Department of Community Services and Awa

[2009] FamCA 241

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF COMMUNITY SERVICES & AWA [2009] FamCA 241

FAMILY LAW – CHILD ABDUCTION – Hague Convention

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

Woodward v Sarsons (1875) LR 10 CP at 746
LK and Director-General, Department of Community Services [2009] HCA 9
Laing and The Central Authority (1996) 21 Fam LR 24
DP v Commonwealth Central Authority (2001) 27 Fam LR 569
Kilah v Director-General, Department of Community Services (2008) 39 Fam LR 431
DeL v Director General, New South Wales Department of Community Services (1996) 187 CLR 640

APPLICANT: Director General, New South Wales Department of Community Services

RESPONDENT: Ms Awa

FILE NUMBER: SYC 6056 of 2008

DATE DELIVERED: 3 April 2009

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Cohen J

HEARING DATE: 21 January 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Christie

SOLICITOR FOR THE APPLICANT: Mr Roderick Best, Legal Services Unit, Department Of Community Services

COUNSEL FOR THE RESPONDENT: Mr Anderson

SOLICITOR FOR THE RESPONDENT: Moin & Associates

Orders

1. That within seven days the respondent’s solicitor is to provide the applicant with details of a controlled moneys account in his or his firm’s name into which money may be deposited pursuant to order (3)(a) herein.

2. That upon such moneys being deposited into the said account pursuant to order (3)(a) the respondent’s solicitor shall hold the said moneys and not release them to the respondent except in accordance with orders (6) and (16).      

3. That in the event that within 28 days:

   (a)£8750.00 sterling or its equivalent at the time of deposit in Australian dollars is deposited into the account referred to in order (1); and,

   (b)the father obtains interim orders in the United Kingdom pursuant to the Children Act 1989 (C.41) of the United Kingdom granting residence of … born … June 2006 (“the child”) to the respondent after the said child’s arrival in the United Kingdom pending further hearing after the child’s arrival there; and,

   (c)the father obtains an order or orders from a court or courts of competent jurisdiction in the United Kingdom that the said child must not be removed from the United Kingdom and restraining himself from removing the said child from the United Kingdom in each instance without the respondent’s written consent pending further order or orders of a court or courts of competent jurisdiction in the United Kingdom; and,

   (d)the father obtains all orders from a court or courts of competent jurisdiction in the United Kingdom and gives all consents and notifications to ensure that all steps necessary to permit any police forces, Customs agents or other authorities to take the administrative action necessary to prevent the said child from being removed from the United Kingdom without the respondent’s written consent pending further order or orders of a court or courts of competent jurisdiction in the United Kingdom; and,

   (e)the applicant notifies the respondent’s solicitor in writing that orders (3)(a)(b)(c) and (d) have been complied with within three working days of the applicant through her legal advisors being satisfied that there has been such compliance,

   the child, born in June 2006 shall hereby be returned to the United Kingdom while accompanied by the respondent within 21 days of the receipt by her solicitor of the written notification referred to in order (3)(e) herein.

4. That in the event that within 28 days the moneys referred to in order (3)(a) are not deposited into the account  referred to in order (1) or the father fails to obtain the orders referred to in order (3)(b), and (c), or fails to comply with order (3)(d) herein, or the applicant fails to notify the mother’s solicitor in accordance with order (3)(e) herein, order (3) shall lapse and the application herein filed 16 October 2008 shall hereby be dismissed.

5. That within seven days:

   (a)the respondent shall provide the applicant with an address for service on the respondent of any proceedings which the father has commenced or commences in the United Kingdom and she shall keep the applicant informed of any change in such address for service until 14 days after the child arrives in the United Kingdom or the application by the applicant is dismissed pursuant to order (4); and,

   (b)the applicant shall provide the respondent with the address for service on the father in any proceedings which the father has commenced or commences in the United Kingdom and she shall keep the respondent informed of any change in his address for service until 14 days after the child arrives in the United Kingdom or the application by the applicant is dismissed pursuant to order (4).

6. That on the respondent’s solicitor being notified by the applicant in accordance with order (3)(e) he shall release to the respondent from the moneys held in accordance with orders (2) and (3)(a) herein the cost of the airline tickets and all other travel expenses associated with that return which the respondent proposes to incur for the return by herself and the child to the United Kingdom.

7. That in the event that the said child is to be returned to the United Kingdom pursuant to order (3) the respondent shall:

   (a)within seven days of her solicitor being informed in writing by the applicant of the father’s compliance with order (3), book and pay for airline tickets for herself and the said child to return to the United kingdom within 21 days of such notification; and,

   (b)provide the applicant with a copy of the said airline tickets and of the itinerary for her and the child’s return to the United Kingdom; and,

   (c)return to the United Kingdom with the said child in accordance with the said itinerary.

8. That the Registrar, Family Court of Australia, Sydney Registry shall forthwith release to the respondent any passport of hers which is held in the Registry.

9. That the Registrar, Family Court of Australia, Sydney Registry, shall forthwith release to the applicant any passport or passports of the said child which is held in the Registry.

10. That on the applicant receiving a copy of the said child’s airline ticket and itinerary pursuant to order (7)(b), the applicant shall within three working days release to the respondent’s solicitor the said child’s passports received pursuant to order (9).

11. That in the event that the child does not return to the United Kingdom in the company of the mother pursuant to order (7):

    (a)the applicant shall make such arrangements as are necessary to ensure the return of the child to the United Kingdom as soon as practicable in the company of the father or another person selected by the applicant; and,

    (b)the respondent’s solicitor shall pay to the applicant the whole of the fund then remaining in the controlled moneys account and on receipt by the applicant of such moneys the applicant shall hold them firstly for use to meet the cost if any to it of airline fares for the child’s and for the accompanying person’s travel  to the United Kingdom in accordance with order (11)(a) with the balance to be held in trust for the provider or providers of the fund which was deposited in accordance with orders (1), (2) and (3)(a); and,

    (c)any such balance is to be paid to the providers of the original fund in proportion to their contributions to it within one month of the child’s return to the United Kingdom.

12. In the event that the Child does not return to the United Kingdom in the company of the mother pursuant to order (7) and the mother has received moneys from the controlled moneys account referred to in order (1), the mother shall within 21 days of the child’s return to the United Kingdom pay to the applicant a sum equal to the amount she has received less the cost to the respondent of any airline ticket she has purchased which has been used for the child’s return flight to the United Kingdom.

13. That the Australian Federal Police permit the child … (male) born … June 2006 to depart Australia for the purpose only of travel to the United Kingdom after being presented with the flight details for the child … (male) born … June 2006 and a copy of these orders by the legal representative for the applicant.

14. That the applicant within 21 days serve sealed copies of these orders upon the Commissioner, Australian Federal Police.

15. That following the departure of the child … (male) born … June 2006 from Australia for the United Kingdom the Australian Federal Police remove the names of the following persons from the PASS Alert system in operation at all Australian International arrival and departure points as soon as practicable:

    14.1… (male) born … June 2006; and

    14.2Ms Awa born … May 1976.

16. That on return by the respondent with the child to the United Kingdom the respondent’s solicitor shall release to the respondent the balance of moneys held in accordance with orders  (2) and (3)(a).

17. That there be liberty for each party to apply to me in respect of implementation of the above orders by contacting my Associate.

18. That costs are reserved.

IT IS NOTED that publication of this judgment under the pseudonym Department of Community Services & Awa is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 6056 of 2008

DIRECTOR GENERAL, DEPARTMENT OF COMMUNITY SERVICES

Applicant

And

MS AWA

Respondent

REASONS FOR JUDGMENT

1. Section 111B of the Family Law Act provides for the making of regulations relating to the onus of establishing that a child should not be returned to another country under the Convention of the Civil Aspects of International Child Abduction (Hague Convention) (S111(1A)(a)) and establishing rebuttable presumptions in favour of  returning a child. The proceedings now before the Court are for the return of a child to the United Kingdom (UK), which is a signatory to the Hague Convention. The application for return was made on 16 October 2008.

2. The Family Law (Child Abduction Convention) Regulations 1986 (Regulations) were made pursuant to s.111B of the Act. Evidentiary provisions are contained in regulation 29. This makes any document attached to or given in support of an application made for return of a child under the Regulations “admissible as evidence of the facts” relied on in the application. As this is a specific enactment, it displaces the provisions of the Evidence Act, 1995 such as ss55(1), 56(3), 135(a), (b) and (c), and 136. Although such documents are admissible evidence, they do not necessarily amount to proof of those facts or of any fact which goes to prove a fact relied on. Proof depends on evidentiary weight. Regulation 29 also makes admissible any affidavit of a witness who resides outside Australia without the witness being cross-examined. It does not, however, require the Court to accept the veracity of this evidence. The fact that the evidence of witnesses is in affidavit form means the Court should give it some weight. Its ultimate force is to be determined by a consideration of all the evidence. The Court must do its best to determine the facts on the admissible evidence, giving each element of it the weight which it warrants.

3. Testimony which is not tested by cross-examination should not be rejected merely because it has not been tested in that way. No equivalent provision is made for admissibility of affidavit evidence from persons living in Australia, as respondents to Hague Convention applications usually do. One can easily understand why these provisions exist although they create significant difficulties for the Court. The Court must always do the best it can if the circumstances are less than ideal. The Court can only take limited comfort from the fact that if the child is returned to the foreign country the custody dispute will be dealt with justly and in the best interests of the child, as it would be in Australia. It remains a matter of great moment to the parents and child that a child may or may not be ordered to be returned to another country. Yet decisions are usually made in Hague Convention matters on less than satisfactory evidence. This should not be so and does not need to be the situation.

4. These proceedings are an example of just how unsatisfactory the evidence can be despite the fact that all involved live in English speaking countries, have English as their first language and the father could have appeared by video or telephone and is an easy and relatively inexpensive air flight away from Australia. With a little justification because of the unsatisfactory nature of cross-examination by telephone or video, Counsel for the respondent declined the offer to cross-examine him. He could have insisted on the right to cross-examine in person. I may have looked kindly on that claim but I doubt whether the Full Court would if I had rejected his sworn evidence on the ground that he was not available in person to be cross-examined. The respondent was present in court and available for cross-examination despite having been given no notice to attend for it. Counsel for the applicant declined the expressly given opportunity to cross-examine her. Each party should have been cross-examined. I should have insisted on it; in the husband’s case, by video or telephone.

5. The case on each side hinges on whose story I believe. There is much critical inconsistency between them. This situation must be seen in the context that there is also a nearly overwhelming amount of evidence which, although admissible, has little or no weight and which ordinarily might be regarded as having so little weight that, despite its technical statutory admissibility, it should be rejected. As regulation 29 appears to make it clear that the documents attached and/or accompanying the application, including the father’s affidavits and their multitude of annexures should be admitted, it would have been an error to object to and/or reject such of them which have no weight or so little weight that they cannot affect the outcome.

6. The respondent’s evidence, too, is full of material which is of little or no consequence. Because of the admissibility standard applied to the Applicant’s evidence, it is my view that the application of a higher and different standard for admissibility to the respondent to that of the applicant would be unfair and unjust.

7. The Regulations encourage this result but do not require it. If the applicant had taken a more responsible and realistic attitude to the evidence and limited it appropriately, as she could have, this would have forced the respondent to uphold a better standard, thereby reducing the volume of evidence, increasing its general level of usefulness and making it much easier for the respondent and father to appreciate and understand what evidence might be significant. She would also have relieved the Court of the onerous burden of separating the wheat from the chaff. A private legal practitioner would be criticised for filing a large volume of evidence in support of an application which has little usefulness like the applicant’s evidence. I do not see why the applicant should not be equally criticised. The applicant is not obliged to blindly rely upon whatever material the overseas Central Authority provides. In my view, she and her legal advisors have a duty to the Court to deal with material provided for evidentiary purposes in a proper manner; the same manner a private solicitor should deal with the material provided by a client to make it acceptable to the Court. Admissible material which can have no effective weight should be eliminated before the evidence is filed. I shall say no more at this stage. The issue may arise again if costs are sought by either party.

8. The child who is the subject of these proceedings was born in the UK in June 2006. The respondent is his mother. She is an Australian Citizen who married his father, Mr Awa, in the UK in May 2006. The father was born in and is and always has been a citizen of the UK. His culture seems to be a mixture of the Western influences of the country where he was born and the culture of his parents who migrated from the subcontinent and retain much of the relatively conservative influences of their country of birth despite being in England for more than 35 years. The respondent had been living in London since May 2000 and had commenced a relationship with the father in August 2002. This continued although they did not live together until about the time they married. In May 2006 the respondent, jointly with her sister, purchased a property in London. Until then, the father had lived with his parents.

9. The father and the respondent probably commenced to live together not long after the London home was acquired. Prior to this, according to the respondent, the father had habitually treated her badly. He was, she says, verbally abusive, controlling, lacking in respect for her and in concern for her needs and feelings. He was selfish and indulgent. He used marijuana and cocaine, including crack cocaine, frequently and provided no financial support for the respondent and the child. Despite selling drugs, he habitually took money from the respondent in the guise of borrowing. He failed to introduce her to his parents until April 2006. Then she only met his father. She met his mother later. After the parents married, the father acted in some ways as though he was not living with the respondent. He retained his parents’ address for such things as his telephone bill, his bank statements and electoral enrolment. He did not change his doctor, as is required by the British health system, to one in the area where he was supposed to be living with his new wife. Despite all this, the respondent claims that the father and she had agreed and had always, until she and the child left for Australia, planned to migrate to Australia in time for the child to commence his education there.  

10. On 5 January 2008 the Respondent’s sister, who was living with her in the jointly owned home, was notified by her grandmother that her grandfather had been diagnosed with cancer. Not long afterwards, the respondent learnt that her grandfather had a life expectancy of between six months and a year. The respondent’s grandfather lived in a small city in Northern New South Wales. A few weeks after this, the respondent, who had already decided to visit her grandfather with the child as soon as she could and was in the process of arranging the trip, was told that her grandfather’s condition had deteriorated rapidly and that she should come to visit him soon.

11. The father, who had known about the respondent’s grandfather’s failing health since October or November in the previous year, consented to the Respondent taking the child to Australia to visit her grandfather. The tickets for the trip were booked on about 29 January 2008 for a flight which was due to leave London for Australia on about 17 February 2008 and arrive in Australia on 19 February. The respondent, who was in paid employment at the time, had arranged to have four weeks leave from her job. She says she intended to return with the child when her leave was exhausted. She had return air tickets to London which were booked for 17 March. The respondent and the child were due to arrive in London on 18 March. The father says he originally expected the respondent and the child to be away only until then.

12. Before 17 February the respondent’s grandfather unexpectedly died but the respondent decided to travel to Australia with the child as arranged. She says she still intended them to return to the UK in accordance with her itinerary. She says that this was her intention notwithstanding her uncertainty about the viability of her marriage. She claims she intended to return to “sort things out” even if she decided to end the marital relationship. The father’s case is that she left with the intention of keeping the child in Australia permanently.

1. It is inconsistent with an intention not to return, even if the marriage was over, that she applied for a right of abode in the UK after she arrived in Australia. She had already been granted such a right, but it was attached to her Australian passport. When the passport expired in 2007, it expired. She did not attempt to renew the right of abode when she obtained a new passport because, when she made enquires about its renewal, the UK immigration official she spoke to suggested she wait until she arrived in Australia to do this.

2. When the wife telephoned the British High Commission in Canberra in March 2008 she was informed that an application would take 12 weeks and, unless and until she had gained a new right of entry, she would be refused permission to enter the UK. There is no doubt that she was in telephone contact with the High Commission in late February and early March 2008. It is also not inconsistent with a wish to return on the date scheduled that she did not apply and pay for the right of entry until 5 March. She made the first telephone call to the High Commissioner on 29 February, only a little more than two weeks before she was due to leave Australia for the UK. She had been in Australia for only a little more than a week before she made her first enquiry. The cost of the right of return application was $505.00. It was paid by her sister on 5 March.

3. On 7 March the respondent emailed her London employer to inform it that she would be delayed by 12 weeks in returning. She was concerned that her job might not be kept for her. Significantly, she asked about the possibility of undertaking it from Australia. It seems that she was, by then, considering not returning to the UK but was in two minds about this.

4. The respondent has explained why she did not return to the UK and apply for re-entry on arrival, as seems to have been possible. She was afraid that she might be refused entry to the UK at the airport and forced to return immediately to Australia. She was fearful of the possibility that she might not be able to return to Australia with the child in that event. There is only one realistic reason why she might not be able to return with the child. It is likely that she considered that the father might obtain an order preventing this. The only other impediment would be lack of the funds to buy a ticket for the child. It is highly likely that she realised that her sister and parents, although they do not appear to be well off, could raise the funds for the child’s airfare. On 11 March she changed the return flights for herself and the child to 11 June 2008 and on 17 March her employer informed her that it would hold her job until 16 June 2008, provided she confirmed her return by mid May 2008.

5. When, on 15 March 2008, the respondent informed the father that her return would be delayed he did not believe her reasons, so she told him to make his own enquiry with the High Commission. He did not follow her suggestion, but does not deny she made it. He did contact the Immigration Department in the UK which informed him she would be able to renew her right of entry, but he does not mention anything about delay. I accept the respondent’s account of the facts surrounding her right of entry application and I do not find that she had decided not to return by this time. She was probably quite undecided about whether to return.

6. At some time in March 2008; it must have been on or after 15 March, the father, according to the respondent, threatened to take the child to the subcontinent and not return him once the respondent and the child arrived in the UK. In the respondent’s version of this conversation, the threat was quite direct and could not be interpreted in any other way. The father denies making a direct threat, but not the words alleged by the respondent. He says he was simply attempting, by analogy, to get the respondent to return the child.

7. I do not accept the father’s characterisation of the conversation. What he said is much more likely to have had the opposite effect and make the mother fearful of returning. He must have known this when he said it. The father’s parents cling to many of the traditions of their country of origin and visit there regularly. The relationship between the father and the respondent was to some degree dictated by the father’s unwillingness to offend his parents’ culture and sense of propriety. I accept that the respondent was put in fear by his threat, but do not accept that she reacted to it by deciding to retain the child in Australia. Her decision to put off the child’s return from 18 March to a later date was made unilaterally. It was an inadvertent delay in returning the child, which amounted to an extension of the holiday. Return, which was as early as she thought practicable, was still intended by the respondent.

8. On 4 April 2008 the respondent received her right of abode from the British High Commission in Australia. She did not inform the father. The inference from this which I accept is that, at the least, she decided she did not wish to return to the UK earlier than had been rescheduled. By this time she knew the father wanted the child to return earlier than 11 June. He had not consented to extending the holiday beyond mid March.

9. On 7 April 2008 the respondent approached a women’s service in northern New South Wales to get some counselling about her relationship with the father and her fears relating to it. She did not see a counsellor until mid April. She had been thinking that by returning to the UK she would be subjected to significant ill treatment; ill treatment such as she alleges to have been a significant feature of her relationship with the father. Yet it is clear from what she told the co-ordinator of the women’s service that, although she had doubts about the future of her relationship with the father, she had not ended it and had not decided to keep the child away from the father permanently.

10. The first session was on 15 April. The women’s service also provided a legal advice consultation. Presumably, this resulted in the respondent knowing about the implications and effect of the Hague Convention legislation.

11. Very soon after 15 April 2008 the respondent, as she said, “came to realise that I could not return to the UK”. She then telephoned the father and said “I cannot face the thought of returning to the UK, to what we had---”. The last quoted phrase is of some significance. It really suggests that, if the relationship would change, she could face returning. The father’s immediate response, according to the respondent, indicates he appreciated this and, rather than regarding her statement as a refusal to return to the UK and a retention of the child in Australia contrary to the father’s wishes, he regarded it as the beginning of an attempt by the respondent to find a way to maintain their marital relationship or, if they could not, to jointly devise a way of providing for the child’s best interests. The respondent says this is what she intended.

12. The father’s response was to volunteer to join the respondent and the child in Australia. By this time, the respondent had not unequivocally decided not to return the child to the UK on the flight which was booked for 11 June. Once the father volunteered to join the respondent and the child in Australia, there was an implied consent to the respondent keeping the child in Australia until that consent was either withdrawn or no longer necessary.

13. Towards the end of April there was another telephone conversation in which the father told the respondent he had decided to move to Australia. As the respondent says it was always both parents’ intention to move to Australia for the child’s sake before the child commenced school, he is said to have admitted this in this conversation but to have told her he had decided to come virtually immediately. He only intended to delay long enough to dispose of his car and the child’s things, pack and work just long enough to receive his next pay for a full month. He is alleged to have persisted with this plan in the face of the respondent’s warnings that the marriage may not work out. He decided to come to Australia at the end of May 2008.

14. On 7 and 8 May 2008 the respondent sent two text messages to the father. Each indicates that she wanted the father to change his attitudes, habits and behaviour towards her and the child and indicates that if he did not the marriage would have to end. These texts, rather than signifying an end to the relationship, show that the respondent really wanted the father to change so the marriage could be successful.

15. These texts leave little doubt about the respondent’s understanding of the father’s trip to Australia. They were sent to him, so are likely to reflect the reality which then existed. It would have been pointless for the respondent to misrepresent the situation, unless it was intended for use in contemplated court proceedings. I do not regard her as likely to be or to be able to be so calculating. I accept what she said as a poignant and true reflection of the past between the parents, of her understanding of the present and intentions about the future. I do not accept that, at any time before these texts were sent, she meant anything she said to the contrary. If beforehand she said anything about remaining in Australia with the child, it is likely to have been an empty threat. The most significant part of the 7 May text is “….I luv you but I think I need to see changes, growth and responsibility from u then take it from there. Too much stress with drugs, cheating, no money etc. This is not something that can be fixed overnight and will take a lot of work rebuilding lost trust and relationship. I want emotional, mental, physical, financial, household support and I need u 2 prove u can supply all this 2 me. I want a partnership in all sense of the word. I think it’s a great idea coming 2 aus and u starting afresh, as long as ur prepared……I would love [the child] 2 have 2 parents 2gether. We need to work thru u lots of stuff”   

16. On 8 May she wrote “I need 2 see a lot of changes in ur way of life. U say u want the best 4 [the child] but what have u done in the past 2 years 2 provide that? And it’s not jus financially? U like 2 live ur own life with no responsibilities but how do u fit us into that? Instead of treating our marriage and the birth of our son as new start u’ve squandered the opportunity and dragged us thru the mud. U say [the child] and I r ur world but u don’t show that thru ur actions, u’ve always got somewhere better to be, somebody better to be with. Have you ever considered some type of rehab 4 ur drug problem? There is a lovely man inside u whom I love immensely and want 2 have a family with but I haven’t seen him 4 a very long time. I need 2 see long term changes. I can’t and won’t continue with what we had, it needs 2 change. Tell me if that’s impossible…..”. By the time she made these texts she clearly had not decided to stay permanently in Australia with the child. She expected the father to come to Australia. It is probable that she believed he was coming with the intention of staying permanently, but did not herself have any settled intention to stay here with the child if the father eventually returned to England. She hoped to improve the relationship and was probably still prepared to return with the child to England. The father was not then insisting on immediate return but had not specifically agreed that the child should settle in Australia.

17. Although the father had told the respondent he would come to live here permanently, I am not satisfied that he had decided what to do or that he intended to remain in Australia permanently by 8 May. It is likely that he wished to see how things would evolve. He had not been to Australia and had no realistic idea of conditions here. He denies the respondent’s allegation that he ever agreed that the family should migrate to Australia before the child reached school age, although he admits that the possibility was discussed.

18. The truth about this plan is likely to be somewhere between what each parent says it was or that, during discussions, each was careful to avoid the other thinking there was disagreement over it, while each maintained a different intent or was uncertain about the future. It is likely that the father did contemplate coming to Australia before the child was to start school with a view to migrating if he felt it would provide a better life for himself. When he decided to come to Australia in June 2008, he probably had the same intention.

19. In early May 2008 the father was living in the house in London which is jointly owned by the respondent and her sister. The respondent and her sister were struggling to make the mortgage payments on it. On 9 May 2008, the respondent’s sister, who had been told by the respondent that the father was moving to Australia and that he would move his possessions to his parents’ home, asked the father when he was moving out because she wished to advertise his room for letting. According to the respondent, the father responded by abusing and threatening the respondent’s sister, even though he had not been contributing anything to household expenses. The father admits arguing with the respondent’s sister, but excuses himself because he felt stressed at the time. He does not deny being abusive and threatening. The father called the respondent by telephone several times that day and was abusive and threatening towards her. These calls ended when he threw and smashed his mobile telephone.

20. This incident caused the respondent to re-evaluate her relationship with the father. She wrote a letter to him that day. He received it on 18 May. The respondent informed the father that she considered them to have separated on 17 February 2008 when she left for Australia. She stated she had done her best to try and save their relationship but now realised that, rather than the father’s behaviour and attitudes improving as she had hoped, they had deteriorated. She repeated her specific concerns about the father’s failure to provide financial support for herself and the child throughout the marriage, the father’s excessive drug use and his infidelities. However, she continued the stance she had been taking until that time. It was that she would consider reuniting with the father if he changed sufficiently for the better. She also said he was “always welcome to see [the child]”. She said nothing about the father’s planned trip to Australia.

21. The father says he was shocked by the contents of the letter and immediately made an appointment to see his solicitors. He saw them on 21 May and was advised about his rights under the Hague Convention but that if he felt a reconciliation was possible and could persuade the mother to return he should first take this course. He told the solicitor he intended to go to Australia to speak to the respondent. This is not a complete description of what he must have intended and eventually did. He did not go merely to speak face-to-face to the respondent. He went for much more time than he needed to do this. On 22 May 2008, he booked a return flight to Australia departing on 15 June and returning on 16 September 2008.

22. He told the respondent he had been in touch with an immigration agent, had passed tests to obtain a working visa and had been informed he would have no problems obtaining one. In these proceedings he has attempted to make his actions at the time seem less suggestive of any thought of migrating. He said the test was an “on-line” one and inferred his contact with the agent was merely by logging on to his web site. He does not deny what the respondent claims he told her, but says although he decided to come to Australia to sort their relationship out, his main aim was to see the child and that he told the mother this. It is quite significant that he claims he “tried to remain open-minded about whether it would be possible for [the mother] and me to repair our relationship and to sort things out by ourselves”. This and the other evidence on this topic which I have related above creates a clear inference that the father had seriously contemplated the possibility of remaining in Australia permanently. He sold his car and gave away some of the child’s things in preparation for the trip. The giving away of the child’s things does not seem to me to be significant because he was growing. The winter clothing he would have been wearing in February would not be likely to fit or suit him after mid June and most toys or bedding which were in the UK would not be worth bringing to Australia.

23. On 23 May the father’s sister sent an email to the respondent. In it she said of the father’s apparent intentions “he seems to be coming with a view to settling over there if all works out….He is playing it as though it’s only about going out in time for [the child’s] birthday and then seeing what are the work prospects etc. As you say – it’s probably the best potential move for him anyway, whatever happens between you two, so we’re all hoping he makes the most of the chance he’s been given and doesn’t waste it….”. She also mentioned her parents and said of them: “I know their world….will be devastated by [the child] being on the other side of the world permanently should that happen”. The email indicates that the respondent and the father’s sister have a good relationship and confide in one another. It is possible that the respondent has manipulated the father’s sister in an effort to later use their correspondence to bolster expected proceedings, but I do not think this is at all likely. If there has been no such manipulation, this letter infers that the father had decided to see if he liked Australia before deciding whether to stay here. It leaves open the question of whether the respondent had made any decision on return to the UK.

24. I am not satisfied that the respondent, before the 23 May 2008, had decided to stay in Australia permanently contrary to the father’s wishes. She was still hoping to mend her relationship with the father who she continued to expect to come to Australia to see if it suited him to live here. The father contemplated the possibility of remaining in Australia. Neither had made up their mind. As the mother had, since mid April, continuously believed the father was coming to Australia with a view to staying, she did not keep the child here contrary to the father’s wishes once he said he was coming here. I do not accept that the father was coming just to see the child.

25. When the respondent learnt the father was arriving on the 16 June 2008, she let her and the child’s bookings for the return to the UK on 11 June 2008 lapse. In May 2008 she applied for Australian Citizenship for the child because she did not want his status in Australia to be uncertain if his visitor’s visa was to expire while he was here.

26. When the father arrived in Australia he brought some things which one would expect to be brought here if he was seriously contemplating the possibility of migrating. He also brought working visa forms which he had sourced from the internet and had a skilled occupation list from the Australian Department of Immigration and Citizenship. This list provides information needed to make a successful application for a work visa; that is, to qualify for a migration visa under the Skilled Migration Scheme. He travelled to northern New South Wales from Sydney the day after he arrived and informed the respondent he had changed and wanted to reconcile with her. She informed him he would need to demonstrate that he could be a good husband and father.

27. The father then divided his time between northern New South Wales and Sydney, spending from 17 to 28 June, from 11 to 18 July and from 1 to 10 August in northern New South Wales. When in northern New South Wales he lived in the respondent’s parents’ home in a room which was suitable only for a temporary stay. He did not cohabit with the respondent although, at times, he, the respondent and the child behaved like a family. The father said he spent between 50 and 60 days in northern New South Wales when the respondent and the child were staying there. The inaccuracy of this claim is a measure of the credibility of much of his other evidence. When in northern New South Wales he looked at job prospects in both Sydney and northern New South Wales and took advice from an employment consultant that he should firstly apply for a work visa. The respondent, members of her family and friends provided the father with advice and assistance in understanding the job market.

1. On 24 June 2008 the father asked the mother if she would join him in an application for a spouse visa despite still expressing confidence that he could obtain a work visa. The respondent alleges that on 26 June the father consented to the mother registering the child with Medicare. The father denies this, but I regard the mother’s claim as more likely to be true.

2. After the father left for Sydney on 28 June he informed the respondent he was actively seeking work. He asked if the mother had a copy of his English CV because he wished to use it as the basis for an updated one and told the respondent he was talking to friends of a cousin who lived in Sydney about the best way of getting a work visa. The father’s father telephoned the respondent’s parents and indicated he and his wife intended to visit in December 2008/January 2009. He enquired about house and flat prices in northern New South Wales and Sydney. The respondent formed the impression from what he said that he believed the father was migrating and had not come to visit the child or obtain his return to the UK.

3. The father admits he looked into obtaining a work visa. When he left northern New South Wales on 28 June he was still hoping that the parties would reconcile.

4. On 16 July 2008, while the father was in northern New South Wales, he told the respondent he wanted to divorce her. What he said is precisely stated in the respondent’s affidavit. It is: “I want a divorce. I don’t think our relationship will go anywhere so I want to put an end to it now. I want [the child] to stay with you in Australia. I can see how good it was [sic] for [the child] and I want [the child] to have this life. It will be hard to leave my son but it was [sic] for the best”. The father then took the respondent’s wedding ring off her finger and removed his own ring. He said something to the effect that both should “move on with” their lives. The father’s affidavit responds to the respondent’s claim about these two parts of their conversation without denying most of her allegations about it while confirming much of it. However, he claims that he told the respondent there was “no way I was simply going to give up my son”. He says, in effect, that he said and did what he admits to try to get a reaction from the respondent; to try to achieve the opposite of divorce. I do not believe that he has described this incident accurately. I am satisfied that the father said all the things the respondent claims he said at this time, but I accept he did so to convince or pressure the respondent to have him back. He claims, and I accept, that when he attempted to remove the respondent’s wedding ring she resisted and reacted by repeatedly hugging him. The inference from this which I accept is that she did not wish the marriage to end and, therefore, was still prepared to return with the child to the UK if the father decided to return provided, as she hoped would be the case, his relevant behaviour and attitudes improved. I accept that he told the respondent he would not “give up” the child.

5. The next day, the father, who was by then very fond of the respondent’s sister’s children, wanted to see them. They live 130km from the respondent’s parent’s home in northern New South Wales. The respondent, the father and the child drove there and back. During these trips the respondent says the father attempted to explain to the child, who was then only two years old, that he was leaving him, that he would miss him and that he was going to start a new life. The father denies he spoke to the child about these matters.

6. The respondent’s sister, by a letter annexed to the respondent’s affidavit, confirms that during the visit on that day the respondent and the father informed her they would separate and that the father would return to London and possibly do some travel abroad. She says the father told her he intended that the child should remain in Australia with the respondent and that had always been the father’s and respondent’s long term plan. According to the respondent, although it is denied by the father, the father told the respondent during this outing that he would consent to a divorce and to the respondent being granted custody. The next day the father returned to Sydney. The respondent’s version is to some extent corroborated by what her sister was told by the father. 

7. Despite the above, the respondent alleges the father contacted the respondent later in July and told her he had applied for a job with a firm in Sydney called R Company and had been offered the job subject to obtaining a work visa. I can take judicial notice of the fact that this is a very high profile retailer in the Eastern suburbs of Sydney. The father worked in the UK for a time in a related field. He nevertheless denies applying for this job. In his affidavit in reply he argues that this claim is ridiculous, inferring that it is untrue and that he had no reason to go for an interview. An email from a manager at R Company, annexure “U” to the respondent’s affidavit, is convincing confirmation of the respondent’s claims. It clearly refutes what the father said about his interest in the job. In my assessment, it undermines his credit to a considerable extent. It relates that the father was referred to R Company by an employment agency and that the agency had provided that firm with the father’s CV, something it must have obtained from the father, and had interviewed the father. The manager was aware that the father lacked a work visa. He did not offer the father a job, but told the employment agency that if he did obtain a work visa he would offer him another interview. Significantly, the father asked the manager whether R Company would sponsor his immigration application. The interview had been arranged on 24 July and took place on 25 July at 2.30pm. This was confirmed by an email to R Company from the recruitment agency when it sent the CV.

8. The father could not have forgotten his attempt to obtain work at R Company. His sworn response to the respondent’s claim about it is quite disingenuous, knowingly false and intentionally misleading. It is also clearly shown to be so by the father’s response to the next incident. It occurred on 1 August 2008.

9. The respondent says that on that day the father hounded her to make a spouse visa application with him, something she could not honestly do because of the state of uncertainty of the marital relationship. The father’s response to this claim admits it in these words:

   132: [The mother] had made it sound that she was genuinely open to the idea of us staying together but when the issue of a spousal visa was discussed she was clear she would not agree.

   In the previous paragraph; that which I have described as disingenuous, of his response, in this context his words show the degree of his attempt to deceive about his R Company job application. He said:

131: This does not make sense. In the proceeding paragraphs [the mother] suggests that I was leaving and that I agreed to [the child] remaining in Australia. If I had agreed why would I then go for an interview

The answer to the father’s rhetorical question is: Because he was bluffing, really hoped for a reconciliation and intended to remain in Australia if he could also gain residence and obtain a good job. That the father claims the respondent appeared to continue to entertain a hope that the marital relationship could be repaired indicates that she had by then not decided to keep the child in Australia rather than return with him to the UK.

1. During the balance of the time the father spent in northern New South Wales in August he made other job enquires and investigations and on his return to Sydney he worked as a tradesman for a short time. On 1 September he saw an immigration consultant. He says that he did it because he wanted to extend his stay in Australia and “did not want to think about returning to the UK without him.” This admission has a strong tendency to not only confirm the respondent’s claim that the father had told her that the child could remain in Australia with her, but also to confirm that he meant what he had said; that he had consented to the child being an Australian resident. However, during the conversation in which he asked her to help him obtain a spouse visa he threatened that if she did not cooperate he would commence legal proceedings for the return of the child to the UK. The next day the father again telephoned the respondent to see if she would agree to assist him to obtain a spouse visa. This sequence of inconsistent statements by the father is typical of his behaviour. It demonstrates the turmoil in his thinking and shows that he did not necessarily mean what he said. It could also demonstrate a decision to remain in Australia if he could get a visa which would allow him to obtain proper employment.  

2. On 5 September his threat to commence Hague Convention proceedings became an ultimatum. The respondent did not surrender to it. On 15 September the father returned to the UK. He had already, on 11 September 2008, provided the UK central authority with an application to commence the process to make a Hague Convention application in Australia for the child’s return to the UK. On 3 October 2008 the father became bankrupt on his own petition.

3. I regard the father as an unreliable witness and accept the respondent’s evidence in most instances when their stories clash. I have specifically mentioned or shall specifically refer to each instance when I accept the father’s evidence in preference to that of the respondent.

4. There has been a great deal of argument about the precise meaning of regulation 16 of the Regulations, the statutory regulation which prescribes the requirements for making or refusing to make a return order. Much has been said about this regulation to suggest it is ambiguous. A reading of its words, while mindful that the aim of the Regulations is to implement the Hague Convention in a manner which realistically and justly deals with actual situations which might give rise to applications for return, leaves little doubt that the terms of the Regulations are sufficiently unambiguous to permit the aims of the Convention to be achieved. The principal aim of the Convention is to ensure prompt return so that the children’s issues between parents are dealt with in the Convention country where a child has usually lived; the country which is most apt for hearing the evidence on those issues. Although the Convention also aims to permit refusal to order return to it if return is unjust to the child and/or the person objecting to return (see Article 13), the Regulations specifically provide that they are to be interpreted in a manner which accepts that they are designed to achieve the principal aim of the Convention in a context that the other Convention countries are able to determine litigation over children’s custody, access and other children’s welfare disputes as justly as the Family Court of Australia and other Australian courts with its jurisdiction.

5. Regulation 16(1) applies in this instance because the application for the child’s return to the UK was made and filed within one year of his removal to Australia (regulation 16(1)(a) and ((b)). By Regulation 16(1)(c), to obtain an order for return, the applicant must satisfy me that his removal to or retention in Australia was wrongful. By regulation 16(1A) removal or retention can only be found to be wrongful if certain prescribed facts are proven. Most of these are not in dispute between the parties. Those not in dispute are:

   ·    That the child is under sixteen years; he is only one year and nine months old, a matter which is of significance in considering his habitual residency at relevant times. Habitual residence at the relevant time is one of the matters which is in dispute.

   ·    That the father had rights of custody over the child under UK law immediately before the child’s removal to Australia and immediately before he was retained in Australia.

   ·    That at the time of the child’s retention in Australia the father was actually exercising his rights of custody or would have done so if it were not for the retention.

6. A matter which must be established by the applicant to prove the wrongfulness of the child’s removal or retention is his habitual residence in the UK immediately before removal or retention (regulation 16 (1A)(b)). The applicant also claims that the child’s removal to Australia was in breach of the father’s rights of custody which he was exercising or would have exercised if the breach had not occurred.

7. By regulation 16(1), if the conditions imposed for the making of a return order are established the Court “must” make a return order. The use of “must” in statutes and the like does not always impose an absolute obligation on the Court. Sometimes “must” can be directory rather than mandatory (Woodward v Sarsons (1875) LR 10 CP at 746). Here this is the case. Regulation 16(3) gives the Court a discretion to refuse to make a return order under regulation 16(1) in certain circumstances despite establishment of the conditions for making such an order.

8. The onus is on the person opposing a return order to establish the circumstances which by regulation 16(3) will cause that discretion to arise, but the onus of establishing any fact which might help make the case for or against exercising the discretion to refuse to make an order is on the party who wishes to assert that fact. A number of matters are specified in regulation 16(3) which, if established on balance of probabilities, allows the Court to use its discretion to refuse to order return of a child. Here the respondent only relies on regulations 16(3)(a)(ii) and 16(3)(b).

9. Regulation 16(3)(a)(ii) allows discretion to refuse a return order if the respondent establishes that the father consented to or subsequently acquiesced  in the removal to Australia or retention here. There is no mention of “wrongful” in this sub-regulation. This is the aspect which has been claimed to be ambiguous.  Some commentators claim that “wrongful” should be implied or the uncertainty about whether to imply it makes it ambiguous. I do not agree. The words are plain and easy to understand without any suggestion of ambiguity. There is no warrant to give a different meaning to the words by either implying any unstated wrongfulness in addition to consent or acquiescence to removal and retention. Regulation 16(3) exists to give a discretion to refuse a return order, so there is no basis for interpreting it to apply only to wrongful removals or retentions. Regulation 16(1) requires return to the country of habitual residence only if it has been held that the removal or retention is wrongful. There would be no need for regulation 16(3)(a)(ii) if the retention or removal was in every case also wrongful. There is no need to interpret the regulations where no ambiguity or uncertainty exists. There is no ambiguity or uncertainty in this instance.

10. Regulation 16(3)(c) permits discretion to be exercised if return of a child creates a grave risk that the child will be exposed to physical or psychological harm or otherwise placed in an intolerable situation. The risk is of exposure to harm rather than of actual harm or of being put into a situation which the child should not have to tolerate rather than of being in a situation which the child should not have to tolerate. “Grave risk” means a risk which is serious or of such substance that it cannot be lightly dismissed.

11. The decision of the High Court of Australia in LK and Director-General, Department of Community Services [2009] HCA 9 delivered on 11 March 2009 is a very recent decision on the application of regulation 16. As a result of it, there is now no uncertainty about how the Court must determine habitual residence when it is in issue. Until this decision, reliance was placed solely on the intentions of the parents. It is now settled that all the circumstances of a child’s life at the relevant time determines its attainment of an habitual residence. These can include the intentions of the parents. At paragraph 34 on p. 14 the Court confirmed that once habitual residence is established for a child because the parents live together and the child lives with them, the general rule is still that neither parent can unilaterally change that habitual residence.

12. There can be no doubt that at the time when the child set off for Australia with his mother his habitual residence was in the UK. The respondent says at this time she intended to return with the child on 18 March. The applicant originally argued that by the time she left the UK she had already decided not to return with the child. I am quite lacking in satisfaction that this is the case and the applicant no longer contends that it is, understandably preferring the advantage presented by being able to assume that when the child arrived in Australia his habitual residence remained the UK. Thus, immediately before being removed to Australia, the child was habitually resident in the UK.

13. The parties ceased living together with the child when he was brought to Australia. Nothing then occurred which could amount to assent by one parent to the other’s decision to change or actions in pursuit of change of habitual residence. At all times between the child’s arrival in Australia and the father’s return to England one or other or both parents were in a state of uncertainty about the future. I am quite lacking in satisfaction that at any time the child’s habitual residence became Australia. It had not become so before the father arrived here or while he was here, despite anything he said to the mother. I think he lied to her about his real intentions when he said she could raise the child here. He probably wanted to stay in Australia if it suited him. I think he was always conscious of and realistic about the prospect that he may not succeed in gaining what he wished. At all relevant times, he intended to return to the UK if he did not get what he wanted; permanent residency and a suitable job. If he decided to return he hoped to convince or trick the respondent into returning with the child and, if he could not do so, intended to bring Hague Convention proceedings. I do not regard any combination of his actions and statements as amounting to consent to change the child’s habitual residency from the UK to Australia because the necessary intention was missing. It should not be overlooked that what he did was not unreasonable in the circumstances. It had virtually been forced on him by the respondent’s failure to return to the UK with the child. The father’s actions did not amount to any consent for the child to make Australia his home or that he had any settled intention to migrate here.

14. Until the father acted to institute proceedings on 11 September 2008 the respondent was probably in two minds about reconciling with the father and returning with the child to live with him in England. I accept the evidence of the father that only a few days before he left Australia, when he told the respondent he wanted a divorce, she hugged him in an effort to change his mind about the relationship and was probably in a state of uncertainty and turmoil about whether her future included living with the father or not, whether in Australia or the UK.

15. I cannot responsibly avoid commenting on the poor drafting of regulation 16. The reference in sub-regulation (1A)(b) to “removal” and “retention” is clear. It could not really mean “wrongful removal” and “wrongful retention” because “removal” and “retention” as referred to in regulation 16(1)(c) are only “wrongful” if all the elements required by regulation 16((1A)(a) to (e) inclusive are found to exist. It could not be that the “removal” or “retention” in regulation 16(1A)(b) which must occur at the time of habitual residence to establish wrongfulness must also in themselves be “wrongful”.

16. There will always be a removal, whether by consent, with acquiescence or otherwise, so the concept of retention is superfluous for the determination of wrongfulness in regulation 16(1)(c) even if a child subsequently attains habitual residency in Australia. Any attempt to impose an interpretation on this interaction of sub-regulations (1) and (1A) which makes more sense, fails because it would require the implication of the word “wrongful” or a word with precisely the same meaning into sub-regulation (1A)(b) when “wrongful” has different meanings when used in that sub-regulation from that which it would have in sub-regulation (1). If a word which has a meaning different from “wrongful” is implied in sub-regulation (1A), that would be equally inappropriate because (1A)(c),(d) and (e) are intended to cover any possibility which could be created by such an implication. The effect of the whole of regulation 16, although it is poorly drafted, is in itself not ambiguous because it can only be read in a common sense manner, especially as there was a discretion to refuse to order return. The discretion becomes available if the removal was without consent or if there is consent to, or acquiescence in retention. I cannot understand how it could matter if there was a subsequent acquiescence in a removal which has already been consented to or how one could find wrongfulness in a consent removal.

1. I do not accept that the child is at grave risk of emotional harm simply because the respondent will have to struggle financially to survive in England. She is not likely to have to do so for so long that it will adversely affect her to a significant degree.

2. The respondent believes the quality of life is better in Australia. She has been able to live a peaceful and relatively undisturbed life here since her return. She says the better life she has had since returning has assisted the child to maintain good psychological health. If she returns to the UK she will soon lose her sister’s emotional support because her sister is returning to Australia. The respondent says that these factors will cause her capacity to cope to be further stretched, possibly to breaking point or beyond, thereby exposing the child to even greater risk. If more than one of the stressors specified in (a), (b) and (c) of paragraph 80 arise, the adverse effect on her and the child welfare will increase, it is submitted.

3. These arguments are persuasive. Return might pose a danger to the child from any psychological damage the wife may, and could, suffer if she returns to the UK. This would continue only until an English court is able to make orders, including interim orders which are designed to promote the child’s best interest taking arguments like these into account. The time which is likely to elapse after return and before such orders are made is not likely to be long.

4. The father has always, during the parent’s relationship, especially after the child’s birth, acted in a financially irresponsible manner. He is currently a bankrupt and will probably remain so for some time. His behaviour has been such that I do not expect him to commence to behave in a financially responsible manner toward the respondent by providing her with appropriate child support. The father may be able to avoid child support because he is bankrupt and may have no job. He may decide to work in the black economy as he has previously done in both England and Australia. He appears to me to be highly likely to prefer to be unemployed or to rejoin the black economy to paying proper child support.

5. I do not know to what extent social security will provide for the respondent, who is not a UK citizen, and for the child. Nor do I know what the respondent might need. I do not know whether she will be employed or not if she returns, or if she gets a job, what she will need by way of care for the child while she is working. I do not know the cost of care, her ability to afford it, and what might be available. I do not know these things because the respondent has provided no evidence. All I know is that she has her own home, albeit shared with her sister, and worked regularly before coming to Australia. I do not have sufficient evidence before me to be satisfied that the respondent, despite a lack of financial assistance from the father, will not be able, once she is settled, to maintain a reasonable standard of living in all the circumstances if she returns to the United Kingdom with the child.

6. I am satisfied that, if the respondent does return with him, the child will be placed in an intolerable situation because of the respondent’s financially straitened situation until she settles. The UK system through the courts and or administratively should then provide sufficiently for the respondent to protect the child’s welfare. Until then, orders I can make could do so.

7. There are measures which are able to be taken by the Family Court of Australia to provide for the respondent’s proper financial needs and the child’s welfare until a UK court or the British administrative system takes over. I am able to avoid putting the child in a situation which would create a grave risk of being placed in an intolerable situation because of the hardship and stress the respondent is likely to suffer because she has insufficient funds. If it is otherwise proper to make an order for the child’s return, I should make orders designed to avoid such hardship and stress to the respondent on her return until the English system takes the place of this Court.

8. The claimed risk of being taken to the subcontinent arises out of a telephone conversation between the father who was in the United Kingdom and the respondent who was in Australia. It occurred in March 2008 after the respondent had informed the father she would not be returning with the child as originally planned because of her visa problem. The father made the threat by saying:              

   How would you feel if I took [the child] to [the subcontinent] then didn’t bring him back. When you get back to the UK I’m going to take [the child] to [the subcontinent] and not return him. 

   The respondent regarded this threat as genuine and became fearful as a result of it. If it were to be carried out it would separate the child from his principal carer and prime attachment and be highly likely to cause him significant emotional harm. It would also put him in the intolerable situation of being raised by strangers who do not speak his language in a third world country which, to those who live in Australia or the UK, would seem to be very disadvantaged. The subcontinent is one of the poorest regions. This situation would be made worse by the fact that it is highly unlikely that the father would become his carer in the subcontinent. He would be likely to continue to live in the United Kingdom. The country in question is not a signatory to the Hague Convention.

9. There are two matters which must be weighed in considering whether this threat constitutes a grave risk that the child will be exposed to psychological harm and or put in an intolerable situation. One is whether the father might actually intend to carry out the threat. The other is, if he does maintain his stated intention, what the prospects of him doing so are. The latter is to be considered in the light of his ability to carry it out, including the ability of the courts or administrative processes in the UK to prevent him from doing so.

10. In attempting to decide whether the father meant what he said the Court has few clues to assist it. It is barely helpful to look at his actions, as the only action of direct relevance is what he actually said. There have been few opportunities for the father to do anything which might be relevant after he made the threat. The only suggestion in the evidence which might otherwise support a finding that the father might intend to abduct the child to the subcontinent is that his parents, who are very conservative culturally and were born in the subcontinent, might support the father in this; not so much to punish the respondent, but to remove the child from her cultural influence. They regularly visit family members who remain in the subcontinent, but have been established in Britain for many years and have other children and grandchildren in Britain.

11. There is only a slight chance that the father might have the intention to attempt to take the child to the subcontinent. He is a volatile wilful person who may wish to punish the respondent or assume control over the child. The cost of the child’s support would be greatly reduced. This might motivate the father. He does not seem concerned about breaches of the law, or to have much appreciation of the child’s emotional needs and is not devoted to him to the extent that he has ever paid much attention to him or sought to make his life better by making his mother’s life better. When the father lived with the respondent he did little by way of direct care for the child. He usually left the respondent to care for him. He would sometimes leave him with his parents, but rarely cared for him on his own. The impression I have from the evidence which I accept is that, to a large extent, he only took the child from the respondent’s immediate care to provide his parents with the opportunity to see the child.

12. I regard the prospect of abduction as significant but not high.  A greater cause of the child being exposed to an intolerable situation is likely to be the respondent’s fear of the prospect of abduction. I accept that she has a genuine fear and that this will, if not reduced by a decrease in the prospect of abduction in her mind, upset her and lower her capacity to care for the child properly. He is likely to be destabilised by his appreciation of the respondent’s level of disturbance.

13. I am entitled to assume that the UK legal and administrative system can protect the child from abduction. The respondent’s fear will be greatly alleviated and he will cease to be at grave risk as a result of any impairment in her parenting ability if there are suitable orders and/or notifications in place until the matter gets before a UK court. I am able to make orders which achieve this. Thus, another factor regulation 16(3)(b) which has been established to my satisfaction can be ameliorated by the imposition of conditions for return.

14. The respondent asks in her application for orders which will prevent the child from being taken to the subcontinent by the father as a condition of the child’s return being ordered. There is no evidence of the type of orders and/or other arrangements which need to be made or of their likely effectiveness. Only an English court can make an order which is effective once the child arrives in the UK.  A suitable order would make the father guilty of contempt if he removes the child from the UK or allows him to be taken out of that country. Although it might, for all I can tell, be quite easy to take the child out of the UK despite such an order, the father could then be imprisoned for contempt until he arranges for the child’s return. My assessment of the father is that he is unlikely to wish to remain in prison for the sake of ensuring the child is not returned to the respondent. I am not suggesting that it is easy to bypass any alert system in the UK which is designed to prevent children from being taken out of the Country. I simply do not know if there is a system and, if there is, how effective it is.

15. If the father obtains orders from a family court which restrain him from removing the child from the UK or permitting anyone else to do so and if there is a border alert system which is activated if an attempt is made to remove the child from the UK, the return of the child to the UK will, by virtue of reduction of the possibility of abduction to the subcontinent or any other place outside the UK, cease to pose a grave risk of exposure to a situation where his psychological welfare might be undermined and where he will be at grave risk of being placed in an intolerable situation.

16. Although the respondent can gain protection from any continuation of the father’s abusive behaviour if she does not have her fear that the father may abduct the child alleviated and has insufficient funds to tide her over until she obtains funds from sale of the unit, in the face of her other objections to living in England she is likely to suffer some stress which could adversely effect the child. One should not assume that this risk to the child’s welfare will exist for a long period. This risk need only concern me until an English court can determine the family law issues between the father and the respondent. It will then be able to consider the respondent’s claimed fears and difficulties as well as the arguments for being permitted to return with the child to Australia. Once the facts are established and her arguments are heard the outcome is highly likely to be the most appropriate to further the child’s best interests.

17. Overall, I am satisfied that regulation 16(3) provides reasons to refuse to make a return order unless certain conditions are fulfilled. I am satisfied that without the protections to the child which these would provide he will be subjected to the grave risks of being exposed to psychological harm or of otherwise being put in an intolerable situation.  These risks to him are greater than those which will arise from the inevitable disruption, uncertainty, anxiety and inconvenience to the respondent which will naturally accompany what she will regard as a forced return.

18. There is a line of authority to the effect that the Court is able to attach conditions to the requirement that the child be returned, which, if not met, mean that the child does not have to be returned. This discretion only arises if at least one of the elements of regulation 16(3) has been established. The discretion is then available to refuse to order return, although the Court is not precluded from making a return order (regulation 16(5)). The latest case in this line is Kilah v Director-General, Department of Community Services (2008) 39 Fam LR 431, a decision of the Full Court of the Family Court of Australia. It is the decision which was reversed by the High Court as LK and Director-General, Department of Community Services but the High Court did not have to consider, nor did it consider, this aspect of the case.  

19. Regulation 15(1)(c) of the Regulations permits the Court in the exercise of its discretion to include in an order for the return of a child “a condition that the court considers to be appropriate to give effect to the Convention”. This ought to be interpreted to only include orders which will ensure the return order can be executed or carried out expeditiously and that there will be no impediment of a practical nature to that return. This regulation is quite clearly distinguishable from regulation 16(3). Paradoxically, regulation 15(1)(c) gives a discretion to impose conditions which, if not met, will result in non-return.

20. Regulation 15(1)(c) applies in different circumstances from those in which regulation 16(3) applies. In DeL v Director General, New South WalesDepartment of Community Services (1996) 187 CLR 640, six High Court Justices confirmed that the Family Court has a discretion in determining whether to make a return order. But the discretion it referred to was that raised by a finding that one of the sub-paragraphs of regulation 16(3) fitted the facts, not regulation 15(1). In that particular instance, it was objection to return as provided for by regulation 16(3)(c). The High Court also had something to say about regulation 15(2) which requires the Court to deal with Hague Convention cases promptly. It said “prompt listing for hearing is one thing; and over-hasty and insufficient hearing is another”, concluding that cross examination upon affidavits should be allowed to the extent necessary to assist the Court to reach a decision on whether to refuse an order for return. In LK and Director-General, Department of Community Services the High Court repeated this sentiment, no doubt in order to emphasise it.

21. At [93] in Kilah (supra) the Full Court said:

    In the exercise of discretion the trial judge may take into account all relevant factors. In Zafiropoulos & State Central Authority (supra) at 80,508 the Full Court endorsed the approach of the trial judge as to the appropriate matters to be taken into account in the exercise of that discretion. The trial judge relied upon the dissenting judgment of Hale LJ in TB v JB [2001] 2 FLR 515 whereby Hale LJ discussed a list of factors suggested by Waite J (as he then was) in W vW (Child Abduction: Acquiescence) [1993] 2 FLR 211 and later adopted by him in the Court of Appeal in H v H (Abduction: Acquiescence) [1996] 2 FLR 570 at 574-5, which are:

    · the comparative suitability of the forum to determine the child's future in the substantive proceedings

    · the likely outcome (in whichever forum) of the substantive proceedings

    · the consequences of the acquiescence

    · the situation which would await the absconding parent and the child if compelled to return

    · the anticipated emotional effect upon the child of an immediate return (a factor which is to be treated as significant but not paramount)

    · the extent to which the purpose and underlying philosophy of the Hague Convention would be at risk of frustration if a return order were to be refused.

    The third point must have been included because of the specific finding in that case. One can assume that the consequences of any factor which would raise the discretion created by regulation 16(3) is to be considered.

    Kilah is an appeal from Kay J.A. His first instance judgment is not formally reported, but can be found at [2007] Fam CA 1099. There is some similarity between the facts he found and my findings in the proceedings now being determined. In each instance there was a finding that a child was removed to Australia from the country of habitual residence by consent for an agreed period and, by that agreement, the parent who remained in the country of habitual residence did not consent to any change in habitual residence. The only finding in Kilah which could permit the regulation 16(3) discretion to be exercised was a finding by his Honour on the issue of consent. He found that the father consented to the respondent bringing their children to Australia and to their initial retention here. When the parent decided the child should remain no longer that parent was held to no longer consent to the child remaining in Australia and the respondent’s continued failure to return the child became a wrongful retention. The Full Court accepted the finding that once the consent had been given its withdrawal did not prevent the discretion created by the original consent being retained by the Court. The High Court held that, by the time consent was withdrawn the children had become habitually resident in Australia. Thus, I am still bound on the issue of the effect of the withdrawal of consent and the matter of exercising the discretion raised by regulation 16(3) by the decision of the Full Court in Kilah.

22. I have already considered most, but not all, of the matters which Waite J. originally suggested should be considered in the exercise of discretion given by regulation 16. There is little doubt that the United Kingdom is the more suitable forum for deciding the children’s issues. The parties spent the part of their lives there which will need to be examined to decide the factors that the respondent is likely to rely on if she wishes to have custody of the child and bring him to Australia to live. The witnesses and documentary evidence will predominately be in England. For me to decide the likely outcome of the proceedings is very difficult.  In England the judge will be in a much different and better position to appreciate the salient facts than me. He or she will have the benefit of more extensive evidence, probably including corroborative affidavit evidence and expert evidence. The witnesses will be subject to cross-examination, so conflicting stories can be tested. The judge will, very importantly, be able to see the parents and their witnesses and make assessments of their characters. It is likely that the mother will be granted residence of the child, but I cannot say with any confidence whether it will be thought to be in the child’s best interests to live with the respondent in Australia. The prospect is not, however, inconsiderable.

23. The respondent lost the benefit of the return air ticket she purchased as a result of her initial decision to delay return and the father’s consequential decision to come to Australia. It was inappropriate for the respondent to return with the child until after the parents had either made a decision about their future or had come to a point when they knew they could not agree. This point was not reached until the father left Australia. Somebody will have to pay for the respondent’s and the child’s return airfare if they are to return. That this is so involves an element which should be considered under regulation 15(1)(c). It would be inappropriate and possibly a danger for the child’s emotional health to be returned without the respondent. This is a consideration which can allow a condition for return to be imposed under regulation 16(3).

24. The respondent’s air fare should be met to allow her to return with the child. The parents should contribute equally to both airfares. To ensure prompt return, orders should be made for payment for these as soon as is practicable in view of other orders I shall make. In making an order which requires half the fare to be met by the father, I am aware of his bankruptcy and am also aware of his habit of relying on his family for funds and his ability to do this. I shall not order him to pay. He is not a party and is a bankrupt. I shall make it a condition of the child’s return that money is paid on his behalf into an account to which the respondent has access. It does not matter where the fund comes from. The respondent’s previous reliance on her family for financial assistance has not escaped my attention, but I am able to make orders which do not require that assistance immediately.

1. Once the respondent and the child arrive in the United Kingdom the respondent will probably have to find accommodation, look for a job, care for the child and find someone to care for him while she is at work, and support herself and the child. That the respondent will be in this position if she is required to return is her fault to a significant degree. Despite this, the father must also bear a high level of responsibility for her immediate impecuniosity. The respondent might have been able to keep her job if she had left Australia earlier. Her home would probably not have been let. The delay in return caused by the father’s trip to Australia is part of the cause of her having no job and no home in the UK. That she is probably short of funds is highly likely to be the father’s fault because of his financial irresponsibility, unpaid borrowings from the respondent and failure to provide proper financial support for her and the child. If he had done so, it is likely that the respondent would have savings, which she no longer has, to meet the contingencies involved in settling in the UK. The father should, in my opinion, contribute to provision for those contingencies to a significant extent if the child is to be returned to the UK. This is the only way I can ensure the child is not at grave risk of being exposed to being in an intolerable situation until she can obtain funds from the sale of her London property.

2. The respondent has asked for a number of orders in the event that the child is to be returned. These are:

   3. 1.     should the Court make and Order for return of [the child] then:-

   a. the Mother and child’s passports held at the Family Court Sydney pursuant to orders made 28 October 2008 be released;

   b. that any Order placing the child’s name on an Airport Watchlist or P.A.C.E. alert be discharged;

   c. that the father book and pay for appropriate air tickets for the mother and child to return to London and provide a copy of the itinerary to the State Central Authority to provide to the mother;

   d. that within 30 days and prior to the mother and [the child’s] departure from Australia, the father consents to and obtains an Order from the appropriate U.K authority, that [the child] not be removed from the U.K to [the subcontinent] or any other Country without the written consent of the Mother;

   e. Upon release of the passports and complaisance of [sic – compliance with] Order1d, that the mother and child return to London within 60 days; and

   f. That the father consents to the equivalent of a protection order in an appropriate U.K Court that:-

   i. he not remove the child from the UK to [the subcontinent]; and

   ii. he “shall not contact, harass, assault, intimidate, threaten, or otherwise interfere with the mother, the child;

   iii. that the Central Authority provide the mother’s solicitor with evidence of such an order being made within 14 days prior to the mother and child returning to London; and

   iv.any contact that he has with the child, […], is supervised by an appropriate child service.

   g. That the details of the child’s return to London not be disclosed to the father;

   h. That the child be returned in the company of the mother;

   i. That the father shall provide, 30 days prior to the mother’s departure from Australia:-

   i. provide [sic] an agreed amount of financial support or income to the Mother until she has received a level of government housing and financial assistance which will enable the Mother to provide for the child independently; and the Mother shall provide to central Authority within 10 days of these Orders details of her bank account to effect the transfer of monies;

   ii. provide[sic] an agreed amount of financial support to the Mother for the initial and usual costs incurred in leasing a home appropriate to the child’s needs;

   j. That in the event that the father:

   i. fails to consent to pay monies ordered by the Court prior to the Mother’s departure; and/or

   ii. fails to consent to or obtain an Order from the appropriate U.K authority that [the child] not be removed from the UK to [the subcontinent] or any other Country without the written consent of the Mother;

   then the Mother be granted leave to re-list the matter before the Family Court of Australia.

   k. That the mother be provided with legal aid or the equivalent in the UK to enable her to prosecute her family law proceedings including the consideration of any application she may wish to bring allowing her to relocate to Australia with the child from the UK.

   3.2. And in the event that the father:-

   a. fails to provide the return air tickets; or

   b. fails to provide the sum required by way of support for the mother and the child by the due date; or

   c. fails to consent to Orders specified in paragraph 3.1.f;

   Then the return order shall lapse and the application for the return of the child shall be discharged.

3. 3.1.a and 3.1.b are necessary if the child’s return is ordered. The issue of abduction has already been largely discussed. What is necessary to avoid an intolerable situation and grave risk is a court order which prohibits the child from being removed from the United Kingdom by the father and restrains the father from permitting such removal without written consent of the respondent. There is no reason why the father should not obtain such an order from an English court with jurisdiction. It should be made before the child is due to leave for the United Kingdom as a condition of his return, if return is ordered. If there is an English equivalent of a watch list at points of exit from the United Kingdom and a practical capacity to administratively prevent children being removed from the jurisdiction, the father should be required to arrange for the child’s name to be placed on that list and not removed from it without the mother’s consent or further order of a court of competent jurisdiction. He should also agree to orders requiring him to do anything else, including give any consent needed, to ensure administrative action can be taken to prevent the child’s removal from the UK.

4. The issue of residence for the child could be the subject of orders which ensure that the child has stability in his life and is not subjected to trauma before an appropriate interim residence hearing can take place in the UK if he is returned. The practical course would be to require the father to apply for orders to be made by an English court before the child arrives. It is clearly in the child’s best interest that there is no tug-of-war over him on his return and that until an English court can make interim orders on his return he should reside with and be principally cared for by the respondent. I shall require the father to consent to orders which ensure this.

5. The respondent seeks supervised contact by an appropriate child service. I do not know what is available in England. I do not know who else might agree to supervise and cannot judge the suitability of any volunteer, especially in respect of knowledge of the obligations of supervision and responsibility to uphold them. I am not satisfied that supervision by a child service or a family member is needed, given that there should be sufficient protection from abduction. Nevertheless, I think that the issue of contact is a matter best left for the UK court at the same time as it deals with interim residency. In the meantime, a residence order should be sufficient protection for the child. He is unlikely to be harmed by having no contact with his father until an interim decision is made in England if the respondent is unwilling to allow contact. He is only two and a half years old now and has seen little of the father since January 2008 and nothing of him since mid September 2008. I shall not require an order for no contact until the issue can be dealt with on its merits in England. Hopefully, it will be possible for the parents to agree on satisfactory contact arrangements in the meantime.

6. I am not satisfied that the father should also be required to consent to a protection order. English courts are able to deal with any need, if it arises, when it arises.

7. The respondent’s request for concealment of the details of her return should be unnecessary because of the protections available in England. The father will need to notify the mother of any applications he makes by proper service and the mother, too, if she is to be a party in proceedings, will have to provide an address for service. I shall order the parents to keep one another informed of their addresses for service in England from the time I make any orders in this matter before the mother arrives in England. I envisage that the respondent may change her address for service after she arrives.

8. The respondent’s claim for legal aid is quite fanciful. I have no idea whether she would qualify or not. I do not have the power to order that she be given English legal aid or any other legal aid. It is not appropriate to make a grant of legal aid in England a condition for return. The respondent would, if the child did not have to return, have no guarantee of gaining legal aid for any parenting proceedings in Australia. The claim for some equivalent to legal aid is really a claim that the father pay an amount to her to meet her prospective legal costs for the UK Children’s Act proceedings. That if it was a direct costs order it would be beyond my jurisdiction. What should not be done directly, should not be done indirectly.

9. The applicant, by a minute provided to me by her Counsel on the day of the hearing, asked for these orders:

   1.That the parties make such arrangements as are necessary for [the child] (male) born […] June 2006 (“the child”), to return to United Kingdom in the company of [the respondent]) born […] May 1976 (“the mother”).

   If the court is to make an order for there to be payment of the child’s ticket by the Father to the Mother then:

   2.That the mother notify the State Central Authority in writing within 5 working days of these orders of the following details regarding her nominated Australian bank account:

   2.1The name and address of the bank;

   2.2The name under which her account was opened;

   2.3The branch and account number; and

   2.4Any necessary information for an international bank transfer.

   3.That the mother provide to the State Central Authority within 5 days of these orders a proposed itinerary and invoice for the child’s one way economy return ticket to the United Kingdom in Australian Dollars.  

   4.That within 5 days of receiving documentation from the mother in accordance with order 3 that the State Central Authority provide this information to [Mr Awa] born […] June 1973 (“the father”).

   5.That within 7 days of the father receiving the propsed itinerary and invoice the father shall pay the amount specified on the invoice for the child’s one way economy ticket to the United Kingdom into the mother’s nominated account and the father provide documentary evidence of this to the State Central Authority.

   6.That within 3 days of receiving the evidence from the father referred to in order 5 that the State Central Authority provide a copy of this evidence to the mother’s legal representatives.

   7.That within 7 days of the State Central Authority sending a copy of evidence of the father’s deposit into the mother’s account to the mother’s legal representative the mother book and pay for one way tickets for her and the child to travel to the United Kingdom. The travel date is to be no later than 14 days after the State Central Authority sends the evidence that the father has deposited the amount referred to in order 2 into the mother’s nominated account.

   8.That the mother will provide the State Central Authority with a copy of the itinerary for her and the child and a tax invoice or receipt for the one way tickets for the mother and child to the United Kingdom within 3 days of making the booking.

   9.That if there is any short fall due to a change in the price of the child’s one way economy ticket to the United Kingdom between the time that the mother provides a proposed itinerary and invoice to the State Central Authority in accordance with order 3 and the time that she books and pays for the child’s ticket the mother shall meet this short fall.

   If the court is to make an order that the mother meet the cost of the child’s return to the United Kingdom.

   10.That the mother book and pay for tickets for her and the child to return to the United Kingdom within 21 days of this order.

   11.That the mother provide the State Central Authority with a copy of the itinerary for her and the child within 3 days of making the booking.

   Other orders

   12.That the Registrar of the Family Court of Australia (Sydney Registry) release the mother’s passport and the children’s passports to the legal representative for the State Central Authority as soon as possible. The State Central Authority shall send the passports to the mother’s legal representatives within 3 days prior to the departure date on the itinerary provided in accordance with order (8 or 11).

   13.That the Australian Federal Police permit [the child] (male) born […] June 2006 and [the mother], born […] May 1976 to depart Australia and travel to the United Kingdom after being presented with the flight details for [the child] (male) born […] June 2006 and [the mother], born […] May 1976 and a copy of these orders by the legal representative for the State Central Authority.

   14.That following the departure of [the child] (male) born […] June 2006 from Australia for the United Kingdom that the Australian Federal Police remove the names of the following persons from the PASS Alert system in operation at all Australian International arrival and departure points as soon as practicable:

   14.3[the child] (male) born […] June 2006; and

   14.4[the mother] born […] May 1976.

   15.That following the departure of [the child] (male) born […] June 2006 from Australia for the United Kingdom that the orders made by Judicial Registrar Johnston on 28 October 2008 be discharged.

   16.That the State Central Authority as soon as practicable serve sealed copies of these orders upon the Commissioner, Australian Federal Police.

   17.That in the event that the child does not return to the United Kingdom in the company of the mother that the Applicant Central Authority shall make such arrangements as are necessary to ensure the return of the child to the United Kingdom as soon as practicable in the company of the father or another person selected by the Applicant Central Authority.

   18.That in the event that the child does not return to the United Kingdom in the company of the mother that the mother deliver the child to the offices of the Department of Community Services at [Sydney] at a time and date to be specified in writing to the mother, at least 48 hours before the child is to be delivered to the offices of the Department of Community Services to be handed to the father or a person nominated by the Applicant Central Authority to accompany the child for the return journey to the United Kingdom.

   19.That there be liberty to restore on 24 hours’ notice to the Court as to the implementation of the return order.  

   20.That each party bear their own costs.

10. I should, if I order return, give one month, for any conditions I impose on return to be met. After that, the mother should be required to make arrangements for return within 21 days of her solicitors being notified in writing by the applicant of compliance with the conditions. She should notify the applicant of those arrangements in writing within 24 hours of making them. An order similar to Order 2. is needed for the practical implementation of any payment to the respondent. A controlled moneys account in the name of her solicitors would be more appropriate and practical. Order 3. is suitable except that this should be done within 7 days of the respondent’s receipt of the written compliance notification from the applicant. Proof of purchase of the respondent’s ticket should also be provided. There is no need for order 4. The applicant can choose to inform the father as she pleases because she is entitled to take the steps envisaged by order 4. without any order of the Court. Order 5. is not necessary because it should be a condition for return that any money required to be paid to the respondent either toward the cost of a ticket or otherwise would already have been transferred to an account to which the respondent can be given access. If the father does not provide documentary evidence of payment, the applicant cannot notify the respondent that all conditions for return have been complied with. Any return orders I might make will not require order 9.

11. Orders 17. and 18. deal with the prospect, which is remote, that the respondent will decide not to return to the UK with the child and does not purchase a ticket or does not give the applicant any notice required by these orders if I make a return order and the conditions for return are otherwise met. In that event, the child should be returned to the UK without her. Orders 17. and 18. are appropriate for that purpose. It would be contrary to the interests of justice if he is not returned in those circumstances. It must be said that although the child’s best interests will be promoted if, on an order for return being made, he returns with the respondent, his best interests are not regarded as paramount in these proceedings; giving effect to the objects of the Hague Convention is the Court’s essential obligation.

12. The child’s best interests should, nevertheless, not be ignored. It would not be in his best interests, if a return order is made, to have the children’s issues between the father and the respondent decided in Australia when an English court would be in a much better position to decide contested issues of fact. Nor would it be in his best interests to allow a situation to arise which might lead the respondent to believe she can manipulate the Court and avoid its orders. She is likely to believe this if she fails to do the things which, on her part, will ensure the child’s return, if it is ordered, and thereby avoids his return. If the respondent decides not to return to the UK after the child’s return is ordered, yet receives money from the father pursuant to orders of this Court, she will have to repay it within 21 days of its receipt. I shall make an order to that effect if the child’s return is ordered.      

13. It is appropriate to exercise my discretion to order that the child be returned to the United Kingdom provided all the conditions which I regard as appropriate are met. The child should be returned in the respondent’s care and company unless the respondent does not do the things she must do to ensure his return in time. If she is remiss, the child should be returned in accordance with any arrangements the applicant sees fit to make.

14. Although I do not know what the respondent is likely to need to tide her over, I should do the best I can and assess her reasonable needs.

15. In the absence of evidence of the costs of each, I have taken judicial notice that one way economy tickets for an adult and child over two years is likely to vary greatly depending on airline, time of travel and demand. Nevertheless, it is safe to regard the mid range as being likely to be about or £1500.00. I have estimated that £8000.00 is needed for the use of the respondent so she, and the child, can be assured of being able to live at a reasonable standard until she can gain her feet in the UK or until the family court and social security systems in the UK can provide for them as necessary. This estimate assumes the respondent will be able to muster some funds of her own to add to those provided on the father’s behalf. I have assumed that it will take about four months after arrival before she is able to organise her affairs so that she can cope without any financial help and that she will need about £500.00 each week. I have assumed that she will institute arrangements for the sale of her London property before she knows whether or not she will be returning. The evidence is that she will have to sell it in any event. If she acts responsibly in arranging its sale it should take little more than five months before final settlement of a sale.

1. I am of the view that an order should be made that within one month the father pay into the mother’s solicitor’s bank account the sum of £8750.00 or the Australian equivalent. This will meet half the cost of one way airfares to the United Kingdom. The balance can be used to keep the respondent and the child while in London before they are settled there.

2. The respondent should, nevertheless, be able to use the fund in the solicitor’s trust account to pay the full cost of the airline tickets for herself and the child despite my assessment of the amount to be paid by the father on the basis that he should contribute only half that cost. The respondent will not be able to claim she cannot afford to purchase the tickets if the tickets can be purchased from the £8750.00. She should not be permitted to spend any of the balance of the £8750.00 left after she purchases the tickets until she arrives in the UK. The best way to ensure that payments are received by the respondent as needed is to ensure the applicant’s solicitors receive the £8750.00. It can be placed in their trust account and remitted to the respondent in two instalments as she becomes entitled to each pursuant to my orders. I shall make orders which achieve this end.

3. Although I do not regard it as strictly necessary, I shall order that the return order lapse if the Central Authority notifies the respondent that there has been failure to comply with all conditions for return or fails to notify her of compliance within the time limited for it.

4. I shall reserve costs. The parties should not have to consider whether to apply for costs or oppose an application before they appreciate the reasons why orders have been made.

I certify that the preceding one hundred and thirty one (131) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cohen.

Associate: 

Date:  3 April 2009