Director-General, Department of Child Safety & S

[2005] FamCA 1115

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA
AT BRISBANE No. DNF121 of 2005

BETWEEN:
  DIRECTOR-GENERAL
  DEPARTMENT OF CHILD SAFETY
  Applicant

AND:

S
Respondent Mother

BEFORE THE HONOURABLE JUSTICE O’REILLY

REASONS FOR JUDGMENT

Dates of Hearing: 28 October 2005

Date of Judgment: 22 November 2005

Appearances:
Mr Green of Counsel, instructed by Helen Tooth (an officer of the Department of Child Safety), appeared on behalf of the applicant
Mr Westbrook of Counsel, instructed by Emerson Black, Lawyers, appeared on behalf of the responde

Name of Case: DIRECTOR-GENERAL DEPARTMENT OF CHILD SAFETY AND S

File Number:  DNF 121 of 2005
Date of Hearing:                   28 October 2005
Date of Judgment:                22 November 2005
Coram:  O’Reilly J

Catchwords: Hague Convention - Breach – the true construction of Article 3 of the Convention

Legislation:Family Law (Child Abduction Convention) Regulations 1986 (Cth), Regs 15, 16(1A)(d), 16(3)(a)(ii), 16(5)

Cases considered:A v A(Children) (Abduction: Acquiescence) [2003] EWHC 3102 (Fam)
De L v Director-General, New South Wales Department of Community Services (1996) 187 CLR 640
Re F (A Minor)(Child Abduction) [1992] 1 FLR 458
Re H (Abduction: Acquiescence) [1998] AC 72
M v M [2005] NZFLR 67
In re P (A Child) (Abduction: Custody Rights) [2004] EWCA Civ 971
Panayotides and Panayotides (1997) FLC 92-733
Regino and Regino (1995) FLC 92-587

Application

This is an application filed on 15 August 2005 by the Director-General, Department of Child Safety under the Family Law (Child Abduction Convention) Regulations for an order pursuant to reg 15 of the Regulations that the child J born in December 2003, now nearly two years, be returned to the United Kingdom.
An earlier application filed on 5 July 2005 by the Northern Territory Central Authority, I understand, either has been superseded or merged in this application.

Issues

Counsels for the Central Authority and the mother stated at the outset of the hearing that for the purpose of these proceedings:
·the mother accepts that the matters in reg 16(1A)(a), (b), (c) and (e) are established (child under 16; habitual residence in the United Kingdom; father has rights of custody under the United Kingdom law; father actually exercising or would have exercised rights of custody)
·the mother relies upon reg 16(3)(a)(ii), namely that the father had consented or subsequently acquiesced in the child being removed to, or retained in, Australia.
The effect is that the matters in issue are:
·under reg 16(1A)(d), whether the child’s removal to, or retention in, Australia was in breach of the father’s rights of custody
·under reg 16(3)(a)(ii), whether the father had consented or subsequently acquiesced in the child being removed to, or retained in, Australia
·under reg 16(5), if the mother establishes consent or acquiescence under reg 16(3)(a)(ii), whether the residual discretion ought not be exercised in any event to order the return of the child to the United Kingdom.

Relevant background facts

The requesting applicant is J’s father. He was born in the United Kingdom and is 39 years. He is a United Kingdom citizen and resides in the United Kingdom.
The respondent mother was born in the United Kingdom and is 42 years. She has dual United Kingdom and Australian citizenship and now resides in Australia.
The child was born in the United Kingdom and has dual United Kingdom and Australian citizenship.
The mother and the father met in 1997.
They did not marry.
The parties had a short relationship in 1997-1998, in England, followed by a break. They resumed their relationship in England, in 2000, and cohabitated there between October 2001 and February 2004, the child being born on 10 December 2003, only some months before the cessation of the parties’ cohabitation.
On 13 February 2004, the mother and the child visited Australia.
In March 2004, the father visited Australia, the mother and the child still being here.
The father returned to the United Kingdom in April 2004.
The mother and the child returned to the United Kingdom on 8 June 2004, however, the parties did not again cohabit.
The mother left the United Kingdom with the child on 6 September 2004, and has resided in Australia with the child since then.
On 3 September 2004, the father had applied, ex parte, to the Gloucester County Court for what is described as an Emergency Application for a Prohibited Steps Order. On that date, District Judge Goddard ordered that the application be listed for directions on 7 September 2004. Although the Gloucester County Court order does not show that District Judge Goddard ordered the mother to appear on that date, the father says (affidavit filed 19 October 2005, par 4(c) “Unfortunately, the presiding District Judge felt that he needed to hear the Respondent’s view and listed the hearing for the following Tuesday 7 September 2004. …”.
In the meantime, on 6 September 2004, the mother departed the United Kingdom with the child, and arrived in Australia.

Breach – the true construction of Article 3 of the Convention

The Central Authority has the onus to establish that the removal or retention was a breach of the father’s rights of custody and thus wrongful.
A question arose during the hearing as to the relevance of the alleged consent to the child’s removal in ascertaining whether there has been a breach of the father’s rights of custody, within the meaning of Article 3 of the Convention, reflected in reg 16(1A)(d).
In In re P (A Child)(Abduction: Custody Rights) 2004 EWCA Civ 971; 2004 All ER (D) 520; 2005 Fam 293, the English Court of Appeal (in a Judgment of the Court comprising Ward, Scott Baker LJJ and Lawrence Collins J) recently held that consent does not fall to be considered for the purpose of establishing the wrongfulness of a removal or a breach of rights of custody:
“22 For reasons we give later in this judgment, we have decided that consent does not fall to be considered for the purpose of establishing the wrongfulness of the removal or a breach of rights of custody pursuant to article 3 but only for the purpose of invoking an exercise of the court’s discretion pursuant to article 13. It is thus unnecessary to decide where the onus of proof lies if, contrary our views, consent is relevant under article 3. Our provisional view is that the claimant has to establish that he or she has rights of custody and that there is a prima facie breach. The burden would then shift to the defendant to establish consent. It would be wrong to require the claimant to prove a negative, the absence of consent, as a prerequisite to his entitlement to relief.”
[bold emphasis added]
See also at pars 28-32, in which competing judicial views are set out, and in particular the conclusion of the English Court of Appeal at par 33:
“33 We prefer the views expressed by that majority of opinion. If the giving of consent prior to the removal had the effect that the removal could never be classified as wrongful or in breach of the right of custody, then there would be no need for article 13 at all. Whereas acquiescence is expressly recognised to be acquiescence subsequent to the removal, consent is not so limited in article 13 and must, therefore, include permission which is given before the removal. If clear unequivocal and informed consent is given to the removal of a child, then it is difficult to see why the court should not exercise the discretion conferred by article 13 to permit the child to remain in the country to which it was agreed he or she should go. The policy of the Hague Convention is to protect children internationally from the harmful effects of their wrongful removal or retention. If a child is removed in prima facie breach of a right of custody, then it makes better sense to require the removing parent to justify the removal and establish that the removal was with consent rather than require the claimant, asserting the wrongfulness of the removal, to prove that he or she did not consent. Article 3 should govern the whole Hague Convention and article 13 should take its place as the exception to the general duty to secure the return of the child which is, after all, the basic principle of the Convention. …”
[bold emphasis added]
Where a treaty is incorporated as part of the local law, Australian courts will interpret that law in accordance with the international law governing the interpretation of treaties, as a matter of law and out of comity to ensure that the interpretation of international treaties by Australian courts will, so far as possible, conform to the approach which will be taken by the courts of other countries in relation to the same treaty. See, eg, De L v Director-General, New South Wales Department of Community Services (1996) 187 CLR 640 at 675 per Kirby J.
Thus, it is appropriate that I apply the construction of Articles 3 and 13 determined in In re P, which I propose to do.
In Regino and Regino (1995) FLC 92-587 Lindenmayer J determined that a father had consented to a removal and retention and that accordingly there was no breach. In that case the Central Authority had conceded that if there had been consent there would be no wrongfulness. See at 81,813. However, at 81,818-9 Lindenmayer J expressed doubt as to the correctness of the concession.
Although the English Court of Appeal in In re P stated plainly that consent does not fall to be considered for the purpose of establishing wrongfulness, nonetheless it is necessary to consider what the English Court of Appeal meant by the expression prima facie breach in In re P.
Counsel for the Central Authority submitted that “having regard to recent case law on the way in which consent is treated, the father’s assertion is sufficient evidence for the Court to find a prima facie breach, citing In re P at par 22; and that a prima facie breach is shown by the mere assertion by the father that the removal was without his consent.
Counsel for the mother did not oppose the submission that the establishment of a prima facie breach (breach under reg 16(1A)(d) being the only reg 16(1A) element in issue in the case) led then to the Court considering the issue of consent under reg 16(3)(a)(ii), and that the mere assertion by the father that his consent had not been given to the removal would be sufficient to raise a prima facie case of breach. Counsel for the mother submitted however that this step, properly characterised, would be an “intermediary step”. He submitted that if the Court then should determine under reg 16(3)(a)(ii) that the removal was with the father’s consent, the Court should revisit reg 16(1A)(d) to make an actual finding that there was no breach; with the effect that the Court then could not find that the removal was wrongful so as to enliven the residual discretion under reg 16(5).
Counsel for the Central Authority opposed the proposition of there being any “intermediary step”, submitting to the effect that the subparagraphs of reg 16 were intended to be applied in the order in which they appear, so that, once the five elements in reg 16(1A) are established, there are no “reverse gears”, and the Court must go on to consider, in turn, any issues raised under reg 16(3); and then (if relevant) the exercise of the residual discretion under reg 16(5), without at any stage revisiting reg 16(1A).
I accept Counsel for the Central Authority’s submission that there are “no reverse gears”, once the matters under reg 16(1A) are established, so that Counsel for the mother’s “intermediary step” proposition is in my view wrong. However, that proposition in itself seems premised upon the erroneous proposition put by Counsel for the Central Authority that consent falls to be considered under reg 16(1A)(d).
I will now explain my reasons for rejecting Counsels’ carefully considered views.
It is axiomatic that a party does not aver and ought not aver to that which he or she does not have to prove.
Consent is not referred to in Article 3 (reg 16(1A)), and thus is not one of the elements or formalities of a Hague Convention case upon which the Central Authority carries the onus.
Thus, it is irrelevant, and ought not be pleaded or the subject of evidence in any Central Authority’s case under Article 3 (reg 16(1A)) that a removal was with or without consent. It is up to a respondent to plead and adduce evidence on that issue. It would then be a matter for the Central Authority, if it wished, to adduce evidence in response in respect of that issue.
Further, Article 3 and reg 16(1A)(d) do not speak of any prima facie breach of rights of custody, but rather a removal or retention being in breach of those rights. The Convention contemplates that a removal is “wrongful”, per se, by the application of Article 3, which provides that the removal or retention will be “considered wrongful” if the elements in Article 3 are established; so that, by Article 12 (reflected in reg 15) the child must be returned, subject only to Article 13 (reflected in reg 16(3)), which vests the discretion not to return the child.
It is instructive, in this regard, to set out (so far as relevant) Articles 3, 5, 12 and 13 of the Convention:
“Article 3
“The removal or retention of a child is to be considered wrongful where –
(a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the state in which the child was habitually resident immediately before the removal or retention; and
(b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.
The rights of custody mentioned in sub-paragraph (a) above may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.”
“Article 5
“For the purposes of this Convention –
(a) “rights of custody” shall include rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence;
(b) “rights of access” shall include the right to take a child for a limited period of time to a place other than the child’s habitual residence.”
“Article 12
“Where a child has been wrongfully removed or retained in terms of Article 3 … the authority concerned shall order the return of the child forthwith.”
“Article 13
“Notwithstanding the provisions of the preceding article the judicial or administrative authority of the requested state is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that –
(a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or…”

[bold emphasis added]

It is difficult to perceive within the scope of Article 3 any concept of a prima facie breach of rights of custody. Rather, it seems to me that Article 3 contemplates that a removal or retention will be in breach of rights of custody if, for example, it be established simply that the removal, or retention, is contrary to or interferes with rights of custody, as defined in Article 5. Thus, if it be established that any removal, or retention, was contrary to or interfered with existing rights of custody (as defined in Article 5) the removal, or retention, will be characterised as wrongful. Plainly enough, there would not be wrongfulness if the party removing, or retaining, the child had sought and obtained in the place of habitual residence an order to relocate with the child. This is because, if such an order be made, the rights of custody would be altered according to the content of the order so that, provided the removal, or retention, conformed with the order, there would be no breach.
Once it is established however that there is a wrongful removal, or retention, in this sense, the person who committed the wrongful act has the opportunity to invoke Article 13 (notwithstanding Article 12) not to have to return the child.
On this analysis, the English Court of Appeal can only have meant, I think, that once it is established that a removal, or retention, was contrary to or interferes with rights of custody, that will be sufficient to find that the removal, or retention, was in breach of those rights. There is I think no other interpretation of what may have been meant, which is consistent with Article 3, nor the Convention read as a whole; and consistent also with that Court’s determination that consent does not fall to be considered for the purpose of establishing wrongfulness (par 22) as otherwise there would be no need for Article 13 at all (par 33).
In this regard, in my view it is inappropriate to characterise the discharge of the onus under Article 13 (reg 16(3)) as in any sense a “justification” of the act which is “considered wrongful” in that the discharge of the onus would then have the effect that the act ceases to be wrongful. It does not. It remains wrongful. It is just that, if the onus is discharged, and if the child is not returned, that is the result of the exercise of a discretion, not a right flowing from a justification.
This analysis is consistent with the approach that the matters in Article 3 are regarded as “formalities” (although an onus attaches to them) as constituting the fundamental prerequisites for a competent application by a Central Authority. By way of analogy, reg 16(1A)(e) also reflects (in part) par (a) of Article 13. For the purpose of presenting a competent application it would simply need to be averred and sworn that at the time of a child’s removal, or retention, there was actual exercise of the rights of custody or that they would have been exercised if the child had not been removed or retained, without more, unless the respondent raised the issue under reg 16(3)(a)(i), and assumed thus the onus of proof on the matter. It would then be a matter for the Central Authority, if it wished, to adduce evidence in response in respect of that issue.

Breach – was the mother in breach of the father’s rights of custody?

I turn then to consider whether, on the evidence, the mother was in breach of the father’s rights of custody at the time of the removal.
The father’s rights of custody in this case derive from his “parental responsibility” arising under United Kingdom statute law by the circumstance of his being registered as the child’s father, which “parental responsibility” under United Kingdom law includes “the right to decide where a child lives, provided that no care order has been made.” See the affidavit of Mr D (United Kingdom solicitor) filed 19 October 2005, pars 2-5, and annexure RLD1, being a certified copy of the registration of the child’s birth, including in the particulars of the certificate the name of the father as the child’s father.
The evidence does not indicate that any “care order” (see above) in respect of the child had been made in the United Kingdom.
Thus, the mother’s removal of the child, plainly, was in breach of the father’s rights of custody within the meaning of Article 5 and reg 16(1A)(d), in that the removal was contrary to or interfered with the father’s right to determine the child’s place of residence.

Consent - Article 13 (reg 16(3)(a)(ii))

The party raising an issue under Article 13 (reg 16(3)) carries the burden of proof.
In In re P, the English Court of Appeal said, as to the proper approach in resolving disputed matters of fact:
“20 The law is well settled. In In re F (A Minor) (Child Abduction) [1992] 1 FLR 548, 553-554 Butler-Sloss LJ said:
“If a judge is faced with irreconcilable affidavit evidence and no oral evidence is available or, as in this case, there was no application to call it, how does the judge resolve the disputed evidence? It may turn out not to be crucial to the decision, thus not requiring a determination. If the issue has to be faced on disputed non-oral evidence, the judge has to look to see if there is independent extraneous evidence in support of one side. That evidence has, in my judgment, to be compelling before the judge is entitled to reject the sworn testimony of a deponent. Alternatively, the evidence contained within the affidavit may in itself be inherently improbable and therefore so unreliable that the judge is entitled to reject it. If, however, there are no grounds for rejecting the written evidence on either side, the applicant will have failed to establish his case.”
In In re F (A Minor)(Abduction: Custody Rights Abroad) [1995] Fam 224, 232 she added:
“Admission of oral evidence in Convention cases should be allowed sparingly. If the issues between the parties cannot be resolved on affidavit the article 13(b) criteria will not have been established. The child is returned pursuant to article 12 and it will be for the court of habitual residence to determine the disputed issues with the opportunity to hear oral evidence and the parties cross-examined.” ”

In Panayotides and Panayotides (1997) FLC 92-733 (FC) at 83,897, the Full Court of the Family Court of Australia (by implication) approved the following approach: (1) to look at the versions of each party; (2) to find the common ground; (3) to note the areas of conflict; (4) to look to the inherent probabilities; and (5) concerning the intent of the parties, where this is a matter of some conjecture, to look at the conduct of the parties and to any documentary or corroborative evidence which may help to determine that issue.
In In re P at par 33 (set out above) reference is made to the giving of “clear unequivocal and informed” consent to the removal of a child in the context that, if this is shown, it would be difficult to see why a court should not exercise the discretion to permit the child to remain in the country to which it was “agreed” he or she should go. Other formulations include similar expressions such as “real, positive and unequivocal” consent, and evidence as to consent which is “clear and compelling”. See, eg, M v M [2005] NZFLR 67, at pars 15-17, per Somerville J.
I do not understand these phrases to mean that the standard of proof is other than the civil standard (see, eg, M v M (above) at par 23), but rather to refer to the quality of the evidence requisite to meet that standard.
Thus, where there is disputed non-oral evidence, any “extraneous independent evidence” must be more than persuasive, and indeed, be compelling, to reject a deponent’s sworn testimony, such that, where there are “no grounds for rejecting the written evidence on either side”, the party carrying the onus will have failed to establish his or her case. Re F (A Minor) (Child Abduction) [1992] 1 FLR 458 at 553-4 per Butler-Sloss LJ, cited in In re P, at par 20, set out above.
It is within this framework that I must consider the father’s and the mother’s sworn testimony.
Neither the Central Authority nor the mother sought to adduce oral evidence nor to cross examine the deponents on each side.
Counsel for the Central Authority referred to the father’s alleged consent as, in all of the circumstances, “not a real consent”; and to internal inconsistencies in the mother’s evidence as the basis for a submission that the mother’s case as to the father’s consent is inherently improbable and/or so unreliable that it should be rejected.
Counsel for the mother submitted that the mother’s conversations with the father; a statement by the father as to the mother’s stated intention to take the child to Australia that “It couldn’t happen quickly enough”; and the father’s signing of an application for an Australian passport for the child within that context are consistent only with the father having given his consent; that the father’s subsequent “standing by” while the mother made the preparations to leave for Australia corroborate his earlier stated consent; and that certain actions by the father shortly before the mother left the United Kingdom with the child (including his court application to prevent the departure) were “too late” as the consent already had been given.

Mother’s case

The mother’s case as to the giving of consent is based upon the following affidavit evidence.

Mother’s affidavit filed 27 September 2005

·The father and the mother separated, in her view, on the day of her return to the United Kingdom or the day following her return to the United Kingdom, which she puts as 9 June 2004
·On the day of her return, within hours, the parties had argued, which led to the separation in that, after the argument “the father left the home”
·On 10 June 2004 she told the paternal grandmother of the separation and her intention to return to Australia to which the paternal grandmother responded that it was “for the best” and offered to pay the airfares and for the mother to remain “in the house” (a bungalow owned by the paternal grandparents) until the return to Australia could be organised
·On 16 June 2004, during a visit by the father to the bungalow for “approximately 10 minutes”, the parties having spoken little in the intervening week, she told the father she was intending to return to Australia with the child, that she had sought legal advice in relation to relocating to Australia with the child and that the legal advice was to the effect that she was required to seek his consent to the relocation to which the father had said “It couldn’t happen quickly enough”
·As part of this conversation she told the father that she needed to obtain an Australian passport for the child and that he would need to sign the application form and the father agreed that he would do this
·On 17 June 2004 she showed the father the child’s passport photographs
·Later in June 2004 her friend Ms W was at the mother’s residence for dinner, the father arrived “unexpectedly” and she and the father signed the passport application witnessed by Ms W
·After she had lodged the application the father telephoned her and said he had been contacted by the Australian Embassy who had asked him if he was aware of the application
·On 12 July 2004 the father inquired whether she had made arrangements to move any of her belongings back with her to Australia and she told him she had made inquiries with several companies to obtain quotes for the shipping of furniture
·The child’s passport issued on 13 July 2004
·On 22 July 2004 she and the father had “a meeting” about the division of their furniture and possessions during which she showed the father what she was planning to sell and what she was planning to take to Australia with her during which they again discussed the cost of shipping the furniture
·During the meeting they discussed also the father’s role as a parent “in light of our relocation” and that she said to the father that he could visit herself and the child any time in Australia to which he said he would “never visit but he would phone”
·On 3 September 2005 the removalists arrived at about 8.30am and commenced packing during which time the father telephoned and asked what she was doing to which she responded that she was “vacating the home as he requested and that the removalists were in the house packing”; that previously she had told the father that she and the child were on a standby list for flights to Darwin; that during this conversation she told the father that she and the child had now secured tickets for departure; and that the father was threatening and told me he was seeking legal advice
·She telephoned her solicitor to discuss the father’s threats to obtain legal advice and was told that the father or his solicitor would be required to serve court documents on her or advise her of a court date should the father have commenced proceedings to restrain the child’s removal from the United Kingdom
·She went to stay with friends until she “flew out of the county”
·At no stage was she contacted by the father or served with any application objecting to the removal of the child
·The father “never informed me” that he did not consent to herself and the child going to Australia
·The father had “merely threatened to seek legal advice” and she believed that the father was “implying” that he was seeking legal advice about contact arrangements
·She and the child departed the United Kingdom on 6 September 2004
·At an earlier stage her legal advisers had told her to give the father “sufficient time to take action to stop me from relocating should he so desire”
·The father advised her (seemingly a reference to the conversation on 3 September 2004) that he was seeking legal advice in relation to my relocation but that she was “unsure” whether the father meant that he would be seeking contact with the child through a solicitor
·The father did not advise her (seemingly a reference to the same conversation) that he “no longer consented” to her relocating with the child
·During this conversation the father advised her she would be required to attend at court

Mother’s affidavit filed 26 October 2005

·“I never told the father I was moving to [a town in south-western England]” (a reference which will become clear below, in the father’s material)
·She did not tell the father during the conversation on 3 September 2004 that she would telephone him back, but rather told him that her flight was confirmed for the following Monday and that she would be seeking legal advice
·She does not believe that the father could have interpreted their conversations regarding her relocation as “bluffing” or found them confusing in any way
·She does not believe that the father did not believe that she was relocating to Australia
·Between 16 June 2004 when she “informed the father that I was relocating with the child” and the conversation on 3 September 2004 the father “would have observed” the sale of her car, lounge, television, video, barbecue, pots and plants and horse trailer, the giving away of her horse and the packing of her furniture and belongings for shipping
·The father had received a telephone call from the High Commission in London confirming that he had consented “to the application” (seemingly a reference to the child’s passport application) and that she does not believe that if the father had opposed her relocation he would have signed the application

Ms W’s affidavit filed 28 October 2005

·She became aware of the mother’s intention to relocate to Australia with the child within several weeks of the mother’s return to the United Kingdom following her holiday in Australia
·She was aware (she asserts) that the father “knew” that the mother was relocating to Australia because the mother was advertising her car for sale and had given away her horse and it was “obvious” that the mother was packing up the house to relocate
·On an evening, the date of which she cannot recall, whilst dining with the mother the father arrived “unexpectedly” during which visit the mother asked the father to sign the child’s application for an Australian passport on which she witnessed both the mother’s and the father’s signatures.

Father’s case

The father’s case as to the absence of consent is based upon the following affidavit evidence.

Father’s affidavit filed 19 August 2005

·Upon the mother’s return to the United Kingdom on 8 June 2004 she lived with him at his parent’s bungalow “as before” but said she was miserable and would prefer to be on her own in Australia
·Although the mother told him on numerous occasions after 8 June 2004 that she was planning to return to Australia with the child and that she was waiting for a flight to become available, he was “never quite sure if she was serious or whether she was simply threatening this move to upset me”
·The mother took a part time job as an estate agent and arranged for the child to attend a nursery whilst she was at work
·It was not until September 2004 that he became concerned that the mother might “carry out her threat” to take the child to Australia and he sought legal advice which resulted in an emergency application which was made to try to stop the mother leaving the country with the child, namely the Emergency Application for a Prohibited Steps Order heard on 3 September 2004 at the Gloucester County Court the result of which was an order that he return to court on the following Tuesday 7 September 2004 with the mother
·He telephoned the mother and told her this and she said “too late, I’ll be gone by then”
·He was very anxious to see the child to say “goodbye” and arranged with the mother that she would telephone the following day for him to see the child
·The mother did not telephone him as arranged and her mobile telephone was switched off
·He contacted his parents who confirmed that the mother and the child had left the bungalow

Father’s affidavit filed 19 October 2005

·When the mother returned to England with the child in June 2004 he understood that she had returned to live there; and that she had been resident in the United Kingdom for about 13 years and had many friends there
·They (the mother and the father) had talked together at various times in their relationship about the possibility of moving to Australia but “at no time did I ever agree” to the mother taking the child to “the other side of the world” (In context, this should be understood as relating to the period after June 2004)
·He became more and more distressed about the possibility of the child being taken away and was in a highly emotional state
·The mother told him that she had received legal advice that she would be “99% certain of being given custody” so that she could “do what she wanted” with the child and that if he “put up a fight” for the child she would “empty my bank balance” so that he felt that he was in a “no win” situation and “didn’t know what to do for the best”
·He was aware that the mother intended leaving his parents’ bungalow “as she was packing everything up”, however, the mother “did not explain the detail of her plans to me” and that she had mentioned on a few occasions that she “might even go to [south-western England]” and live or stay with friends there so he “never really knew where she was intending to go” or “whether or not she was bluffing about going to Australia”
·The father and the mother talked about the possibility of the mother going to Australia but “in the confusion of the situation” he did not appreciate that she “believed I had consented to her taking my daughter away for good” and that when he “finally realised” that she might “carry out her threat” to take the child away he urgently sought legal advice to stop her leaving
·When the mother told him that she and the child were on a standby list for a flight to Australia he made the ex parte application for the Prohibited Steps Order but that “Unfortunately the presiding District Judge felt that he needed to hear the Respondent’s view and listed the hearing for the following Tuesday 7 September 2004”
·Following the hearing (on 3 September 2004) he telephoned the mother to explain that he had been to court to try to stop her taking the child away and that the District Judge had ordered that she attend court on the following Tuesday 7 September 2004 to which the mother responded that she would be “gone by then and so therefore would not be attending”
·During that conversation the mother suggested he have time with the child during the weekend and said that she would contact him however she did not do so and he was unable to contact her despite attempts
·He went to the bungalow on the following morning (presumably 4 September 2004) to find that the mother “had already packed up and left”
·Within a few days of the court hearing he had decided to take whatever action was necessary and, upon legal advice, contacted the Child Abduction Unit in the United Kingdom
·As to the conversation deposed to by the mother between herself and his parents, they had suggested to the mother that if she was going to leave she should do so as soon as possible, but their motivation was to ease “the distress” upon the father and “an attempt to protect me from further hurt”; and that the conversation did not carry “the implication” that his mother (the paternal grandmother) was happy to help the mother leave; the distress and anxiety upon him having been caused by the mother “constantly changing her mind” as to whether or not she was going to leave with the child

Solicitor’s affidavit – Ms M - filed 19 October 2005

·On 2 September 2004 the father attended her office and explained that he had finally realised that his former partner was serious about taking their daughter to Australia without his consent
·The father was concerned that the mother could leave at any time as she had told him that she would have 12 hours’ notice of departure
·She engaged Counsel who then appeared on the application on 3 September 2004 for a Prohibited Steps Order which the Judge had refused to make on the ex parte basis
·Counsel had “appealed” then at least for a “Port Alert” at international airports for the weekend which application again was refused and instead an order made that the mother appear the following Tuesday 7 September 2004, the Judge’s reasons including that he “did not consider that the evidence of an imminent departure was strong enough to warrant an ex parte order”; the father’s evidence, because of the short notice available, being limited to testimony stating his belief that the mother was preparing to leave “at the first opportunity”
·The father instructed her that he had had a telephone conversation with the mother and had told the mother that she would be served with details of the court hearing for the following Tuesday 7 September 2004; and that the mother had told him that she would already have left by then as she was booked on a flight over the weekend
·She suggested to the father going back yet another time to the District Judge, but by this time the father was “extremely distressed” and unable to contemplate another court session as he “felt he had been let down by the District Judge” and did not want to “further aggravate” the mother in case she decided not to let him say goodbye to the child
·After the mother’s departure it was decided to make an application through the Lord Chancellor’s Department for the child’s return to the United Kingdom

Observations as to other evidence not specifically mentioned

The extracts from the evidence to which I have referred necessarily are selective. I have however endeavoured to exclude gratuitous comment (except for some examples) and to exclude repetition in the affidavits as well as evidence which may be relevant to parenting issues between the mother and the father and ultimately residence and contact but not directly relevant to the issue of consent. For example, much of the mother’s affidavit material refers to the father not availing himself of contact opportunities, disparaging herself and the child and so forth.
I have taken into account all of the relevant evidence which the parties have presented, and it ought not be inferred that if any particular piece of relevant evidence is not set out in the extracts above I have not considered it in the context of the evidence as a whole.

Decision and reasons

Consent

In my judgment, for the following reasons, the mother has failed to discharge the onus on her of proving that the father consented to the child’s removal from the United Kingdom.
It is common ground that the mother told the father on numerous occasions that she wished to and was planning to relocate to Australia with the child. However, her case appears to rest upon four principal matters with which I will deal in turn.
·The father’s alleged spoken consent by the words “It couldn’t happen quickly enough” in the context of the mother having told the father that she had taken legal advice and that in respect of any relocation she would need his consent
·The father’s consent to the application for an Australian passport for the child
·The mother’s conduct after 16 June 2004, and the father’s “standing by” including
-   the father’s participation in the division of his and the mother’s possessions and chattels
-   the father’s knowledge that the mother was planning to vacate his parents’ bungalow
-   the father’s (alleged) knowledge that the mother had been selling items (including her horse trailer) and giving away her horse
·The conversations after 16 June 2004

The alleged spoken consent

It is plain, even on the mother’s affidavit, that the conversation on 16 June 2004 between the father and the mother was for “approximately 10 minutes”, and occurred in acrimonious circumstances, about one week after the mother’s return to the United Kingdom, where it appears that the parties had argued on the first day, a separation having occurred on that day or on the day following the return, and the parties having spoken little in the intervening week.
In the short space of “approximately 10 minutes”, the mother says that she announced her intention to the father to return to Australia; told the father that she had sought legal advice that his consent was required; and asked him to sign a passport application for the child.
The father’s words “It couldn’t happen quickly enough”, are not denied by him. However, the father’s words, in the context of the prevailing acrimony, and the circumstances described by the mother, in my view fall short of reliable evidence as to a clear and unequivocal communication by the father to the mother of his consent, nor, in those circumstances, a communication on which properly the mother can rely.
Indeed, it is somewhat surprising that, in all of the circumstances, the mother would seek to rely on the father’s words as the communication of consent rather than, as seems more likely on the evidence, a “passing remark” by a parent suffering trauma or a “passing remark in the agony of the moment.” See Re H (Abduction: Acquiescence) [1998] AC 72, per Lord Browne-Wilkinson at 89C-90D, especially at 89H-90A for the observation that clear and unequivocal conduct (as to acquiescence) “is not normally to be found in passing remarks … by a parent who has recently suffered the trauma of the removal of his children”. Although dealing with acquiescence, and thus a parent who already had suffered the trauma of a removal, in my view the principle is equally applicable to the issue of the question of consent before a removal, and thus to the father’s case here, in the sense of his having made a “passing remark” in the heat of the moment.
In A v A(Children) (Abduction: Acquiescence) [2003] EWHC 3102 (Fam), Sumner J (sitting in the Family Division) referred to the speech of Lord Browne-Wilkinson and at [53] expressed doubt that a “passing remark in the agony of the moment” necessarily should be taken to amount to unequivocal conduct. Sumner J, in the context of the facts of that case, referred further to a “passing remark in the agony of the moment which is retracted soon afterwards.” However, Lord Browne-Wilkinson did not suggest such a qualification, or retraction, as a matter of principle. See, in particular, at 89C-90D, referred to above.
The father’s material includes that he was in a “highly emotional state”, and refers to the “confusion” of the situation in which he found himself.
In the circumstances, the mother’s reliance on the father’s spoken words as amounting to consent is at best tenuous.
The mother seeks to strengthen her position by the context that she had told the father that she had legal advice that in order to relocate with the child to Australia she needed his consent. However, in my view, the same observations which I have made apply.

The father’s consent to the application for an Australian passport for the child

The mother says that, in the same conversation on 16 June 2004, the father agreed to sign an application for an Australian passport for the child; that he signed it when she presented it to him “later in June 2004”; and that subsequently the father received a telephone call from the Australian Embassy about it. The passport application (exhibit 1) shows as the “Date signed” 21 June 2004, that is, within the short space of five days after the conversation on 16 June 2004. The mother’s evidence is that the father had arrived “unexpectedly” on that occasion. Thus, I infer that he did not, on that particular occasion, expect to be presented with the request for his signature and consent to the passport application. The evidence is silent as to the date of the telephone call from the Australian Embassy to the father. However, plainly, that was before 13 July 2004, the date on which the passport issued.
The tenor of the father’s evidence, however, is that at that stage (plainly June/July 2004) there was “confusion”; the mother had spoken of the “possibility” of going to Australia; but also “on a few occasions” that she might go to south-western England; and that he “never really knew where she was intending to go” or “whether or not she was bluffing about going to Australia.”
In this context, in my view, the father’s consent to the passport application does not carry with it, as the only available or even the most likely available inference that, by it, the father consented also to the child’s removal to Australia. The father’s consent to the passport application, in my view, is equally consistent with the father still considering the matter; but nonetheless allowing the passport to issue. In this context, it is important to bear in mind that the mother’s family lives in Australia; that the child already had a British passport; and that each of the mother and the child had dual nationality. Thus it is not surprising that, even absent an imminent relocation, the obtaining of an Australian passport for the child would happen sooner or later. The father knew that the child already had travelled to Australia in 2003 on her British passport, albeit with a tourist visa. No doubt, it was a sensible course for the child to have, as well, an Australian passport, given that she had dual citizenship.
In the circumstances, the father’s consent to the application for an Australian passport for the child, and its consequent issue, do not amount to compelling “independent extraneous evidence” of the father’s consent to the removal, for the reason that there are other cogent explanations for his consent to the application for and issue of the passport.

The mother’s conduct after 16 June 2004 and the father’s “standing by”

It is not surprising that the father and the mother divided their possessions. After all, they had separated. Similarly, it is not surprising that the mother was packing her goods to move out of the bungalow owned by the father’s parents, in which the father and the mother had resided as a couple.
The mother alleges that the father “would have observed” that she was selling her unwanted goods and chattels (including her horse trailer), and that he “would have observed” that she had given away her horse. However, the quality of her evidence that the father “would have observed” these things is not supported by evidence as to how or when he “would have observed” these things, given that the parties were separated.
The father’s evidence is that the mother had been “constantly changing her mind” as to her intentions, had commenced work as an estate agent, had the child in a nursery whilst she was at work and had spoken of moving to south-western England.
The mother’s case is that the matters the father “would have observed” and his “standing by” are corroborative of the father’s earlier stated consent in that he “stood by” whilst she took “obvious” preparatory steps for the relocation and that he took no action to prevent her removal of the child.
However, I am inclined to infer from the father’s prompt actions on 2 and 3 September 2004 in seeking to restrain the removal that, indeed, it was not obvious to him, until the mother told him, apparently on 1 or 2 September 2004, that she and the child were on a standby list for a flight to Australia, that she would “carry out her threat”; with the result that the mother’s case of the father’s “standing by” as being corroborative of his earlier spoken consent cannot easily be preferred. Further, to the extent that the father’s actions may be capable of being corroborative of an earlier spoken consent they fall short of being compelling.
There is a conflict in the parties’ evidence (father’s version) that the mother did not tell him until 1 or 2 September that she was on a standby list for a flight to Australia and (mother’s version) that “previously” she had told him that she was on a standby list. This is not a matter which presently I am able to resolve, on the affidavit evidence. I note the father’s evidence (affidavit filed 19 August 2005, par 13) that the mother had told him on “numerous occasions” that she was “waiting for a flight to become available”. However, the father’s evidence in this regard (in the same paragraph) was that he was “never quite sure if she was serious or whether she was simply threatening this move to upset me”. Further, there is a difference, I think, between a communication that a person is “waiting for a flight to become available”; and a communication that a person is on a standby flight, which seems to carry more immediacy. Further, the mother’s evidence (affidavit filed 27 September 2005, par 55) is that it was only during the conversation with the father on 3 September 2005 that she told him that she and the child had now “secured tickets for departure”.

The conversations after 16 June 2004

The mother relies, principally, on conversations with the father relating to her obtaining quotations for the shipping of her goods to Australia; and relating to contact after the relocation, in particular that the father said he would “never visit but he would phone”.
The difficulty, I think, in the mother’s evidence, is that she seems to put these conversations in July 2004 (in the context of the affidavit filed 27 September 2005, between 12 and 22 July 2004).
However, the father’s case is that the mother was “constantly changing her mind” as to a possible intended relocation to Australia; and that she had said that she “might even go to [a town in south-western England]”.
Thus, I would make the same observations as in relation to the mother’s case as to the father’s “standing by”. That is, these matters are not corroborative of the mother’s case as to the father’s earlier spoken consent; and that, to the extent that they are capable of being corroborative of an earlier spoken consent, they are not compelling.

Other observations as to the evidence

That, however, is not the end of the matter.
There are inconsistencies in the mother’s own affidavits which cause me to doubt her honesty or, at least, which cause her testimony to be unreliable.
First, the mother said in her affidavit filed 27 September 2005, par 57 that “At no stage was I contacted by the father or served with any application objecting to the removal of the child.” In context (see pars 53-57 of the same affidavit) the mother plainly is referring to the period between 1 and 6 September 2004. It may be taken as common ground that, in this period, the mother was not served with any application. However, in the same affidavit, par 74, the mother responds to the father’s affidavit filed 19 August 2005 (sworn 27 July 2005, which, by the mother’s affidavit, par 63, is the affidavit under response) wherein the father had said (par 14) that after the court hearing on 3 September 2004 he telephoned the mother and told her of his court application and that she was required to appear on 7 September 2004. At par 74, in direct response to the father’s evidence (par 14), she says “I admit that the father advise[d] me that he was seeking legal advice … and (second new paragraph) “During this conversation the father advised me I would be required to attend at court.”
Thus, the mother’s evidence is internally inconsistent, in both denying, then admitting, that the father contacted her during this period at all; and in particular, that he contacted her in relation to his court application; and further internally inconsistent by her then admitting (despite her denial as to any contact) that indeed the father had told her that she was required to attend at court (on 7 September 2004).
Moreover, in the mother’s subsequent affidavit filed 26 October 2005, par 8, she squarely admits a conversation with the father on 3 September 2004 (denying that in that conversation she said that she would telephone him back).
Secondly, also in the mother’s affidavit filed 27 September 2005, par 57, she said, as to the father’s threat “to seek legal advice”, that she believed the father was “implying that he was seeking legal advice about contact arrangements”.
Yet, again in par 74 of the same affidavit (responding to the father’s par 14 as to the conversation on 3 September 2004), the mother said “I admit that the father advise[d] me that he was seeking legal advice in relation to my relocation”; and then, somewhat weakly, I think, qualified this by “I was unsure whether the father meant that he would be seeking contact with the child through a solicitor.”
These unreliable aspects of the mother’s testimony lead me to believe the father’s testimony (affidavit filed 19 October 2005, par 4(c)) that in the telephone conversation on 3 September 2004, he told the mother that “I had been to court to try and stop her taking [J] away” and that “the District Judge had ordered that she attended (sic) Court on the following Tuesday 7 September 2004”, to which the mother had replied that she would be “gone by then and so therefore would not be attending”.
On all of the evidence, in my view it is inherently improbable that the father did not communicate to the mother the precise nature of his court application, that is, to stop the removal; and thus inherently improbable that the mother did not know of the nature of the application and that she was required to attend court on 7 September 2004 in response to it. Moreover, on the mother’s own case, it appears that, after the telephone conversation with the father on 3 September 2004 she “went into hiding”, in that, after the conversation, in her own words “I went to stay with friends until I flew out of the country.”
If, as the mother professes, she had thought that the subject matter of the father’s obtaining of legal advice, and of the father’s court application, was merely to do with contact after the removal, then the mother would have had no reason to deny the father the agreed contact during the intervening weekend (which, on the father’s evidence, I accept); nor to fail to telephone the father back, as arranged (which, on the father’s evidence, I accept); nor to turn off her mobile telephone (which, on the father’s evidence, it appears she did).
There is one last matter. The father’s affidavit filed 19 August 2005, par 15, speaks of his desire, after 3 September 2004, to say “goodbye” to the child. This is not an indication of his consent to the removal. On the contrary, at the time, the father’s application for a restraint was pending, however, the mother had stated plainly that by the time of the relisting of the application she would be “gone”.
Further, it will be recalled that the father’s evidence is that (seemingly, at an early stage, in June/July 2004) the mother had said to him that she had taken legal advice that she would be “99% certain of being given custody” so she could “do what she wanted” with the child; that the mother had said to the father that if he “put up a fight” for the child she would “empty my bank balance” and that he felt that he was in a “no win” situation and “didn’t know what to do for the best”.
The father’s conduct must be seen against this background; and also against the background of the evidence of his solicitor. See, in particular, her evidence set out above, second last bullet point.

Acquiescence

In my judgment, the mother also has failed to discharge the onus on her of proving the father’s subsequent acquiescence in her conduct.
Apart from the matters referred to above, the father acted promptly to seek the assistance of the Child Abduction Unit (United Kingdom) for the child’s return.
The father’s unchallenged evidence is that “within a few days” of the failed application on 3 September 2004, he approached the Child Abduction Unit (United Kingdom). See also the affidavit of the father’s solicitor in the United Kingdom (par 7); the father’s affidavit filed 19 October 2005, pars 4(d) and (e) as to his pursuit of the Hague Convention remedy; and the affidavit of KSP filed 28 October 2005, and annexure A, to the effect that the present proceedings were put in train promptly.
The mother pleads (affidavit filed 27 September 2005, pars 77-79) that with the passage of time she has now purchased a home in Australia, she has been working in Australia for eleven months, that the child has settled into a good routine, attends an early education centre and has met all normal developmental milestones; and, in addition, that since the removal the father has not sought contact with the child, to mount a case, I think, that the father’s alleged acquiescence has had this effect on her life, and the child’s life.
However, as I have said, the father acted promptly to seek the return of the child.
It is plain that the departmental delays which have occurred in the prosecution of the father’s case are not his fault.
The mother’s position now is regrettable. However, she has failed to discharge any onus to invite the exercise of the discretion to relieve her of the consequences of her wrongful act.

Conclusions

There are discrete parts of the mother’s case which, if taken in isolation, may be persuasive of her case, but not compelling. As a whole, however, her case is neither persuasive nor compelling as to either consent or acquiescence.
There is, as between the father and the mother, disputed non-oral evidence. There is no compelling independent extraneous evidence in support of one side. There are thus no grounds for rejecting the father’s testimony, with the effect that the mother has failed to prove her case under reg 16(3)(a)(ii).
I would add, with some disquiet, that additionally there are the inconsistencies in the mother’s affidavits to which I have referred, which cause me to doubt her honesty or which, at least, cause her testimony to be unreliable. There are also the inherent improbabilities in the mother’s case, to which I have referred.
The mother’s case under reg 16(3)(a)(ii) is not proved.
The consequence is that the child must promptly be returned to the United Kingdom.
I would add that, although the case does not enliven reg 16(5), even if the mother’s case had been proved, to invite the exercise of the discretion not to order the child’s removal, it is likely nonetheless that I would have exercised the residual discretion under reg 16(5) to return the child, in particular having regard to the events in the United Kingdom between 2 and 6 September 2004; and the further matters submitted by the Central Authority. See Counsel for the Central Authority’s written submissions, pars 40-42.
The Central Authority is requested to bring in the appropriate order for the child’s return to the United Kingdom.
In the meantime, paragraphs 1 to 6 of the interim orders made by Buckley J on 6 September 2005 will remain in force.

I certify that the preceding 109 paragraphs
are a true copy of the Reasons for Judgment
of The Honourable Justice O’Reilly

Associate

Date: 22 November 2005

[2005] FamCA 1115

22 November 2005

Key Legal Topics

Areas of Law

Family Law

Evidence

Legal Concepts

Consent

Procedural Fairness

Natural Justice