Ferris and Midford

[2020] FamCA 471

FAMILY COURT OF AUSTRALIA

FERRIS & MIDFORD [2020] FamCA 471

FAMILY LAW – CHILDREN – HAGUE CONVENTION – Interim – Where the child is retained by the mother in the United Kingdom – Where the father lives in Australia – Where Hague Convention proceedings were initiated in the United Kingdom and orders were made for the mother to return the child to Australia – Where the mother sought interim orders in the Family Court of Australia for the child to remain with her in the United Kingdom – Where it is uncontroversial that the child will benefit from a meaningful relationship with both parents – Where the mother is concerned that her mental health will deteriorate if she returns to Australia thereby placing the child at risk – Where evidence is controversial and untested – Where applicable factors under s 60CC of the Family Law Act 1975 (Cth) are considered – Where the parties shall have equal shared parental responsibility for the child – Where the child will live with the mother, subject to her forthwith establishing the child’s residence within Australia – Where the amount of time the child will spend with the father is dependent on the mother establishing residence with the child in Australia – Costs reserved for 28 days.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61B, 61DA, 64B, 65AA, 65D, 65DAA, 69E
Hague Convention on the Civil Aspects of International Child Abduction 1980 Art 13(b)

Family Law Rules 2004 (Cth) rr 5.09, 15.51

AMS v AIF (1999) 199 CLR 160
Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588
DP v Commonwealth Central Authority (2001) 206 CLR 401
Franklyn and Franklyn [2019] FamCAFC 256
M v M (1988) 166 CLR 69
MW v Director-General, Department of Community Services (2008) 244 ALR 205
RCB v Forrest (2012) 247 CLR 304
Sampson and Hartnett (No. 10) (2007) FLC 93-350
U v U (2002) 211 CLR 238
Zanda & Zanda (2004) FLC 93-607

APPLICANT: Ms Ferris

RESPONDENT: Mr Midford

FILE NUMBER: SYC 8729 Of 2019

DATE DELIVERED: 10 June 2020

PLACE DELIVERED: Newcastle (via telephone)

PLACE HEARD: Newcastle (via telephone)

JUDGMENT OF: Austin J

HEARING DATE: 1 & 10 June 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Harper

SOLICITOR FOR THE APPLICANT: Doyle Wilson Solicitors

COUNSEL FOR THE RESPONDENT: Mr Hogg

SOLICITOR FOR THE RESPONDENT: Joplin Lawyers

Orders

1. The parties shall have equal shared parental responsibility for the child Z, born … 2018.

2. The child shall live with the mother, subject to her forthwith establishing the child’s residence:

   (a)within 150 kilometres radius of the Post Office at B Town, New South Wales, Australia; or

   (b)within 50 kilometres radius of the Post Office at Brisbane, Queensland, Australia.

3. The mother shall ensure the child communicates with the father by Skype (or other comparable electronic audio-visual means) each Monday, Wednesday and Sunday at:

   (a)8.00 pm Australian Eastern Standard Time, while the child is in the United Kingdom; and

   (b)6.00 pm Australian Eastern Standard Time, while the child is in Australia.

4. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

5. Costs are reserved for 28 days.

6. Otherwise:

   (a)the interim relief sought in the Initiating Application filed by the mother on 18 March 2020 is dismissed;

   (b)the interim relief sought in the Response filed by the father on 16 April 2020 is dismissed; and

   (c)the Application in a Case filed by the mother on 4 May 2020 is dismissed.

Notation

(A)The Court will entertain another application by the father concerning either the child’s residence (if the mother refuses to return the child to live in Australia as these orders provide) or the time the child must spend with him (once the mother establishes her residence with the child in Australia pursuant to these orders).

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

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

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: SYC 8729 of 2019

Ms Ferris

Applicant

And

Mr Midford

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Introduction

1. On 8 November 2019, the United Kingdom High Court of Justice (Family Division) (“the UK court”) ordered under the Hague Convention on the Civil Aspects of International Child Abduction 1980 (“the Hague Convention”) that the mother return the parties’ child from the United Kingdom (“UK”) to Australia by 8 January 2020.

2. It is now June 2020 and the child has still not been returned to Australia.

3. The mother initiated proceedings in Australia under Part VII of the Family Law Act 1975 (Cth) (“the Act”) in March 2020, in which the father joined issue, so both parties submit to the jurisdiction of this Court, notwithstanding the current residence of the mother with the child in the UK (s 69E of the Act).

4. Presently, although the parties agree they should be vested with equal shared parental responsibility for the child, they want quite different interim orders to be urgently made in respect of the child’s place of residence with the mother.

5. The mother wants orders enabling the child to continue living with her in the UK and for the child to only spend time with the father in the UK.

6. The father wants the child to remain living with the mother, but for them to forthwith return to live in Australia in fulfilment of the Hague Convention orders made in November 2019, so the child can regularly spend time with him here.

7. As will be apparent from that brief summary, although there seemed to be some belated equivocation about it, the parties expect the Court to hastily make a profound decision about whether the child should live with the mother in the UK or in Australia upon the basis of highly controversial, but as yet untested, evidence. That situation is undesirable because such an important decision is quite unsuited to interlocutory disposition but, since jurisdiction is regularly invoked, there is no option but to exercise it and to wield power to quell the dispute on the available evidence.

Background

1. The mother is a citizen of the UK, but travelled to Australia in September 2015.

2. The father is an Australian citizen and lives in a regional area of New South Wales (“NSW”).

3. The parties met in June 2016, started dating in November 2016, and commenced cohabitation in March 2017. They lived in the regional area.

4. The child was born in …2018 and is now 21 months old.

5. In May 2019, the parties and the child travelled to the UK to attend the mother’s sister’s wedding. The father returned to Australia alone two weeks afterwards, the parties having agreed for the mother and the child to remain behind for some extra time and to return to Australia in late June 2019.

6. After the father’s departure from the UK, the parties fell into disagreement about the mother’s changed intention to remain in the UK with the child. Consequently, the parties separated on 11 June 2019.

7. In July 2019, proceedings were initiated in the UK under the Hague Convention to compel the child’s return to Australia. The mother resisted the child’s forced return by invoking the defence available under Article 13(b) of the Hague Convention. She contended the child, by being returned to Australia, would be exposed to the grave risk of psychological harm or otherwise placed in an intolerable position.

8. In November 2019, the mother’s defences were rejected and the Hague Convention proceedings were determined by orders compelling the child to be returned to Australia by the mother.

9. Presently, the mother seems worried by the absence of any declaration within the Hague Convention orders about where she is able to live with the child upon their return to Australia.[1] To eradicate any misconception, the Hague Convention orders only oblige the mother to return the child to Australia. Once back in Australia, subject to any orders made under the Act governing the child’s place of residence, the mother is free to live where she likes with the child.

   [1] Mother’s affidavit 27/4/20, para 122

10. Promptly upon pronouncement of the Hague Convention orders, the mother applied to the UK court to “restore the matter”. Her application apparently contemplated the court may “consider further evidence” and hence presumably come to a different decision in light of it.[2] The UK court unsurprisingly refused that application.[3]

    [2] Mother’s affidavit 27/4/20, para 115

    [3] Mother’s affidavit 27/4/20, para 116; Exhibits F5, F6

11. In December 2019, the mother sought to appeal the decision of the UK court, but she was refused permission to appeal in February 2020.[4]

    [4] Mother’s affidavit 27/4/20, paras 117, 119; Exhibit F7

12. On 4 March 2020, the UK court ordered that the child be returned to Australia by 27 March 2020.[5] It is not apparent from the evidence why the original Hague Convention orders made on 8 November 2019 were varied at all because, given the absence of any appeal against them, the orders were final and dispositive. In any event, the father agreed to the variation.[6]

    [5] Mother’s affidavit 27/4/20, para 121; Exhibit F8

    [6] Mother’s affidavit 27/4/20, para 136; Exhibit F8 (Recital 3)

13. On 18 March 2020, the mother commenced these proceedings in Australia before this Court, remotely from the UK, seeking both final and interim orders in respect of the child. If interim orders are made in the terms sought by the mother, she will have this Court’s authorisation to continue living with the child in the UK, notwithstanding the terms of the Hague Convention orders made on 8 November 2019 (as varied on 4 March 2020) requiring the child’s return to Australia.

14. On 31 March 2020, the mother filed an application in the UK court to vary the Hague Convention orders, in so far as they dictate the date by which the child must be returned to Australia.[7] According to the mother, the UK court has deferred any decision in respect of that application, pending this Court’s determination of her interim parenting application.[8]

    [7] Mother’s affidavit 27/4/20, para 138

    [8] Mother’s affidavit 27/4/20, paras 140, 142

15. The parties’ competing interim applications were listed before this Court in the Sydney Registry on 21 April 2020, at which time the Senior Registrar did not entertain them, but instead transferred the proceedings to the Newcastle Registry.

16. The parties’ outstanding interim applications were listed before me on 1 June 2020 in a duty list, but became part-heard and were adjourned to 10 June 2020 because of the volume of evidentiary material upon which the parties wished to rely, some of which was not on the Court file in hardcopy form. Because of the current COVID-19 pandemic, the attendant biosecurity directions of the federal government, and the safety measures implemented by the Court, the hearing was conducted by telephone, so exhibits could not be spontaneously tendered in open Court.

Proposals

1. The mother pressed for two slightly different suites of interim orders, being:

   a)those contained in her Initiating Application filed on 18 March 2020; and

   b)those contained in her Application in a Case filed on 4 May 2020.

2. In the first application she proposed an order in the alternative that she live with the child in Brisbane, Queensland, Australia, but that proposal was omitted from her second application.

3. The father pressed for the orders set out in his Response filed on 16 April 2020, but abandoned his application for proposed orders A to D inclusive.

Evidence

1. Unfortunately, there was a large volume of evidence for an interlocutory hearing, most of which was not referred to in submissions.

2. The mother relied upon:

   a)her affidavit filed on 27 April 2020, the annexures to which were not attached and were therefore culled and tendered separately;[9] and

   b)the affidavit of a lawyer and registered migration agent, Mr A, filed on 28 May 2020.

   [9] Exhibits M1-M6

3. The mother sought leave to rely upon affidavits filed by the maternal grandfather and the maternal grandmother on 19 March 2020, but r 5.09 of the Family Law Rules 2004 (Cth) (“the Rules”) was applied and leave was refused.

4. The mother also sought leave to rely upon the affidavit of Professor C filed on 15 April 2020, but the father objected. Professor C is a psychiatrist and the mother sought to rely upon his evidence as an adversarial expert, not merely as a lay witness. The father’s counsel said the evidence was controversial and the mother had made no effort at all to procure relevant opinion evidence from a single expert witness under Division 15.5.2 of the Rules. When alerted to the problem, the mother’s counsel sought leave to rely upon the adversarial expert’s evidence pursuant to r 15.51(1) of the Rules, but such leave was refused for the following reasons.

5. Professor C was instructed by the mother’s lawyers on 29 February 2020 – months after the Hague Convention proceedings were concluded – presumably to support her application to re-open those proceedings in March 2020. Curiously, the professor’s report actually pre-dates the instructions he received to prepare it, for which no explanation was offered. The report bears two different dates: 13 February 2020 and 18 February 2020. It seems he conferred with the mother on the earlier date and compiled the report on the later date.

6. The professor, according to his affidavit, was engaged by the mother’s lawyers to “identify” three simple things:

   1.   The dates upon which [he has] seen [the mother].

   2.   Any diagnosis [he has] made or treatment [he has] prescribed.

   3.   Whether [he has] any concerns in relation to [the mother].

   (As per the original)

7. The professor’s report runs to 18 pages in length and purports to say far more about the mother than is necessary or sufficient to answer the simple questions posed to him by the mother’s lawyers.

8. Evidently, the mother sought to rely upon the professor’s report in these proceedings to support a contention that her psychological condition is not sufficiently stable or robust to withstand her return to Australia with the child.

9. First, that contention was, by implication if not expressly, rejected by the UK court when the Hague Convention return order was made in November 2019. The UK court found the child would not be exposed to the grave risk of psychological harm or otherwise placed in an intolerable position by her return to Australia, which the mother submitted would follow from the collapse of her psychological condition upon her return with the child to Australia.

10. Secondly, the father refutes the mother’s proposition and could not challenge the professor in cross-examination during an interim hearing. No attempt was made by the mother to have the professor available by telephone from the UK for cross-examination by the father.

11. Thirdly, one cannot be satisfied from the face of the report that the professor was seized of all relevant facts and circumstances in the proceedings. He could not possibly be aware of any facts and circumstances which have arisen since the report was compiled more than three months ago and he must certainly be unaware of the father’s assertions in these proceedings. The professor’s opinions were entirely reliant upon what he was told by the mother and her lawyers.

12. Fourthly, the professor is not the mother’s treating psychiatrist. He compiled his report as a forensic expert after a single consultation with the mother on 13 February 2020, lasting two hours.

13. Lastly, given the absence of knowledge about what information the professor relied upon to form his opinions, in conjunction with the professor’s certain ignorance of the evidence currently before the Court, the facts and assumptions upon which his opinions are based are not proven and his expert reasoning is not exposed. Those considerations deprive his evidence of admissibility, not merely weight (Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 at [42], [91]–[101], [120]–[124], [128]–[130]).

14. The father relied upon his affidavit filed on 16 April 2020. Similarly, the annexures to his affidavit were not attached and so a selection of them were tendered separately.[10]

    [10] Exhibits F1-F9

Legal principles

1. When making the return order under the Hague Convention in November 2019, the UK court was not motivated by the paramountcy of the child’s best interests, since the purpose of the Hague Convention is to reserve questions about a child’s care arrangements to the jurisdiction of the State in which the child is habitually resident (DP v Commonwealth Central Authority (2001) 206 CLR 401 at 406, 414–416, 440–442; MW v Director-General, Department of Community Services (2008) 244 ALR 205 at [52]–[61]; RCB v Forrest (2012) 247 CLR 304 at 312–315). The UK courts construe the objectives of the Hague Convention in the same way as Australian courts.

2. Nonetheless, in the determination of the defences raised by respondents to resist the ordered return of a child to his or her State of habitual residence, the child’s welfare is liable to be an influential consideration (DP v Commonwealth Central Authority at 414; MW v Director-General, Department of Community Services at [62]–[63]). It was so in this case and was duly considered by the UK court. The mother argued, unsuccessfully, that the child would be exposed to the grave risk of psychological harm or placed in an intolerable situation if returned to Australia.

3. The decision now required of this Court is governed by the application of different principles to those which bound the UK court.

4. Orders made by this Court in respect of children are made under Part VII of the Act, where the meaning of a “parenting order” is defined (s 64B). The Court may make such parenting orders as it thinks proper (s 65D), within the context of the objects of the legislation and the principles which underpin those objects (s 60B).

5. When making parenting orders, the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies the criteria which must be considered in arriving at a conclusion as to what is in the child’s best interests (s 60CC).

6. In proceedings under Part VII, the Act imports a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B).

7. The presumption of equal shared parental responsibility does not apply in certain circumstances (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied it would not be in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA(4)). The presumption says nothing about with whom the child should live or spend time, but the manner in which parental responsibility for the child is allocated by the Court may bear upon that issue.

8. In the event an order is made allocating equal shared parental responsibility to the child’s parents, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA). If parental responsibility for the child is allocated in some other way, then the exercise of the Court’s discretion about the child’s care arrangements is at large, though the discretion must still be exercised in the context of the child’s best interests being the paramount consideration.

Child’s best interests

1. In determining the orders which promote the child’s best interests, the Act specifies in s 60CC the factors which the Court must consider.

2. Section 60CC of the Act provides, relevantly:

   (1)… in determining what is in the child’s best interests, the child must consider the matters set out in subsections (2) and (3).

   …

   (2)The primary considerations are:

   (a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and

   (b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

   …

   (2A)In applying the considerations set out in subsection (2), the court is  to give greater weight to the considerations set out in paragraph (2)(b).

   …

   (3)Additional considerations are:

   (a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;

   (b)the nature of the relationship of the child with:

   (i)each of the child’s parents; and

   (ii)other persons (including any grandparent or other relative of the child);

   (c)the extent to which each of the child’s parents has taken, or failed to take, the opportunity:

   (i)to participate in making decisions about major long-term issues in relation to the child; and

   (ii)to spend time with the child; and

   (iii)to communicate with the child;

   (ca)the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;

   (d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

   (i)either of his or her parents; or

   (ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

   (e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

   (f)the capacity of:

   (i)each of the child’s parents; and

   (ii)any other person (including any grandparent or other relative of the child);

   to provide for the needs of the child, including emotional and intellectual needs;

   (g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;

   (h)if the child is an Aboriginal child or a Torres Strait Islander child:

   (i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

   (ii)the likely impact any proposed parenting order under this Part will have on that right;

   (i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

   (j)any family violence involving the child or a member of the child’s family;

   (k)if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following:

   (i)the nature of the order;

   (ii)the circumstances in which the order was made;

   (iii)any evidence admitted in proceedings for the order;

   (iv)any findings made by the court in, or in proceedings for, the order;          

   (v) any other relevant matter;

   (l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

   (m)any other fact or circumstance that the court thinks is relevant.

   …

   (Headings and notes omitted)

Section 60CC(2)(a)

1. It was uncontroversial that the child will benefit from maintaining meaningful relationships with both parents.

2. The mother must realise that is so because, despite her desire to remain living in the UK, she has ensured the child continues to have regular interaction with the father via FaceTime.[11] She also facilitated the child spending time with the father in the UK in November 2019.[12] The mother also proposes that the child continue to spend time with the father, though the arrangements for that to occur are dependent upon whether she lives with the child in the UK or in Australia.

   [11] Mother’s affidavit 27/4/20, paras 159-163

   [12] Father’s affidavit 16/4/20, para 72

3. The child’s ability to derive benefit from a meaningful relationship with the father is a powerful “primary” consideration because the Act aspires to ensuring that children gain advantage from both parents’ meaningful involvement in their lives (s 60B(1)(a)). It is readily acknowledged that children benefit from the development of good relationships with each parent, apart from when such relationships are abusive, which is not the situation here. The right to know and be cared for on a regular basis by both parents are principles underlying the objects of Part VII of the Act (U v U (2002) 211 CLR 238 at 285-286; M v M (1988) 166 CLR 69 at 76).

Section 60CC(2)(b)

1. It was not contended that the child is at any risk of harm from abuse or family violence in the household of either party.

2. It was, however, implicitly the mother’s case that the child is liable to be harmed in her care if she is forced to live with the child in Australia because she feels as though, in those circumstances, her “mental health will deteriorate drastically”.[13] The mother contends the child is at risk of some form of harm by reason of being neglected, so as to engage s 60CC(2)(b) of the Act, if her emotional fortitude completely collapses.

   [13] Mother’s affidavit 27/4/20, para 165

3. Suffice to say, there is a dearth of reliable evidence to demonstrate the existence of any such risk. The mother’s bare opinion carries little weight. While the father did concede the mother’s psychological state was prone to be unstable,[14] the evidence falls considerably short of verifying the potent risk the mother implicitly urged should be found.

   [14] Father’s affidavit 16/4/20, paras 20-24

4. The mother’s contention is not unlike the arguments she proffered to the UK court in support of her defence under Article 13(b) of the Hague Convention,[15] which arguments were rejected. Undoubtedly the mother does not want to return to Australia and so being forced to do so (which is only the case if she wants to remain the child’s primary carer) will likely make her melancholy, but there is an important distinction between disappointment and unhappiness on the one hand and, on the other, such drastic deterioration in psychological health so as to compromise the welfare of the child.

   [15] Exhibit F2, paras 3, 42

5. The UK court found the mother’s mental health is fragile but variable and, even when feeling at her worst, she has still provided the child with competent care.[16] There is no evidentiary basis upon which to properly conclude any differently now.

   [16] Exhibit F2, paras 44, 47

6. When the mother commenced these proceedings in March 2020, she proposed (albeit in the alternative) that she be permitted to live with the child in Brisbane, Queensland, Australia, so she must have then foreseen her capacity to return and live in Australia with the child. No explanation was offered for why she deleted that alternative proposal from the application she filed only several weeks later in early May 2020. No aspect of the evidence verified any deterioration in her psychological condition in the interregnum.

Section 60CC(3)

1. As I understood it, no submissions made by the parties engaged ss 60CC(3)(a), (b)(ii), (c), (ca), (d), (f), (g), (h), (i), (j), (k) or (l) of the Act.

2. The factor prescribed by s 60CC(3)(b)(i) is sufficiently covered by the discussion under s 60CC(2)(a) of the Act. No more can usefully be said on that count.

3. As for s 60CC(3)(e), there are obvious practical implications for how and when the child may spend time with the father. The difficulty and expense of such potential arrangements cannot be assessed until a decision is made about whether the child lives with the mother in the UK or Australia and, if in Australia, the proximity of their residence to the father’s residence. It would be precipitous to make any decisions of that sort at this point.

4. There are two other considerations which are pertinent and may be considered under s 60CC(3)(m) of the Act.

5. First, making orders to reflect those proposed by the mother would undercut the Hague Convention orders made by the UK court in November 2019, which require the child to be returned to Australia.

6. True it is, the Hague Convention only provides the framework for a forensic contest about which member State has jurisdiction to determine parenting proceedings between parties in respect of the subject child, but the Hague Convention orders made by the UK court do not merely compel this family’s submission to the jurisdiction of this Court under the Act; the orders actually compel the mother to return the child to Australia in these terms:[17]

   6.The child, Z, shall be summarily returned to the State of Australia by no later than 23:59 hrs (GMT/UTC) Wednesday 8 January 2020, pursuant to article 12 of The Hague Convention on the Civil Aspects of International Child Abduction 1980, by the Respondent, Ms Ferris.

   (Original emphasis)

   [17] Exhibit F3, para 6

7. As the premise for such an order, the mother gave an undertaking to the UK court in the following terms:[18]

   a.To cooperate fully with the arrangements for the return of the child to the State of Australia pursuant to paragraph 6 of this order.

   [18] Exhibit F3, Annexure B, undertaking (a)

8. The order of the UK court was made in the context of it being an express objective of the Hague Convention to ensure the prompt return of the subject child to the State of his or her habitual residence.[19]

   [19] Exhibit F2, paras 29, 31

9. The mother subsequently embraced the jurisdiction of this Court by her commencement of these proceedings in March 2020, but her current application before this Court is tantamount to an attempt to force an outcome favourable to her interests and inimical to the father’s before the Court has had any realistic chance to impartially assess the merits of their respective cases. The mother’s approach to this litigation tends to subvert the policy of the Hague Convention and, if it is countenanced, will likely set an example to many other unsuccessful respondents in Hague Convention proceedings to try and outflank the return orders by starting litigation in the child’s State of habitual residence from abroad, seeking interim orders enabling them to remain with the child in the State to or in which the subject child was wrongfully taken or retained.

10. Self-evidently, under the prescriptive terms of the Act, the child’s best interests are presently the paramount consideration and cannot by trumped by policy considerations, but that is not to say such factors cannot be influential in the decision. The child’s best interests are the paramount, but not the only legitimate, consideration as the mother correctly conceded. Given the mother’s endorsement of Australian jurisdiction, as is evident from her commencement of these proceedings in March 2020 from her residence in the UK, there was nothing to stop her from having begun the proceedings from the UK in June 2019 when she decided to retain the child there with her. It would have made the Hague Convention proceedings redundant and enabled this Court to have made, at that time, more measured procedural directions about the conduct of the hearing and thereby avoided the urgency of the decision now required of it by both parties.

11. Secondly, the mother sought to contest her legal and physical ability to return with the child to Australia, even if ordered to do so. She deposed to impediments she perceived existed with her visa status[20] and the current restrictions which condition international travel because of the Covid-19 pandemic.[21]

    [20] Mother’s affidavit 27/4/20, paras 171-172, 183, 192-194

    [21] Mother’s affidavit 27/4/20, paras 173-178

12. As to the asserted concern about her visa, the mother deferred to more recent advice from her immigration lawyer.[22] Her immigration lawyer, who is also a registered migration agent, deposed that the mother is allowed to return to Australia under her current sub-class 820 visa and will also be able to return to Australia under a new sub-class 801 visa, for which he has already applied on her behalf.[23] That aligns with advice received by the father.[24] There was no dispute about the child’s eligibility for admission to Australia, not least because she is an Australian citizen by reason of the father’s paternity.

    [22] Mother’s affidavit 27/4/20, para 195

    [23] Mr A’s affidavit 28/5/20, Annexure B , paras 7-8

    [24] Father’s affidavit 16/4/20, paras 82, 85, 86

13. As to the concern about current international travel restrictions, the mother has only investigated European return routes through Singapore, Hong Kong, the United Arab Emirates and Qatar. Transit through Singapore is presently banned, but transit through the other three airports is permissible subject to restrictions.[25] There are obviously numerous other stop-over points between the UK and Australia on a variety of airlines which were not investigated by the mother. I accept it may be difficult in the current pandemic conditions to arrange flights to Australia promptly, but I reject any implied suggestion of impossibility.

    [25] Exhibit M3

14. Until COVID-19 quarantine restrictions are relaxed by Australian authorities for international travellers, the father acknowledges the mother and the child would be compelled to spend 14 days locked down in quarantine upon arrival in Australia.[26] While that might be an undesirable prospect with an active toddler, it is not an impossible situation; only difficult. The mother has had the benefit of prolonging her stay in the UK by more than five months. If anything, the extra time the mother has enjoyed in the UK is likely to have enhanced her capacity to cope with 14 days close confinement with the child.

    [26] Father’s affidavit 16/4/20, para 83

Conclusions and orders

1. The parties both proposed their investiture with equal shared parental responsibility for the child. The presumption in favour of such an order applies and is not rebutted (s 61DA).

2. Such an order engages the provisions of s 65DAA of the Act, so it is necessary to consider whether the child can or should live with the parties for “equal time” or, alternatively, live with one party primarily and spend “substantial and significant time” with the other.

3. It is not reasonably practicable for the child to live with the parties for “equal time”. Indeed, neither party proposed it. The parties acknowledge by their respective applications that the child should continue to reside primarily with the mother.

4. While the mother would certainly be happier living with the child in the UK, the child’s best interests are presently more capably served by her living in Australia with the mother. That is because, at least while the child is young, her important relationship with the father will develop and flourish much more easily if she spends time with him in person on a reasonably regular basis. That is impossible if the child remains in the UK with the mother. The child’s contact with the father almost exclusively by internet, even if frequent, is not a satisfactory substitute. The UK court was unconvinced the child would be placed in an intolerable situation by living in Australia. The child would, however, be intolerably deprived of the chance of an enduring and meaningful relationship with the father if allowed to remain living with the mother in the UK at this point in time. Feasibly, the mother and the child might be able to later return to live in the UK once the child’s relationship with the father is firmly established, but that is a decision which must await final trial when the lay and expert evidence then available can be properly evaluated.

5. The inconsistency between the mother’s current application and the existing Hague Convention orders is another, though less influential, consideration which militates in favour of the child’s return to Australia with the mother.

6. The risk of the mother’s emotional collapse, with consequential detriment to the child, if forced to return to Australia is a countervailing consideration, but the evidence does not demonstrate such risk is so pronounced as to overwhelm the primary importance of the child’s need to derive the benefit of a meaningful relationship with the father. That is a relationship upon which the child is liable to depend throughout her life so, if it is compromised now, it will not likely be recovered.

7. The mother’s desire to live where she chooses clashes with the child’s ability to develop her relationship with the father, which is in the child’s best interests. If the mother prioritises her position as the child’s primary carer (as she does), then the child’s best interests are paramount and she must subordinate her right to choice of the place of her residence. Parents only have as much residential freedom as is compatible with their obligations to a child (see AMS v AIF (1999) 199 CLR 160 at 223–224, 231–232; Sampson and Hartnett (No. 10) (2007) FLC 93-350; Zanda & Zanda (2004) FLC 93-607 at [132]–[136]). When the child’s welfare would be adversely affected, the residential parent’s right to freedom of choice over the place of his or her residence must defer to the child’s best interests (see U v U at 262).

8. The father proposed that the child spend “substantial and significant time” with him (s 65DAA(3)), but that is not a reasonably practicable regime while the child lives with the mother in the UK and, allowing the mother some latitude about the place of her residence with the child when they return to Australia, it might not be reasonably practicable even when they return.

9. Upon her return to Australia with the child, the mother will be disappointed and will lack the day-to-day physical support she currently enjoys from family and friends in the UK. On the available evidence, despite the undertakings given by the father to the UK court in the Hague Convention proceedings concerning his proposed practical support of the mother, it is unnecessary to impel her to establish a new residence in the same country town she left in May 2019, thereby forcing her to live amongst the father, his family and his friends. If she chooses to do so and to accept the various forms of assistance the father undertook to provide her, then so be it. Otherwise, she has family in Brisbane, Queensland, where she might find succour and support, as she actually envisaged when she commenced these proceedings in March 2020. Alternatively, other places in NSW, not too distant from the regional area, might offer the mother wider residential and social opportunities. The orders make such provision, enabling the mother a broad range of choice about where she lives with the child. If the mother is given some limited freedom to choose where she lives, she is less likely to feel any sense of oppression in performing her role as the child’s primary carer in a foreign country. It is uncontroversial that the child’s interests are served if the mother’s emotional state is reasonably stable.

10. The orders will not compel the mother to return and live with the child in Australia, as a compulsive order of that type is rarely made (Franklyn and Franklyn [2019] FamCAFC 256 at [27]–[28]; Sampson and Hartnett (No. 10)). The relative lack of evidence about the mother’s Australian residential options militates against such an order being made at this point in time. Instead, the orders will provide that the child only lives with the mother upon condition that she forthwith moves to live with the child in Australia. Her compulsion to return to Australia is a matter for the UK court to decide when considering disposition of the proceedings pending before it to enforce the Hague Convention return order, made in those express terms. If the mother chooses to remain in the UK with the child and the UK court does not enforce the Hague Convention return order, then the way will be open for the father to promptly apply again to this Court seeking an interim order for the child to instead live with him in Australia. That is not an application he has made at this point in time.

1. As earlier mentioned, it is too early to make considered decisions about the time the child must spend with the father in Australia. It might yet be that he applies for the child’s residence instead. Decisions of that sort should await the mother’s decisions about her return to Australia and, if so, her establishment of an Australian residence. Then, fresh evidence may be adduced of the parties’ current circumstances.

2. Pending such further application being made, the orders will presently provide for a form of frequent electronic interaction between the child and the father, which order accords with an order proposed by the mother.

3. There is no need to expedite the final hearing of the proceedings before this Court, as the mother sought. The expedition application was only made, as I understand it, as a salve if the mother is permitted to remain living with the child in the UK in the interim.

4. Each party sought costs against the other. Costs will be reserved for 28 days, within which time either party may request that the proceedings be re-listed to entertain a costs application.

5. I therefore make the following orders.

I certify that the preceding eighty-eight (88) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Austin delivered on 10 June 2020.

Associate: 

Date:  15 June 2020