Department of Family and Community Services and Wellington

[2017] FamCA 892

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF FAMILY AND COMMUNITY SERVICES & WELLINGTON [2017] FamCA 892

FAMILY LAW – CHILD ABDUCTION – HAGUE CONVENTION – Where an application is made for the return of two children to the United Kingdom – Where the mother opposes the application and claims that the father consented in accordance with regulation 16(3)(a)(ii) of the Family Law (Child Abduction Convention) Regulations – Where the mother bears the onus of proving consent on the balance of probabilities – Where clear and cogent evidence is required to establish consent – Where the Court is not satisfied that the father consented to the removal of the children – Orders made for the mother to return the children to the United Kingdom.

Child Abduction Act 1984 (UK) s 1
Evidence Act 1995 (Cth) s 140
Family Law (Child Abduction Convention) Regulations 1986 (Cth), regs 16, 16(3)(a)(ii)

Director General, Department of Families, Youth and Community Care v Thorpe (1997) FLC 92-785
Laing v the Central Authority (1996) FLC 92-709
State Central Authority v Ayob (1997) 21 Fam LR 567
Wenceslas v Director General, Department of Community Services (2007) FLC 93‑321

APPLICANT: Department of Family and Community Services

RESPONDENT: Ms Wellington

FILE NUMBER: SYC 5993 of 2017

DATE DELIVERED: 7 November 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 1 November 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Mr Hill
SOLICITOR FOR THE APPLICANT:	Secretary, Department Of Family And Community Services

COUNSEL FOR THE RESPONDENT: Ms Giacomo

SOLICITOR FOR THE RESPONDENT: Cappello Rowe Lawyers

Orders

IT IS ORDERED

1. That the applicant and the respondent, Ms Wellington (nee …) born … 1980, make such arrangements as are necessary to ensure the return of the children B born … 2006 and C born … 2009 forthwith to the United Kingdom.

2. That the respondent pay the costs of the return of the children including airfares and any other necessary travel expenses to the United Kingdom.

3. That the respondent pay the costs of her own airfares and expenses of the return journey.

4. That a sealed copy of this Order be served upon the Australian Federal Police.

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

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

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5993 of 2017

Department of Family and Community Services

Applicant

And

Ms Wellington

Respondent

REASONS FOR JUDGMENT

1. On 12 September 2017, the Secretary of the Department of Family and Community Services (“the applicant”) filed an application pursuant to the provisions of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”) for the return of two children, B born in 2006 and C born in 2009, to the United Kingdom where they had been habitually resident.

2. The mother, Ms Wellington (“the respondent”), opposed the application.

3. The matter was listed for hearing on 1 November 2017. The children’s father, Mr Wellington, swore an affidavit in the proceedings and was cross-examined by telephone. The mother was present in Court and was cross-examined.

4. No conditions of return were sought in the event that the application was granted and the respondent, through her counsel, indicated that, if the application were granted, she would return to the United Kingdom with the children.

THE LAW

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

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

   Obligation to make a return order

   (1)   If:

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

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

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

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

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

   (a)       the child was under 16; and

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

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

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

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

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

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

   (2)   If:

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

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

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

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

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

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

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

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

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

   (c)       each of the following applies:

   (i)        the child objects to being returned;

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

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

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

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

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

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

3. In the present proceedings, it was conceded that the conditions precedent had been established.

4. The respondent relied on regulation 16(3)(a)(ii), asserting that the father had consented to the removal of the children from the United Kingdom. On behalf of the respondent, counsel conceded that, if the Court were not satisfied that the father consented to the removal of the children, any other defence, such as the assumption of another habitual residence, fell away.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

8. Thus it is clear that the defence of consent refers to events that occurred before the children left the United Kingdom and acquiescence can only arise after the children had been removed.

THE EVIDENCE

1. The respondent relied on affidavits by herself and by her mother, Ms D.

2. The respondent and the father lived in the United Kingdom during their marriage. B was born in the United Kingdom.

3. The father and the respondent travelled together to Australia from the United Kingdom in December 2008 until April 2009. C was born in Australia. The respondent and the children travelled to Australia for a holiday without the father in 2014.

4. The mother and children left the United Kingdom on 14 September 2016 and arrived in Australia on 16 September 2016. The operation of the Convention is triggered by the removal of the children.

5. The respondent relies on three separate matters to establish the father’s consent to the children relocating to Australia.

   ·    Firstly she relies on their conversations in relation to relocating to Australia as a family and living in E Town;

   ·    Secondly she relies on the events immediately before and at the time she left the United Kingdom with the children; and

   ·    Thirdly, she relies on the contents of various text and email messages which, she submits, evidence the father’s consent.

6. It is necessary to examine the evidence in relation to each proposition, noting that the respondent asserted that the father’s consent was evidenced both by his statements in oral conversation and by inference, from his actions.

Intention to move permanently to Australia

1. The respondent asserts that there were numerous conversations between her and the father about moving to Australia. The father agreed that there were conversations and that he was aware that the respondent wanted the family to move to Australia but it was his evidence that they had never reached any concluded agreement.

2. The respondent deposed that she and the father discussed buying or building a house in Australia, specifically in E Town where the respondent’s mother lived. The father conceded that some conversations occurred but said that the issue of purchasing property in Australia was mainly discussed between the respondent and her mother but that he was informed from time to time about their discussions.

3. Ms D bought a house in E Town. There is a dispute on the evidence as to whether there were conversations between the father, the respondent and Ms D where the father indicated an intention to permanently live in the house in E Town.

4. The father denies that he ever said he agreed to live in Australia. He said, in cross-examination, that he had agreed to consider the proposition.

5. On 25 August 2016, the respondent sent a text message to the father stating, “The hardest thing for me to cope with is that I know it’s doable for you to sort out coming, but I don’t believe that you even want to bother…”

6. Ultimately, the evidence of the respondent in cross-examination was in the following terms:

   Counsel:Ok, what you are saying is that over a period of time you have been seeking for him [the father] to come with the children to Australia?

   Respondent:   Absolutely

   Counsel:And the last part of the situation in 2016, he was not willing to go to Australia, was he?

   Respondent:   I was hopeful he was, and I never firmly thought that he wouldn’t. But I was always hopeful he would, yes.

   Counsel:        You were hopeful he would?

   Respondent:   Absolutely

Counsel:That basically you would go to Australia, and then he would follow you?

Respondent:   Yes that’s correct

1. I am satisfied, on the evidence of the respondent, that there was no concluded agreement between the respondent and the father that the family would move permanently to Australia, or at all.

The events at the time the children left the United Kingdom

1. The respondent and the children left the United Kingdom on 14 September 2016 and flew to Australia.

2. The respondent bears the onus of proof in relation to her assertion that the father consented to her removing the children.

3. The respondent deposed to a number of very detailed conversations in which, she stated, the father agreed to the children living in Australia. In cross‑examination, the father denied having ever made such an agreement. Having heard both the respondent and the father cross-examined, I was not able to form the view that the evidence of either of them as to their conversations was more credible than that of the other. I am unable to prefer the version of conversations given by one parent over the other.

4. Therefore the matter falls to be determined having regard to the circumstances surrounding the removal of the children and noting that the onus of proof rests with the respondent to establish the defence which she asserts.

5. Annexed to the father’s affidavit is a series of text messages sent in May 2015 between the respondent and another person in relation to her intention to leave the father. The respondent states, inter alia, “I’m gonna go without him”. In response to a query about the children, the respondent wrote, inter alia:

   I’m going to take them. If he tries to stop me I will have to get a court order. He can have everything here if he lets me. If not I will get the house sold through the divorce. I will then go (sic) have a better chance to get them because I will have a house out there...

6. In about October or November of 2015, the father sent a message to the respondent which stated, inter alia, “I RESENT YOU AND I GIVE YOU NO PERMISSION TO TAKE MY KIDS ANYWHERE.”

7. The respondent deposed that, in June 2016, she made up her mind to leave the United Kingdom and return to Australia. This occurred during a period when the respondent and the father were temporarily separated and the respondent and the children had moved to the house of a friend.

8. At some time, unspecified, probably in July 2016, the father removed the children’s passports from the house and gave them to a friend, Mr F, for safe keeping.

9. The respondent purchased airline tickets on 11 August 2016.

10. On 31 August 2016, the respondent searched the house but was unable to find the children’s passports. There was a conversation between her and the father. He told her where the passports were.

11. She sent a text message to Mr F saying, “Hi [Mr F], I need my kids (sic) passports from your girlfriends (sic) house to get their visa’s (sic) sorted.. can you please let me know where she lives”.

12. The passports were delivered by Mr F to the respondent. Annexed to the affidavit of the father was a letter from Mr F which stated:

    Following our telephone conversation regarding your childrens (sic) passports, namely [named], I confirm herewith that you gave them to me for safekeeping sometime around July 2016.

    The reason you gave me (sic) at the time was because you were uncertain as to your wifes (sic) intention to take them to Australia without your consent which you thought was a strong possibility due to the difficulties you were going through with your marriage at that time.

    I also confirm that the passports were returned to [the respondent] at her request and without your knowledge when she advised me that the problems had been sorted out.

13. The respondent applied for a visa to enter Australia for each child on 6 September 2016. The father was not aware of the applications for the visas and he did not sign them. How the respondent was able to obtain visas for the children without the consent of the father has not been explained. The applications for the visas were not in evidence.

14. The fact that the respondent did not ask the father to sign the visa applications is not consistent with her evidence that she believed he consented to the children leaving.

15. A visa was granted to B on 6 September 2016. For reasons that were not explained, the letter addressed to B notifying her of the issue of the visa was addressed to “G Street, Suburb H QLD …”.

16. The visa granted to B was an E-visitor class visa for three months.

17. The father deposed that he formed the view that the respondent would take the children to Australia whether or not he consented.

18. On 7 September 2016 he sent a message to the respondent which stated:

    you need to sort the school out. Also you need to throw away anything of yours and the kids that you’re not taking or don’t want.. Like books handbags makeup pictures candles, anything that’s yours that you’re not taking or don’t want.. Like beds, toys ect (sic) I don’t want them here reminding me.. I couldn’t even go in there (sic) rooms if there (sic) stuff was still here. So if you only got a week then you had better get to it…

19. Later the same evening, the father sent another message to the respondent stating:

    Wtf? Are you telling me you’re not even going to pay for the secured loan you put on my house? You’re leaving me forever and you’re telling me you hate me? Wtf?

    You need to be getting rid of everything of yours and the kids that you’re not taking..

    I don’t want (sic) constant reminder all over the house. Why are you being such a [expletive deleted]

20. The respondent packed six suitcases of belongings. She deposed that the father helped her pack the Play Station. He denied that he did so.

21. On 13 September 2016, there was a farewell party at a local hotel attended by the respondent, the children, the father and members of the father’s family.

22. On 14 September 2016 the father drove the mother and the children to the coach station to catch the bus from County K to Heathrow Airport. He said in cross-examination that he did so because he believed that, if he refused, the respondent would call a taxi and he said that he used the journey to beg her not to leave.

23. The respondent deposed that the father stayed in the car at the coach station and said “I am going to stay in the car, I don’t want to (sic) kids to see me cry”.

24. There is some support for the father’s version of this event in text messages exchanged with a friend of the respondent which are annexed to the father’s affidavit. In those messages, sent on 29 December 2016, the father states “Even tho (sic) I begged them not to go in tears”, and the friend responded “Yeh she said that now I understand…”

25. The paternal grandparents went to the coach station to farewell the children.

26. In cross-examination, the father said that he was confident that the respondent would not be permitted to leave the United Kingdom with the children and that she would be stopped by immigration authorities at the airport. This confidence on the part of the father was not unreasonable.

27. Section 1 of the Child Abduction Act 1984 (UK) provides that it is an offence to remove a child from the United Kingdom without “the appropriate consent”.

28. Annexed to the father’s affidavit is a document entitled “The Current Law: The Basics” which stated that written consent is needed to remove a child from the UK. The document provides, “No person may remove a child from the UK without the written consent of the other parent and/or any other person who has Parental Responsibility for the child, or the leave (permission) of the Court.”

29. The contents of the document accord with the provisions of the Child Abduction Act 1984 (UK).

30. There were no orders then in place in relation to the children and no application had been made to a Court by the respondent seeking leave to relocate to Australia.

Text messages and emails

1. In addition to the messages to which reference has been made earlier in these reasons, the respondent relied on messages exchanged after she arrived in Australia with the children.

2. On 17 September 2016 the father messaged, “Hiya. You moved in yet or what? What time is it there? Now. Can u make sure [C] (sic) downloads all five battlefield map packs as they r free.”

3. The father, in cross-examination said this was a reference to an online game that he played with C.

4. On 28 September 2016, the father messaged, “You evil cheating [expletive]. I let you go with no hassles and then you want a war with me because I’ve found you cheating already????”

5. On 4 October 2016 at 12.52 am the father messaged, “Do you realise if it wasn’t for my mum I wouldn’t have let the kids go without a fight”.

6. And at 1.11 am he messaged, “She said I should let you go before you caused us anymore grief. I listened to her instead of my head and my dad … Who forged your form you needed to steal my children.”

7. And at 2.05am, “How did you get them out of the country without my permission then?”

CONSIDERATION

1. It is not sufficient to rely, as the respondent does, on her assertion that the father took no active steps to prevent the children from leaving the United Kingdom.

2. In any event, I do not accept that assertion. The father gave the children’s passports to Mr F to prevent the respondent removing the children. The respondent has not demonstrated that the father was aware that the passports had been returned to her. 

3. The respondent must demonstrate that the father’s consent was real, clear and unequivocal.

4. The respondent deposed to various conversations between her and the father, prior to travelling to Australia, whereby, she alleged, the father told her that she had his consent or permission to relocate with the children to Australia. For the reasons I have stated, I am unable to find that the respondent’s evidence of those conversations is more credible than the father’s denials. In the face of the father’s denials, I am not able to find that those conversations occurred as the respondent asserts.

5. He took steps to prevent her having access to the children’s passports. He signed no document which would have enabled their departure.

6. The fact that he drove them to the coach station is as consistent with his explanation that he could not prevent them leaving and wanted to use the time to persuade them to stay, as it is with consent.

7. Similar considerations must apply to his attending the farewell party. That attendance is as consistent with consent as it is with the father’s explanation in cross-examination that he did not want the children to be upset by his absence.

8. Of the messages sent after the respondent left with the children, only the messages sent on 4 October 2016 could have any relevance. At best, the first and second messages sent on 4 October 2016 demonstrate that the father took no active step to prevent the children leaving. They do not go so far as to demonstrate clear and unequivocal consent.

9. I accept that the father believed, reasonably, that the respondent would not be allowed to remove the children from the United Kingdom without written evidence of his consent.

10. The fact that the father took no positive step to prevent the removal of the children, in those circumstances, does not evidence clear and unequivocal consent to their removal.

11. Similar considerations would apply in relation to a defence of acquiescence should the respondent seek to rely upon it. The authorities indicate that acquiescence can be inferred from conduct alone (Director General, Department of Families, Youth and Community Care v Thorpe (1997) FLC 92-785; State Central Authority v Ayob (1997) 21 Fam LR 567), but that mere passivity is not sufficient (Laing v the Central Authority (1996) FLC 92-709).

12. Insofar as the respondent might seek to rely on the messages to which reference has been made earlier in these reasons, they do not demonstrate that the father acquiesced to the children remaining in Australia.

13. Accordingly, I find that no defence is made out.

14. Orders will be made in accordance with the application.

I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 7 November 2017.

Associate:

Date:  7/11/2017