Director General, Department of Family and Community Services and Tsvetan

[2011] FamCA 796

FAMILY COURT OF AUSTRALIA

DIRECTOR GENERAL, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES & TSVETAN [2011] FamCA 796

FAMILY LAW – Hague Convention return application – where the child has been in the country for more than a year – whether the child is settled

Department of Community Services v M (1998) 149 FLR 1
Department of Community Services v Raddison (2007) FAMCA 1702
Re M (FC) and another (children) (2007) UKHL 55
State Central Authority v Ayob (1997) FLC 92-746
State Central Authority v Hajjar (2010) FamCA 648

Convention on Civil Aspects of International Child Abduction
Family Law (Child Abduction Convention) Regulations (1986) (Cth)

APPLICANT: Director General, Department of Family & Community Services

RESPONDENT: Mr Tsvetan

FILE NUMBER: SYC 4795 of 2011

DATE DELIVERED: 5 October 2011

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Le Poer Trench J

HEARING DATE: 30 September 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Ward

SOLICITOR FOR THE APPLICANT: Legal Services, Department of Family & Community Services

COUNSEL FOR THE RESPONDENT: Ms Snelling

SOLICITOR FOR THE RESPONDENT: Valenti & Valenti Solicitors

Orders

1. The application filed on 9 August 2011 is dismissed.

2. All prior  orders made are discharged including the following order made on 12 August 2011:

   (3)That until further order the Australian Federal Police place the names of the respondent, Father, [Mr TSVETAN] born … 1938 and the child [B] (female) born … 2000 on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia as soon as possible.

3. Any passports delivered to the Court may be uplifted by the party lodging the documents with the Court.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC  4795  of 2011

Director General, Department of Family and Community Services 

Applicant

And

Mr Tsvetan

Respondent

REASONS FOR JUDGMENT

1. On 9 August 2011, the Director General of the Department of Family and Community Services (“the Director General”) filed an application seeking orders pursuant to the Family Law (Child Abduction Prevention) Regulations (1986) (Cth) (“the Regulations”).  That application seeks the return of B (a female) born in 2000 (“the child”), now aged 11, to Country C. On 14 September 2011, the respondent to the application, Mr Tsvetan (“the father”), filed a response.  In that response, he alleges the child arrived in Australia in June 2010 (therefore more than 12 months prior to the filing of the application in this case).  He also asserts the child objects to being returned.  He asserts that the child’s mother, Ms D (“the mother”) consented and/or acquiesced to the child remaining in Australia permanently.  He additionally claims that, should the child be required to return to Country C, she would be at grave risk of being exposed to physical or psychological harm.  The return would also place her in an intolerable situation.

2. When the matter was first before me on 24 August 2011, only the Director General was present in Court.  At that time, the Director General sought ex parte orders.  I raised with the Director General’s legal representative the question as to whether 12 months had elapsed between the time of the alleged retention in Australia and the filing of the application.  At that time, the Director General understood from the facts supplied by the mother, as recited in the application, that the retention occurred on a date in August 2010 which was a date less than 12 months before filing of the application on 9 August 2011.

3. Amongst documents attached to the application is a request for the return of the child.  The request form appears to have come from a relevant authority in Country C.  It alleges the child left Country C around 18 July 2010.  It further alleges that there was an agreement between the mother and father for the child to stay in Australia for one month of the child’s summer holidays in July and August 2010.  It alleges that the child should have been returned to Country C on or about 18 August 2011.

4. When the matter was before the Court for hearing on 31 September 2011, the Director General conceded that more than 12 months had elapsed between the date of the alleged retention and the date of the filing of the application.  Evidence received from the Department of Immigration and Multicultural Affairs in Australia demonstrated that the child arrived in Australia on 24 June 2010.  The mother’s case is there was an agreement that the child would remain in Australia for one month.  This fact is important because of the provisions of regulation 16(2) of the Regulations. I note the request from the Country C authority was not received by the Australian authority until early August  2011.

Background Facts

1. The respondent father is 73 years of age.  He is a health professional by occupation and is self-employed.  He lives on the outskirts of metropolitan Sydney in a rural environment.  He lives in a large house which he owns.  He rents part of the house to another family.  The father is in a new relationship, however, his partner lives in Country C.  The mother lives in City E in Country C.  She is 38 years of age.  She has now married a Country F national.  The child was born in Country C and lived in that country until June 2010.  The mother asserted that there was an agreement between the parents that the child would travel to Australia to spend one month with the father.  The father’s case is that there was an agreement she would come to Australia for a month to see if she liked Australia and if she did, she would stay indefinitely.

2. The father was born in City G of Country C parents.  He came to Australia in August 1976 and has lived here since.  He is in a relationship with a Country C woman and has been so since 2003.  They have one child who was born in 2009.  The child and her mother live in Country C. 

3. The father’s evidence is that he and the child’s mother were introduced by friends.  They met face to face for the first time in Country H in April 1999, as the mother could not obtain a visa to visit Australia.  The father says that during conversations with the mother both before they met in Country H in 1999 and whilst they were there, they agreed to have a child together.  The child would be raised initially in Country C by the mother and, when she became older, would come to live in Australia with the father. 

4. The father promised to support the mother and the child financially.  The father said he would assist the mother in being able to live in Australia.  The parents were able to conceive the child in Country H.  The child was born in Country C.  The father did support the mother and the child financially, including buying an apartment for them to live in.  The father went to Country C four or five times between 2000 and 2006.  There was regular telephone contact between the father and the mother, and the father and the child.  The last time the father saw the child before June 2010 was Christmas Day 2005.  On that occasion the father said the child had complained to him about aspects of her mother’s parenting.

5. Sometime in 2006, the mother left the apartment the father had purchased for her to live in.  When the father was in Country C in 2006, he was unable to see the child.  He no longer knew where the mother lived; he could only speak to her by phone.  In about mid‑2008, the father made a request through the central authority in Australia to have contact with the child.  Eventually, in 2010, the father was provided with a telephone number for the mother.  In April 2010 the father was able to have telephone contact with the child. 

6. One of the matters the child informed the father of, after that time, was that her mother frequently did not arrive home from work until around 11.00pm.  Having re-established contact with the mother, the father resumed financial assistance, sending $300 per month to the mother until March 2010 when she married a Country F national.  Having established contact with the mother, the father says there was a conversation in April 2010 where he said to the mother, “I would like Lara to come to Australia to live with me.  She could come for a month and if she likes it, she can stay with me in Australia.”  The father claims the mother replied, “No, no.  Not for a month.  She can come for good.  I will come then as well.  Could you help me come to Australia?”

7. The father said he agreed to assist the mother with immigrating to Australia.  He said the arrangement for the child to live in Australia with the father, if she liked it in Australia, was reaffirmed in a dozen or so conversations with the mother between April and May 2010. 

8. The mother’s sworn evidence is contained in an affidavit sworn by her on 12 August 2011. This affidavit is actually an annexure “A” to an affidavit sworn by Ms J, a solicitor employed by the Department of Family and Community Services on 29 August 2011. In her affidavit the mother alleges meeting the father in Country H in 1997.  She claimed the child was born on … 2000.  There is no issue that date is wrong.  She claimed his last visit was at the end of 2008 where they celebrated New Year’s Eve together.  She described as false, allegations that she had hindered or prevented contact between the father and the child.  She denied any discussion with the father about the child living in Australia.  The mother claimed the agreement with the father was for the child to spend one month in Australia during her school holidays.  The mother said she gave her consent for the child to leave Country C.  She had wanted to go herself with the child but time did not permit her to obtain a visa.  The mother claims the father has controlled her contact with the child since the child has been in Australia. 

9. Further sworn evidence of mother is contained in an affidavit by her dated 27 September 2011 and is annexure “A” to the affidavit of Ms J, sworn 28 September 2011. It is a response to the father’s affidavit contained in the response form 2A document.  The mother denies any long-standing agreement with the father to allow the child to be raised by him in Australia.  In this affidavit the mother now asserts a departure date from Country C as 22 June 2010.  She acknowledges she and the child lived in an apartment of the father’s for three and a half years.  She claimed she was forced to move from that apartment by the father selling the apartment.  She claimed at that time she provided the father with an address and phone number in respect of her new residence.  She acknowledged the father sent some money for the child, however, she asserts it was neither sufficient nor regular (as in monthly).  The mother denied hindering or preventing the father’s time with B.  She asserts that the agreement for the child to travel for one month only is supported by the fact the child travelled on a return ticket.  I note this does not contradict the father’s evidence which was that she was to stay if after a month she wished to do so.

10. In relation to the allegation of the return ticket the evidence appears to suggest that the return ticket was open-ended that is, was not for a specific date.  The mother says that, in a conversation with the child whilst the child was in Australia, she told the child “If you want to remain there some more, I will respect your decision.”  However, she says she effectively lied to the child in order to conceal the fact that there was a dispute between the parents about that matter.  The mother claims the child is under some improper control by the father in conversations she can have with the mother.  She suspects “she is afraid” to reveal information.  I note that assertion is not borne out by observation by the family consultant.

11. The mother acknowledges she has been unable to provide the child with the lifestyle she now has with her father.  She also acknowledges she has now married a Country F national.  She says nothing about proposing/anticipating or wishing to relocate to Country F.  Other evidence in the case suggests that she does wish to move to Country F. 

The Family Report

1. Pursuant to directions made by me family consultant, Ms K, prepared a report for the Court after having met with the child.  The family consultant reported on:

   a)Whether the child objects to a return to Country C; 

   b)Whether the child has obtained an age and degree of maturity in which it is appropriate to take into account the child’s wishes; 

   c)Whether the child presents as settled in her new environment; and

   d)Any further matter relevant to regulation 26(2).

2. The report notes that the child has formed a close relationship with the couple who rent the other half of the father’s house.  She said she loves them.  She has a bedroom in each part of the house and she alternates between them.  The child is in year 6 at school.  She has a good command of the English language “almost fluent”.

3. The child told the family consultant she wants to stay in Australia.  Her discussion on this topic related to the relative merits of each country.  When speaking of life in Country C, she said she lived in a garage with her mother which was not really clean.  Her mother worked long hours, often not home until 11.00pm at night.  The child was left alone.  Her mother smacked her “a lot”.  Her father explains things to her.

4. She clearly welcomes the facilities at her father’s house (toys, TV, computer in her room etc).  She also commented on the availability of food in her Australian home. 

5. The child said she sees her mother on Skype and does not miss the smacking.  She would not wish to go to Country C to see her mother because of the complications.  She might go when she is older.  She missed her mother “a little bit”.  The child claimed she does speak to her mother in private (contrary to the assertions of the mother).  Her father often reminds her to speak to her mother.

6. The child said that when she left Country C, her mother told her if she liked it in Australia she could stay.  After two weeks in Australia, she asked her mother could she stay and her mother had said “yes” and was happy for her.  She said her mother had, by that time, disenrolled her from her old school in City E.  The child said she loved her current school where she has 10 to 15 friends.  She considers she is good at schoolwork.  She would like to be a pathologist like her father.  Next year she is enrolled in an girls’ high school.  She enjoys activities with the tenants and their children.  Her mother sends her books from Country C.  She has learnt chess in Australia.  She has a pet dog called L.  She enjoys her father’s company and his parenting style (no smacking).  She said her mother has married a Country F man since she left.  She wondered if her mother will go to Country F. The child told the family consultant she did not know why she has been brought to the Court to see a family consultant.  She expressed surprise when told why by the family consultant.  She said her mother had agreed to her staying here over a year ago.

7. Ms K considered the child had reached an age and degree of maturity in which it is appropriate for her wishes to be taken into account.  She said the child is a very intelligent girl.  She comments upon what must be a huge contrast for the child between life in Country C and life in Australia.  This was not only about physical differences (large as against small dwelling house) but also about the differing emotional environment.  In Australia, she is never alone.  She has supervision at all times, either from her father or from the tenants.  She has a dog and has many school friends.

8. The family consultant considered the child has thought about the short and long-term benefits of remaining in Australia.  She said her thoughts were logical and persuasive.  She appears to have a determined character.  She sees her potential as being maximised in Australia.  The family consultant commented that while the child may not have the maturity to weigh up the possible emotional consequences of a long-term stay in Australia and thereby separation from her mother, she clearly has the cognitive ability and maturity to adapt to the current situation. Ms K said it would be appropriate that considerable weight be placed on the child’s wishes.  She opined that the child presents as settled. 

   She appears healthy and robust.  She has become fluent in English.  She loves school, has a number of friends there and looks forward to attending the high school selected for her by her father.  She speaks of people with whom she shares the house as her family.  She presents as feeling able to communicate with her mother whenever she wants.

9. The only person to give oral evidence in the case was Ms K, the family consultant.  Each of the parties was asked whether they wished to cross-examine any witnesses in either case.  Each responded in the negative.

Oral Evidence of the Family Consultant

1. Ms K was asked to express her opinion as to whether the child expressed an objection which showed a strength of feeling which was beyond the mere expression of a preference or of an ordinary wish.  Ms K considered the child did express a view which was beyond mere preference but she did not think it was extreme.  I understand the reference to “extreme” related to questions she was asked about what she would do if she was required to return.  It seems the child had not considered that possibility.

2. Ms K pointed out to the child that a return to Country C would enable her to be with her mother and friends she had in that country.  Ms K said the child seemed amazed that she might have to go back to Country C.  She clearly understood her mother had agreed to her living in Australia. The child expressed a wish that the family consultant tell the judge she definitely did not want to return to Country C.  When the Director General’s counsel put to Ms K that the child did not express a view which goes beyond a mere wish or preference, Ms K did not agree that was the case.

Respondent’s Submissions

1. The respondent submits the evidence establishes, on the balance of probabilities that the child is settled in her new environment.  In this submission, the respondent relies on the evidence of the father and his two witnesses and the evidence of the family consultant.  Annexed to the response are copies of the child’s last two school reports.  They are quite remarkable given that she had very little command of the English language when he arrived in June 2010. The child has friends at school.  She has a good relationship with the tenants in the father's house and the extended family of the tenants.  She appears happy in her environment and has no expressed desire for any change.  The applicant concedes the period of one year had elapsed prior to the filing of the application.  Consequently regulation 16(2) applies to this case.  The applicant appropriately concedes that all the available evidence points in one direction, namely, that the respondent father has established that the child is settled in her new environment.

CONCLUSION

1. I find the respondent has established that the child is settled in her new environment.  The question arises as to whether there still remains discretion for the Court to order a return of the child to Country C, having found she has settled in her new environment.  The applicant says there is no clear law on the matter.

Relevant Law

1. In the decision of State Central Authority v Ayob (1997) FLC 92-746 Kaye J said there was no discretion once it was established that the 12 month period referred to had expired. Therefore, Kaye J concluded that once the respondent has established the child is settled the application should be dismissed. Bennett J in the decision of State Central Authority v Hajjar (2010) FamCA 648 also concluded that in those circumstances there was no discretion to still order the return of the child. On the other hand there are first instant judgments which conclude there is a discretion.

1. The Full Court in the Department of Community Services v M (1998) 149 FLR 1 did not decide the issue, however cast doubt on the "no discretion decisions". 

2. In the United Kingdom, Baroness Hayle in Re M (FC) and another (children) (2007) UKHL 55 set out the position in the United Kingdom. That case opted for the existence of discretion in circumstances where the Court had been satisfied that the child was settled in the new environment.

3. On my own part I considered this question in Department of Community Services v Raddison (2007) FAMCA 1702. In that decision at paragraph 171 and following I considered decided cases and writings on the topic. I concluded that for me the decision of Baroness Hayle in the United Kingdom was compelling and I concluded that there still remained a discretion to return the child where the child was found to be settled following the elapsing of a 12 month period between the date of the abduction and/or wrongful detention and the date of the filing of the application.

4. The wording of regulation 16(2) does not specifically provide for a refusal of an application to return where sub-regulation (2)(c) has been established by the respondent. The wording of regulation 16(2) as a whole provides for mandatory return subject to sub-regulation (3).  I imagine in most cases the facts would lead the Court to exercise the discretion by refusing to return where the respondent has established the child is settled in the new environment.  However, there will, no doubt, be circumstances where the Court would wish to exercise the discretion which gives rise to an order for return.  Such circumstances might include one where the respondent has utilised an elaborate process to hide the child from authorities and from the other parent so that the parent left behind, who has not delayed in commencing proceedings, is thwarted in not being able to have an application commenced within the 12 month window. 

Whether the Court should exercise the discretion

1. In this case I would not exercise the discretion to return the child.  As will be seen later in these reasons I am satisfied that the mother did consent to the child being permanently removed from Country C subject only to one caveat, namely, that she wished to stay in Australia.  She was to have one month to decide.  If she wished to live in Australia with her father, she was permitted to do so.  If she wished to return to Country C, she could do so at the end of a one month holiday with the father. 

2. Further, should that be insufficient there is an aspect of the possible removal of the child from Australia which smacks of cruelty.  I am satisfied the child understood she had her mother's consent to live in Australia with her father.  I am satisfied the child has made a monumental effort to create a happy life for herself here and has set goals for herself to achieve.  She arrived in Australia knowing only one person in Australia and having a poor knowledge of the English language.  Her relationship with her father was tangental given a number of years of no contact with him.  She had lived in poor circumstances, if not poverty, with her mother.  That made the contrast with what the father had to offer even more stark.  There are indications that her relationship with her mother was not all that it could or should have been.  She painted a picture of herself as a lonely and often frightened child, being left alone late into the night while her mother worked.  

3. With all that knowledge the Court is asked to return the child to Country C notwithstanding she is now settled.  In addition, there is no explanation for the delay on the part of the mother in commencing the proceedings through an application to the Country C Central Authority.  An attempt to provide an explanation is found in exhibit A1.  This document represents the answers to questions posed by the Country C Central Authority to the applicant in this case, being the mother.  The document in its present form can be given no meaningful weight.  There is nothing about the document to identify its source, the author or the confirmation by the mother of the facts contained therein.  Even if the document was capable of being given weight, it seems to me that:

   (a) Taken with the mother's other evidence in the case it does not offer an adequate explanation for delay;

   (b) In relation to the possible move to Country F, the mother's case is that she “will conform her future plan where to live to the choice of the child”.  Clearly here the child has chosen to live in Australia.  However, again, by her actions, the mother does not respect or support that choice; and

   (c) It confirms there was no fixed date for the child returning to Country C on the airline travel tickets provided by the father.

Regulation 16(3)(a)(ii)

1. The respondent submits the evidence should be accepted as establishing the mother's consent to a permanent departure from Country C for the child.  The following evidence is particularly relied on by the respondent: 

   (a) Paragraphs 8, 18, 19, 20, 21, 22 of the response form 2A supported by affidavit by the father, in particular annexures “A” and “C”. 

   (b) The regulation 26 report of the family consultant, in particular paragraphs 12 and 22. 

   (c)      The oral evidence of the family consultant. 

2. In this case neither the mother nor the father was cross-examined although I asked if any cross-examination was required at the commencement of the hearing.  I make no adverse finding in relation to that fact as it seems to me that cross-examination in Hague cases should be reserved for cases where it is absolutely necessary.  In this case there is enough other evidence, apart from the parent's own evidence, for the Court to be able to reach a conclusion with comfort. 

3. Of particular assistance to me are the following documents.

4. Annexure “A” to the respondent's affidavit encloses two documents being copies of declarations made by each of the child's parents.  These declarations were said to be required to enable the Country C authorities to permit the child to leave Country C as an unaccompanied minor. 

5. The mother's declaration gives her consent for the child to leave Country C “for an unlimited period of time”.  Those words add weight to the evidence of the father and the child as to the circumstances in which the child travelled to Australia.  The mother's explanation is that those precise words were required by the authorities rather than words such as “for up to one month”.  No corroboration is provided in relation to the mother's allegations that, in effect, under Country C law, the words she signed were required, even where the purpose of the trip was for a one month holiday to Australia.  In the absence of some additional qualified evidence the mother's explanation lacks credibility. 

6. Annexure “C” to the respondent's affidavit is a copy of an email from the mother's husband, a Country F citizen.  Lest there be some concern as to the weight the Court could give to the contents of an email from the mother's husband to the respondent, it should be noted that the same email is annexed to the sworn evidence of the mother, which is annexed to the affidavit of Ms J filed 28 September 2011.  In that email Mr M (the mother's husband) introduces himself to the father.  He annexes an email dated 10 March 2011 which he had earlier sent to the mother for the purpose of being forwarded to the father.  In that earlier email the following matters stand out: 

   From what [Ms D]  says, she made a difficult decision to allow [B] to stay with you in Australia.  [Ms D] made this decision given her knowledge that [B's] interests were best served by letting her stay in Australia with you.  I am hoping that you can make a similar difficult decision if and when the time comes when you believe that [B's] interests are best served by allowing her to spend time with [Ms D] after [Ms D] moves to [Country F]. 

   The email goes on to describe the "affluent" neighbourhood in Country F Region in which Mr M lives and in which it is anticipated the child 's mother will also live. 

7. Annexure “D” to the respondent's affidavit is a translated email from the mother to the respondent.  It is dated 24 June 2011.  This is one year after the child’s arrival in Australia.  It advises the father that the mother expects to receive her Country F visa in September this year.  She asks if the child could go to Country C for one or two months before that so that she could see her grandparents.  She says her financial circumstances have changed since her marriage.  She says “I have sufficient free time and I don't need to work”.  The whole email is couched on an assumption that the child is living with the father in Australia and will continue to do so.  She would only be spending time in Country C during her Australian school holidays and then she would return.  Further, there is a clear expectation on the mother's part that she will be moving to live with her husband in Country F.

8. In the family report the family consultant speaks of her conversation with the child.  From her oral evidence I know that the child had informed the family consultant she did not know why she had been brought to the Court by her father. The child told the family consultant that when she left Country C her mother said she could stay here if she liked it. The child told the family consultant that after two weeks in Australia she decided she wanted to stay.  She had told her mother this and her mother agreed that she could stay.  The child said that her mother had dis-enrolled her from her Country C school.  The child has had regular letter, phone and Skype contact with her mother since then.  The family consultant said the child was convincing when she said her mother agreed she could stay in Australia.  I note the mother concedes she did say to the child that she could stay in Australia although the mother now alleges she did not mean that.  In the oral evidence of the family consultant she said that the child had expressed surprise when told that her mother was seeking her return to Country C.  The surprise was based on her understanding she had both her mother’s consent and blessing to remain in Australia.

9. The totality of the evidence in the case, and particularly the evidence above referred to, convinces me that the respondent has established on the balance of probabilities that the mother did give her consent to the child remaining in Australia within 14 days, approximately, of B’s arrival in Australia.  Further, I am satisfied that the mother well contemplated that the child may wish to remain in Australia once she arrived here.  I am satisfied that the mother was content with the possibility that the child would not be returning to Country C when she left Country C in June 2010.  I am satisfied that the mother had given her consent to the child remaining in Australia prior to the expiration of one month following her arrival in Australia.

10. In my view, this is not a case of international child abduction, nor is it a case of wrongful retention, and, consequently, the Convention should not have been used to try and achieve recovery of the child to Country C.  In my view, the regulations do not apply to the child because regulation 16(1A)(b) is not satisfied.  That is, the child has not at any time been wrongfully removed from Country C or wrongfully retained in Australia.  In my view, the child’s place of habitual residence ceased to be Country C upon both her parents agreeing she could live in Australia approximately two weeks after her arrival here on 24 June 2010.

11. In my opinion, it is not necessary to consider the other defences raised by the respondent.  If forced to do so, I would find the child does object to being returned to Country C.  I would find her objections show a strength of feeling beyond mere expression of a preference or an ordinary wish.  I would also find the child has attained an age and a degree of maturity at which it is appropriate to take account of his or her wishes.  In this, I would principally rely on the evidence of the family consultant in establishing those matters. 

12. In relation to the defence of “grave risk”, I am not confident as to the findings I would make.  However, in the circumstances of the determinations I have already made, it is not necessary to consider that defence.  Having been satisfied as to the establishment of at least one of the defences, I now turn to consider the discretion to return the child to Country C notwithstanding.

13. As stated earlier, this is not a case which, in my view, was contemplated as being appropriate to be heard under the regulations at the time the regulations became effective.  It is not a case to which the United Nations Convention on the Civil Aspect of International Child Abduction appears to have any application.  This is a case in which a 10 year old child left her mother’s home in Country C to join her father’s home in Australia with a clear understanding of the mother that she may not return.  It is a case where the mother clearly gave her consent for the child to remain in Australia permanently, well before any date had expired upon which the mother could allege the child had been wrongfully retained in Australia.  In the circumstances, I would not exercise the Court’s discretion to cause the child to be returned to Country C.  I also express a concern that the true intention of the mother appears to be to remove the child from Country C to the Country F to live with her husband, Mr M as soon as she can make arrangements for this to occur. That proposal appears to me to create potential abuse of the convention.

14. For all those reasons I would refuse the application for return in this case.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench delivered on 5 October 2011.

Associate: 

Date:  18 October