Kurata & Commissioner, Western Australia Police - [2021] FedCFamC1A 57

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Kurata & Commissioner, Western Australia Police [2021] FedCFamC1A 57

Appeal from: Commissioner of Western Australia Police & Kurata [2021] FCWA 111

Appeal number(s): WEA 17 of 2021

File number(s): PTW 10058 of 2020

Judgment of: STRICKLAND, TREE & BENNETT JJ

Date of judgment: 19 November 2021

Catchwords: FAMILY LAW – APPEAL – CHILD ABDUCTION – Hague Convention – Appeal from orders requiring two children to return to the United Kingdom pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (Cth) – Habitual residence – Wrongful retention – Acquiescence – Grave risk of harm – Objects to return – Where the primary judge’s findings to make a return order were reasonably open on the evidence – Where matters taken into account – No ground of appeal made out – Appeal dismissed.

Legislation:
Family Law Act 1975 (Cth) ss 93A, 94

Family Law (Child Abduction Convention) Regulations 1986 (Cth) regs 4, 15, 16, 26

Convention of 25 October 1980 on the Civil Aspects of International Child Abduction Articles 1, 13, 35

Cases cited:
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22

Handbury v State Central Authority (2020) FLC 93-937; [2020] FamCAFC 5

House & The King (1936) 55 CLR 499; [1936] HCA 40

In re C (Children) (International Centre for Family Law, Policy and Practice intervening) [2019] AC 1; [2018] UKSC 8

In re N (a child) [2020] EWFC 35

In re R (Children) (Reunite International Child Abduction Centre intervening) [2016] AC 76; [2015] UKSC 35

LK v Director General, Department of Community Services (2009) 237 CLR 582; [2009] HCA 9

Secretary, Department of Communities and Justice & Paredes [2021] FamCA 128

TB v JB(Abduction: Grave Risk of Harm) [2001] 2 FLR 515; [2000] EWCA Civ 337

Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9

Yardlay & Commissioner of Police (2020) FLC 93-981; [2020] FamCAFC 186

Zafiropoulos & State Central Authority (2006) FLC 93-264; [2006] FamCA 446

Number of paragraphs: 140

Date of hearing: 13 August 2021

Place: Perth (via video link)

Counsel for the Applicant: Mr Berry SC

Solicitor for the Appellant: Elizabeth Wiese and Associates

Counsel for the Respondent: Ms Thatcher SC

Solicitor for the Respondent: State Solicitor’s Office
ORDERS

WEA 17 of 2021
PTW 10058 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MS KURATA

Appellant

AND:
COMMISSIONER, WESTERN AUSTRALIA POLICE

Respondent

ORDER MADE BY:

STRICKLAND, TREE & BENNETT JJ

DATE OF ORDER:

19 NOVEMBER 2021

THE COURT ORDERS THAT:
1.The Notice of Appeal be dismissed.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Kurata & Commissioner, Western Australia Police has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
STRICKLAND AND TREE JJ:

We have had the advantage of reading a draft of the reasons of Bennett J, and for substantially similar reasons, agree that the appeal ought be dismissed. Particularly, as her Honour explains:
(a)Ground 1 fails, as there was ample evidence to support the primary judge’s conclusion that Ms Kurata (“the mother”) wrongfully retained the children in Australia on 1 September 2020.
(b)The primary judge’s finding that the children habitually resided in the United Kingdom prior to their wrongful retention in Australia was patently correct, and hence Ground 2 fails.
(c)The finding of acquiescence which Ground 3 contends ought to have been made by the primary judge, was not open on the evidence, and hence no error by the primary judge is established.
(d)There is no substance to the contention advanced under Ground 4 that the return of the children to the United Kingdom would expose them to a grave risk of harm, or place them in an intolerable situation.
Insofar as the mother argued Child A’s autism would not be adequately supported there, she failed to discharge the evidentiary onus which rested with her.
Insofar as the risk to Child A was one of self-harm, the primary judge’s conclusion that the risk did not mean that a return order should not be made was well open to her Honour.
Finally, insofar as the ground as argued asserted that Covid-19 has placed all children in the United Kingdom at a risk of grave harm (and hence returning the children there would do so as well) that contention needs only be stated to demonstrate why it must be rejected.
(e)Ground 5 is devoid of merit, in that the weight to be given to child A’s wishes, insofar as he objected to returning to the United Kingdom, was quintessentially a matter for the primary judge, and the fact that we may have given them greater weight does not justify appellate intervention.
BENNETT J:
By a Notice of Appeal filed on 30 June 2021, Ms Kurata (“the mother”) appeals the order made in the Family Court of Western Australia on 18 June 2021 that the children Child A born in 2009 and Child B born in 2012 (“the children”) be returned to the United Kingdom pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”).
The decision was made on the application of the State Central Authority, Commissioner of the Western Australian Police (“the SCA”) filed on 3 December 2020. The mother was the respondent and opposed the application in her response filed 11 January 2021. The father of the children was a witness for the applicant SCA and the person at whose request the repatriation process was initiated. He was not a party to the proceedings. I will refer to the mother and father as “the parents”.
If the mother’s appeal is successful, the mother seeks that the return order and provisions ancillary to the return order be set aside and “[s]uch further or alternative orders as the Court deems fit”. The appellant mother does not seek to disturb the conditions for return but, obviously, there is no scope for operation of the conditions if the return order is set aside. At the commencement of the hearing before us senior counsel for the mother clarified that, in the event that the appeal is upheld on grounds other than those which relate to jurisdictional facts, she seeks that the proceedings be remitted for re-hearing before a judge other than the primary judge. The SCA, respondent to the appeal, seeks that the appeal be dismissed.
This appeal was heard on 13 August 2021 when COVID-19 restrictions were in force throughout most of the eastern states of Australia. The hearing was conducted electronically on the Courts’ Microsoft Teams platform. We reserved our decision. These are my reasons for dismissing the mother’s appeal.
BACKGROUND CIRCUMSTANCES
It is necessary to give some background to this matter to give context to the appeal and the mother’s contentions. Save where indicated, I understand the following facts are not contentious, and most are drawn from the primary judge’s reasons.
The father of the children was born in Country A in 1974 and is a citizen. The mother was born in Western Australia in 1973 and is an Australian citizen. The parents met in 2002 and subsequently married in Western Australia in 2005. In 2007 the parties relocated to the United Kingdom in the course of the father’s employment.
Child A was born in the United Kingdom in 2009. He is a citizen of Australia, Country A and the United Kingdom. In 2012 the mother travelled to Australia with Child A for a job opportunity. The father remained working in the United Kingdom. Child B was born in State A in November 2012. She is a dual citizen of Australia and Country A. In January 2013 and following a visit to the mother’s family, the parents and the children returned to the United Kingdom.
The mother is legally trained and is qualified as a professional in Australia and in the United Kingdom. In England she was most recently employed as a professional at Firm C. In March 2021, the mother commenced employment in Australia as a professional at Firm D. The father is employed as a Consultant.
The parents separated in November 2015 following an au pair complaining of inappropriate conduct by the father. The father left the former family home in Area A. Following separation the children lived with the mother and spent regular time with the father. The parents and children regularly travelled together as a family after separation including to Country A in October 2016 and December 2018, and to Country C in July 2017. The family travelled together to the Region A in August 2016, to Town A in June 2017, to City A in October 2017 and the Landmark A in April 2019. Further family holidays are detailed below.
In July 2019 the mother relocated with the children to the suburb of Area B in County A and the father remained living in Area A. The family holidayed together in Landmark B in July 2019 and in Town B in October 2019.
In late 2019 the father’s employment ceased for reasons which are not agreed. Around this time, with the mother’s consent, the father began spending increased time with the children at the mother’s home in County A. The family holidayed together in Town B in January 2020. On 20 March 2020 the children’s school was closed as part of a suite of lockdowns in response to the COVID-19 pandemic. The mother commenced working from home. On 5 March 2020 Child A was offered and accepted a place at School C, which is a selective secondary foundation school for boys.
In June 2020 the father consented to the mother and the children travelling to Australia for the purpose of visiting their maternal grandparents, he claims, on the basis that the children would return to the United Kingdom prior to the commencement of school on 1 September 2020. The mother’s contention, which was not accepted by the primary judge, was that her agreement to return the children for the start of school on 1 September 2020 was conditional upon the state of the pandemic in the United Kingdom.
On 13 June 2020 the mother purchased one way aeroplane tickets to Western Australia. The father drove the mother and the children to the airport on 16 June 2020.
On 17 June 2020 the mother and the children arrived in City D, Western Australia and, in accordance with Australian government health regulations, entered 14 day hotel quarantine. Upon completion of the hotel quarantine the mother and children resided with the maternal grandparents at Suburb D in Western Australia. From the time of the children’s arrival in Australia, the father remained in regular communication with them through FaceTime and telephone.
The parents agreed to enrol the children in school in Australia and on 20 July 2020 the children commenced their schooling at School D. In July 2020 the parents were in regular contact about the children’s schooling in the United Kingdom including making arrangements for the father to collect Child A’s uniform for School C and school books which had been ordered and paid for by the mother.
In mid-August 2020 the mother informed the father she would be returning with the children to the United Kingdom by the end of August 2020. At or around the end of August 2020 the father secured employment in the United Kingdom. On 24 August 2020 School C emailed the mother asking that she keep the school informed of Child A’s travel arrangements so that they could prepare for Child A’s arrival. On 26 August 2020 the mother replied by return email informing the school there were limited international flights out of Australia, but that some were expected to become available in September 2020.
The school year in the United Kingdom commenced on 2 September 2020. The mother and children did not return by the commencement of the school term in the United Kingdom. They have remained in Australia.
The mother raised her concern with the father in early September 2020 about the potential for a second wave of COVID-19 in the United Kingdom. On 16 September 2020 the mother wrote to the father informing him, among other things that the children wanted to remain in Australia “until the epidemic is over”. The father alleges that during a FaceTime conversation that took place between mid to late September 2020 and early October 2020 the mother informed him that she and the children wanted to live in Australia permanently. The mother denies this and says that she said that she and the children would stay in Australia “until the [pandemic] is over” or “until COVID is sorted.”
In late September 2020 the mother took unpaid leave from her employment with Firm C in the United Kingdom. The mother purchased a car in City D and joined a local gym; actions which the father alleged, and the primary judge accepted, were consistent with the mother having unilaterally decided that she and the children would remain in Australia.
By various correspondence in October 2020 the father sought, to no avail, to reassure the mother and the children that it was safe to return to the United Kingdom.
On 3 November 2020 the father completed his request to the International Child Abduction & Contact Unit, Office of the Official Solicitor in the United Kingdom for the return of the children to the United Kingdom pursuant to the 1980 Convention. The International Child Abduction & Contact Unit is the Central Authority for England and Wales. The Central Authority for England and Wales transmitted the application to the Australian Central Authority. The Australian Central Authority transmitted the father’s request to the Central Authority for Western Australia who is the Commissioner of Police and the applicant in proceedings for the return of the children to the United Kingdom (the SCA).
On 3 December 2020 the applicant SCA filed its Form 2 Application Initiating Proceedings. On 10 December 2020 orders were made ex parte restraining the mother from removing the children from the Commonwealth of Australia, placing the children on an Airport Watch List and requiring the mother to surrender their passports.
On 18 December 2020 orders were made for the filing and serving of responding material by the mother by 8 January 2021 and the father in reply by 22 January 2021. A report pursuant to reg 26 of the Regulations was ordered with detailed directions to the Family Consultant. The matter was listed for trial on 25 March 2021. On 11 January 2021 the mother filed an answer and cross application. On 22 January 2021 the father filed an affidavit in reply.
An interview was conducted by the Family Consultant with the parents and the children on 3 and 4 March 2021 and in due course the reg 26 report dated 18 March 2021 was admitted into evidence on 23 March 2021 and published to the parties.
On 18 March 2021 the applicant SCA and the appellant mother agreed to vacate the trial on 25 March 2021 and the matter was relisted to 13 and 14 May 2021.
The mother was offered and accepted an employment opportunity in Australia which she commenced on 31 March 2021.
On 15 April 2021 the father travelled from the United Kingdom to Western Australia and entered 14 day hotel quarantine.
On 13 and 14 May 2021 the application for return was heard by the primary judge. On 18 June 2021 the primary judge made the order for return and handed down her reasons for decision. On 30 June 2021 the mother lodged her Notice of Appeal against the Order.
RELEVANT LEGAL PRINCIPLES
The Regulations give effect to Australia’s obligations under the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (“the 1980 Convention”) which entered into force between Australia and the United Kingdom on 1 January 1987. It is the Regulations, rather than the 1980 Convention, that have force of law in Australia. What follows are the legal principles relevant to the facts of this case rather than a comprehensive statement of the law.
The retention of a child occurs when the child is taken out of one contracting state, in this case the United Kingdom, and into another contracting state, in this case Australia, with agreement of a person with rights of custody over the child (the father) and is not returned as and when agreed. Not every retention of a child across international borders qualifies for a return of the child under the Regulations. The Regulations apply only to a retention that is wrongful within the meaning of reg 16(1A) of the Regulations.
The prerequisites to a finding that a retention is wrongful,[1] are that:
(e)the child is under 16 years (reg 16(1A)(a));
(f)the child habitually resided in the country from which they are retained immediately prior to the retention (reg 16(1A)(b));
(g)immediately prior to the retention, the left behind parent had ‘rights of custody’ in relation to the child under the law of the country of habitual residence (reg 16(1A)(c); Art 3). Rights of custody is defined by reg 4 and includes rights relating to the care of the person of the child and, in particular, the right to determine the place of residence of the child;
(h)the retention of the child was in breach of the left behind parent’s rights of custody (reg 16(1A)(d)); and
(i)at the time of the retention, the left behind parent was actually exercising the rights of custody (either jointly or alone) or would have exercised those rights had the child not been retained (reg 16(1A)(e)).
[1] The 1980 Convention, Article 35.
These prerequisites are jurisdictional facts. The Court must be positively satisfied of each jurisdictional fact in order for the Regulations to be engaged and for a child to be eligible to be returned to his or her state of habitual residence pursuant to the Regulations.
In this case, the appellant mother concedes that the children are under 16 years old, the father has rights of custody pursuant to the laws of the United Kingdom and that he was actually exercising the rights of custody or would have exercised those rights had the children not been retained. Before the primary judge, and now, the appellant mother does not concede:
(a)the date of wrongful retention (Ground 1);
(b)insofar as it may become relevant, that the children remained habitually resident in the United Kingdom after 17 December 2020 (Ground 2), and
(c)that her retention of the children in Australia was in breach of the father’s rights of custody. The mother alleges (but the father denies) that he agreed that the children could remain in Australia until 17 December 2020 or until the effects of the pandemic subside.
The application before the primary judge was brought within 12 months of the date of the alleged wrongful retention so it is an application to which reg 16(1) applies. Accordingly, if the child is wrongfully retained, the Court must order the return of the child promptly to their state of habitual residence unless one of the five exceptions to return are made out.
The five exceptions to return can be briefly described as:
(a)the person seeking return was not actually exercising rights of custody when the child was removed to, or first retained in, Australia and the rights of custody would not have been exercised if the child had not been removed or retained (reg 16(3)(a)(i));
(b)consent or acquiescence on the part of the left behind parent (reg 16(3)(a)(ii));
(c)there is a grave risk that the return of the child under the Regulations would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation (reg 16(3)(b));
(d)the child objects to return (reg 16(3)(c)), and
(e)the return would not be permitted by the fundamental principles of Australia relating to the protection of human rights and fundamental freedoms (reg 16(3)(d)).

The primary judge rejected each reg 16(3) exception upon which the mother relied at first instance being consent and acquiescence, grave risk of harm and Child A’s objection to return. The mother now challenges the primary judge’s findings in respect of each of the exceptions by asserting that the primary judge’s findings were not reasonably open on the evidence before the primary judge. In particular, the mother :
·by Ground 3 of the Notice of Appeal, maintains that the retention of the children in Australia on 1 September 2020 was not wrongful because the father consented to, ‘sanctioned’ or subsequently acquiesced to the children being retained in Australia within the meaning of reg 16(3)(a)(ii);
·by Ground 4 of the Notice of Appeal, maintains that there is a grave risk that the return of the children (or either of them) to the United Kingdom would expose Child A to a grave risk of psychological harm or otherwise place him in an intolerable situation within the meaning of reg 16(3)(b) by virtue of the likelihood that he would self-harm and that there are inadequate supports in the United Kingdom for autistic children; and
·by Ground 5 of the Notice of Appeal, maintains that Child A has attained an age, and a degree of maturity, at which it is appropriate to take account of his views (within the meaning of reg 16(3)(c)(iii)). This was in the context of the mother’s assertions that Child A objects to being returned to the United Kingdom (within the meaning of reg 16(3)(c)(i)) and that his objection shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes (within the meaning of reg 16(3)(c)(ii)).
If one or more of the exceptions to return are made out (as was not the case here), the Court has a discretion to refuse to return the child. Whilst reg 16(3) is silent on the matters which inform the exercise of the Court’s discretion to refuse return, the Court must exercise its discretion judicially and consistently with the judicial process. A variety of matters may be relevant and inform the exercise of discretion but extraneous matters ought not be taken into account. Amongst other things, the best interests of the individual child will be relevant, but are not necessarily a determinative consideration, to the Court’s discretion to refuse return.[2] In TB v JB(Abduction: Grave Risk of Harm) [2001] 2 FLR 515 (“TB v JB”) Hale LJ (as she then was), in her dissenting judgment, accepted and applied the following list of factors to be considered on the exercise of the discretion to refuse return:
(a)the comparative suitability of the forum to determine the child's future in the substantive proceedings;
(b)the likely outcome (in whichever forum) of the substantive proceedings;
(c)the consequences of the acquiescence;
(d)the situation which would await the absconding parent and the child if compelled to return;
(e)the anticipated emotional effect upon the child of an immediate return (a factor which is to be treated as significant but not paramount); and
(f)the extent to which the purpose and underlying philosophy of the Hague Convention would be at risk of frustration if a return order were to be refused.
[2] Zafiropolous & State Central Authority (2006) FLC 93-264.
The Full Court of this Court, in Zafiropoulos & State Central Authority (2006) FLC 93-264 (“Zafiropoulos & State Central Authority”), adopted this list of relevant factors in TB v JB. I would add to the above list a consideration of whether the laws of the state of habitual residence permit international relocation of children.
Reg 15(1)(b) and (c) provide that, when making a return order, the Court may make any order or impose any condition “that the court considers to be appropriate to give effect to the Convention”. In this case, the conditions of return imposed by the primary judge were directed to obtaining travel exemptions from the Department of Home Affairs (Australia) for the children to return to the United Kingdom, the father purchasing the flight tickets for the appellant mother and the children to return to the United Kingdom, care of the children en route back to the United Kingdom and parenting arrangements for the children once they landed in the United Kingdom and until a court in the United Kingdom otherwise orders. The appellant mother makes no challenge to the conditions.
THE REASONS FOR DECISION OF THE TRIAL JUDGE
I agree with the description by senior counsel for the appellant mother, of the primary judge’s reasons for decision as “a clearly structured and comprehensive judgment”.
Her Honour commenced by summarising the case of the SCA and the mother’s opposition to return by reference to their respective positions on the jurisdictional facts and exceptions to return and the common ground between them. Her Honour noted that the mother was not pursuing her previously articulated claim that the return of the children would not be permitted under the fundamental principles of Australia, relating to the protection of human rights and fundamental freedoms within the meaning of reg 16(3)(d).
Her Honour next provides an accurate outline of the law by reference to the purpose of the Regulations, Article 1 of the 1980 Convention and notes that the Court is required to order the return of the child where:
14. …
(a)the application is brought within 12 months of the child’s removal from a Convention country;
(b) the Court is satisfied that the child’s removal was wrongful; and
(c) no “exception to return” is established pursuant to reg 16(3).
15. The Court must take into account any information relating to the social background of the child that is provided by the Applicant or other competent authority of the country in which the child habitually resided immediately before his or her removal or retention.
16. Establishing an exception to return does not preclude the Court from making a return order, which remains a matter of discretion. The matters relevant to the exercise of that discretion include the best interests of the child. While I may refer to the children, any exception and resulting discretion which arises as a consequence of the exception being found to apply must be considered and determined in relation to each child individually.
(Footnotes omitted)
The primary judge correctly identified that the SCA has the onus of proving jurisdictional facts and the mother bore the onus of proving the exceptions to return. The primary judge correctly identified that the requisite standard of proof is the balance of probabilities.
The primary judge noted that “[n]otwithstanding the summary nature of these proceedings, each party relied upon a volume of material” (at [18]). As a result of paediatric infectious diseases specialist Dr E not being available for cross-examination, only page two of Dr E’s report, together with the articles referred to, were relied upon. By consent, Dr F, a public health communicable disease specialist and intensive care specialist paramedic, was made available for cross-examination by video link. No issue is taken in relation to the evidence described by the primary judge at [18] and [19] of the reasons as being the written material to which the primary judge had regard.
The primary judge recorded her observations of the parties and the witnesses. The primary judge found the father to be a satisfactory witness and made the following observations:
24.A court appointed Language A interpreter was provided for the father. It was clear that the father had a grasp of English, and on occasions, he gave answers in English. At other times, he relied on the interpreter. In my view, the father gave his evidence in a relatively straightforward manner, seemingly without any filter. He was direct and frank in his answers. When the father struggled to respond to questions he was asked, I formed the view his difficulties were genuine, as opposed to being indicative of any evasiveness. At times, it appeared the father was confused by the manner in which questions were framed by the Respondent’s counsel.
25.The father gave updating evidence in chief in respect of the easing of restrictions in the United Kingdom since the filing of his affidavit, his travel from City A to City D, via Country B, including the safety requirements, describing the flight as “almost vacant”.
26.The father made a number of concessions, without apparent hesitation. He acknowledged that while the children had been in Australia, at times they had been rude and strange towards him, while on other occasions, they had spoken nicely with him. The father admitted to calling both the Respondent and the maternal grandmother crazy, in the presence of the children during a recent visit, telling Child A that as his father, he was important, and that the visits between himself and the children had not gone well. The father denied yelling at the children, nor their mother during recent visits, asserting the Respondent and maternal grandmother had shouted at him.
(Footnotes omitted)
The primary judge was less satisfied with the mother’s evidence and observed:
27.The Respondent gave evidence in a careful and considered manner. I consider she attempted to give her evidence honestly, however I had the impression her answers were coloured by her desire for both her, and the children, to remain in Australia.
28.For example, the Respondent deposed that she and both children had been diagnosed with asthma, and were “all classed as ‘clinically vulnerable’ pursuant to the NHS taxonomy of vulnerability to COVID-19”. The father disputed that Child B had asthma. In the Respondent’s evidence in chief, she acknowledged Child B had not been diagnosed with asthma, explaining that in 2016, Child B had a viral induced wheeze, for which she had been prescribed Ventolin. I consider the Respondent’s evidence in this regard was a deliberate attempt to elevate the alleged risks to Child B in returning to the United Kingdom, which was not accurate.
29.By way of further example, the Respondent claimed she only formed an intention to remain in Australia permanently, in March 2021, after she obtained a job. I do not accept the Respondent’s evidence, which I found to be implausible and unlikely, when viewed in the context of her conduct and comments since September 2020, including her consistent efforts to resist returning to the United Kingdom.
30.For the reasons that follow, I do not accept the Respondent’s evidence in relation to the father agreeing to the children remaining in Australia, nor was I convinced that the Respondent actually believed that to be true.
31.The Respondent raised a litany of complaints against the father. Her evidence in this regard, sat uncomfortably with the fact that despite the parents’ separation, the Respondent continued to spend significant time with the father, including regularly sharing meals during the week, time together on weekends in addition to joint holidays.
The primary judge made the following observations about expert evidence and of the mother’s witnesses; Dr F, the mother’s sister Ms D and Dr G who is a psychologist retained by the mother:
32.Dr F is a public health communicable disease specialist, and intensive care specialist paramedic, based in State A. At the request of the Respondent, he prepared two reports which were attached to his affidavits filed in January and May 2021. There was no criticism of Dr F’s expertise or qualifications. Dr F gave his evidence in a professional and helpful manner…
33.Ms D is the Respondent’s sister. I found her to be articulate, intelligent and strongly supportive of the Respondent. She is a teacher, with qualifications in relation to gifted education. Ms D gave evidence in relation to her trip to England in October 2019 to visit the Respondent and children, in addition to her observations of the children since being in City D. Ms D gave evidence in relation to Child A’s Autism Spectrum Disorder (“ASD”) diagnosis. While her own son has ASD, Ms D is not an expert, nor is she independent. I attach limited weight to her opinions in this regard.
…
44.Dr G is a clinical and forensic psychologist, with 30 years’ experience. Unbeknown to the father, and despite the orders made by consent for the children to attend on the Family Consultant, the Respondent arranged for Child A and Child B to attend on Dr G.
45.Dr G prepared two reports, dated 5 January 2021 and 2 May 2021. The terms of reference were not attached to his reports, and were only disclosed during the trial.
46.On 4 January 2021, the Respondent’s counsel emailed Dr G, thanking him for agreeing to see the children and wrote, “If you can speak to me before you see them it might be helpful”. It was unclear whether any such discussion occurred. Dr G was told he was “Mrs Kurata’s expert witness” and that the Respondent would be relying on two exceptions:
•grave risk, in the context of the COVID-19 situation in England and the children’s experiences of parenting by their father (“Mrs Kurata will be able to explain this to you”); and
•the children’s objection to being returned, in circumstances where they had attained an age and degree of maturity at which it is appropriate to take account of their views.
47.Dr G was provided with an extract of reg 16(3)(c) and advised “it is not easy to make out either of these exceptions; the standard is set quite high”. Reference was made to the Guide to Good Practice on the operation of the relevant exceptions, which the Respondent’s counsel wrote he would try to provide. Again, it is unclear whether that occurred.
48.Dr G confirmed he had been requested “to interview [the children] with regard to certain specified issues arising from the children being the subject of proceedings under the 1980 Hague Convention” and “to provide psychological information in terms of the children’s experiences of parenting by their father, a discussion around ‘grave risk’ and whether the children show an objection to returning to the United Kingdom beyond the preference of an ordinary wish”.
49.He set out a list of documents he had been provided in paragraph 3, being the initiating application and documents in support, together with a report by Mr H dated 19 June 2018, and a neurodevelopmental report dated 16 October 2019. However, in his report he referred to the Respondent’s affidavit as well as media reports, which were not identified.
50.Dr G was provided with an updated letter of instruction in April 2021, which again was only disclosed during the trial. He was then provided with the Family Consultant’s report, the affidavit of Dr F, together with ss 121(9)(a) and (f)(i) of the Family Law Act 1975 (Cth).
51.The Regulations do not provide specific rules about expert evidence. Part 15.5 of the Family Law Rules 2004 (Cth) covers the presentation of expert evidence. The rules regulating expert evidence, and the use of single expert evidence, while providing the Court with the discretion to appoint another expert, are not peculiar to the family law jurisdiction.
52.While no objection was raised by the Applicant to Dr G’s evidence, I make the following observations:
Firstly, the purpose of the Rules is to ensure that expert evidence is only obtained in relation to significant issues, necessary to resolve or determine a case, by a single expert witness. The Rules seek to avoid unnecessary costs from the appointment of multiple experts.
Secondly, the Respondent provided no explanation as to why she had unilaterally engaged an alternative expert, after orders had been made by consent for a report by the Family Consultant.
Thirdly, it was not apparent that the Respondent gave any consideration to the impact of her decision, which resulted in the children being interviewed by the Family Consultant on one occasion, and Dr G on two occasions.
53.Dr G was not provided with an agreed statement of facts. Dr G only met with the Respondent, from whom he obtained information about background matters, where it is clear there is much in dispute between the parents. Dr G has not met, nor interviewed the father. Consequently, Dr G has been put in the position of being a partisan witness. These factors impact upon the reliability and weight to be attached to Dr G’s evidence, which I will return to later in the Reasons.
(Footnotes omitted)
I will say something more about Dr G’s evidence when I deal with Ground 5 of the appeal.
On 18 December 2020, her Honour ordered, inter alia, that:
…
3. A Family Court Consultant prepare with priority and submit to the court a Family Court Consultant Report … addressing each of the following matters:
(a)whether the Children object to being returned to the United Kingdom;
(b)whether the Children’s objection shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes;
(c)whether the Children have attained an age and a degree of maturity at which it is appropriate to take into account of their views;
(d)the children’s current psychological wellbeing and whether the Children are in need of immediate therapy and/or psychological support;
(e)to ask the Children:
(i)If the Court orders that the Children be returned to the United Kingdom, is there anything that would make the return easier for the Children; and
(ii)If the Court refuses the application for return, is there anything that would make staying in Australia easier for the Children.
4. If the requesting parent does not participate in the preparation of the Family Court Consultant Report, then the [mother] is not to participate either over and above being responsible for the production of the Children for the assessment process.
5. It is requested that the Family Consultant explain to the Children the nature of the return proceedings.
…
The Family Consultant’s report mentioned earlier at [24] was published on 18 March 2021. The primary judge expressed reservations as to whether the Family Consultant’s assessment and whether her evidence was satisfactory. The primary judge commented:
34.The Family Consultant is a social worker, employed with the Court. Pursuant to orders made by consent on 18 December 2020, the Family Consultant was requested to prepare a report addressing specific terms of reference.
35.The Family Consultant confirmed her report was the first she had prepared in Convention proceedings. Despite the orders requesting that the Family Consultant explain to the children the nature of the proceedings, she conceded she had not done so. When the Family Consultant was asked about her understanding of the nature of Convention proceedings, her answer was non-responsive.
36.It was clear from the Family Consultant’s report and evidence, that her focus was distracted by a consideration as to what arrangements were in the best interests of the children. As Kirby J cautioned in DP v Commonwealth Central Authority; JLM v Director-General, NSW Department of Community Services (2001) 206 CLR 401…:
It is easy enough, to slip back into a factual inquiry into the child’s best interests, that having for centuries been the duty of common law courts in disposing of analogous cases. But such a tendency must be resisted for otherwise the attainment of the main point of the Regulations and the Convention will be frustrated.
37.Unfortunately, the Family Consultant has focused on arrangements in the best interests of children, which is understandable giving the usual task and role which Family Consultants have in child-related proceedings. In my view, the case highlights the need for further training to assist Family Consultants, with respect to the preparation of reg 26 reports.
38.There were additional aspects of the Family Consultant’s evidence which caused me concern. The Family Consultant did not have her notes in the witness box, and accordingly was required to rely on her recollection. The Family Consultant was unclear whether she had read all of Dr G’s report, or a summary of his report, before she met with the children.
39.Regrettably, many of the Family Consultant’s answers in cross-examination were defensive and failed to directly respond to questions she was asked. I found some of the Family Consultant’s evidence lacking in terms of analysis. For example, the Family Consultant accepted the children’s negative reports about life in England, in contrast to their glowing reports of life in City D, despite finding that the Respondent had likely influenced Child A’s views, in particular. The Family Consultant acknowledged she did not explore or reality test the children’s statements to her.
40.The Family Consultant did not accept the fact both children have managed to move to a new country, start a new school, live in a new environment, and make new friends, would indicate with appropriate management and support, many of the potential difficulties returning to the United Kingdom could be significantly managed or diminished, for reasons which were not articulated. The Family Consultant maintained the children being in the Respondent’s care likely provided them with stability, which assisted in that transition. The Family Consultant would not concede that if the Respondent returned with the children, that would ease the children’s difficulties. In contrast, Dr G accepted that would be a significant factor in ameliorating the children’s levels of distress.
41.In response to the terms of reference about what could be done to assist Child A if a return order was made, the Family Consultant made no mention about the importance of the Respondent providing support, despite conceding in cross-examination that would be very important and that given Child A’s age, the Respondent’s encouragement would assist him.
42.The Family Consultant wrote that if the Court refused the application for return, in her view, the children were likely to be content living with the Respondent, “and it would be easier for the children if they perceive the father to accept this decision”. There was no comparable comment in relation to what the Respondent should do, in the event the Court made a return order, which the Family Consultant accepted was an oversight.
43.In the circumstances, I held reservations about the evidence of the Family Consultant.
(Footnotes omitted)

I share the primary judge’s concern about the Family Consultant’s lack of attention to the matters to which the Family Consultant was specifically directed by the primary judge’s detailed order of 18 December 2020 (see [50] above). I agree with the primary judge’s observation that the Family Consultant’s evidence highlights the need for training of Family Consultants in the preparation of reg 26 reports particularly having regard to the narrow scope of these reports and the Court’s requirement that they be allocated immediately and completed within a short time frame.
The primary judge then set out “Relevant Background Facts” from whence I have drawn the non-contentious background commencing at paragraph [5]. Additionally, to what I have referred to above, the primary judge recorded the following:
62.The children have attended all of their schooling in the United Kingdom. Child A initially attended School A. After passing the entrance exams, Child A attended School B from year three, while Child B has attended since nursery.
…
65.Since separation, the children have lived with the Respondent and spent time with the father. It is common ground that the father has played an active role in the children’s lives. The children have continued to spend regular and frequent time with the father, which included the father regularly taking them to school in the mornings, sharing several meals each week, together with spending time together as a family on weekends. The children have also stayed at the father’s home, including on an overnight basis.
…
68. In late 2019, the father ceased working, in circumstances which are in dispute, but which were not the subject of any cross-examination. The Respondent says the father asked to move into her home, to reduce the time and cost he incurred spending time with the children. The father says the Respondent asked and he agreed to assist her with the children. On either version, it is accepted the father spent increasing time in the Respondent’s home, with her agreement.
69.On 20 March 2020, as part of national lockdowns in response to COVID-19, schools in England closed, and the Respondent was required to work from home. From March 2020, the father frequently stayed in the Respondent’s home, with her and the children, for around three nights each week, which continued until June 2020.
(Footnote omitted)
The primary judge discusses the “Jurisdictional Factors” commencing with:
What is the date of the wrongful retention of the children?
100.The Applicant’s case is that the Respondent wrongfully retained the children on or around 1 September 2020. The Respondent says the Court cannot be satisfied she wrongfully retained the children on that date, and points to her actions between mid-August and mid-September 2020, as supporting a finding that she intended to return to the United Kingdom. She suggests that she was unable to do so because of circumstances beyond her control or the risks posed by COVID-19, or a combination of both.
101.Contrary to the position advanced by the Respondent, I am satisfied the children were wrongfully retained in Australia, on or about 1 September 2020.
102.At the time the children left the United Kingdom, I am satisfied the parents agreed for the children to travel to Australia, for a temporary stay only. Further, they agreed the children would return to the United Kingdom, in time for the commencement of the school year. That is supported by:
(a)The father’s application;
(b)The Respondent’s oral evidence;
(c)The communications between the parents, during August and early September, making arrangements to facilitate Child B’s return to School B and Child A’s commencement at School C for the start of the school year on 2 September 2020;
(d)The children’s ongoing enrolment into their respective schools, namely School B and School C;
(e)The Respondent’s arrangements with her English employer, to work remotely during her stay in Australia, on the basis she would be returning by September 2020; and
(f)The Respondent maintaining her flat in Area B, where her and the children’s belongings remain.
103.The shared intention and agreement between the Respondent and father, was that the children would visit Australia, for a holiday, and return to the United Kingdom in time to start the new school year in September.
104.My findings are further supported by the Respondent’s own evidence, which included:
(a) Her message to the father on 21 October 2020, acknowledging she had intended to return with the children before September 2020;
(b) She intended to return to the United Kingdom before the end of the school holidays had finished, to enable the children to commence school in September 2020; and
(c) At the time she booked to travel to City D, she believed she could return to the United Kingdom in mid-August 2020, to enable two weeks of quarantine, before the start of the school year.
105.I am not satisfied there was any ambiguity about the agreement. I do not accept the Respondent’s assertion that the agreement for the children’s return was conditional upon the state of the pandemic in the United Kingdom. The communications exchanged between the parties, making arrangements for the children’s attendance at school in the United Kingdom, together with the father’s message to the Respondent on 21 October 2020, corroborate my finding.
106.I am not persuaded by the fact the Respondent only purchased one way tickets to City D, was evidence of an agreement that the children could remain until COVID-19 was under control. Instead, I consider that decision reflected the limited flights that were available at the time of their departure. It was expected that the Respondent would book the return flights when in City D. It is also consistent the Respondent booking tickets to City D, only days prior to departure.
107.I reject the assertion that the Respondent was unable to return to the United Kingdom. The Respondent reserved return flights on 9 September 2020, which she later cancelled. The father’s communications acknowledged the difficulties raised by the Respondent about a lack of flights and the risks posed by COVID-19. That is reflected in the application, where the father deposed he wanted the children to be returned to England “as soon as possible”, noting the COVID-19 restrictions then in place. The communications fall short of any consent to the children remaining in Australia beyond 1 September 2020.
108.I accept the father’s evidence that on or about 1 September 2020, he asked the Respondent to bring the children back to the United Kingdom as soon as possible, which he repeated until the end of October 2020. The father did not agree to the children being retained in Australia. He did not give the Respondent permission or sign any documents consenting to the children remaining in Australia. His communications are consistent with his position seeking the children’s return to the United Kingdom.
109.Counsel for the Applicant described the case as a “textbook retention”. I agree. There was a clear informal agreement between the parents for the children to be returned to the United Kingdom on or about 1 September 2020. The Respondent failed to return the children. I am satisfied the children were wrongfully retained on or about 1 September 2020.
(Footnotes omitted)
I construe the primary judge’s statement that “I am satisfied the children were wrongfully retained on or about 1 September 2020” as a conclusion about the date of retention rather than to any concluded view of the primary judge on the wrongfulness of the retention. At this stage of the reasons, the primary judge had not made findings about all of the prerequisites for a retention to be wrongful within the meaning of reg 16(1A) (set out at [32] above). The primary judge then proceeds directly to a determination of the other relevant prerequisites for the wrongful retention of the children, being whether the mother’s actions were in breach of the father’s rights of custody, acquiescence on his part and habitual residence. All of these issues were determined in favour of the applicant SCA and contrary to the mother’s case.
Next, under the heading “Did the father sanction the children remaining in Australia?”, the primary judge refers to the evidence and contentions around the assertion by senior counsel for the mother that the father had, at some indeterminate time, agreed that a return by 1 September 2020 was conditional upon travel conditions permitting such a return, on terms acceptable to both parents, having regard to the COVID-19 pandemic and, therefore, the father’s rights of custody had not been breached and the retention could not be wrongful. The primary judge carefully analyses the communications between the parents which were relied upon by the mother to establish the alleged agreement and makes the following findings:
114. A broader review of the communications between the parents, does not assist the Respondent. They demonstrate the Respondent telling the father that the children would remain in Australia, despite the father’s opposition…
115.Such communications are not indicative of any agreement. Contrary to the Respondent’s claims, the communications reveal that she knew the father did not agree to the children remaining in Australia.
116.I am not satisfied the father’s message constitutes unambiguous and cogent evidence that he sanctioned the children remaining in Australia. His communications are unwavering and consistent with his recurring requests for the children to be returned to the United Kingdom…
…
119.I accept the father was hopeful that the Respondent would agree to return the children, and that he wanted to be reunited with them. The father’s communications are consistent with his position seeking the children be returned to the United Kingdom. In my view, they do not constitute evidence that the father sanctioned the children remaining in Australia.
The primary judge deals with the conflict between what the child Child A told the Family Consultant, being that in October 2020 the father told the children not to return to England, and the father’s denial that he made that statement. The primary judge observed:
121.… I found the father’s denials to be genuine, and consistent with his communications to the Respondent. For the reasons that follow (referring to [160] and [161] of the reasons), I have concerns about the reliability of Child A’s statements, in circumstances where the Respondent has shown Child A the father’s affidavit, and where she has discussed and involved Child A in the proceedings. The evidence supports a finding that Child A is aligned with his mother, and has been the subject of significant influence by her.
The primary judge proceeds next to discuss habitual residence in the context of the mother’s contention that the father had agreed to the children remaining in Australia until 17 December 2020 by which time the children had ceased to be habitually resident in the United Kingdom and acquired habitual residence in Australia. The primary judge found that the father had not agreed to extend the children’s stay in Australia until 17 December 2020. Indeed the primary judge found that the father had not agreed to the children remaining in Australia after 1 September 2020 and that he had all along been seeking to persuade the mother to return the children of her own volition.
The primary judge was satisfied that the children had been, and remained, habitually resident in the United Kingdom throughout. Her Honour acknowledged the divergence of jurisprudence between Australia and the United Kingdom in relation to habitual residence, an example of the position in the United Kingdom being the decision of the Supreme Court of the United Kingdom In re R (Children) (Reunite International Child Abduction Centre intervening) [2016] AC 76 in which it was stated that there is no rule, that one parent cannot unilaterally change the habitual residence of the child. The primary judge correctly identified that the law in Australia relating to habitual residence for the purposes of the 1980 Convention was authoritatively settled by the High Court in LK v Director General, Department of Community Services (2009) 237 CLR 582 and that the Full Court of the Family Court of Australia have recently confirmed that position in Yardlay & Commissioner of Police (2020) FLC 93-981 at [30] (Strickland, Austin and O’Brien JJ). In a thorough analysis at [131] and [132], the primary judge applied the law to the facts of the case before her.
Under the heading “Was the children’s retention in breach of the father’s rights of custody?”, her Honour records it was common ground that, under the law in the United Kingdom, the father had joint rights of custody in respect of the children and that the father was exercising those rights when the children were retained in Australia on or about 1 September 2020.
The primary judge identifies (but ultimately does not accept) the argument of the appellant mother, that the father extended his permission to allow the children to remain in Australia until after Child A’s graduation from School D on 17 December 2020 because of the impact of the pandemic in England and, thereafter, the father expected the children to be back in the United Kingdom for Christmas 2020.
The primary judge acknowledges (but ultimately did not accept) the argument of the appellant mother that there had been no breach of the father’s rights of custody because, by the time of Child A’s graduation, the appellant mother was precluded from complying with the father’s requirement to return the children due to the injunction granted on 10 December 2020 which restrained the children from leaving Australia. It is to be noted that restraint against removing the children from Australia, at paragraph 3 of the primary judge’s ex parte Order made on 10 December 2020, is clearly expressed as an interim order (“until further order”) with liberty granted to the mother “to apply to discharge or vary this order on 24 hours’ notice to the Applicant [SCA]” (paragraph 10). The primary judge’s approach to the interim restraining order is clearly correct. It is consistent with the interim measure being part and parcel of Australia’s obligations under the 1980 Convention to keep the subject children safe, locatable and recoverable pending the outcome of the return application.
The primary judge found:
138.I do not agree with the Respondent’s submissions. I prefer and accept the position of the Applicant. I am satisfied there was a clear, agreed intention by both parents that the children’s visit to Australia was for a temporary holiday. It was agreed the children would return to the United Kingdom by 1 September 2020, to commence the new school year. The communications, to which I have referred, evidence the father was repeatedly pleading for the Respondent to return the children to the United Kingdom.
139.At the time the children were retained on or about 1 September 2020, the father had rights of custody in relation to the children. The father was exercising those rights of custody, and would have continued to do so, had the children not been wrongfully retained. I am satisfied the children’s ongoing presence in Australia, was in beach of the father’s rights of custody, in circumstances where Child B and Child A’s continuing presence in Australia is contrary to the father’s wishes, and is without his consent or authority.
At [140] and [141] primary judge concludes, correctly, that the applicant SCA had established a case of wrongful retention, having regard to her Honour’s findings on habitual residence and breach of rights of custody and the mother’s concession as to the age of the children and the application having been brought within 12 months.
The next part of the primary judge’s reasons for decision deal with the exceptions to return upon which the mother relied:
·Child A’s objection to return (at [142]–[168]) noting that the mother abandoned this contention in relation to Child B (at [169]);
·the father’s acquiescence to the children’s retention in Australia (at [170]–[184]); and
·grave risk of harm -
·the law (at [185] and [186]);
·COVID-19 (at [187]–[201]);
·family violence (at [202]–[217]);
·risk to Child B of psychological harm (at [219]–[222]);
·risk to Child A of psychological harm (at [223]–[241]);
·risk to Child A’s mental health and ASD (at [242]–[257]);
·psychological risks to the children of being separated from one another and/or the respondent (at [258]–[260]).
By way of conclusion the primary judge makes observations about the nature of forum selection proceedings and stated “having considered all of the evidence, the jurisdictional factors are satisfied. The Respondent has not established any of the relevant grounds pursuant to reg 16(3) upon which she sought to rely. Accordingly, I am obliged to order the children’s return to the United Kingdom” (at [263]).
Finally, the primary judge turned to the conditions sought by the mother and offered by the father. The primary judge resolved to have the applicant SCA and the respondent draw up the conditions about payment by the father of return air tickets and other financial support and to hear the parties’ submissions about professional support for both children before their return and further support for Child A upon his return. No issue is taken in this appeal with the form of the return order or the conditions on return.
THE NATURE OF THE APPEAL
The appeal is brought pursuant to s 94(1) of the Family Law Act 1975 (Cth) (“the Act”). The primary judge’s decision can only be set aside on limited grounds. In House & The King (1936) 55 CLR 499 at 504-505, Dixon, Evatt and McTiernan JJ, identify the grounds for interference at appellate level, in these terms:
It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if her allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, is he does not take into account some material consideration, than his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been failure properly to exercise the discretion which the law reposes in the court at first instance.
The effect of s 93A(2) of the Act is that the appellate court shall have regard to the evidence given in the proceedings before the primary judge out of which the appeal arises; has power to draw inferences of fact; and, in its discretion, may receive further evidence on questions of fact. We allowed the appellant mother to adduce further evidence.
The primary judge made findings - as to wrongful retention, habitual residence, acquiescence, grave risk of harm and whether Child A was of an age and level of maturity at which it was appropriate for the Court to take account of his objection to being returned to the United Kingdom – by reference to affidavit (or written) evidence and oral evidence of the father, the mother, the Family Consultant, the mother’s expert psychologist and the mother’s expert epidemiologist all of whom were cross examined.
In Fox v Percy (2003) 214 CLR 118 at 126–127, Gleeson CJ, Gummow and Kirby JJ said:
25.Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge’s reasons. Appellate courts are not excused from the task of “weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect…
(Footnotes omitted)

In Warren v Coombes (1979) 142 CLR 531, the majority of the High Court reiterated the rule at [18] that:
…[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it…
I cannot interfere with the primary judge’s decision unless it is demonstrated to be erroneous, either because it was not available on the evidence, or because the process by which the primary judge arrived at the decision was flawed (Zafiropoulos & State Central Authority at 80,508 [10]).
Here, the appellant’s arguments on appeal are complaints about the outcome in respect of which no appealable error is identified. Each of the appellant’s grounds of appeal rest on the premise that it was open to the primary judge to take a different view of the evidence than that which the trial judge took. The appellant does not assert that the primary judge took irrelevant or extraneous matters into account. The appellant does assert that the trial judge made errors of fact or failed to take into account some material considerations but I do not find that to be the case.
GROUNDS OF APPEAL
There are five grounds of appeal. Ground 2 is contingent upon the appellant succeeding on Ground 3 so I will deal with the grounds out of numerical order.
WRONGFUL RETENTION
Ground 1: The Court erred in finding that the date of the children’s ‘retention’ in Australia was 1 September 2020
In the appellant’s outline[3] it is submitted that, in finding that the children were retained on 1 September 2020 and that the father had not “sanctioned” the children remaining in Australia, the primary judge erred. In particular, the primary judge erred in failing to accept that the parents had an express or implied agreement that a return by the start of the children’s school year in the United Kingdom (on 1 September 2020) was conditional upon travel conditions permitting such a return, on terms acceptable to both parties, having regard to the COVID-19 pandemic. Before us, senior counsel for the mother conceded that there was no evidence before the primary judge of an express agreement that the children’s return by 1 September 2020 was conditional upon aspects of the COVID-19 pandemic. Senior counsel for the mother withdrew his client’s earlier submission that her Honour erred in failing to accept that the parties had an express agreement to that effect.
[3] Appellant’s Outline of Submissions filed 21 July 2021, paragraph 3.
Senior counsel for the appellant mother maintained “that the evidence, as a whole, should be read to find there was an implied agreement that the return by 1 September 2020 was conditional upon travel conditions permitting the return”.[4] Relevantly, the primary judge made the following finding:
105.I am not satisfied there was any ambiguity about the agreement. I do not accept the Respondent’s assertion that the agreement for the children’s return was conditional upon the state of the pandemic in the United Kingdom. The communications exchanged between the parties, making arrangements for the children’s attendance at school in the United Kingdom, together with the father’s message to the Respondent on 21 October 2020, corroborate my finding.
(Footnotes omitted)
[4] Transcript of appeal hearing 13 August 2021, p.12 lines 32–35.
The primary judge set out the following history and findings, which I reproduce here for ease of reference:
71.In June 2020, the parents agreed to the Respondent and children travelling to Australia to visit their maternal grandparents during the United Kingdom summer school holidays. On 13 June 2020, the Respondent bought one way tickets to fly to Western Australia.
72.On 16 June 2020, the father drove the Respondent and children to the airport. On the father’s case, the agreement was that the children would return to the United Kingdom prior to the start of school on 2 September 2020. At the time of the Respondent’s departure, she continued to be employed in City A. The Respondent’s employers gave her permission to work remotely in Australia, for three months. The father’s unchallenged evidence is that he wanted to accompany the family to Australia, but he needed to remain in the United Kingdom, to look for work.
…
76.In July 2020, the parents were in regular communication, making arrangements with respect to each child’s schooling in the United Kingdom. In August 2020, the Respondent purchased Child A’s School C school uniform, which the father collected at the Respondent’s request, together with a second hand uniform for Child B for School B. The parents purchased Child A’s schoolbooks, which the father collected. The Respondent paid 50% of Child B’s school fees for the forthcoming year.
77.In mid-August 2020, the father asked the Respondent when she was planning to return to the United Kingdom. The Respondent confirmed she would return by the end of August 2020. By the end of August 2020, the father had commenced employment.
78.On 24 August 2020, School C emailed the Respondent, advising they heard she was in Australia and struggling to obtain return flights for the start of the school term. The school asked to be kept informed, in order to prepare for Child A’s arrival.
79.On 26 August 2020, the Respondent emailed School C, confirming there were “few airlines” operating internationally, but a number were scheduled to re-commence flights in September. The Respondent wrote, “The key issue for Child A (and his sister and I) is the travel ban on leaving Australia. We are attempting to establish that we are not subject to the ban, as we are ordinarily resident in the United Kingdom (Child A is also a British citizen). We will certainly keep you apprised of our travel arrangements”.
80.The school year in the United Kingdom commenced on 2 September 2020. The Respondent and children did not return prior to that date, nor since.
81.In early September 2020, the Respondent told the father it was difficult to secure a flight, and raised concerns about the potential for a second wave of COVID-19 in England.
82.On 16 September 2020, the Respondent wrote to the father “the children want to stay here. They like going to school and don’t want to be locked down again”, followed by “I can’t waste my time on this. We will stay here until the epidemic is over. That is that”.
83.I accept the father’s evidence that sometime between mid to late September 2020 and early October 2020, the Respondent told him during a FaceTime conversation, that she and the children wanted to remain in Australia permanently, because they enjoyed life in Australia and there were no COVID-19 cases in City D. While the Respondent claimed she could not recall making those remarks, I consider it likely she did. I prefer and accept the father’s evidence, which was not disturbed in cross-examination.
84.In late September 2020, the Respondent commenced unpaid leave from her employment. In early October 2020, the Respondent bought a car and subsequently joined a gym. In my view, the Respondent’s actions were consistent with her decision not to return the children to the United Kingdom, and with the father’s evidence that she had told him they would be staying in Australia.
85.The father’s message to the Respondent on 21 October 2021 was the focus of acute attention at trial. The message needs to be viewed in context of the entire communication, which is set out below in chronological order. I do not accept the Respondent’s suggestion of something sinister or untoward about the father’s presentation of these communications. There is no dispute about the relevant chronology.
The primary judge had regard to the text messages passing between the parents at [85]. The primary judge went on to record that:
87.The father repeatedly sought to reassure the Respondent, and the children, that it was safe to return to the United Kingdom and asked them to do so. For example:
(a) On 15 October 2020, the father emailed the Respondent, and Child A referring to the current infection rates of COVID-19 in the United Kingdom, and wrote:
Rate of infections per 100,000 people in the 7 days to Oct 10^th in Area B is 50.6. That means, around 5 people in 10,000 or 1 person in 2,000 in 7 days. That is why you hardly see the infected people there. It is safe to come back. Love, Dad;
(b) On 21 October 2020, the father wrote “Please give a correct [sic] information about COVID-19 and convince them to come back”; and
(c)On 22 October 2020, he wrote “Please come back here before finishing the half term here so that I can pick you up at the airport”.
88.On 3 November 2020, the father authorised the SCA to pursue the return of the children, pursuant to the Convention. He then continued to communicate with the Respondent, seeking the children’s return to the United Kingdom.
89.On 24 November 2020, the parents had the following exchange on iMessage:
Father: Can you please come back to England when Child A finishes his grad ceremony?
Respondent: Yes, if that is what the kids want and a vaccine programme has been rolled out.
Father: Vaccine is ready… Kids are too young to decide where to live. Please tell them that they need to come back here as soon as possible to catch up on their school curriculums. I’m 100% sure that Child A will enjoy School C with other smart kids. He is a raw stone diamond, he needs to be brushed up… Does Child A have a grad ceremony today? I will need to call the police if you guys don’t come back here.
Respondent: I have told you to stop threatening me and the children. You are giving them nightmares.
Father: I’m not threatening you. I exercised my rights of custody as their father. I love them and I want to live with them, too. You have to imagine the life without kids to yourself. It is a torture, which is what you have been doing since June
90.After the application was filed in the Family Court of Western Australia on 3 December 2020, the father persisted in his efforts, to convince the Respondent to return the children to the United Kingdom. By that time, the father then understood Child A’s graduation ceremony was taking place around 17 December 2020.
91.On 8 December 2020, the father wrote to the Respondent “As I told you, I can wait until Child A’s graduation. But I want to have Christmas with my kids here in England”. The Respondent replied “I’m not going to fight with you, but we are not going back to the UK while COVID is not under control”. She subsequently told the father she would “wait for the application”, which would be opposed.
(Footnotes omitted)
In addition to the matters referred to by the primary judge in paragraph [102] of the reasons for decision, the below extract of cross-examination[5] is evidence upon which the primary judge could be comfortably satisfied, that there had been no implied agreement in the terms alleged by the mother:
[5] Transcript 13 May 2021, p.94 line 7 to p.96 line 9.
[SENIOR COUNSEL FOR SCA:] At the time you and the children left the United Kingdom in June 2020, is it correct that there was no written agreement between you and Mr Kurata about - - -?
[THE MOTHER:] ---Yes.
[SENIOR COUNSEL FOR SCA:]- - - where the children would live or contact with the children?
[THE MOTHER:]---Yes.
[SENIOR COUNSEL FOR SCA:] There was an informal agreement at that stage, that is, when you left the United Kingdom, that you and the children would return for the next school term. Is that - - -?
[THE MOTHER:]---Yes…Subject to COVID being okay.
[SENIOR COUNSEL FOR SCA:] Well, I’m suggesting to you there was that informal agreement?
[THE MOTHER:]---Yes.
[SENIOR COUNSEL FOR SCA:] And to the extent that you’re saying there’s an exception - - -?
[THE MOTHER:] ---Yes.
[SENIOR COUNSEL FOR SCA:] Was that communicated to Mr Kurata?
[THE MOTHER:]---Yes.
[SENIOR COUNSEL FOR SCA:] How was it communicated to him?
[THE MOTHER:] ---He knew I only bought one-way tickets. So – and it was because of COVID. I mean, obviously, I really was desperate to get back because Child A got into School C. But, you know, it had to be depending on whether we could actually do it.
[SENIOR COUNSEL FOR SCA:] And you’ve mentioned there in relation to School C, you had put some effort into making sure he was accepted into - - -?
[THE MOTHER:]---Yes.
[SENIOR COUNSEL FOR SCA:] - - - that school. In fact, one of the residences was required to be in a catchment area for that school, wasn’t it?
[THE MOTHER:] ---No, it wasn’t. But I thought it might give him an advantage if I – if I – if we would move there. And it was cheaper than where we were living in Area A.
[SENIOR COUNSEL FOR SCA:] And you were very keen for him to go to - - -?
[THE MOTHER:]---Yes.
[SENIOR COUNSEL FOR SCA:] - - - this school. The next school term starts at the beginning of September in 2020 - - -?
[THE MOTHER:] ---Yes.
[SENIOR COUNSEL FOR SCA:]- - - doesn’t it? And prior to or around the beginning of September, you didn’t engage in discussion with Mr Kurata to change the informal agreement, did you?
[THE MOTHER:] ---What do you mean?
[SENIOR COUNSEL FOR SCA:] What I’m suggesting to you is that the time that you were supposed to return came and went without you saying, “Well, look, I would like to change our agreement”?
[THE MOTHER:] ---No. I did say to him I – you know, “We’re – we’re going to stay. We’re going to keep an eye on things”. I told him I had 10 booked tickets for – for returning on the twenty – around the 26th because I wanted to see what happened after the schools opened.
[SENIOR COUNSEL FOR SCA:] Can I suggest to you that you in fact did not engage in any discussion with him to change your informal agreement that you would return the children at the beginning of the next school term?
[THE MOTHER:] ---No, we did.
[SENIOR COUNSEL FOR SCA:] And that’s not recorded in any of the texts or emails or those exchanges. What are you suggesting? That that was a verbal arrangement?
[THE MOTHER:] ---Well, we didn’t return. And I told him that we weren’t going to return and we were going to keep an eye on things. And I told him that we had booked a ticket to return, but that was because I wanted to keep an eye on things from when the schools opened until that date, because I know it takes two weeks for, you know, transmission – for infection rates to go up, basically.
[SENIOR COUNSEL FOR SCA:] Two points there: Mr Kurata says he was not told you had booked a ticket. That’s correct, isn’t it?
[THE MOTHER:]---No, that’s not correct.
[SENIOR COUNSEL FOR SCA:] And can I suggest to you that telling Mr Kurata what you were doing is not engaging in a discussion about agreement. It is repudiating an agreement, isn’t it?
[THE MOTHER:]---No, it wasn’t.
[SENIOR COUNSEL FOR SCA:] Well, an agreement is something that two people agree together. And you were dictating to Mr Kurata that you were not returning?
[THE MOTHER:] ---No, I wasn’t. He had – he had – he had understood that I was – I had bought the tickets to return, as we had agreed.
[SENIOR COUNSEL FOR SCA:] You chose your words very carefully there, didn’t you, Mrs Kurata? You said, “He understood”; not “We had agreed”. And that’s the case, isn’t it? You were dictating to him that you would not be returning with the children?
[THE MOTHER:] ---He didn’t say to me when I said, “I’ve booked tickets for the 26th”, “No, you have to come back earlier.” So I took that to be an agreement.
[SENIOR COUNSEL FOR SCA:] And that’s because you didn’t actually tell him about the tickets?
[THE MOTHER:] ---I told him about the tickets.
[SENIOR COUNSEL FOR SCA:] And you told him what the position was, and you are saying he just didn’t dispute that. That’s your idea of changing an agreement, is it?
[THE MOTHER:] ---Yes.
[SENIOR COUNSEL FOR SCA:] Right. That you don’t see that as dictating your position, then?
[THE MOTHER:]---No.
The submission of senior counsel for the appellant mother was that the evidence, as a whole, should be read to find that there was an implied agreement that return of the children by 1 September 2020 was conditional. However, I am satisfied that the primary judge’s finding at [105] of the reasons was available on the evidence. It was reasonably open to the primary judge to find that, at the time of the departure of the mother and children from the United Kingdom, the parents had agreed that the children would be returned in time to start the school year on 1 September 2020, on airline tickets which would be booked and paid for closer to the date of the return. Further, that it was open to the primary judge to find that the evidence did not support an implied agreement to postpone the date of return on account of COVID-19 risks or restrictions, as was alleged by the mother.
It is further submitted by the appellant mother[6] that it was not reasonably open to the primary judge to be satisfied that the appellant did not intend to return to the United Kingdom immediately following 1 September 2020 having regard to the mother’s unchallenged evidence of steps she took to have arrangements in place in the United Kingdom by 1 September 2020. The criteria in reg 16(1A) are objective criteria. Subjective intention on the part of the person retaining the child is relevant only in cases of repudiatory retention, as discussed in Handbury v State Central Authority (2020) FLC 93-937. Repudiatory retention may be held to have occurred where a child is taken to another country for a fixed period of time ending with an agreed date of return and the left behind parent alleges that, prior to the agreed date of return, the retaining parent has disavowed the agreement and refuses to return the child at the future time agreed. The left behind parent can rely on the evidence of intention to refuse as a repudiatory retention. The left behind parent can request a return under the Regulations, notwithstanding that the date by which the parents had agreed that the child would be returned to the home state has not yet passed, provided that it can be demonstrated that the retaining parent has breached the left behind parent’s right of custody by repudiating the temporary nature of the child’s stay in the country in which the child is retained and does not intend to return the child. A finding about the subjective intention of the retaining parent is necessary to determine when the agreement to return was repudiated and the retention became wrongful.
[6] Appellant’s Outline of Submissions filed 21 July 2021, paragraph 4.
This is not a case of alleged repudiatory retention. The subsequent events, which senior counsel for the mother concentrated upon at the trial, and which her counsel now seeks to agitate on appeal, are irrelevant to wrongful retention. On the facts of this case, once the primary judge found that the children were wrongfully retained on 1 September, 2020, events which occurred after 1 September could only sound in acquiescence in the context of reg 16(3)(a)(ii).
The appellant mother submits that the primary judge “does not refer to the travel advice issued by the Commonwealth, on which the appellant relied”.[7] The fact that the primary judge did not make a specific finding about the import of the travel advice is of no consequence. The respondent’s case before the primary judge was she and the children were expressly exempt from the Commonwealth Government’s prohibition on travel out of Australia because they were resident in the United Kingdom. As the appellant mother had deposed in her affidavit in response sworn on 8 January 2021:
13. … I knew that there was a ban on travel from Australia, but I also knew that there were several exemptions, including exemptions for persons ordinarily resident in a country other than Australia (which at the time of leaving the United Kingdom we were) and so I believed that the children and I would be able to return to the United Kingdom before the school holidays had finished and in time for the children to go to school again in September 2020.
[7] Appellant’s Outline of Submissions filed 21 July 2021, paragraph 3.

The minor self-harming described by Dr G is recorded by the primary judge at [225] of the reasons in the following terms;
225.Dr G predicted a return order would likely impact on Child A’s psychological and educational functioning, due to the level of arousal he would experience. He considered Child A would experience distress, which may result in minor self-harming or irrational behaviour, including acting out, which would likely destabilise him psychologically. He noted when Child A was anxious, he engaged in self-harming behaviours such as picking and scratching, and there was a danger those behaviours may escalate, if Child A was forced into a situation he did not like.
(Footnotes omitted)
The primary judge referenced certain paragraphs of Dr G’s first report including:[18]
24. In my opinion, Child A’s combination of high intelligence coupled with Asperger’s Syndrome results in him having a strength of feeling which is beyond a preference or ordinary wish, but very intense view. He is a child who, when anxious, engages in self-harm through scratching and picking, and there is a danger that that would escalate if he was forced into a situation which he does not like.
[18] First report of Dr G filed 11 January 2021, paragraph 24.
The SCA asserts that the “self-harm” referred by the primary judge at [237] relates to the “dramatic” self-harm contemplated by the primary judge at paragraph [234] of the reasons, for example, a suicide or attempted suicide, rather than the picking and scratching referred to by Dr G in his first report. I accept that argument. I am not satisfied that the primary judge made inconsistent findings by reason of which her conclusion in relation to Child A’s self-harming can be impugned.
The appellant submits that the primary judge’s conclusion that there is no grave risk that a return order would expose Child A to psychological harm or otherwise place him in an intolerable situation is “erroneous”.[19] With respect to the matters agitated in the appellant’s written submissions, I am satisfied that the primary judge weighed the evidence adduced at the trial and was entitled to conclude that the mother failed to make out the grave risk exception provided for in reg 16(3)(b).
[19] Appellant’s Outline of Submissions filed 21 July 2021, paragraph 22.
Leave was given to the appellant to adduce further evidence relevant to the impact of the pandemic in the United Kingdom. The further evidence was from the mother’s expert, Dr F, who had prepared reports dated 7 January 2021 and 29 April 2021 which were in evidence before the primary judge. Dr F’s first report addressed the strain the pandemic has put on the health system and its resources, with a particular focus on the National Health Service (“NHS”) in the United Kingdom. He opined that stress on the health system and resources is reportedly likely to reduce chances of effective treatment of COVID-19 and increase morbidity and mortality from non-COVID-19 conditions. At the time of the initial report, Dr F noted that there were recommendations to raise the NHS’ alert level from 4 to 5 to reflect the risk that healthcare services are becoming overwhelmed. The report concluded that travel to the United Kingdom would increase the likelihood of the parties contracting SARS-CoV-2 as compared to if they were to remain in Western Australia.
Dr F’s second report was prepared in response to the then recent vaccine rollout and the emergence of anecdotal reports of “long COVID”. In the second report Dr F advised “all international travel outside of Australia should be avoided”, particularly those requiring transit through airports in other cities. He opined that the risk of infection in the United Kingdom in late April 2021 was decreasing, in a large part due to the vaccination rollout. However, the risk of infection in the United Kingdom remained higher, at a rate of 24.5 per 100,000, compared to Western Australia which had a rate of 2 per 100,000. Dr F referred to emerging evidence of “long COVID”, that is those infected with COVID-19 suffering long-term symptoms and effects long after recovery. Dr F indicated research in the pre-publication stage reporting of significant long lasting effects, or “long-COVID” in children. Symptoms of long COVID include fatigue, headaches, difficulties with concentration and reduced memory. He stated that vaccinations were currently not recommended in children under 16 years of age and that the United Kingdom would, therefore, rely on herd immunity. Dr F acknowledged that, in the days prior to the second report, the NHS in the United Kingdom reduced their COVID emergency incident status from level 4 to level 3 as the demand on the health system decreased. Dr F reported that there will be “residual” demand on the health system and resources given the need for “catch-up” with non-COVID-19 patients as well as complaints of long COVID symptoms in health care workers. Dr F concluded that while the vaccine rollout is underway that it will “not reach portions of the global population for a long time”.
The further evidence is the report of Dr F dated 25 July 2021 and is confined to pages 23 and 24 of Dr F’s affidavit sworn 27 July 2021. Senior counsel for the mother submitted that “the purpose of the updating evidence is to provide the court with a current snapshot of the position in the United Kingdom with respect to COVID-19”[20] and otherwise submitted that “I simply put the material forward, and I accept the court’s view as to how it should be treated”.[21] Relevantly, Dr F’s further evidence contained the following conclusion:[22]
In summary, in both my previous submissions, the COVID-19 specific risk difference between remaining in Western Australia and traveling (sic) to and remaining in the United Kingdom was significant, particularly for children. That risk was somewhat reduced between my initial report and my first update. At this time the risk difference is higher than it was when I issued my first report. The situation in the United Kingdom means that the risk of becoming infected by COVID-19 has increased and the risk of severe disease, long term or permanent disability and death is far higher for the children if they relocate there now. This is in comparison with the risk assessment I made in my initial report. Additionally, the Australian Government still has a travel ban in place. This is due to its assessment of the risk involved with the travel to anywhere outside Australia at this time.
[20] Transcript of appeal hearing 13 August 2021, p.2 lines 22-24.
[21] Transcript of appeal hearing 13 August 2021, p.3 lines 32–33.
[22] Affidavit of Dr F filed 27 July 2021, p.23–24.
Senior counsel for the mother took some time to respond to the proposition of Tree J that, if the appellant’s contention is that a return to the United Kingdom posed a grave risk of physical harm to Child A and Child B, is it the case that all children in the United Kingdom are at grave risk of physical harm? Ultimately, counsel’s response was that all children in the United Kingdom are at grave risk of physical harm within the meaning of reg 16(3)(b).
Senior counsel for the mother submitted that Dr F’s updated report evidences that there is a significantly greater risk of infection of the children in moving back to the United Kingdom as opposed to them remaining in Australia and that the risk of them being infected with the Delta variant is significantly higher in the United Kingdom. My reading of Dr F’s third report is that the risk difference, between the two jurisdictions, is higher than it was when he issued his first report. Dr F opines:[23]
…The situation in the United Kingdom means that the risk of becoming infected by COVID-19 has increased and the risk of severe disease, long term or permanent disability and death is far higher for the children if they relocate there now, in comparison with the risk assessment I made in my initial report…
[23] Affidavit of Dr F filed 27 July 2021, p.24.
Notably, Dr F continued to confine himself to a comparison of risk and, through Dr F‘s further evidence, the appellant’s case has remained similarly confined. The appellant did not adduce evidence before the primary judge, nor any further evidence before us, which impels me to characterise the risk of physical harm to the children upon return to the United Kingdom as “grave” within the meaning of reg 16(3)(b). This deficiency in expert evidence was highlighted by the following submission made on behalf of the SCA in the Summary of Argument filed 4 August 2021 which was nine days prior to the appeal hearing before us. The SCA submitted that :
45.… Dr F’s [sic] updated evidence is of little assistance as it does not demonstrate any ‘grave risk’ but instead emphasises that the relative risk in the UK is greater than that in Western Australia.
46.The primary judge correctly identified in the Reasons [199] (AB 82) that the comparison between the two countries is not the appropriate test.
(Footnote omitted)
The SCA also cited the decision of Williams J in Secretary, Department of Communities and Justice & Paredes [2021] FamCA 128 (“Paredes”) at [212] as supporting the proposition that the test is not for the court to apply a comparison of risk. In Paredes, her Honour was referred to In re N (a child) [2020] EWFC 35, a decision of Mostyn J of the British High Court (Family Division) delivered 28 April 2020 concerning an 11 year old boy who was found to be habitually resident in the United Kingdom and wrongfully removed by the mother from the United Kingdom to Greece. It was an inward return case conducted in the shadow of a Hague return application in Greece. Mostyn J observed:
16.By 20 March 2020 the coronavirus pandemic had taken grip here. On that day, which was three days before the Prime Minister announced the national lockdown, the mother unilaterally removed N to her mother's home on the island of Paros. She did so in the belief that she and N would be much safer from the virus there. That may well have been a valid view, it being common knowledge that by virtue of pre-emptive action Greece has a much lower rate of infection and mortality than this country. However, that does not justify, in the slightest, what was a wrongful removal of N from the place of his habitual residence and, more importantly, from his father.
I am not satisfied that there is any basis in the primary judge’s treatment of this exception for appellate intervention. Even having regard to the further evidence adduced before us, I am not satisfied that the return to the United Kingdom will expose the children to a grave risk of harm by virtue of the pandemic.
There is no substance to Ground 4.
OBJECTS TO RETURN
Ground 5: The Court erred in failing to find that the child Child A has attained an age, and a level of maturity, at which it was appropriate to take account of his views
Before the primary judge, the appellant pursued the objects to return exception only in relation to Child A. At [146] of the reasons, the primary judge described:
Child A is 12 years old, and has been diagnosed with ASD. Child A has been described as high functioning, and intellectually gifted. It is common ground that Child A has objected to returning to the United Kingdom. It is the Respondent’s case that Child A’s objections are more than ‘a mere expression of a preference or ordinary wish’ and he is of an age and maturity at which it is appropriate to take account of his views.
The primary judge referred at [147] to the mother’s affidavit evidence that:
… Child A has said to her, words to the effect of ‘I feel like I can be myself in Australia and no-one leaves me out or makes fun of me for being a nerd who likes animals like they did in the United Kingdom’, ‘I love having someone to play with every day at school and think it’s great that I am being invited to play-dates after school and parties and things” and ‘I want to go to School E for year 7 in 2021 where all my friends are going’. She reports that Child A has said he has enjoyed participating in Positive ED classes at school, and his perception that School E focuses on mental health, in contrast to his schooling in the United Kingdom.
(Footnotes omitted)
The primary judge referred at [150] to Child A having told the Family Consultant that:
…he wanted to remain in Australia, expressing detailed concerns about the impact of COVID-19. He disclosed to having been bullied when he was in year three, saying that made him feel sad and excluded. Child A reported to having few friends in England, in contrast to his current circumstances. Child A described experiencing better mental health since residing in Australia, and expressed concern that his health would decline, if he was required to return.
(Footnotes omitted)
At [152] the primary judge referred to Child A having “told the Family Consultant if he was required to return, he would ‘want to run away and hide somewhere’ even if it was in a ‘stranger’s cupboard’. The Family Consultant considered this comment was an expression of Child A’s objection to returning to live in the United Kingdom ‘and a resumption of the life he experienced there, including negative experiences he recalled in his relationship with the father’” (footnotes omitted).
At the behest of the mother, Child A attended two assessment interviews with Dr G. On each occasion, Child A was accompanied to Dr G’s rooms in Suburb E by Child B and the mother but interviewed separately. The primary judge noted at [44] that “Dr G is a clinical and forensic psychologist, with 30 years’ experience. Unbeknown to the father, and despite the orders made by consent for the children to attend on the Family Consultant, the Respondent arranged for Child A and Child B to attend on Dr G”. Dr G’s first report was dated 5 January 2021 and followed an assessment interview of 45 minutes on 4 January 2020. Dr G’s report dated 2 May 2021 follows a further assessment interview on 29 April 2021 when Child A was seen for 35 minutes. The primary judge recorded the following observations by Dr G following the interview on 4 January 2021:
148.Child A told Dr G in January 2021, “I really don’t want to go back”. When asked about the prospect of returning to the United Kingdom, he said “If I had to go, I’d run away. I’d knock on somebody’s door and ask them if they could hide me in a cupboard. I really don’t want to go back”. Child A said he did not want to return, because of the impact of COVID-19, citing statistics in support of his concerns. Further, Child A reported that he felt his mental health had improved since living in Australia, he had not “lost it” emotionally and felt calmer.
149.Dr G considered that Child A was of sufficient age and maturity to offer an account of his views, and because of his autistic thinking, his view was beyond a mere expression of preference or ordinary wish.
(Footnotes omitted)
Earlier in the primary judge’s reasons, the following observations were made:
45.Dr G prepared two reports, dated 5 January 2021 and 2 May 2021. The terms of reference were not attached to his reports, and were only disclosed during the trial.
46.On 4 January 2021, the Respondent’s counsel emailed Dr G, thanking him for agreeing to see the children and wrote, “If you can speak to me before you see them it might be helpful”. It was unclear whether any such discussion occurred. Dr G was told he was “Mrs Kurata’s expert witness” and that the Respondent would be relying on two exceptions:
•grave risk, in the context of the COVID-19 situation in England and the children’s experiences of parenting by their father (“Mrs Kurata will be able to explain this to you”); and
•the children’s objection to being returned, in circumstances where they had attained an age and degree of maturity at which it is appropriate to take account of their views.
47.Dr G was provided with an extract of reg 16(3)(c) and advised “it is not easy to make out either of these exceptions; the standard is set quite high”. Reference was made to the Guide to Good Practice on the operation of the relevant exceptions, which the Respondent’s counsel wrote he would try to provide. Again, it is unclear whether that occurred.
48.Dr G confirmed he had been requested “to interview [the children] with regard to certain specified issues arising from the children being the subject of proceedings under the 1980 Hague Convention” and “to provide psychological information in terms of the children’s experiences of parenting by their father, a discussion around ‘grave risk’ and whether the children show an objection to returning to the United Kingdom beyond the preference of an ordinary wish”.
49.He set out a list of documents he had been provided in paragraph 3, being the initiating application and documents in support, together with a report by Mr H dated 19 June 2018, and a neurodevelopmental report dated 16 October 2019. However, in his report he referred to the Respondent’s affidavit as well as media reports, which were not identified.
50.Dr G was provided with an updated letter of instruction in April 2021, which again was only disclosed during the trial. He was then provided with the Family Consultant’s report, the affidavit of Dr F, together with ss 121(9)(a) and (f)(i) of the Family Law Act 1975 (Cth).
51.The Regulations do not provide specific rules about expert evidence. Part 15.5 of the Family Law Rules 2004 (Cth) covers the presentation of expert evidence. The rules regulating expert evidence, and the use of single expert evidence, while providing the Court with the discretion to appoint another expert, are not peculiar to the family law jurisdiction.
52.While no objection was raised by the Applicant to Dr G’s evidence, I make the following observations:
Firstly, the purpose of the Rules is to ensure that expert evidence is only obtained in relation to significant issues, necessary to resolve or determine a case, by a single expert witness. The Rules seek to avoid unnecessary costs from the appointment of multiple experts.
Secondly, the Respondent provided no explanation as to why she had unilaterally engaged an alternative expert, after orders had been made by consent for a report by the Family Consultant.
Thirdly, it was not apparent that the Respondent gave any consideration to the impact of her decision, which resulted in the children being interviewed by the Family Consultant on one occasion, and Dr G on two occasions.
53.Dr G was not provided with an agreed statement of facts. Dr G only met with the Respondent, from whom he obtained information about background matters, where it is clear there is much in dispute between the parents. Dr G has not met, nor interviewed the father. Consequently, Dr G has been put in the position of being a partisan witness. These factors impact upon the reliability and weight to be attached to Dr G’s evidence, which I will return to later in the Reasons.
(Footnotes omitted)
I take a more critical view than the primary judge of the mother submitting the children to assessments by an expert who was other than a single expert witness appointed by the Court, to wit the Family Consultant, without the knowledge or consent of the other party and/or the children’s father. The order for preparation by the Family Consultant of the reg 26 report was made on 18 December 2020. The mother attended Dr G’s rooms with the children for the first time on 4 January 2021.
The unsanctioned interviewing and assessment of the children in this case was inappropriate given one of the exceptions to return on which the mother relied required a determination by the Court of whether Child A (12 years) and Child B (9 years) objected to being returned to the United Kingdom (reg 16(3)(c)(i)), the characteristics of the objection vis a vis a preference or ordinary wishes (reg 16(3)(c)(ii)) and whether each child had attained an age, and a degree of maturity, at which it is appropriate to take account of his/her views (reg 16(3)(c)(iii)). By the time the children were interviewed by the Family Consultant on 3 and 4 March 2021, what they had to say had been rehearsed before Dr G. The children were again taken to be interviewed by Dr G on 29 April 2021, which was a third assessment interview.

Returning to the substance of Ground 5 of the appeal, the primary judge carefully reviewed the evidence of Dr G. The primary judge noted:
153.Dr G conducted an updated assessment, including meeting with both children on 29 April 2021. Child A expressed similar views, which Dr G described as more entrenched from when they previously spoke. Both children maintained the previous themes of disliking aspects of their father’s behaviour and their concerns about COVID-19. Child A continued to speak about the lack of friendships and both children reported enjoying life and school in Australia.
154.Dr G considered both children were more polarised “against the concept of going back to their father” which was a product of the dispute and each parent’s conduct. He described Child A as holding inflexible and intense views[24] with “black and white thinking”. Dr G concluded there was an increase in both children’s alignment with the Respondent.
[24] Second report of Dr G filed 7 May 2021, paragraph 20.
155.Child A told Dr G if he was required to return to England, he would refuse, saying “I’d try and run away. I would sit and stay and not move” and “Once we got to England, I would stay on the plane until it came back to Australia” or “I’d be such a nuisance on the plane that they’d want to send me back”.
156.The father does not accept or agree with the children’s reports to the Respondent, the Family Consultant and Dr G in terms of their lives in the United Kingdom, or their relationship with him. It is his case that the children enjoy communicating with him, and have continued to do so, in the absence of the Respondent. The father describes the children’s comments and conduct towards him as noticeably different in the Respondent’s presence, which he perceives to be the children’s efforts to appease her. He denies that the children are reluctant to speak with him since travelling to Australia.
157.The father has produced screenshots taken in January 2021, which on his case, demonstrates a contrast between the children’s appearance when the Respondent is present, and not. He therefore questions some of the conclusions reached by Dr G, who has accepted the Respondent’s assertions as to these matters. The father deposes that since 10 September 2020, Child B has altered the way she communicates “love you dad” which is now disguised in a voice recording, such that it is not readily visible to the Respondent.
158.The father says the inconsistency in the children’s behaviour cast further doubt as to the expression of both Child A and Child B’s views, and the maturity with which those views are said to have been expressed.
159.By the time of Child A’s second interview with Dr G, there was a shift in terms of the reasons for his objection. He was then less focused on COVID-19 and spoke more about the father. Counsel for the Applicant described the shift as an interesting one, in circumstances where Child A’s increasing objection to returning to England was because of his father, yet he had spent no time with his father.
160.The evidence establishes that the Respondent has inappropriately involved Child A in the current dispute, and demonstrated a lack of insight into her actions, highlighted by the following exchange:
Counsel for the Applicant:       I think you’ve acknowledge that you allowed Child A to read an affidavit that has been filed in these proceedings?
Respondent:  to read his – the - the reply affidavit that his father filed, yes.
Counsel for the Applicant:       Do you acknowledge that that was inappropriate?
Respondent:  For a typical child, I wouldn’t even consider it. Certainly for Child B, I didn’t even consider it. But for Child A, once he had - he had heard about it, he - there was no way I couldn’t not let him read it because he would have ruminated and stewed and been more distressed by not reading it.
Counsel for the Applicant:       Well, with respect, you’re a lawyer. You should know that a child should not be given a document like that?
Respondent:       With respect, Child A isn’t a typical child.
161.Later in cross-examination, the Respondent denied discussing the nature of her defence with Child A. She acknowledged Child A had said to Dr G “preference more than mere view”. When asked where she thought Child A had gathered those concepts, the Respondent replied:
He got the concept from me. I asked him - you know, I discuss every - I discussed it with him. I said, “It’s really expensive for mummy to do this. Are you sure that you really, really want to stay?” And his - you know, he said yes. And I’m like , “It’s going to be more than a mere - if it’s - if it’s just like - you know , you - you would rather stay here , it’s just your preference , then we can go back and we can - we can make arrangements to come back here . How - how do you feel about it? Would you come back with me to get - to get - you know, to try and get in order to come back to Australia?”
The primary judge’s reasons at [166] sets out some of the matters taken into account by the primary judge in the assessment of whether Child A has a degree of maturity at which it is appropriate to take account of his views:
(a)Child A is 12 years old. Both Dr G and the Family Consultant described Child A as highly intelligent. That is compatible with his acceptance into a competitive selective secondary school in the United Kingdom. Consistent with Child A’s diagnosis with ASD:
a.Dr G described Child A as “very blinkered in his point of view and quite limited with any abstract capacity”, with a “very intense view”, noting “[c]hildren with an autistic disorder tend to lock onto points of view and not them go”.
b.The Family Consultant found Child A’s thought processes and his views were “inflexible”, with him expressing a concrete view, and an unwillingness to comprehend the possibility of returning to the United Kingdom.
(b)Child A has been in the Respondent’s sole care since mid-June 2020. His views have been influenced, both directly and indirectly, by the Respondent. That is corroborated by the Respondent’s admission of having provided the father’s affidavit to Child A and her discussions with Child A about the proceedings. Dr G found the Respondent’s parenting and her interactions with the children, noting Child A spoke about having a “preference more than a mere view”, describing them as “clearly adult concepts and, in my opinion, reflect influence by the Respondent”.
(c)The Respondent has failed to protect Child A from the current dispute. She has inappropriately involved and exposed him to these proceedings. The Respondent’s attempts to justify her conduct, confirmed my impression that she lacked insight into the impact of her actions on Child A. I consider these matters have influenced Child A such that his views cannot been seen as independent. Child A has been unnecessarily, and intimately involved in the litigation. His emotional maturity has likely been compromised, by the Respondent’s actions.
(e)I accept the unchallenged evidence of Dr G and the Family Consultant, that the parents’ dispute about the children’s return to the United Kingdom, has resulted in Child A expressing a loyalty to the Respondent, which has influenced his wishes. Child A is aligned to his mother. That does not mean that there is not some element of truth in what he has said, but it is likely that what he has said, is not entirely reliable.
(f)It is likely that Child A has also been influenced by the father, including his experiences with the father, and his reports of being exposed to incidents of family violence. The father’s comments to the Family Consultant demonstrated a lack of insight into the impact of his behaviour, and displayed an unrealistic prediction in terms of how Child A would likely manage, if he were returned to the United Kingdom.
(g)I accept Dr G’s evidence that Child A’s loyalty to his mother, and her conduct in terms of involving Child A in the proceedings, has left him vulnerable to being influenced to seek an outcome, which he considers his mother wants. Child A’s ASD, and his more literal and concrete thinking, have likely contributed to him aligning with the Respondent, which has also contributed to the depth of his objections.
(h)I accept the time Child A has spent in Australia and the positive experiences he has enjoyed, have also likely influenced his views. His views cannot be considered in a vacuum. When Child A left the United Kingdom, he had not been attending school, and there were numerous restrictions on day-to-day life, as a result of the national lockdown. In contrast, his life in Western Australia has been relatively free of restrictions, including being able to attend school.
(h)I treat with some circumspection, Child A’s comments in relation to the lack of support for his mental health in the United Kingdom. There was nothing in the evidence to suggest that his parents had actively sought out any such assistance, or indeed considered that he required such assistance, in the United Kingdom, to which I will return later in the Reasons.
(i)I attach no weight to Child A’s objection to being returned to the father. That is not the relevant objection. There is no suggestion that the Respondent will not return to the United Kingdom, if a return order is made.
(j)Child A’s responses about what he would do if a return order was made, demonstrate a degree of emotional immaturity. His suggestions of hiding in a stranger’s cupboard, running away or staying on an airplane, are illustrative of a level of childish naivete, consistent with his rigid and concrete thinking.
(As per the original) (Footnotes omitted)
At paragraph 24 of the appellant’s summary of argument, the appellant contends that, “the trial judge’s discretion miscarried because the evidence as a whole required the Court to take account of Child A’s views”. The appellant’s assertion betrays a misunderstanding of the task of the primary judge in proceedings of this nature as well as the basis for appellate intervention. Whilst the exceptions to return provided for in reg 16(3) are the gateway to the court’s discretion to refuse return, the court’s task under reg 16(3)(a),(b) and (c) is not discretionary, rather it is to make findings of fact on the available evidence. I am satisfied that the finding made by the primary judge at [167] of the reasons was a finding reasonably open to the primary judge on the evidence. It was:-
167.Child A’s diagnosis of ASD, including his inflexible thought processes, impact upon his level of maturity. Further, the Respondent’s influence on Child A and his alignment with her, has compromised his maturity and independence, such that his objections do not reflect an appropriate degree of independence or maturity.
Insofar as the appellant submits that “the matters referred to at sub-paragraph [166](f) are sufficient to render it appropriate to take into account Child A’s views”,[25] I am satisfied that the primary judge considered that evidence.
[25] Appellant’s Outline of Submissions filed 21 July 2021, paragraph 25.
The appellant contends that “[i]t cannot be the case that the views of an autistic child, in Child A’s circumstances, can never reach the standard of maturity that renders appropriate taking into account his views”.[26] However, the primary judge did not make such a finding and it is clear from the reasons that the primary judge took into account more than Child A’s autism in reaching her conclusion. The other factors included the influence of the father (at [166(f)]), the influence of the mother (at [160] and [167]) and the fact that Dr G had not interviewed, nor sought to interview, the father for either of his assessments.
[26] Appellant’s Outline of Submissions filed 21 July 2021, paragraph 27.
The appellant contends that the primary judge “erred in fact, given the appellant’s evidence regarding attempting to obtain support from NHS”.[27] Relevantly, the primary judge said “I treat with some circumspection, Child A’s comments in relation to the lack of support for his mental health in the United Kingdom. There was nothing in the evidence to suggest that his parents had actively sought out any such assistance, or indeed considered that he required such assistance, in the United Kingdom” (at [166(h)].
[27] Appellant’s Outline of Submissions filed 21 July 2021, paragraph 28.
However, it is apparent from transcript, in close proximity to the parts of transcript upon which the appellant relies, that the mother was not proactive in seeking assistance inasmuch as she understood that NHS were not offering treatment and she did not pursue any treatment through the schools at which Child A was enrolled.[28]
[28] Transcript 13 May 2021, p.107 line 32 to p.108 line 21.
Finally, I accept the submission of the respondent[29] that the appellant has misunderstood the distinction between the appellant’s efforts to access ‘ASD support’ (such as they were) and her efforts to access ‘mental health support’. Child A’s objection is related to his perception that Australia has better ‘mental health’ support and that objection was addressed by the primary judge. The primary judge’s observation that “there was nothing in the evidence to suggest that his parents had actively sought out any such assistance, in the United Kingdom” is correct.
[29] Respondent’s Summary of Argument filed 4 August 2021, paragraphs 67–68.
There is no substance to Ground 5.
CONCLUSION
None of the challenges to the primary judge’s order have been made out so I would dismiss the appeal.
COSTS
There was no costs issue in this case.

I certify that the preceding one hundred and forty (140) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Strickland, Tree & Bennett.
Associate:
Dated: 19 November 2021

WEA 17 of 2021 PTW 10058 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA DIVISION 1 APPELLATE JURISDICTION
BETWEEN:	MS KURATA Appellant
AND:	COMMISSIONER, WESTERN AUSTRALIA POLICE Respondent

Appeal from:	Commissioner of Western Australia Police & Kurata [2021] FCWA 111
Appeal number(s):	WEA 17 of 2021
File number(s):	PTW 10058 of 2020
Judgment of:	STRICKLAND, TREE & BENNETT JJ
Date of judgment:	19 November 2021
Catchwords:	FAMILY LAW – APPEAL – CHILD ABDUCTION – Hague Convention – Appeal from orders requiring two children to return to the United Kingdom pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (Cth) – Habitual residence – Wrongful retention – Acquiescence – Grave risk of harm – Objects to return – Where the primary judge’s findings to make a return order were reasonably open on the evidence – Where matters taken into account – No ground of appeal made out – Appeal dismissed.
Legislation:	Family Law Act 1975 (Cth) ss 93A, 94 Family Law (Child Abduction Convention) Regulations 1986 (Cth) regs 4, 15, 16, 26 Convention of 25 October 1980 on the Civil Aspects of International Child Abduction Articles 1, 13, 35
Cases cited:	Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Handbury v State Central Authority (2020) FLC 93-937; [2020] FamCAFC 5 House & The King (1936) 55 CLR 499; [1936] HCA 40 In re C (Children) (International Centre for Family Law, Policy and Practice intervening) [2019] AC 1; [2018] UKSC 8 In re N (a child) [2020] EWFC 35 In re R (Children) (Reunite International Child Abduction Centre intervening) [2016] AC 76; [2015] UKSC 35 LK v Director General, Department of Community Services (2009) 237 CLR 582; [2009] HCA 9 Secretary, Department of Communities and Justice & Paredes [2021] FamCA 128 TB v JB(Abduction: Grave Risk of Harm) [2001] 2 FLR 515; [2000] EWCA Civ 337 Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9 Yardlay & Commissioner of Police (2020) FLC 93-981; [2020] FamCAFC 186 Zafiropoulos & State Central Authority (2006) FLC 93-264; [2006] FamCA 446
Number of paragraphs:	140
Date of hearing:	13 August 2021
Place:	Perth (via video link)
Counsel for the Applicant:	Mr Berry SC
Solicitor for the Appellant:	Elizabeth Wiese and Associates
Counsel for the Respondent:	Ms Thatcher SC
Solicitor for the Respondent:	State Solicitor’s Office

ORDER MADE BY:	STRICKLAND, TREE & BENNETT JJ
DATE OF ORDER:	19 NOVEMBER 2021