Department of Communities, Child Safety and Disability Services and Sabeer

[2017] FamCA 253

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF COMMUNITIES, CHILD SAFETY AND DISABILITY SERVICES & SABEER [2017] FamCA 252

FAMILY LAW – CHILD ABDUCTION – Hague Convention – Application for the return of a child to South Africa – Whether habitual residence in South Africa is established – Whether the father consented to the child remaining in Australia – Whether the father acquiesced in the child remaining in Australia – Whether grave risk established – Whether the child objects to being returned to South Africa – Whether the child’s objection shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes – Whether the residual discretion ought be exercised – Order for return made.

Family Law Act 1975 (Cth) s 111B
Family Law (Child Abduction Convention) Regulations 1986 (Cth)

Department of Health and Community Services, State Central Authority v Casse (1995) FLC 92-629
Cooper v Casey (1995) FLC 92-575
Dally Watkins v Director-General, Department of Child Safety (2006) FLC 93-255
De L v Director-General, New South Wales Department of Community Services and Anor (1996) 187 CLR 640
Director-General, Department of Families, Youth and Community Care v Bennett (2000) FLC 93-011
DP v Commonwealth Central Authority; JLM v Director-General, NSW Department of Community Services (2001) FLC 93-081
LK v Director-General, Department of Community Services (2009) 237 CLR 582
Punter v Secretary for Justice [2007] 1 NZLR 40
Re B (Minors) (Abduction) (No. 2) [1993] 1 FLR 993
Re J (A Minor) (Abduction: Custody Rights) [1990] 2 AC 562

APPLICANT: Director-General, Department of Communities, Child Safety and Disability Services

RESPONDENT: Ms Sabeer

FILE NUMBER: BRC 12639 of 2016

DATE DELIVERED:	Order made 20 April 2017; Reasons for Judgment delivered and provided to the parties on 27 April 2017
PLACE DELIVERED:	Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 31 March 2017; 12 April 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Linklater-Steele

SOLICITOR FOR THE APPLICANT: Ms Fitzgibbon, McInnes Wilson Lawyers

COUNSEL FOR THE RESPONDENT: Ms Hillard on 31 March 2017; Ms Dart on 12 April 2017

SOLICITOR FOR THE RESPONDENT: VM Family Law

Orders

IT IS ORDERED BY WAY OF FINAL ORDER THAT

1. All previous Orders are discharged.

2. The child, B, born … 2005 (a female child), be returned to South Africa and, for the purposes of giving effect to this Order:

   (a)the said child leave the Commonwealth of Australia on or before 4 May 2017; and

   (b)the said child arrive in South Africa on or before 5 May 2017; and

   (c)pending the child returning to South Africa, the Respondent continue to be restrained and an injunction is hereby issued, restraining her from removing or attempting to remove the child from the Commonwealth of Australia; and

   (d)pending the child returning to South Africa, the Respondent  continue to be restrained and an injunction is hereby issued restraining her from removing or attempting to remove the child from the premises where she and the child are currently residing, namely C Street, Suburb D in the State of Queensland; and

   (e)subject to sub-paragraph (f) below, the Commissioner of the Australian Federal Police and all federal agents of the Australian Federal Police retain the names of the Respondent, Ms Sabeer, born … 1980, and the child on the Family Law Watchlist at all international departure points in Australia; and

   (f)the names of the child and the Respondent be removed from the Family Law Watchlist by officers/agents of the Australian Federal Police upon receipt of a letter from an officer of the Department of Communities, Child Safety and Disability Services advising of the travel arrangements made for the child to return to South Africa from 12.00 am on the date nominated for the travel in the letter; and

   (g)the Marshal of the Family Court of Australia and the Commissioner and all federal agents of the Australian Federal Police and officers of the Police Forces and Services of the various States and Territories are required and empowered to take all necessary steps to give effect to these Orders; and

   (h)to facilitate the return of the child to South Africa, Ms T, Department of Communities, Child Safety and Disability Services or her nominee be at liberty to release all current passports relating to the child for the purpose of the child’s return to South Africa and to release the Respondent’s passport to her (or her nominee) upon request.

3. The Applicant has liberty to apply to seek any further orders necessary to allow him or officers of the Department of Communities, Child Safety and Disability Services to make such arrangements as are necessary to facilitate and ensure the return of the child in accordance with this Order and pursuant to the Central Authority’s obligation under Regulation 20 of the Family Law (Child Abduction Convention) Regulations 1986.

4. All other applications are dismissed.

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

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

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 12639 of 2017

Director-General, Department of Communities, Child Safety and Disability Services

Applicant

And

Ms Sabeer

Respondent

REASONS FOR JUDGMENT

1. The Court is asked to determine an Application[1] pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (Cth) for an order[2] returning eleven year old B, who was born in Australia in 2005, to the Republic of South Africa.

   [1]Filed 23 December 2016 by the Director-General, Department of Communities, Child Safety and Disability Services in his capacity as State Central Authority under the Family Law (Child Abduction Convention) Regulations 1986 (Cth).

   [2] Family Law (Child Abduction Convention) Regulations 1986 (Cth), Regulations 14(1)(a)(i), 15(1)(a).

2. B’s mother, Ms Sabeer, opposes the making of any order for the child to be returned to South Africa.

3. B has been in this country with Ms Sabeer since 7 October 2015. Since about that time she has attended school, participated in extracurricular activities and in events organised by, and held within, the ethnic communities here. There is no reason to doubt that she has made friends and, to some extent at least, settled into her new environment in this country.

Uncontentious Matters

1. The requesting Applicant under the Convention is the child’s father, Mr E. He was born in 1974 in South Africa. He is a citizen of both South Africa and Australia, having acquired that status in this country in 2009. He remains living in South Africa with the child’s two brothers.

2. Ms Sabeer was born in Country F in 1980. She and her family moved to Country G when she was six years of age and then relocated to Australia when she was eleven years of age. She is an Australian citizen but is not a citizen of South Africa.

3. B’s parents met in January 2000 when her father visited Australia. They married here in 2000. They travelled to South Africa in about mid-April 2000: for Ms Sabeer this was a move to a new country but, as he was then ordinarily resident in South Africa, it was a return home for Mr E.

4. B has two brothers: H (born in 2001) and J (born in 2003). Like the child, both were born in Australia. Like the child, they are citizens of both Australia and South Africa.

5. H and J remain living in South Africa with Mr E.

6. It is uncontentious that, about two months before each of their three children were born, Ms Sabeer returned to Australia from South Africa. She was accompanied by each of the parties’ children. She and the relevant child/ren then remained here for about two months after the birth, before returning to South Africa. During at least some of these periods, Mr E travelled between Australia and South Africa.

Had the parties engaged in discussions before September 2015 about moving to live in Australia?

1. Ms Sabeer says that, more particularly between early 2013 and 30 August 2015, she and Mr E spoke about moving to and settling in Australia. They had many, many discussions about this topic. On her evidence, they discussed various permutations in terms of the manner in which they would arrange their affairs in order to facilitate such a move.

2. On her evidence, they agreed in 2013 that she and the children would live in Australia for six months – after which, Mr E would wrap up his business in South Africa and move to join them in Australia. However, despite their apparent agreement, this plan was never implemented.

3. Ms Sabeer also says that, on another occasion, they had agreed that Mr E would initially accompany them to Australia, before returning to South Africa to wrap up the business and then re-join them in Australia: again, this plan was never implemented.

4. Mr E agrees that the parties had previously discussed moving to Australia. His evidence is that Ms Sabeer frequently raised the idea of relocating to live here because she had a ‘strong urge’ to return to live in Australia. He accepts he had previously emailed her about possible business opportunities here; he accepts he had pondered about relocating to Australia but says that, as a family, they had not, in September/October 2015, reached the stage of being ready to do so – his evidence is that he could not leave the business in South Africa without certainty about being able to support the family financially in this country.

5. His position is clear: whilst Ms Sabeer always wanted to return to live in Australia and they had discussed this, he had never agreed to the same. He strongly refutes the proposition that, when he travelled with Ms Sabeer and the child to Australia in early October 2015, there was an agreement that they were doing so as part of an agreed plan to relocate their entire family unit to Australia to live.

6. Ms Sabeer’s brother, Mr I (who was not required for cross-examination), confirms that Mr E communicated with him on many occasions about the possibility of the family moving from South Africa to live in Australia. He says that, from their first visit to Australia after their marriage, Mr E began to talk about his wish to relocate to Australia and build a home in this country with Ms Sabeer.

7. According to Mr I, Mr E would generally talk about which suburbs were good to live in, what type of house they would require, how much he would need to spend to buy a house, the best way to send money from South Africa to Australia (so that funds would be here when he and Ms Sabeer found a house they wanted to purchase) and about any tax implications arising from sending money from South Africa to Australia.

8. Mr I also says that, in 2013, he accompanied Mr E to open a Bank of Queensland bank account during a trip to Australia but, because of the absence of the necessary identification documents, the account was not opened then.

9. Despite this unsuccessful attempt to open a bank account, bank accounts were clearly opened in Australia because, in about late 2013 or early 2014, Mr I borrowed money from Mr E and Ms Sabeer by accessing Mr E’s Australian bank accounts. He says he did so on the basis that he would repay Mr E when he (Mr E) needed the money to buy a home in Australia. Mr I does not give evidence of having been asked to repay the funds he borrowed for that purpose at any time before September or October 2015 or, in fact, at any time at all.

10. Mr I’s evidence is that, when Ms Sabeer and the children were in Australia during 2014, Mr E (who was then in South Africa) asked him to look at real property he had found over the internet and asked his opinion about whether it might be a good home for the family. Mr I’s evidence is also that, between 2011 and 2015, Mr E asked him to investigate at least five properties per year and provide feedback about the same. He says Mr E also spoke to him in October 2015 to say he had $300,000.00 to put toward buying residential property in Australia and asked him to let him know if ‘something comes up’; from Mr I’s perspective, this was said in the context of a plan by Mr E to move to live in Australia.

11. Despite all of these discussions, Mr E never purchased any property in Australia.

12. It is clear that, on Mr I’s evidence, Mr E’s ‘plan’ to move to live as a family unit in Australia was something that had been the subject of repeated discussions over a number of years.

13. Mr I says that, in addition to discussing residential properties, Mr E told him he wanted a commercial property for investment purposes for when the family relocated to Australia – an event he said would be after he sold his business in South Africa.

14. Mr I also says that, during 2013 and 2014, Mr E began to speak with him about the possibility of buying a franchise and asked him to do some research for him – which he did. They subsequently discussed various options. According to Mr I, Mr E spoke to him on many occasions in 2013, 2014 and into 2015 about looking for a business to buy in Australia so that he could support his family ‘when’ they relocated to Australia. Mr I also said that Mr E told him in late 2015, when he was in Australia, that he had a potential buyer for his business in South Africa. However, there is no suggestion in the evidence that Mr E has sold his business in South Africa.

15. There being no challenge to Mr I’s evidence about his conversations with Mr E about various business possibilities (in whatever form), I accept that such discussions occurred both before and after Ms Sabeer, the child and Mr E arrived in Australia on 7 October 2015.

16. However, I also consider that the mere fact that there were many discussions over the years between Mr E and Mr I about the possibility of Mr E acquiring a business and a home in Australia, does not establish that, when Ms Sabeer and the child left South Africa on 22 September 2015, Mr E and Ms Sabeer had reached a common intention that the child would live permanently in Australia thereafter.

17. There is simply no evidence that Mr E ever went ahead with the purchase of any franchise, other business, commercial or residential property at any time before September or October 2015 or since then.

The family travels to Australia in 2014

1. Mr E says that, when Ms Sabeer fell pregnant in the latter part of 2013, he and she agreed to take their children out of school in South Africa and travel to Australia for six months: they agreed he would travel between Australia and South Africa during this time to attend to his business.

2. As Ms Sabeer was due to give birth in mid 2014, the family was due to depart from South Africa in January 2014. As a precautionary measure, they attended on Ms Sabeer’s gynaecologist. To their great shock and distress, they were told Ms Sabeer had suffered a miscarriage. She was subsequently hospitalised for medical procedures associated with that.

3. As they had already made plans to travel to Australia, they implemented those plans and all members of their family travelled to Australia in January 2014. Mr E subsequently returned to South Africa. He says he did so consistent with the plan that he would travel between Australia and South Africa for business purposes; Ms Sabeer asserts that he left this country as a result of an altercation.

4. In any event, it is uncontentious that Ms Sabeer subsequently remained in Australia and that, in April 2014, Mr E returned here, collected all three children and travelled back to South Africa with them. Ms Sabeer remained with her family here and returned to South Africa in May 2014.

5. I think it more likely than not that both Mr E and Ms Sabeer acted as described immediately above on the basis that Ms Sabeer remained in Australia for a little longer because she needed the support of her family.

What happened between the beginning of 2015 and the travel from South Africa in late September 2015?

1. Mr E says the parties experienced marital difficulties at the beginning of 2015. He says Ms Sabeer told him she wanted to separate from him.

2. Ms Sabeer says that, a week before 30 August 2015, Mr E perpetrated an incident of domestic violence toward her. Mr E does not accept this description of the incident between them, which it appears involved Ms Sabeer becoming distressed and upset.

3. Whatever actually happened that day, Ms Sabeer and the child left the former matrimonial home on 30 August 2015. It seems that, at Ms Sabeer’s request, Mr E transported her and the child to stay with friends. Whilst his initial position was that the child remain in his care, so she could continue to attend school, he ultimately did not oppose Ms Sabeer’s proposal that the child accompany her when she left the shared residence.

4. Ms Sabeer initially tried to take her passport and the child’s passport with her when she left. However, when Mr E asked her where they were, she returned them to their usual storage place. It seems to me to be more likely than not that Mr E and Ms Sabeer were both alive to the potential implications of Ms Sabeer having possession of the child’s passport at that time.

5. On Mr E’s account, he understood from what Ms Sabeer told him that she intended to stay away for a week. However, when they spoke by telephone after a week had passed, Ms Sabeer told him she was not ready to reconcile with him and was not returning to their matrimonial home. On Ms Sabeer’s account, she and the child stayed with friends for approximately two weeks in total.

6. Whilst it is not entirely clear to me, it seems that Ms Sabeer and the child then moved to stay with Mr E’s sister for about one week. When she had visitors, they moved to stay in a bed and breakfast for about five nights. On his evidence, Mr E paid for this accommodation. Given that it is agreed Ms Sabeer did not work outside the home for remuneration during their marriage, it seems more likely than not that, if any payment was required, it was made by Mr E.

7. Doing the best that I can to piece together the evidence, it seems to me that, at some stage after she and the child had left the former matrimonial home without their passports, Ms Sabeer attempted to obtain ‘replacement’ passports for them – this action resulted in Mr E being contacted by someone from the relevant Australian authority.  Ms Sabeer agrees she later learned that Mr E was not happy about her attempts to obtain passports. She also agrees that Mr E’s sister told her he would not let the child travel with her to Australia.

8. Ms Sabeer’s evidence during cross-examination establishes that, as at August 2015, after she and the child left the former matrimonial home, she knew:

   a)there was no agreement between her and Mr E that they would move to live permanently in Australia as a family; and

   b)there was no agreement that she and the child would move to live permanently in Australia; and

   c)Mr E (who retained the child’s passport) would not permit the child to travel with her to Australia.

9. Ms Sabeer said, during her cross-examination, that she then told Mr E she needed to go back to Australia because she was very sick or unwell and had to recuperate here. She agrees that there was no particular agreement between her and Mr E at that time that, as a family, they would move to live in Australia; she also agrees that she and Mr E had not agreed to the child moving to live with her in Australia. Mr E’s evidence corroborates Ms Sabeer’s evidence to the extent that he says Ms Sabeer told him she wanted to visit Australia.

1. An appreciation of Ms Sabeer’s explanation to Mr E about her need to travel to Australia at this time needs, in my view, to take into account the family’s previous trip to Australia in 2014 when Ms Sabeer remained in Australia until May 2014 as a consequence of her telling Mr E that she needed more time here to recuperate.

2. Armed with the information that Ms Sabeer wanted to travel to Australia, Mr E purchased tickets for Ms Sabeer and the child to travel to Australia. He says Ms Sabeer asked him to buy return tickets, whilst Ms Sabeer says he bought them return tickets of his own volition.

3. Whilst it is perhaps unnecessary to resolve this conflict, I am minded to regard Mr E’s account as the more likely. I arrive at this conclusion because:

   a)it is clear that, by then, Ms Sabeer knew Mr E would not have permitted the child to leave South Africa with her if he thought that she would not be returning to that country; and

   b)I think it likely that, as she did when she signed the Parental Consent Affidavit which records that the child was permitted to be out of South Africa between about 22 September 2015 and 14 January 2016, Ms Sabeer was prepared to behave so as to reassure Mr E that this trip to Australia was like previous trips: namely, something she needed in order to recuperate before returning to life in South Africa.

4. In any event, if I am wrong in this conclusion, Ms Sabeer’s evidence that Mr E bought a return ticket for the child (and her) of his own volition seems to me to be a clear demonstration that, whatever Ms Sabeer’s intention at that time, Mr E’s position at that time was that both Ms Sabeer and the child would be returning from their visit to Australia to live in South Africa.

5. In addition, Mr E’s purchase of a return ticket for the child to travel from South Africa on 23 September 2015 and to return to South Africa on about 15 January 2016 is inconsistent with any suggestion that, when the child left South Africa with Ms Sabeer on 22 September 2015, her parents had agreed that she was leaving South Africa permanently to live in Australia permanently or that Mr E intended that she do so.

The trip from South Africa to Australia in September/October 2015

The Parental Consent Affidavit

1. In order to facilitate the child’s travel to Australia, both of her parents signed a Parental Consent Affidavit on 22 September 2015. This document records their consent to the child travelling from South Africa to Australia for the period from 22 September 2015 until 14 January 2016.[3]

   [3]          Parental Consent Affidavit dated 22 September 2015.

2. Ms Sabeer’s affidavit evidence is that, as at 22 September 2015, she had no intention of returning to South Africa.[4] She confirmed this was the case during her cross-examination and said that, when she swore to the contents of the Parental Consent Affidavit, she had no intention of returning to South Africa. She said that, as she had by then decided she was not returning the child to South Africa, she knew that what she was swearing to in terms of a return date in that document was false.

   [4]          Affidavit of Ms Sabeer filed 17 February 2017, paragraph 60.

3. Ms Sabeer attempted to justify this action on the basis that, in essence, she was justified in making a false statement under oath to the South African authorities because she feared for her life. However, it seems to me that this evidence is significantly at odds with her other evidence to the effect that she and Mr E in fact reached an agreement, at some time in about October 2015, to relocate as a family unit to Australia.

4. It is clear Ms Sabeer did not tell Mr E that she had no intention of returning to South Africa before he signed the Parental Consent Affidavit to permit the child to travel outside South Africa. It is also clear she concealed her intention from him because she knew that if she told him of it, he would not have agreed to the child leaving South Africa to travel to Australia.

5. Not only did Ms Sabeer conceal her true position or decision from Mr E, she in fact positively misled him about her intention vis-à-vis the child by signing the affidavit which recorded a date by which the child had to be returned to South Africa. So much is established by her evidence to the effect that one of the main reasons she signed the Parental Consent Affidavit with the return date of 14 January 2016 was that she was fearful that, if she did not sign it with a return date of January 2016, Mr E might have changed his mind and refused to allow her or the child to leave South Africa.[5]

   [5]          Affidavit of Ms Sabeer filed 17 February 2017, paragraph 63.

6. Given all of this, there is absolutely no doubt that, when the child left South Africa in September 2015, there was no shared parental agreement or intention that she was departing permanently from that country or in any way abandoning her habitual residence there.

   The other blank, signed Parental Consent Affidavit/s

7. Ms Sabeer says she told Mr E she may not return to South Africa in January 2016 and that he then signed a second (and blank) Parental Consent Affidavit “to allow this to be completed with any new travel dates, should the child and I return to South Africa on a different date”.[6] Even on this account, it is clear that the rationale for any additional, signed blank affidavit/s was to facilitate a return to South Africa, albeit on dates other than those specified in the ‘original’ affidavit.

   [6]          Affidavit of Ms Sabeer filed 17 February 2017, paragraph 58.

8. I accept that, as was pointed out during the hearing, such affidavit/s would have been unnecessary if Mr E and Ms Sabeer had, in fact, then had any agreement that the child was departing permanently from South Africa to commence living permanently in Australia.

9. In any event, I prefer Mr E’s evidence, which is to the effect that Ms Sabeer did not tell him in September 2015 that she might not return to South Africa in January 2016. I also accept he did not give her a second Parental Consent Affidavit (which does not contain a return date or the child’s name) at that time. On balance, I also prefer his account that he and Ms Sabeer had earlier signed a few Parental Consent Affidavits as a precaution – for example, to enable one of them to remove the children from South Africa (in the case of an emergency) if the other was hospitalised and unable to give consent.

   Parental reconciliation

10. Doing the best that I can, it seems to me that Mr E considers he and Ms Sabeer reconciled after he travelled from South Africa to the Middle East on 2 October 2015.

11. However, Ms Sabeer’s account is that they in fact reconciled in South Africa before she and the child left that country on about 22 September 2015. When she was asked during her cross-examination if their reconciliation was part of her ‘plan’ to ensure that Mr E let her (and, presumably, the child) leave South Africa, she said she had to be ‘co-operative’ because her safety was first. I have already commented on what appears to me to be an inconsistency in Ms Sabeer’s recounting.

12. In any event, both Mr E and Ms Sabeer agree that they reconciled their marriage whilst they were in the Middle East.

13. Ms Sabeer says that, between 30 August 2015 and 7 October 2015, she and Mr E agreed she and the child would travel to Australia and settle here, with a view to him and the child’s brothers ‘possibly also coming over’. In so far as this assertion appears to suggest that the parties had agreed to an arrangement that may well have seen their children living separately from each other, it seems to me to be inconsistent with the recounting that Mr E and Ms Sabeer had reconciled their marriage relationship before they entered Australia with the child.

14. In complete contrast to the evidence given by Ms Sabeer, Mr E denies that he and Ms Sabeer agreed that the child would stay with her mother in Australia permanently on this basis. I accept his evidence in this respect.  He is firm and resolute in his denial of any suggestion that there was any agreement that the children would be separated from each other and I also accept his evidence in this respect.

15. Mr E, Ms Sabeer and the child entered Australia on 7 October 2015. Mr E remained here until 19 October 2015, when he returned to South Africa.

16. On balance, I accept Mr E’s evidence that he travelled to Australia with the intention of reconciling the issues between him and Ms Sabeer and then returning to South Africa to “then seriously consider working towards relocating to Australia”. I accept that, whilst he knew Ms Sabeer strongly wanted to return to live in Australia, Mr E’s position was that he could not agree to this idea or proposal until their affairs in South Africa were wound up and he was confident he could provide the family with a similar standard of living here as that which he had been able to provide to them in South Africa.

17. I do not accept that, before they entered Australia with the child on 7 October 2015, Mr E and Ms Sabeer had in fact reached a definite agreement that they would move to live in Australia permanently.  After all, Ms Sabeer’s own evidence is that, after they reconciled, she was ‘hopeful’ that Mr E would move to live in Australia. Her hope must, in my view, be assessed against the uncontentious background that, on her account, he had previously promised, on no less than two occasions over a number of years, to move to live in Australia but – beyond asking questions and investigating possibilities about homes, businesses and work options – had not put any asserted promise into effect.

What happened between the parties’ arrival in Australia on 7 October 2015 and Mr E’s departure for South Africa on 19 October 2015?

1. Ms Sabeer says that, shortly after their arrival in Australia on 7 October 2015, Mr E again raised the prospect of moving to Australia – he collected a property brochure, spoke of buying or renting a house in Brisbane and spoke of business opportunities here. She says he also spoke of her and the child moving to Australia first and then him and the boys joining them. That is, her account is he spoke again about them moving, as a family, to Australia to live here permanently.

2. Ms Sabeer also says Mr E asked her to return to South Africa with him and proposed that they would then return as a family to Australia in December 2015. She says she told him she did not want to return to South Africa at all. She also says he told her that he would go back to South Africa and finish everything he needed to do to move to Australia with the boys and that he had started to look for houses where he and the boys could live when they returned. This recounting contains the strong implication that Mr E was, by then, aware that Ms Sabeer did not want to continue in their marriage – a conclusion which I reject.

3. Mr E says, in essence, that, before he left Australia for South Africa in mid-October 2015, Ms Sabeer did not tell him she was not returning to South Africa. I accept his evidence in this respect.

4. Mr E also says that, whilst there might have been discussions between them, before he left Australia in October 2015, about moving to Australia in the future, he had not committed to anything: that is, he denies they had, in fact, reached any agreement about a permanent relocation to Australia.

5. Doing the best that I can, I think it more likely than not that, before he left Australia in October 2015, Mr E and Ms Sabeer had discussed – as they had previously – the concept of moving as a family to live in Australia permanently. I think it highly likely that, from Mr E’s perspective, this proposal was on the basis that he would start to action those matters he had identified as necessary to enable the family to move to live in Australia (such as getting the South African house in order and making arrangements to move money from South Africa to Australia) at some time in the future and that he and Ms Sabeer would together work towards this future goal after she and the child returned to South Africa in mid-January 2016.

6. I am not persuaded that, when Mr E left Australia to return to South Africa in mid-October 2015, he did so on the basis of any appreciation that Ms Sabeer and the child would not be returning to that country in mid-January 2016 (as provided for in the Parental Consent Affidavit).

7. Given Ms Sabeer’s evidence that she had already decided she was not going to return to South Africa when she left that country in September 2015, it seems much more likely than not that – whatever Mr E’s appreciation of their discussions about the future – she had no intention that the child would return to South Africa, even for a short period of time. Whilst it is unnecessary to resolve the rationale underpinning this, I suspect it is highly likely Ms Sabeer had no intention of participating in a situation which would have seen the child back in South Africa, from where she would have again needed Mr E’s permission to leave.

   B’s enrolment in school

8. It is accepted that the child was enrolled at J School in early October 2015 – that is, before Mr E returned to South Africa.

9. Mr E says this happened because the parties wanted to ensure her education was not affected by Ms Sabeer’s insistence that she spend time with family in Australia. He says, in essence, that, as the child was in Australia during a “school-going period”, she had to be enrolled in school to ensure she did not miss out on her education. He refutes any suggestion that the child’s enrolment at school in October 2015 evidenced a shared parental intention that she remain living in Australia permanently. He asserts it was always his intention that her enrolment was temporary.

10. In contrast, Ms Sabeer says the child’s enrolment in school so soon after her arrival in Australia in October 2015 evidences the parties’ then shared intention that the child live permanently in Australia. She says there were no discussions between the parents about the child’s enrolment being only a temporary one. Of course, the absence of discussions about this topic needs to be considered in the context of what I consider to be Mr E’s absence of knowledge about Ms Sabeer’s decision not to return to South Africa and the fact that the Parental Consent Affidavit provided that the child would be returned to South Africa by mid-January 2016.

11. I have concluded that the fact of the child’s enrolment at school in October 2015 is not, in this case, demonstrative of a shared intention that she would thereafter remain living in Australia. In assessing the fact of her enrolment, I have accorded particular weight to the manner in which these parents approached their children’s attendance at school during previous visits to Australia. For example, on Ms Sabeer’s evidence, the children were enrolled at school here between about February 2014 and April 2014 – before they returned with Mr E to live in South Africa.

12. This is not a case where a child had not attended any school but that in the country of that child’s origin: for the child, enrolment at a school in Australia in October 2015 was simply a repeat of what had happened when she (and the rest of her family) had travelled to spend time here in 2014.

13. Counsel for Ms Sabeer submitted that, in contrast to the parents’ actions in 2014 (when all three children were enrolled in and attended at a State operated school), the parents’ joint decision to enrol the child at a privately run religious school should be regarded as indicative of an agreement or shared intention that the child was going to be living in Australia permanently thereafter. She submitted that the decision for the child to attend a private school (with its asserted attendant financial commitment) distinguished this enrolment from that which occurred in 2014, and that I should infer from it that Mr E had agreed to the child living permanently in Australia thereafter.

14. I have taken these submissions into account in my consideration of the manner in which the child’s parents’ joint decision to enrol her at a private school in October 2015 should be regarded. However, I am not persuaded that this is the only rational inference available to be drawn from the fact of the child’s enrolment at a religious school in October 2015. Other possibilities seem to me to exist: for example, that, given she was going to be attending school without her brothers this time, the child’s parents thought it more appropriate for her to attend a faith-based school than a State run school.

15. Whether that is correct or not, in the circumstances of this case, I am not persuaded that the fact of the child’s enrolment at school in Australia in October 2015 indicates or demonstrates a shared parental intention that, rather than return to South Africa in mid-January 2016 (as indicated by the contents of the Parental Consent Affidavit), she was to remain living in Australia thereafter.

    Mr E’s actions

16. Ms Sabeer says that her understanding of her conversations with Mr E was that, by enrolling the child in school, talking about buying a house in Brisbane and selling his business in South Africa, he was then indicating that they (the family) were relocating to Australia and settling here.

17. Of course, on the evidence given by Ms Sabeer and members of her family – and as accepted by Mr E in an overall sense – these were the very types of discussions that had been occurring for a number of years without implementation. Business possibilities, housing options and the like had clearly been the subject of many many discussions between Mr E and Ms Sabeer and Mr E and members of Ms Sabeer’s family over a long period of time.

18. Ms K Sabeer, Ms Sabeer’s mother, was not required for cross-examination. She says that, in October 2015, she was present on at least one occasion when Mr E and her daughter discussed him returning with their sons to Australia to start a new life here. Whilst this evidence seems to me to contradict any suggestion that Mr E and Ms Sabeer had already reached this decision when they arrived with the child in Australia on 7 October 2015, it does not seem terribly different to the conversations between them which had occurred during previous years: after all, as I have already said, it seems to me that Mr E had been discussing and considering and mooting the possibility of relocating to live in Australia, as a family unit, over a long period of time.

19. Ms K Sabeer also says that Mr E spoke with her one evening about his plans to either sell his business in South Africa or hire a manager to run it and to relocate with the boys to Australia. Again, this seems to me to be a further example of his contingent and indefinite plan or proposal to relocate to this country in the future: that is, once the business was sold or once he had a manager installed or once he had worked out how to provide financially for the family in Australia.

What happened after Mr E returned to South Africa on 19 October 2015?

1. Mr E says that, after he returned to South Africa in October 2015, he initially told Ms Sabeer to look at houses and send relevant information to him. Ms Sabeer says she began to send Mr E details of houses that were for sale and he sent her details about houses he had seen on the internet and even asked her to go and look at a couple of them. Consequently, their evidence seems to me to be relatively consistent about what was going on at this time.

2. It seems to be clear that, after Mr E returned to South Africa in October 2015, he and Ms Sabeer continued to communicate quite regularly and affectionately, including via WhatsApp messages, until about mid November 2015.

3. For example, Ms Sabeer’s initial messages to Mr E included telling him that he was her and the children’s ‘hero’ (on 19 October 2015)[7] and telling him she loved him and missed him (on 22 October 2015).[8] Despite these reassurances, it seems to me that, by late October 2015, Mr E was expressing some doubts about their relationship – he certainly asked Ms Sabeer to address his expressed concerns that they might not be seeing things on the same level. He told her he wanted ‘this’ (which I infer was a reference to their marriage) to work and was ‘putting things together slowly’ but was pondering and wanted them to speak. He asked her to tell him her honest feelings and said he felt he did not know where they stood.[9]

   [7]           Exhibit 1, p.9.

   [8]           Exhibit 1, pp 41 & 42.

   [9]           Exhibit 1, pp. 58-60.

1. On Ms Sabeer’s evidence, as time progressed, Mr E and she spoke less and less about properties for sale in Australia and ‘it seemed’ to her that he was ‘less interested’ in coming to Australia.[10] Her interpretation of the interactions between them as time passed seems to me to be consistent with Mr E’s evidence that their discussion about houses arose because, from his perspective, they had agreed to “embark on a process to contemplate relocating to Australia.” It is also consistent, I think, with the tenor of at least some of the messages which passed between them between about late October 2015 and 25 November 2015.[11]

   [10]         Affidavit of Ms Sabeer filed 17 February 2017, paragraph 87.

   [11]         Exhibit 1.

2. Ms Sabeer and Mr E agree that they argued in mid-November 2015. Ms Sabeer says that their disagreement was about moving to Australia or whether they should return to South Africa first.[12] Part of her case is that their argument occurred because Mr E reneged on the agreement she asserted they had earlier reached about relocating to Australia as a family.

   [12]         Affidavit of Ms Sabeer filed 17 February 2017, paragraph 90.

3. When this suggestion was put to him during his cross-examination, Mr E denied that this was the case. Whilst he did not elaborate further during his cross-examination about what he asserts was the cause of their mid-November 2015 argument, it seems to me that some indication of his perspective of it can be found in his comments to Ms Sabeer’s mother during her June 2016 recorded telephone conversation with him.

4. Ms K Sabeer also says that, in about November 2015, her daughter told her that she and Mr E had argued when she asked him how he would pay for the house in Australia and that she thought he would not move to Australia as they had been discussing.

5. On 25 November 2015, Ms Sabeer told Mr E she wanted to apply for family tax benefit from Centrelink for the child and that he might have to provide information for this. He asked her what family tax benefit was. She told him that it was what people apply for, for a child, and that everyone applies for it for their child.[13]

   [13]         Exhibit 1, p.191.

6. Mr E then asked Ms Sabeer if this was her final decision and said that he was expecting the child back in South Africa. When Ms Sabeer asked him ‘when’, he said that he did not know, ‘but soon’ and that it was not a matter to discuss on WhatsApp; he also said that Ms Sabeer had to decide her final decision and that ‘obviously’ he or the children could not live separated and that she would have to decide if she wanted the marriage or not.[14]

   [14]         Exhibit 1. P.192.

7. It seems to me that Mr E’s response made it clear that his position was that, in the event his marriage with Ms Sabeer was not reconciled, the child should return to South Africa to live with him and her brothers. He certainly did not convey at this time that he agreed to the child living permanently in Australia with her mother and the boys living in South Africa with him.

8. There is nothing in the evidence before me to suggest that Ms Sabeer responded further to Mr E on 25 November 2015. The next message, sent on 2 December 2015, originates from Mr E. There is nothing in the evidence to suggest that Ms Sabeer responded to that message.

9. On 11 December 2015, Mr E asked Ms Sabeer to give their marriage six months and said that if it did not work out after that, they would ‘quit’; he also apologised to her for being harsh, inconsiderate, cranky and moody. There is nothing in the evidence before me to suggest that Ms Sabeer responded to this message either.

10. Perusal of the contents of WhatsApp messages between the parents’ sons and Ms Sabeer[15] establishes that, on 11 December 2015, one of them asserted that she had said she was returning to South Africa in January and that they wanted her and the child to come back to South Africa.

    [15]         Exhibit 2.

Mr E and the child’s brothers travel to Australia: December 2015 – 14 January 2016

1. On 20 December 2015, Mr E sent Ms Sabeer a message in which he told her that he and the boys were coming to Australia to see her and the child. In this message, he asked Ms Sabeer for a chance. He said that: “I know U r not coming back to South Africa and that’s ok, all I want is a chance, just pls think about it, pls don’t shut it off”.  He said he was travelling to Australia because he loved her and wanted to try – presumably, to reconcile their marriage.[16]

   [16]         Exhibit 1, p.243.

2. Mr E did not accept the suggestion made to him by Counsel for Ms Sabeer to the effect that he had written what he had in this message because, by then, Ms Sabeer had told him that she was not returning to South Africa. He mooted that he must have concluded that from her actions; he refuted that she had told him by then that she was not returning to South Africa. I think Mr E’s explanation is certainly quite believable.

3. In any event, whether Ms Sabeer had directly told Mr E by then that she was not returning to South Africa or whether he postulated this conclusion as a result of the contents of earlier conversations with Ms Sabeer and/or her actions (or a combination of all of these) does not seem to me to matter much because it is completely clear that no-one spoke of where the child would live or whether there was to be a change to the previously agreed date, recorded in the Parental Consent Affidavit, by which she was to have returned to South Africa. For example, Ms Sabeer did not respond to Mr E to tell him that not only was she not returning to South Africa, but the child was going to live permanently with her here rather than return to South Africa in mid-January 2016 as they had, at least ostensibly, agreed before the child left South Africa.

4. I am not persuaded that, by messaging as he did, Mr E was conveying to Ms Sabeer that he consented to the child living permanently in Australia or remaining here after mid-January 2016 or that he accepted such was the inevitable consequence of any decision by Ms Sabeer to live permanently in Australia. Reference to the message clearly establishes, for me at least, that he was hopeful he would be able to persuade Ms Sabeer to reconcile their relationship. Such hope was not extinguished by any return message from Ms Sabeer because she did not respond to him, either to confirm his asserted knowledge that she was not returning to South Africa or to scotch the same or to tell him about her intentions for the child.

5. Ms Sabeer emailed Mr E on 23 December 2015 – as it turns out, whilst he and the boys were en route to the airport - to tell him that it might not be the right time for him to visit as she was still mentally recovering and undergoing treatments and her entire family was busy with her aunts who were visiting from Melbourne: she suggested that he postpone his trip.[17] She did not, for example, tell him that there was no point travelling to Australia because she was resolved not to return to South Africa or that she was also resolved that the child would not be returning to South Africa in mid-January 2016 as previously agreed.

   [17]         Affidavit of Ms Sabeer filed 17 February 2017, Annexure “ SS-3”.

6. Mr E said he decided not to postpone the trip because he and their sons had not seen their mother or the child for a number of months. I accept his evidence in this respect and I also think it highly likely that he was hopeful he would be able to persuade Ms Sabeer to reconcile their marriage if able to speak with her in person.

7. Mr E and the boys arrived in Australia on 25 December 2015. It is accepted that, once here, the boys spent time with their mother and the child spent time with Mr E. There is no evidence to suggest that there were any deficiencies in the care he provided to the child during this time.

8. It seems not to be contentious that, when Mr E travelled to where Ms Sabeer and the child were staying, he was told he was not allowed near the home to visit them or to see Ms Sabeer and was only allowed to be close to the home to drop the boys off to visit Ms Sabeer and the child. In fact, Ms K Sabeer confirms that, when Mr E called her (which she thought was in January 2016), she told him he could not come to their home.

9. Instead, Mr E met Ms K Sabeer in a park. She says he apologised to her for things like taking her daughter for granted, for being short-tempered and temperamental. She said he said he would try his best to get his family back and told her he would move to Australia with the boys and that he could see himself as a security guard here, if he could not find a business. Mr E says Ms K Sabeer told him that Ms Sabeer was not well, that it might take a long time for her to heal and that, if he wanted to move on with his life, he should because her condition was indefinite.

10. Perhaps at around the same time and certainly at some time in late 2015, Ms Sabeer told her sister, Ms L Sabeer, that she was not returning to South Africa. There is nothing in Ms L Sabeer’s evidence to suggest she conveyed this information to Mr E whilst he was in Australia.

11. It is clear that Mr E wrote to Ms Sabeer on 4 January 2016.[18] He did so using the writing paper provided by the motel at which he was staying with the boys. Reference to this correspondence reveals his desire to reconcile their relationship and save their marriage. It also contains his expressions of regret for his previous actions toward Ms Sabeer and his assertion that he wants to start a new life ‘here in Ozz ([God willing])’ with their family. There is nothing in the evidence before me to suggest that Ms Sabeer responded to this correspondence from Mr E.

    [18]         Affidavit of Ms Sabeer filed 17 February 2017, Annexure “SS-3”.

12. On 5 January 2016, Mr E messaged Ms Sabeer to ask that she talk with him. He asked her to tell him face to face if she did not love him. He expressed that he felt he was in limbo, was not here for long and deserved the right to arbitration with a religious council, a matter he requested urgently.[19]

    [19]         Exhibit 1, p.263.

13. On 11 January 2016, Ms Sabeer sent Mr E a message in which she told him that she was not doing well.

14. Mr E and the boys visited Ms Sabeer and the child two nights before they were due to leave Australia. Ms Sabeer agrees that she and Mr E met. He says that, while she told him she did not know when she would see him again, he interpreted this comment as alluding to them not reconciling in the foreseeable future. He says he reminded her he was there to make their marriage work. Ms Sabeer’s evidence corroborates this account in that she says Mr E continued to press her about reconciling with him and, on a number of occasions, said that, if she agreed to reconcile with him, he would move to Australia with the boys as soon as he could and that he would be able to move to Australia, maybe by May 2016.

15. Whilst Ms Sabeer clearly maintained internally that she had no intention of returning to South Africa, I am not persuaded that she in fact told Mr E that day that this was definitely the case. In fact, her evidence itself suggests that she is likely to have said as little as possible to Mr E, leaving him to raise issues and initiate the discussion about the plans each of them had for the future.

16. Considering the evidence given by both Mr E and Ms Sabeer about their discussion that day, it seems to me that no particular or definite agreement was reached about anything and that each party drew his or her respective inferences or conclusions from things that were not said rather than from things that were said: for example, Ms Sabeer says that, as Mr E did not raise where the child would be living, she “understood” he would take the boys to South Africa and the child would remain with her in Australia; further, she also says she ‘understood’ he had accepted she would be remaining in Australia and (given discussions about making permanent plans for the boys) ‘considered’ he was agreeable to the child remaining with her.[20] However, as already noted, from Mr E’s perspective, he interpreted Ms Sabeer’s comment that she did not know when she would see him again as conveying that they would not be reconciling their marriage in the foreseeable future.

    [20]         Affidavit of Ms Sabeer filed 17 February 2017, paragraph 104.

17. I accept that Mr E was focused on attempting to reconcile his marriage with Ms Sabeer and ‘save his family’ during his visit to Australia between December 2015 and mid-January 2016. I accept that, given this, he did not specifically raise issues about the child’s living arrangements with Ms Sabeer. She says, in essence, that because he did not ask whether she was returning to South Africa, did not ask her when the child was returning and did not discuss taking the child back with him and her brothers when they left Australia to return to South Africa,[21] she proceeded on the basis that he agreed the child was to remain living permanently in Australia. Whilst this may well have been what Ms Sabeer decided to conclude from the absence of specific discussion about the child, I am not persuaded that any failure by Mr E to discuss the child’s future living arrangements should be seen as him then tacitly accepting she would remain living in Australia, separated from her brothers, if her parents did not reconcile.

    [21]         Affidavit of Ms Sabeer filed 17 February 2017, paragraphs 155 and 156.

18. I am certainly not persuaded that, when he left Australia with the child’s brothers on 14 January 2016, Mr E did so on the basis that Ms Sabeer had told him their marriage was at an end or that there was no chance of reconciliation or that she intended that the child would remain living permanently with her in Australia. I accept Mr E’s evidence that he did not intend for the child to remain in Australia with Ms Sabeer – and away from her brothers – indefinitely.

19. Whilst it was submitted that, in leaving the child with Ms Sabeer in Australia, Mr E evidenced his consent to her living here permanently, I do not accept this to be the case. In arriving at this conclusion, I have taken into account Ms Sabeer’s evidence that the status of their marital relationship was not determined during the conversation with Mr E (which occurred two days before he let Australia in mid-January 2016) and his evidence that he thought she would be willing to reconcile with him if he gave her some time. I have also taken into account that, as Ms Sabeer had possession of the child’s passport, Mr E could not have removed the child from Australia without either her agreement or some other intervention.

20. Further, I do not think that Mr E’s actions in providing Ms Sabeer with $8,000.00 when she and the child left South Africa in September 2015 and with $3,500.00 when he left Australia in mid-January 2016 signifies that he consented to the child remaining living in this country permanently or in any way acquiesced to the same.

What happened after Mr E left Australia on 14 January 2016?

1. On 19 January 2016, one of the child’s brothers sent Ms Sabeer a WhatsApp message. In it, he asserted, in essence, that Mr E had said that, if she returned to South Africa for just six months, they were going to round up the house and sell the business and then move to Australia.[22]

   [22]         Exhibit 2.

2. After Mr E returned to South Africa, he and Ms Sabeer communicated via WhatsApp messaging. In late January 2016, they discussed her desire to purchase a car, an event which ultimately occurred.

3. On 31 January 2016, Mr E told Ms Sabeer he did not know how to handle not knowing who he was to her anymore and that he did not know where they were going right now. He asked her to talk to him as her husband and to plan their lives; he also asked her to tell him what her expectations and intentions were with respect to him and their family.[23] There is no evidence before me to suggest that Ms Sabeer responded specifically to these questions and Mr E’s comments here seem to me to support the conclusion that he did not then know that she had definitively decided not to reconcile their marriage.

   [23]         Exhibit 2, page 349.

4. At or about the same time, Mr E and Ms Sabeer were discussing the schools into which the boys would be enrolled in South Africa. That they were doing so certainly supports the conclusion that both intended that their sons continue to live in South Africa. Whilst it was not explored during the hearing, I think it quite probable that, as they had done following their conversation before Mr E returned to South Africa, each of the child’s parents concluded what they wanted to conclude from their discussion about where their sons were going to go to school for the next four years: that is, Mr E likely saw it as a positive sign that he and Ms Sabeer were communicating about their sons being educated in South Africa and, perhaps, saw this as an indication that Ms Sabeer would eventually return there to reconcile their marriage, whereas Ms Sabeer likely saw it as a sign that Mr E had accepted that she was going to remain in Australia and that the child would live and be educated here.

5. However, given the absence of clear information between Mr E and Ms Sabeer about the status of their marriage and their respective intentions and plans for the future, I am not persuaded that these discussions evidence their joint intention that the child would remain living in Australia, separated from her brothers, on an indefinite basis.

6. In mid-February 2016, Mr E messaged Ms Sabeer to tell her that ‘this cant go on forever or any much longer’. He asked that they talk about ‘it’ very seriously. She responded by telling him that the child was doing very well at school and that she might have to get her a  language teacher. He responded by saying that “after they talk”, they would be making major decisions and so that, for then, he would appreciate if everything was on hold.[24]

   [24]         Exhibit 2, page 378.

7. I consider that, by making this comment, Mr E was making it clear that the position vis-à-vis the child remained uncertain and dependent upon her parents making major decisions after they talked. I am certainly not persuaded that, by making such comments, Mr E was in any way consenting to the child remaining living in Australia permanently or acquiescing in such a result or foregoing his rights of custody to insist on her return to South Africa.

8. Whilst Ms Sabeer subsequently messaged Mr E to ask him to send her their sons’ vaccination records because the child’s school was asking for details about her immunisations, she did not take that opportunity to tell Mr E of her plan for the child not to return to live in South Africa.

9. On 21 February 2016, Mr E messaged Ms Sabeer again. He asserted she had never answered his questions and that, whilst they had talked about his obligations, he wanted to know what hers were. He also said: “I asked you about [religious law] but you said certain things we have to decide ourselves – pls explain.”[25]

   [25]         Exhibit 2, page 386.

10. There is no evidence before me to suggest that Ms Sabeer responded directly to these queries. Doing the best that I can, Mr E’s comments certainly seem to me to evidence that he remained uncertain about the status of their marriage and Ms Sabeer’s intentions vis-à-vis the same. In my view, it could not be concluded from this message that, at that time, the child’s parents were ‘as one’ or settled in terms of their intentions about her future living arrangements or even in their understanding about what each intended for those future living arrangements.

11. On 26 February 2016, one of the child’s brothers asked Ms Sabeer, in a message, when she was coming back to South Africa. She responded by saying ‘we will see’. When the child asked her ‘when’, Ms Sabeer said she did not know, it depends and that he should leave it to his parents.[26] Whatever the reason for the manner in which it was compiled, it is obvious that there is nothing in this response to scotch the prospect of a future return to South Africa.

    [26]         Exhibit 2, page 555.

1. On 5 March 2016, Mr E messaged Ms Sabeer to tell her that things were bad financially, that it had to recover and would come right in the next few months. Ms Sabeer’s response was ‘wow’.

2. Whilst this exchange was not explored at the hearing, it certainly seems to me to be likely that Ms Sabeer may well have received this information as yet another example of Mr E’s historical response when the prospect of moving to live in Australia was raised: namely, that the circumstances were not financially sound enough to facilitate it. Given Ms Sabeer’s evidence that, by about March or April 2016, she had made it clear to Mr E that their relationship was unable to be reconciled, it certainly seems more likely than not that, from Ms Sabeer’s perspective at least, any lingering prospect for reconciliation was extinguished by this information.

3. Ms Sabeer says that, in an email she received from Mr E on 1 April 2016, he confirmed that, whilst he was not happy with ‘the circumstances’, he was accepting of them. She said he questioned what her stance was because he needed to make a more permanent plan for the boys: she said he did not refer to the child and, because of this omission, she ‘understood’ the child would remain in her care in Australia.[27] Her evidence is to the effect that she always understood that, if she remained in Australia, the child would remain with her.

   [27]         Affidavit of Ms Sabeer filed 17 February 2017, paragraphs 157 and 158.

4. Neither party tendered the actual email. Consequently, all I have is Ms Sabeer’s summation of what Mr E conveyed in it. Whilst she may well have concluded that Mr E was accepting of whatever is meant to be conveyed by the phrase ‘the circumstances’, the fact is that, in April 2016, Mr E contacted Prof M, a religious scholar, to ask him to speak with Ms Sabeer to see if they could restore their relationship. This action does not seem to me to be consistent with an acceptance by Mr E that the marriage was unable to be reconciled and certainly does not convey his intentions – one way or the other – about the child’s future living arrangements. It does, however, seem to me to be indicative of an absence of any shared understanding about what was going to happen in the future about the parental relationship.

5. Ms Sabeer’s evidence that, before Prof M contacted her, she had told Mr E that their relationship was over and that she did not want to return to South Africa is not, it seems, accepted by Mr E. He says that, when Prof M told him in May 2016 that Ms Sabeer wanted to end their marriage, he was shocked and decided to give her more time to consider what she wanted to do. He was not challenged about this nor about his evidence that he later asked Prof M to “canvass with” Ms Sabeer that the child be returned to South Africa, to live with him and her brothers.

6. On 14 May 2016, Ms Sabeer messaged Mr E to ask that, because a religious holy time was around the corner and it was cold in South Africa, he give various named persons her gowns.[28] Whilst it was not a matter taken up with him during his cross-examination, Counsel for Ms Sabeer submitted that I should conclude that Mr E could only reasonably have regarded this request as demonstrative of Ms Sabeer’s position that neither she nor the child would be returning to live in South Africa. In the absence of evidence to exclude other reasonable interpretations of this request (for example, that it was asking him to act charitably at a religiously significant time), I decline to accept such submission.

   [28]         Exhibit 2, page 427.

7. In a message sent on 30 May 2016, Mr E told Ms Sabeer that he would like to discuss the child.[29]

   [29]         Exhibit 2, page 451.

8. Ms Sabeer says that, before May 2016, the conversations she had with Mr E had been restricted to the possibility of them reconciling and living in either South Africa or Australia.[30] In her affidavit, she says she did not know Mr E wanted the child to return to South Africa until May 2016.

   [30]         Affidavit of Ms Sabeer filed 17 February 2017, paragraph 163.

9. On 5 June 2016, Mr E sent Ms Sabeer a lengthy WhatsApp message.[31] In it he stated, amongst other things, that the child would never be without her siblings and that they needed to be under the one roof. He told Ms Sabeer not to hold the child as ransom; he also said that: “I was prepared to move to Australia, give up my whole life and my family for our family but u have trust issues and didn’t believe me – done; am not even gonna try and make u believe that I was seriously planning to move but you neva acknowledged nor appreciated anything I did…..”.

   [31]         Exhibit 2, pages 453-458.

10. I do not accept that these comments – or those made by Mr E to Ms K Sabeer during a telephone conversation in June 2016 (which was recorded without his knowledge) – demonstrate that he and Ms Sabeer had ever finally agreed or reached a shared settled intention to relocate to live in Australia. Rather, I consider them to be further evidence of the uncertain and conditional nature of their various discussions about potential moves to Australia.

11. Mr E’s 5 June 2016 message also contains his request that Ms Sabeer tell him the truth (and give him answers) and his assertion that it was maybe time for her to tell their sons her stance directly, as they were still expecting her ‘home’. In it he also said that, without further delay and as term ended on 24 June and it was a period of religious observance he would like to bring the child back ‘home’ (to South Africa).

12. This assertion, in my view, is a clear demonstration of Mr E’s exercise of his rights of custody vis-à-vis the child and completely extinguishes any suggestion that he consented to her remaining in this country thereafter or in any way acquiesced in her remaining living here rather than returning to South Africa.

13. Mr E was not challenged during his cross-examination about the assertion, contained in his 5 June 2016 message, that when Ms Sabeer verbally responded to his email (which, I think, is a reference to the April 2016 email which is not in evidence before me) to say that she was not returning to South Africa, he asked to speak about the child, but she did not respond to that request for more than two months. I accept his evidence in this respect and consider that it is supported by reference to the pattern of messaging between Mr E and Ms Sabeer.

14. There is nothing in the evidence before me to suggest that Ms Sabeer responded directly to Mr E’s 5 June 2016 message.

15. It is uncontroversial that religious holy days in 2016 commenced in mid 2016.

16. On 8 June 2016, Mr E sent Ms Sabeer another message, in which he said she had not replied about the child.[32] In a message he sent to Ms Sabeer on 11 June 2016, Mr E asked what happened after this, stated that he had tried to communicate with her (but she had chosen to ignore him) and referred to a mufti she had spoken of, who he asserted said that the child would stay with him in the case of divorce and that ‘as for now, I have the right’.[33]

    [32]         Exhibit 2, pages 457-458.

    [33]         Exhibit 2, pages 462-463.

17. There is nothing in the evidence before me to suggest that Ms Sabeer responded directly to either of these messages.

The recorded conversation between Ms K Sabeer and Mr E in June 2016

1. Ms Sabeer recorded a conversion that her mother had with Mr E in June 2016. Whilst Ms K Sabeer says this was the first time he had spoken to her about wanting the child to be returned to South Africa, it is clear she had only spoken to him on one other occasion (also in June/July 2016) after he and her grandsons returned to South Africa in mid-January 2016.

2. I consider that, during this conversation, Mr E made it clear that he wanted the child to be returned to South Africa. He maintained that she had been abducted by her mother when she was retained in Australia.

3. Despite the urgings of Counsel for Ms Sabeer, I am not persuaded that anything said by Mr E during this discussion supports the conclusion that he and Ms Sabeer had definitively agreed about relocating to Australia, or the terms of any such move, before she and the child left South Africa in September 2015 or thereafter. In fact, Mr E seemed to me to maintain, during this conversation (which he did not know was being recorded), that the ‘plan’ was for Ms Sabeer to return to South Africa and then ‘eventually’ (or in six-twelve months) – when he got the money he could send it and they could buy a house – move but, because he was not getting anything back from her, he did not know whether she loved him and she did not believe him. That is, whilst he had plans to move and he was putting these into effect, he felt he was not getting anything back from Ms Sabeer.

4. Nothing Mr E said during this conversation persuades me that he and Ms Sabeer had in fact agreed upon a settled plan to move or that they had in fact agreed that the child would depart from South Africa never to return to live there again or that, if their marriage did not persist, the child would remain living separately from her brothers in Australia.

5. I consider that Mr E maintained a position that the child should be with both of her parents and her brothers. Whilst he agreed that Australia may be a better country, he did not, in my view, say anything to suggest that he then consented to the child living in this country. In fact, he clearly maintained that he wanted the child returned to him in South Africa – he also said he had told Ms K Sabeer and Ms Sabeer this, but no one had done anything about it. Whilst he acknowledged that ‘they’ needed to move on and to move forward, he repeated that he wanted his daughter.

6. It is also clear that, during this conversation, Ms K Sabeer acknowledged that Mr E could take care of the child and was a good father.

What happened after the telephone conversation?

1. The days of religious observance concluded on 6 July 2016.

2. On 14 July 2016, Mr E messaged Ms Sabeer. He asked her to reconsider her position about their marriage and mentioned some matters that might be interpreted as suggesting that, if she did, he was willing to recommence planning to relocate to Australia.

3. On 16 July 2016 Mr E sent Ms Sabeer what might be described as a motivational message. She replied to tell him not to send her any more motivational messages as they contradicted him. She said he and his character turned her stomach; she told him not to send any more jokes or funny clips.[34] He responded: “send me my daughter and fly away girl”.[35] Amongst other things he wrote on that occasion, Mr E also told Ms Sabeer that they should not waste any more time and that she had asked for a religious separation (divorce). He also said: ‘give me the child and whatever else belongs to me and you will be free as a bird’.[36]

   [34]         Exhibit 2, page 482.

   [35]         Exhibit 2, page 483.

   [36]         Exhibit 2, page 487.

4. By 23 August 2016, Mr E’s Application for an order requiring the child’s return to South Africa had been received by the South African Central Authority and, it seems, forwarded to the Australian Central Authority.

5. There is no evidence to explain the four month delay between the receipt of Mr E’s Application and the date on which the current Application was filed by the Australian Central Authority. On the evidence before me, I am easily of the view that this delay in commencing proceedings for a return order was not the result of Mr E’s actions.

6. As I remarked during the course of the hearing to Counsel who appeared for the Central Authority, the delay and the absence of any explanation whatsoever for it is simply unacceptable. I record that I accepted his assurance that my remarks would be passed on to the relevant administrative authorities.

7. On 11 September 2016, Mr E sent Ms Sabeer a message. In it he said that he had on so many occasions informed her that, if she was not returning home (that is, to South Africa), he would like to take care of the child so she could be raised with her siblings. He also said that, “[religiously]”, it was his duty and his right and that, without further delay, he was asking her to contact him to discuss this.[37]

   [37]         Exhibit 2, page 498.

Applicable Legislative Provisions and their application

1. The Regulations[38] are made pursuant to s 111B[39] of the Family Law Act 1975 (Cth) which provides that Regulations may make provision, as is necessary or convenient, to enable the performance of Australia’s obligations under the Convention on the Civil Aspects of International Child Abduction (“the Convention”). The Convention is set out in Schedule 1 to the Regulations.

   [38]         Which are intended to be construed as prescribed in Reg 1A(2) of the Regulations.

2. This Convention provides a mechanism for the prompt return of wrongfully removed or retained children between contracting states. Australia and South Africa are contracting states to the Convention.

3. The purpose of the Regulations is to give effect to the obligations imposed by s 111B of the Act.[40]  The Regulations are intended to be construed:

   a)having regard to the Principles and Objects mentioned in the preamble to, and Article 1 of, the Convention; and

   b)as recognising, in accordance with the Convention, that the appropriate forum for resolving disputes relating to a child’s care, welfare and development is ordinarily the child’s country of habitual residence; and

   c)as recognising that the effective implementation of the Convention depends on the reciprocity and mutual respect between judicial or administrative authorities (as the case may be) of Convention countries.[41] 

   [40]         Regulation 1A (1), Family Law (Child Abduction Convention) Regulations1986 (Cth).

   [41]         Regulation 1A (2), Family Law (Child Abduction Convention) Regulations1986 (Cth).

4. The purpose of the Convention was authoritatively explained by the majority of the High Court in De L v Director-General, New South Wales Department of Community Services and Anor[42] wherein it was emphasised that the Convention is directed to the prompt return of children to the State of their habitual residence, where questions concerning their welfare and the merits of any dispute as to where and with whom they should live can be determined. It follows that Applications like this one are about forum and not about parenting per se.

   [42] (1996) 187 CLR 640.

5. The Court may, pursuant to the Regulations, make return orders or any other orders it considers appropriate to give effect to the obligations imposed on the Australian Government by the Convention.[43] In fact, if certain prescribed matters are established, the Court is obliged to make a return order relating to a child.[44]

   [43]         Regulations 14 and 15.

   [44]         Regulation 16(1), Family Law (Child Abduction Convention) Regulations1986 (Cth).

What is the relevant date for the purposes of Regulation 16?

1. It is clear the child was brought to Australia on 7 October 2015 with the approval and consent of both of her parents. Consequently, this case does not involve her asserted wrongful removal from South Africa but, rather, her asserted wrongful retention in Australia by Ms Sabeer after a certain date.

2. Ms Sabeer’s case initially included the contention that the Application for a return order had been filed more than one year after the day on which the child was first retained in Australia (which was said to be 7 October 2015).[45] However, after Ms Sabeer’s cross-examination was concluded, this aspect of her case was, quite appropriately, abandoned by her Counsel. Even if this concession had not been made, I think it clear that the child was not retained[46] in Australia when she arrived here, with her parents’ consent and in their joint presence, on 7 October 2015 or at any time before the end of 2015.

   [45]         Cross Application filed 16 February 2017, Paragraph 4.

   [46]         In the sense that this term is used in the Regulations.

3. Given the imprecise nature of much of the evidence in this matter, a number of different dates have been suggested to be that on which the child was first retained in Australia. For example, the Application advances that she was retained here in July 2016.[47]

   [47]         Form 2 Application Initiating Proceedings filed 13 December 2016 at p.11.

4. In the circumstances, I consider it appropriate to consider the possible retention dates.

5. It is clear that Mr E and Ms Sabeer had agreed the child would remain in Australia until 14 January 2016 (this being the end date on the Parental Consent Affidavit dated 22 September 2015). Consequently, her presence in this country until that date does not, in my view, constitute a retention in the context in which this word is used in Regulation 16.

6. A further possibility is that the child was retained in Australia by Ms Sabeer on 15 January 2016, when her father (and siblings) left Australia to return to South Africa. However, I consider that Mr E clearly agreed to her remaining with her mother in Australia at that time and, consequently, I am not persuaded the child was retained in Australia by Ms Sabeer on 15 January 2016.

7. I accept Mr E permitted the child to remain in Australia with Ms Sabeer when he left with her brothers in mid-January 2016 because he hoped for a reconciliation of their marriage and not because he intended that the child remain living in this country permanently. I am not persuaded that he agreed to the child remaining here at that time as part of an agreed plan, or a purpose in which he and the child’s mother shared, to relocate to Australia.

8. Ms Sabeer says that Mr E discussed the child returning to South Africa in about May 2016 and that, before then, he had not insisted clearly on his legal rights being enforced. Whilst Mr E had, it seems to me, obliquely raised the child returning to South Africa before that, on balance, I consider that the evidence establishes that the child was first retained in Australia by Ms Sabeer in breach of Mr E’s rights of custody at about the end of May 2016.

Was the child’s retention wrongful?

1. My finding as to the date on which the child was first retained in Australia means that this Application must be determined by application of those matters prescribed in Regulation 16(1). That is, the Applicant must establish that the child’s retention in Australia after this date was wrongful under Regulation 16(1A) – if it fails to discharge this onus, the Application must be dismissed. If, however, I am satisfied by the Applicant[48] that the child’s retention in Australia was wrongful within the meaning of subregulation 16(1A), then, subject to Ms Sabeer establishing a matter prescribed by subregulation 16(3), I must make an order for the child’s return to South Africa.[49]

   [48]         Who has the onus of proof on the balance of probabilities.

   [49] Family Law (Child Abduction Convention) Regulations 1986 (Cth), Regulation 16(1).

2. Regulation 16(1A) provides that the child’s retention in Australia was wrongful if:

   a)she is under 16 – as she is; and

   b)she was habitually resident in South Africa immediately before her retention in Australia – a matter in dispute; and

   c)Mr E had rights of custody in relation to her under the law of South Africa (on the assumption that this was the country in which she was  habitually resident immediately before her retention in Australia) – a matter which is accepted; and

   d)her retention in Australia is in breach of those rights of custody – a matter which is in dispute on the basis that Ms Sabeer alleges that Mr E exercised his rights of custody to consent to the child remaining living with her in Australia on a permanent basis; and

   e)at the time of her retention, Mr E was actually exercising the rights of custody (either jointly or alone) or would have exercised those rights if she had not been retained – a matter which is accepted.

Was the child habitually resident in South Africa immediately before the end of May 2016?[50]

[50] Family Law (Child Abduction Convention) Regulations 1986 (Cth), Regulation 16(1A)(b).

1. The meaning of “habitual residence” in the context of the Regulations has been extensively and authoritatively discussed by the High Court in LK v Director-General, Department of Community Services.[51]

   [51] (2009) 237 CLR 582.

2. It is clearly established that the inquiry into habitual residence is “a broad factual inquiry”, intended to involve a search for the underlying reality of the connection between a child and a particular State. Such inquiry should take into account all relevant factors including: settled purpose (in the sense of whether parents had a shared intention that the child live in a particular place with a sufficient degree of continuity to be properly described as settled, from the child’s perspective); the actual and intended length of stay in a State; the purpose of the stay; the past and present strength of ties to the State and to any other State; the degree of assimilation into the State (including living and schooling arrangements) and cultural, social and economic integration.

3. It is also authoritatively established that the intentions of either parent and the factor of “settled purpose” are not to be given controlling weight in the determination of the answer to the question of fact of a child’s habitual residence at the relevant time. That is, whilst ‘settled purpose’ is important, it is not necessarily decisive and is not, of itself, something which overrides the underlying reality of the connection between the child and the State.

4. Given the reality of the child’s life until 22 September 2015, it could not be thought other than that she was habitually resident in South Africa at that time.

5. Whilst it is clearly settled law[52] that habitual residence can be lost in a single day (for example, upon departure from initial abode with no intention to return), for reasons I have already expressed, I do not accept the contention that the child was habitually resident in South Africa only until 22 September 2015 – the date on which she left that country with Ms Sabeer to travel to the Middle East on their way to Australia.

   [52]See: Re J (A Minor) (Abduction: Custody Rights) [1990] 2 AC 562 per Lord Brandon at 578; Re B (Minors) (Abduction) (No. 2) [1993] 1 FLR 993 per Waite J; Cooper v Casey (1995) FLC 92-575; Dally Watkins v Director-General, Department of Child Safety (2006) FLC 93-255 per the majority; Department of Health and Community Services, State Central Authority v Casse (1995) FLC 92-629 per Kay J at 82,314;

6. I consider, therefore, that the child’s habitual residence when she entered Australia on 7 October 2015 was that of South Africa. In the circumstances of this case as I have earlier explained them to be, I do not accept the contention that the child became habitually resident in Australia when she arrived in this country on 7 October 2015.

7. Having searched for the underlying reality of the connection between the child and South Africa, from her perspective, I have concluded that I am satisfied that, as at immediately before the end of May 2016, she was habitually resident in South Africa.

8. I have arrived at this conclusion because I consider that:

   a)until August/September 2015, her parents had a shared intention that she live in South Africa and had implemented this with a sufficient degree of continuity that, properly described, she was settled in that country; and

   b)in the period from her arrival in Australia in early October 2015 until immediately before the end of May 2016, her parents did not have a shared intention that she live in Australia permanently or with a sufficient degree of continuity that she was settled here as at immediately before the end of May 2016 – as outlined earlier, there was, in my view, significant ambiguity and uncertainty on, at least, Mr E’s part about the possible implementation of a long discussed possible move to Australia;[53] and

   c)as at that time, she was a child whom, save for those occasions on which she travelled out of that country with her family (including to visit Australia for a few months at a time), had lived entirely in South Africa from when she was about three months of age; and

   d)as at that time, her father and brothers, with whom she had previously lived, remained living in the house in which the family had previously lived in South Africa; and

   e)as at that time, she had attended school in Australia for no more than about six months (in total in 2015/2016) in comparison to her much longer attendance at school in South Africa; and

   f)given that Ms Sabeer had not told her she was leaving South Africa permanently when she left in September 2015 (ostensibly for a visit which was to end in mid-January 2016), it is more likely than not that she thought she was in Australia in the same way as she had previously been here – namely, to visit family for a few months and experience all of the cultural and social benefits that entailed – rather than appreciating that her mother intended that she not return to live in South Africa; and

   g)given her life experiences as at that time, both her ties to and connection with South Africa were much more likely to be much more significant than the relatively embryonic ties she had started to develop in Australia since arriving here in October 2015.

Did Mr E consent to the child being retained in Australia, such that her retention here at the end of May 2016 (and thereafter) was not in breach of his rights of custody?

[53]         LK v Director-General, Department of Community Services (2009) 237 CLR 582 at [34].

1. As I have already stated, I consider that Mr E only consented to the child leaving South Africa in September 2015 on the basis that she would return to that country in mid-January 2016: that is, his consent at that time was to her travelling away from South Africa for a limited period of time for the purpose of visiting family and not to her moving to live permanently in Australia.

2. I do not accept that, by leaving the child in Australia with Ms Sabeer when he left this country on 19 October 2015 to return to South Africa, Mr E demonstrated his consent to the child remaining in Australia on a permanent basis. I have arrived at this conclusion because his actions were consistent with the agreed terms of the Parental Consent Affidavit, signed by the parties on 22 September 2015, which provided that the child would remain in Australia until 14 January 2016.

3. I consider that, when he permitted the child to remain in Australia with Ms Sabeer in mid-January 2016, Mr E did so on the basis that he was hopeful of reconciling his marriage to Ms Sabeer and not because he consented to the child living in this country on a permanent basis.

4. I am not persuaded that, by providing financial support to Ms Sabeer for her and the child’s support whilst they were in Australia, Mr E demonstrated that he consented to the child living here permanently. In addition, I consider that, in choosing not to attempt to prevent Ms Sabeer from enrolling the child in extra-curricular activities or to prevent the child from continuing to attend school here, Mr E was doing no more than attempting to make the best for the child of the reality of the situation: I am certainly not persuaded that, in acting as he did in this respect, Mr E evidenced any consent to the child living in this country on a permanent or ongoing basis.

5. In my view, reference to the content of Mr E’s message communications with Ms Sabeer after the end of May 2016 and his discussion with her mother in June 2016 makes it abundantly clear that he was insisting on the child’s return to South Africa.

   Conclusions

6. For the reasons outlined above, the Applicant has satisfied me that the child’s retention in Australia after the end of May 2016 was wrongful under Regulation 16(1A) of the Regulations.

7. Consequently, unless Ms Sabeer establishes an exception pursuant to Regulation 16(3), an order for the child’s return to South Africa must be made.

Did Mr E subsequently consent to, or acquiesce in, the child being retained in Australia?

1. Where they are relevant, I rely upon the findings I have already made in expressing my reasoning for the conclusion that the child’s retention in Australia after the end of May 2016 was in breach of Mr E’s rights of custody.

2. Nothing in the evidence persuades me that Mr E’s position has changed since the June 2016 telephone call. Further, as noted earlier, in September 2016, he again pressed for the child to be returned to South Africa.

3. I am not persuaded that Ms Sabeer has established that Mr E consented to, or acquiesced in, the child remaining in Australia at any time after the end of May 2016. Consequently, I am not satisfied that Ms Sabeer has established these exceptions to a mandatory return order being made.

Is there a grave risk that the child’s return to South Africa would expose her to physical or psychological harm or otherwise place her in an intolerable situation?[54]

[54] Family Law (Child Abduction Convention) Regulations 1986 (Cth), Regulation 16(3)(b).

1. For all intents and purposes, it was accepted on behalf of Ms Sabeer that the evidence here does not establish the grave risk exception.[55] In fact, Ms Sabeer’s evidence was to the effect that she is not concerned the child would be gravely harmed if she was returned to South Africa, but thought that the environment into which she would return is not as supportive of her personal growth as has been the case since she has been in Australia.

   [55]See the discussion in DP v Commonwealth Central Authority; JLM v Director-General, NSW Department of Community Services (2001) FLC 93-081 per Gaudron, Gummow and Hayne JJ.

2. To the extent that it is necessary in such a situation to remark upon it, I simply note that, even if pressed, I would not have been satisfied that Ms Sabeer has established those matters which she must establish in order to succeed in establishing this exception to the mandatory making of a return order.

Does the child object to being returned to South Africa?[56]

[56] Family Law (Child Abduction Convention) Regulations 1986 (Cth), Regulation 16(3)(c).

1. In order to establish this exception, Ms Sabeer must establish that the child objects to being returned to South Africa and that her objection shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes and that she has attained an age and a degree of maturity at which it is appropriate to take account of her views.

2. Perhaps unsurprisingly, the child’s parents provide contrasting evidence about her attitude to returning to South Africa.

3. Mr E says that, when he speaks with the child, she indicates ‘a strong desire’ to return ‘home’ (to South Africa). On his evidence, she has never told him that she does not want to live in South Africa. In contrast, Ms Sabeer says that the child has expressed a desire to remain in Australia and has told her that she does not want to return to South Africa. Ms Sabeer is supported in this evidence by her sister, Ms L Sabeer, whose evidence includes that the child has told her that she is very happy in Australia. Similarly, the child’s maternal grandmother says the child has told her that she does not want to return to South Africa because she has a nice home here, many opportunities, goes to ‘the best’ school which she loves, is more successful and has more friends here than in South Africa and cannot play outside in South Africa because it is not safe there.

4. Ms N, a Family Consultant, interviewed the child (now 11½ years old) on 9 March 2017. Ms N was not required for cross-examination by either Counsel. Her report, dated 13 March 2017, records that the child told her she was uncertain about why she came to Australia in October 2015.[57] As adverted to earlier, this comment suggests that, whatever her parents’ plans at that time, they were not discussed with the child.

   [57]         Hague Convention Report dated 13 March 2017, paragraph 8.

5. Ms N records that the child expressed a preference for living in Australia, saying that she liked it better: she was living with her family (the maternal aspect of it at least), her school was better and she felt safer, in that she could walk to the shops with her grandfather without the fear of being robbed. She said she felt that she had adjusted to living in Australia, but had initially been keen to return to South Africa, saying that: “at first I was dying to go back”.[58]

   [58]         Hague Convention Report dated 13 March 2017, paragraph 18.

6. B told Ms N that she thought of both Australia and South Africa as home and said that she was basically used to both countries. She said she missed her family (in South Africa) and that there was nothing about her father or siblings that caused her to feel fear, or sadness or to feel unsafe.

7. When Ms N asked her how she would feel about returning to South Africa, the child said: “I really don’t mind. I miss my Dad and brothers”. However, she also added that she preferred it in Australia and would miss her mother.[59]

   [59]         Hague Convention Report dated 13 March 2017, paragraph 25.

8. B told Ms N that her mother would not mind if she returned to South Africa and that she had told her that it would mean she would not have to go through the trouble of Court. The child also said that she liked her mother’s suggestion of staying in Australia ‘for a little longer’ and visiting her father in South Africa as of next year. She explained that her idea of a happy ending to her family story would be if she could stay in Australia and start to visit her father in holiday periods.

9. It is clear from her interactions with Ms N that the child thought her father would not move to live in Australia and that her mother would not return to live in South Africa.

10. I accept Ms N’s conclusions that:

    a)B appeared to have mixed views about returning to South Africa: that is, whilst she expressed a preference to remain living in Australia with her mother, she also said she missed her father and brothers and would not mind returning to South Africa, although this would result in her missing her mother; and

    b)in expressing her preference to remain in Australia, the child did not show a strength of feeling beyond the mere expression of a preference or of an ordinary wish; and

    c)B is a child of expected maturity for her developmental age, who reported closeness to her mother but had a balanced view of both of her parents.

11. I accept that, given the child’s age and maturity, it is appropriate to take account of her views. However, on the evidence before me, I am not persuaded that Ms Sabeer has established that the child really objects to being returned to South Africa. If I am wrong in this conclusion, I am not persuaded that any objection the child has to returning to South Africa shows a strength of feeling beyond a mere expression of a preference or an ordinary wish.  

12. Consequently, having regard to the evidence outlined above, I am not persuaded that Ms Sabeer has established those matters she is required to establish to make out this exception to the mandatory making of an order for the child’s return to South Africa.

Would the child’s return to South Africa not be permitted by the fundamental principles of Australia relating to the protection of human rights and fundamental freedoms?[60]

[60]         Family Law (Child Abduction Convention) Regulations1986 (Cth), Regulation 16(3)(d).

1. No submission was made on Ms Sabeer’s behalf that this exception is established on the evidence before the Court. This is understandable given that, in Director-General, Department of Families, Youth and Community Care v Bennett[61] the Full Court of this Court[62] noted that this exception is extremely narrow.[63]

   [61] [2000] FLC 93-011

   [62]         Kay, Coleman and Barlow JJ.

   [63]         At p.87,232 – 87,235.

2. In any event, I am not persuaded that the return of the child to South Africa is in breach of any fundamental principle of Australia relating to the protection of human rights and fundamental freedoms.

3. Consequently, this exception is not made out.

Conclusions

1. As Ms Sabeer has failed to establish an exception to the mandatory return of the child to South Africa, I am mandated by the Regulations to order that the child be returned to that country.

I certify that the preceding two hundred and six (206) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 27 April 2017.

Associate:                 

Date:    27 April 2017

[39]And, in so far as they make provision in relation to the rules of evidence which are to apply in proceedings under them, pursuant to s 111D of the Family Law Act1975 (Cth).