tendered, the mother referred to being worried she “won’t be able to cope” in the United Kingdom, that she was worried that going back “might mess her up” and she did not feel supported there. She told the court she was “extremely scared about how I could cope back there”. But she also did not articulate any actual, tangible or specific concerns she had regarding her capacity to parent X in the event a return was ordered.
The mother did report that there were times she had required some “help” to look after X, both in Australia and in the United Kingdom. She acknowledged that the father and his mother provided that assistance in the United Kingdom.

The mother was given an opportunity in her oral evidence to outline the risks she asserted existed for X in the event she is returned. She became visibly upset and it was clearly a struggle for her to articulate her feelings. She was able to identify that she could become anxious or depressed, without the support of her family and friends in Australia, and that it would be difficult for her “to be the parent I know I can be when I am with my family and friends here”. She said “it’s hard to explain how I get…I always put my daughter first”. She said she can put on a brave face for X, but not for a protracted period, and the mother was worried that “slowly I won’t be me anymore” if she does not have the supports she has here. As indicated, the mother clearly found this very distressing to discuss.
The mother was again invited to outline with precision the risks that she says X may face. The mother responded:
The risk to [X] would be ...me as her mother …who I feel should be a main part of her life. The risk would be I would be in a situation where I couldn’t control my mental health anymore which would result in the [mental illness] which I have, which then would result in me potentially being hospitalised because I didn’t get the support that I need. So therefore that to me is a risk.
The mother confirmed she had never been hospitalised due to mental health conditions.
The mother outlined what she felt were further risks as follows:
If I can’t be a mum, and I can’t give her the opportunities she needs to have as a child and be happy and have energy and take her and be positive and all those things and have the patience that any child needs, then do you class that as a psychological risk?
There is no indication that the mother has ever become so unwell that she had been unable to attend to X’s day to day needs. The mother agreed X is a happy child and the mother has always put her first and done her very best. The mother also agreed that X had not been adversely affected by her mental health either in Australia on in the United Kingdom and had not suffered psychological or physical harm in her care. At times when the mother’s mental health has been poor, it had not been to the extent that X has been adversely impacted. The mother acknowledged this was because she had taken every step to shield X from the negative effects of the mother’s poor mental health, which the mother said she would continue to do, to the best of her ability even in the event of a return order.
It is apparent the mother has good insight into her emotional and psychological vulnerabilities. She sought assistance and interventions when required. Dr E described:
[The mother] struck me as someone who is psychologically minded, and is capable of flexibility of thought, behaviour and perspective-taking.
Dr E said further that the mother:
…demonstrated a good deal of commitment to her therapy, attending regularly, diligently completing [health] records, agreeing to tasks that were uncomfortable for her…She expressed that an important aspect of her motivation to change and improve her mental health was her daughter’s wellbeing.
…
[The mother] struck me as somebody who has some emotional vulnerability due to past experiences, and she tends to be self-critical and demanding of herself. Nevertheless, she demonstrated sufficient resilience, courage, flexibility and insight to confront the issues and to work on these even when it created discomfort for her.
Similarly, Ms N opined that the mother had:
…high levels of self-reflection, introspection, and personal insight, in addition to a high level of reflection on her daughter’s experiences and needs.
In her oral evidence Ms N agreed these characteristics were unlikely to change and were displayed by the mother throughout her mental health history.
The mother’s own report to Ms N was that she derives significant meaning from being a good mother, and in those circumstances did not have any intent to self-harm. The mother presented as clearly motivated to ensure her mental health is properly managed so that she can continue to parenting X as well as she has to date.
The mother’s medical notes were tendered. I did not discern in those notes that any general practitioner upon whom the mother has attended since travelling to Australia has regarded the mother’s capacity to provide appropriate care for X to have been compromised notwithstanding her mental and physical health issues.
Mr O also agreed that even though the mother’s mental health has at times been poor, he has never had any concerns about her ability to appropriately parent X. He described her as a fantastic mother and that he was amazed at what she was able to manage even at time when she was also struggling with her mental health. He said he had never observed that the mother’s mental health had negatively impacted X in any way. Mr O confirmed that he and his wife would be willing to provide as much support to the mother as they could, irrespective of where she and X were living. He said they would travel to the United Kingdom for extended visits, and could also provide her with some limited financial support.
Conclusion as to grave risk and intolerable situation
The mother bears the burden of satisfying me, with clear and compelling evidence, as to the grave risks of harm she says X will face upon return.
In my view, none of the matters outlined by the mother regarding this exception, taken as a whole are sufficient to found this exception.
The court acknowledges that a return order is likely to have some impact on the mother’s mental health. She will be deeply disappointed and distressed if a return order is made. She may become anxious and potentially depressed. She may engage in disordered behaviours. In turn that may have some adverse psychological consequences for X.
But in order to establish this exception, the mother must adduce clear and compelling evidence that there is a grave risk that a return order would expose X to “physical or psychological harm or otherwise place the child in an intolerable situation”. The mother’s stated case is that there is a risk her mental health upon return to the United Kingdom would decompensate to the extent that she could not parent X, thereby placing X at a grave risk of harm.
However, in my view, the evidence before me could not support a finding that the gravity of the predicted risk to X has reached such a level of seriousness that it can be characterised as ‘grave’. The mother articulated concerns including that she may lack energy, she may not be able to fully engage with X, that she may not be positive or the best mother she can be. I agree with the submissions of the applicant that in those circumstances, any impact on X if she is returned to the United Kingdom could not be described as amounting to a grave risk that X would be exposed to physical or psychological harm, or otherwise be placed in an intolerable situation.
I note the mother also referred to her potentially being hospitalised. As indicated she has not been previously hospitalised. Further, the risk of hospitalisation as articulated by Ms N was made on the assumption of the mother having a diagnosis of mental illness. I also note that the mother in this matter has demonstrated excellent insight into her vulnerabilities, sought assistance as needed and has at all times managed X and her mental health issues in a child focussed manner whilst continuing to provide high quality care for X. In doing so, the mother has ensured she has shielded X from being adversely affected at times the mother has experienced poor mental health.
As observed by Bennett J in Del Rosario at [19]-[20]:
It is settled that the assessment of grave risk of harm must be exposure to harm as a consequence of return and not exposure to harm which might emerge at some later time if, after return, an unsatisfactory situation is allowed to persist without alteration, per Lord Prosser in McCarthy v McCarthy (1994) SLT 743, 747.
…
The harm or intolerable situation cannot be assessed in isolation. It is appropriate to have regard to the extent that the respondent can help herself and the child as well as what the requesting parent and the state of habitual residence can provide to alleviate harmful and intolerable circumstances for the child.
It is unclear to me whether the mother’s mental health, even if it degenerated significantly to the point where the impact on X becomes intolerable, would do so forthwith upon X’s return to the United Kingdom. It might be that the mother’s decline, if it occurred, would do so over a lengthy period of time. It also seems to me that the risks of the mother’s health so declining are greater if she returns with X but seeks no psychological assistance. However, in this case, it seems to me overwhelmingly likely the mother would help herself and seek out to obtain appropriate supports. She arranged psychological assistance previously both in Australia and in the United Kingdom, and she remains motivated to ensure her mental health issues are properly managed.
I note the further observations made by Bennett J in Del Rosario at [146]:
…what the child can reasonably be expected to tolerate upon return is to be assessed in light of any protective measures which can be put in place to ameliorate the perceived harm or intolerable situation. That is what Baroness Hale and Lord Wilson referred to in their joint reasoning in In Re E (Children) (FC) [2011] UKSC 27, extracted at length above [15] in the following terms “the situation which the child will face depends crucially on the protective measures which can be put in place to secure that the child will not be called upon to face an intolerable situation when she gets home.”
In that regard I note the protective measures of conditions to return as discussed during the hearing before me and to which I will shortly turn. Those measures, in my view, provide sufficient safeguards to ameliorate the asserted risk. The ensure the mother is provided with some initial support in the United Kingdom such that whilst she may find a return order deeply distressing, the risk that X will be exposed to harm or otherwise placed in an intolerable situation could not be described as grave.
Taking all these matters into consideration, I am not satisfied that the factors which the mother asserts create a grave risk of exposure to physical or psychological harm or otherwise places X in an intolerable situation, individually or collectively constitute such a risk.
The mother has therefore not satisfied the threshold test of “grave risk” or “intolerable situation”, and this defence must fail.
DISCRETION TO RETURN
As indicated, I am not satisfied that an exception to return has been made out by the mother. Accordingly, there is no discretionary aspect to consider, and X shall be returned to the United Kingdom.
I note that even if the mother had established an exception, I would have declined to exercise my discretion and a return would have been ordered.
At 80,494-80,495 of HZ & State Central Authority (2006) FLC 93–264, the Full Court of this Court referred to the factors relevant to the exercise of discretion to refuse return, adopting the list of factors initially suggested by Waite J (as he then was) in W v W (Child Abduction: Acquiescence) [1993] 2 FLR 211 as follows:
(a)the comparative suitability of the forum to determine the child's future in the substantive proceedings;
(b) the likely outcome (in whichever forum) of the substantive proceedings;
(c) the consequences of the acquiescence;
(d)the situation which would await the absconding parent and the child if compelled to return;
(e)the anticipated emotional effect upon the child of an immediate return (a factor which is to be treated as significant but not paramount); and
(f)the extent to which the purpose and underlying philosophy of the Hague Convention would be at risk of frustration if a return order were to be refused.”
In this matter the forum which would determine the child’s future in the substantive proceedings is the United Kingdom. That is a jurisdiction where the best interests of the child and the child’s welfare are paramount in proceedings. Both parents are able to access proceedings in both the United Kingdom and Australia, although it may be electronically. There are no language issues. The parents are citizens of both countries.
I do not know the likely outcome of the substantive proceedings wherever they are heard.
The father’s determination that he no longer agreed to X remaining in Australia for an extended period was made within two months of the family’s arrival in the country. As indicated, the basis for that was not unreasonable. His employment situation radically altered. The marriage broke down.
The father through the applicant has offered to provide some financial support and access to housing for three months to assist the mother upon her immediate return. In my view those conditions provide sufficient safeguards to ensure the mother is appropriately supported, and X properly cared for immediately upon their return. As outlined, I am satisfied the father and his family would be able to assist with caring for X.
As indicated, the mother said she will return with X. That will provide X with continuity of care. I note further that a return order will provide X with the opportunity to resume a more meaningful relationship with the father, of which she has been deprived for about nine months. I anticipate that will be of benefit to her.
The purpose and underlying philosophy of the Hague Convention would be frustrated if a return order was refused. I am satisfied X was habitually resident in the United Kingdom at all relevant times. I am satisfied that the father had rights of custody he was exercising, or sought to exercise until she was wrongfully retained here in Australia. In all the circumstances, in my view, it is appropriate and in accordance with the purpose and underlying philosophy of the Hague Convention that X’s future should be determined by the courts in the United Kingdom.
CONDITIONS OF RETURN
Regulation 15(1) set out that the court can include an order or apply a condition that the court considers appropriate to give effect to the Hague Convention, if the court is satisfied that it is desirable to do so.
Regulation 25A(1)(c) permits a court to include conditions, by orders, if it considers those conditions are appropriate to give effect to the Convention.
As already noted, reg 16(6) requires that in circumstances where a party raises any condition that could reduce an asserted risk, I must consider whether it is appropriate to include the condition.
The applicant proposed the mother’s return with X be subject to the following conditions:
(a)the father pay the mother GBP3,000 not less than seven days before her flight to the United Kingdom, to assist the mother with funding accommodation;
(b)the father make the home in City C available to the mother for three months; and
(c)the father pay Dr E (or such other appropriately qualified psychologist) for the mother to have three consultations.
These conditions are agreed by the father. They are appropriate conditions. They provide for the mother and X to have suitable accommodation upon arrival, and a financial contribution towards the mother obtaining other accommodation after a reasonable period. The payment for three consultations with a psychologist will also assist the mother to manage the distress and upset she will undoubtedly feel upon her return. I expect she may wish to see a psychologist in an ongoing manner, and the mother will need to fund further appointments herself.
ORDER TO RETURN
The mother did not make any submissions regarding an appropriate time for a return to be facilitated, and accordingly there is no basis for that return to be delayed. I will make orders in accordance with the Minute provided by the applicant which appear to be appropriate in all the circumstances.

I certify that the preceding three hundred and eighty-one (381) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carter.
Associate:
Dated: 28 March 2023

File number:	SYC 7496 of 2022
Judgment of:	CARTER J
Date of judgment:	28 March 2023
Catchwords:	FAMILY LAW – CHILD ABDUCTION – Hague Convention – child retained in Australia from the United Kingdom – where the date of wrongful retention was disputed – consideration of the principle of repudiatory retention – habitual residence – where there is a disagreement as to the nature and purpose of the parents’ travel to Australia – whether the father was exercising his rights of custody – jurisdictional facts established – where the mother asserted the father consented to the retention – where the mother asserted the father was not exercising his rights of custody – where the mother asserted there is a grave risk – where the mother has not discharged her onus – orders made for the return of child to the United Kingdom
Legislation:	Evidence Act 1995 (Cth) s 140 Family Law Act1975 (Cth) s 111B Family Law (Child Abduction Convention) Regulations 1986 (Cth) regs 4, 15, 16, 25A, 26, 29 Children Act 1989 (UK) Hague Convention on the Civil Aspects of International Child Abduction art 5
Cases cited:	Central Authority & Wageman and Anor 48 Fam LR 254 Director General, Department of Communities, Child Safety and Disability Services & Ibbott (No 2) [2015] FamCA 698 Director General, Department of Families v P (2001) FLC 93-077 DP v. Commonwealth Central Authority; JLM v. Director–General, NSW Department of Community Services (2001) 206 CLR 401 Handbury & State Central Authority and Anor (2020) FLC 93–937 HZ & State Central Authority (2006) FLC 93–264 In the Matter of C (Children) [2019] AC 1 LK v Director-General, Department of Community Services (2009) 237 CLR 582 Punter v Secretary for Justice [2007] 1 NZLR 40 Re C (Abduction: Grave Risk of Psychological Harm) [1999] 1 FLR 1145 Re H (Minors) (Abduction: Acquiescence) [1998] AC 72 Re H. (Abduction: Habitual Residence: Consent) [2000] Fam Law 590 Re K (Abduction): Consent [1997] 2 FLR 212 State Central Authority & Del Rosario [2019] FamCA 607 State Central Authority & Handbury [2019] FamCA 668 W v W (Child Abduction: Acquiescence) [1993] 2 FLR 211 Walpole & Secretary, Department of Communities and Justice (2020) FLC 93-950 Wenceslas & Director-General, Department of Community Services (2007) FLC 93-321 Zotkiewicz & Commissioner of Police (No 2) (2011) FLC 93-472
Division:	Division 1 First Instance
Number of paragraphs:	381
Date of last submission:	1 February 2023
Date of hearing:	30 – 31 January 2023; 1 February 2023
Place:	Melbourne
Counsel for the Applicant:	Mr Paul Guterres
Solicitor for the Applicant:	Department of Communities and Justice Legal
Counsel for the Respondent:	Mr Peter Hackett
Solicitor for the Respondent:	Crane Paskins Law

SYC 7496 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	DEPARTMENT OF COMMUNITIES & JUSTICE Applicant
AND:	MS WILMER Respondent

order made by:	CARTER J
DATE OF ORDER:	28 March 2023