LAWSON & LAWSON

[2017] FamCA 42

FAMILY COURT OF AUSTRALIA

LAWSON & LAWSON [2017] FamCA 42

FAMILY LAW – CHILD ABDUCTION – Hague Convention – Where the State and Commonwealth Central Authorities withdrew from the proceedings – Where the father was joined as a party and pursues the return of the children to the United Kingdom – Where the parties travelled to Australia with the children and subsequently separated – Where there is a dispute as to whether the parties agreed to emigrate to Australia or live in Australia for a defined period of time – Where the Court finds the parties agreed to emigrate to Australia – Where the Court finds the children were not habitually resident in the United Kingdom – Where the Court finds that the children were not wrongfully retained in Australia by the mother – Where the Court would have found the “defence” of sub regulation 16(3)(a)(ii) made out by the mother – Where the Court would not have exercised its discretion to return the children to the United Kingdom – Application dismissed.

FAMILY LAW – COSTS – Where the mother sought an order for costs against the State and Commonwealth Central Authorities – Where the final hearing had to be adjourned – Where regulation 7 precludes the Court from ordering costs against the Central Authority – Application dismissed.

Evidence Act 1995 (Cth) s 55
Family Law Act 1975 (Cth) s 111B
Family Law (Child Abduction Convention) Regulations 1986 (Cth) regs 1A, 2,7, 16
Hague Convention on Civil Aspects of International Child Abduction 1980
Migration Act 1958 (Cth) ss 102, 234

Department of Health and Community Services, State Central Authority & Casse (1995) FLC 92-629
H v H (Abduction: Acquiescence) [1996] 2 FLR 570
Lachmaiya v Department of Immigration and Ethnic Affairs (1994) 19 AAR 148
LK v Director-General, Department of Community Services (2009) 237 CLR 582
McNeil v Commissioner of Taxation (2003) 202 ALR 35
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449
Punter v Secretary for Justice [2007] 1 NZLR 40
R v MacFarlane [1993] 1 Qd R 202
R v Rg [2006] NSWSC 15
Re B (A Child) (Reunite International Child Abduction Centre and others intervening) [2016] AC 606
Re B (A Minor) (Abduction) [1994] 2 FLR 249
Re C (Abduction: (Consent) [1996] 1 FLR 414
Re F (A Minor) (Child Abduction) [1992] 1 FLR 548
Re H and Ors (Minors) (Sexual abuse: Standard of Proof) (1996) 1 All ER 1
Re K (Abduction: Consent) [1997] 2 FLR 212
Re R (Children) (Reunite International Child Abduction Centre and others intervening) [2016] AC 76
Re S(A minor) (Custody: Habitual Residence) [1998] AC 750

Regino & Regino (1995) FLC 92-587
Secretary, Department of Family and Community Service & Padwa (2016) FLC 93-701
Wenceslas & Director General, Department of Community Services (2007) FLC 93-321
Zotkiewicz & Commissioner of Police (No. 2) (2011) FLC 93-472

APPLICANT: Mr Lawson

RESPONDENT: Ms Lawson

FILE NUMBER: SYC 4401 of 2016

DATE DELIVERED: 2 February 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: McClelland J

HEARING DATE: 17 and 28 November 2016

REPRESENTATION

COUNSEL FOR THE FATHER: Mr Richardson SC

SOLICITOR FOR THE FATHER: Barkus Doolan Family Lawyers

COUNSEL FOR THE MOTHER: Ms Christie

SOLICITOR FOR THE MOTHER: Watts McCray Family Lawyers

Orders

1. The Form 2 Application filed 13 July 2016 is dismissed.

2. The mother’s application for costs against the State and Commonwealth Central Authorities is dismissed.

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

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

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 4401 of 2016

Mr Lawson

Applicant

And

Ms Lawson

Respondent

REASONS FOR JUDGMENT

Introduction

1. By Form 2 Application filed on 13 July 2016, the Secretary of the New South Wales Department of Family and Community Services, in his capacity as the State Central Authority, sought orders for the return of B aged 6 and C aged 4 (“the children”) to the United Kingdom (“the UK”). The orders were sought under the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”) which implements the Convention on the Civil Aspects of International Child Abduction[1](“the Hague Convention”) in Australia.

   [1] signed at The Hague on 25 October 1980.

2. On 19 October 2016 the State Central Authority applied to be removed as a party to the proceedings and that application was granted. The Secretary of the Attorney-General’s Department, in his capacity as the Commonwealth Central Authority, then intervened.

3. Subsequently, on 11 November 2016, the Commonwealth Central Authority applied to be removed as a party to the proceedings. That application was granted and Mr Lawson (“the father”) then intervened in the proceedings. The father continues to pursue the return of the children to the United Kingdom.

4. The application has been, and remains, opposed by Ms Lawson (“the mother”) who maintains that the children were habitually resident in Australia at the time of the alleged wrongful retention and/or the father consented to the children being removed from the UK to and retained in Australia.

5. The final hearing proceeded on 17 November and 28 November 2016. On 30 November 2016 I requested the parties to provide brief additional written submissions to address the relevance, if any, to the present proceedings of Re R (Children) (Reunite International Child Abduction Centre and others intervening) [2016] AC 76 (“Re R (Children)”). Those additional submissions were received from the parties on 7 December 2016.

Background Facts

1. The father was born in the UK in 1974 and is a British citizen.

2. The mother was born in Australia in 1978. She currently holds British and Australian citizenship.

3. The parties met in or about December 2001 and became engaged in or about June 2003. At that time the father was living in the UK and the mother was living in Australia.

4. In January 2005 the mother moved to the UK and commenced living with the father.

5. At about that time the father started up his own business known as Company D.

6. In 2005 the parties were married in County E, England. They subsequently had two children; B who was born in 2010 and C who was born in 2012.

7. In or about April 2009 the parties purchased a flat in a block of thirteen flats known as Property F in County E (“Property F”). In November 2014 the parties agreed with the owners of the other twelve flats at Property F that they would apply and pay to extend their leaseholds to 999 year leases.

8. The parties continued to reside at Property F until they travelled to Australia with the children in November 2015. 

9. In or about June 2009 the mother became naturalised in the UK and obtained a UK passport.

10. In April 2012 the father sought advice about applying for an Australian visa.

11. In June 2012 the father provided a statement in support of his Australian visa application which expressed the parties’ joint desire and intention to move to Australia.[2]  

    [2] Mother’s affidavit at Annexure F.

12. On 7 September 2012 the father’s application for an Australian visa was submitted.

13. On 17 April 2013 the father was granted an Australian spouse sponsored visa which enabled him to permanently reside in Australia.

14. In August 2013 the parties travelled with the children to Australia for an intended three week holiday. It was agreed that one purpose of the travel was to “activate” the father’s visa.[3] However, as a result of the mother’s father being diagnosed with cancer, she remained with the children in Australia until late November 2013.The father returned to the UK following the three week holiday.

    [3] Mother’s affidavit at paragraph 69.

15. In September 2014 the parties’ son B commenced school in the UK.

16. In the UK, the mother was the primary carer of the children although the father, being self-employed, was also able to spend a substantial amount of time with the children and make a significant contribution to their care.

17. In the UK, the children also spent time with their paternal grandparents who lived in close proximity to the family. The parties also made a trip to Australia approximately every second year. During those visits the children spent time with the maternal grandmother and her partner, the extended maternal family as well as the maternal grandfather until he unfortunately passed away in 2015.

18. The parties have various friends who reside in the UK and in Australia. A number of those friends have children who are around the same age as B and C.

19. It was not in dispute that, from early in the parties’ relationship, including in the period prior to the parties marrying, the mother expressed a desire to live in Australia. The father acknowledged that, as early as 2003, he made written representations to the mother supporting her desire to move to Australia.

20. During the course of their relationship, the discussions between the parties regarding moving to Australia varied from reflecting a long-term aspiration to taking more active steps - including looking at potential housing options during visits.

21. Subsequent to the parties going on a “glamping holiday” (or “glamorous camping holiday”) in the UK in August 2014, the father commenced to make enquiries about the possibility of opening up a similar business in Australia. During the period from late 2014 until the parties left for Australia in November 2015, the father also made enquiries regarding other potential business opportunities in Australia. However, none of those business opportunities came to fruition prior to the parties departing the UK.

22. By approximately June 2015 the discussions between the parties about moving to Australia progressed from an abstract possibility to discussions about the official date the parties were going to leave the UK for Australia. In conjunction with those discussions, the parties took steps in preparation of the move including taking steps to accumulate savings, obtain quotes regarding shipping of their personal effects, tenanting their Property F flat and liquidating the father’s business.

23. On 23 October 2015, the father booked one way tickets for the parties and the children to travel to Australia.

24. The parties also made arrangements for their arrival in Australia, including exploring accommodation options, and on 21 September 2015 the father sent the mother an email in respect to enrolling B in school in Australia and C in “nursery”.[4] On 1 October 2015 the father and the mother signed an enrolment form for B to attend G School in New South Wales.[5]

    [4] Ibid at Annexure FF.

    [5] Ibid at Annexure HH.

25. On or about 18 November 2015 the parties signed a tenancy agreement to tenant their Property F flat for a 12 month period. The lease included a “six month break clause” that enabled the parties or the prospective tenants to terminate the lease after a period of six months subject to the terminating party providing the other party with not less than two months’ notice.[6]

    [6] Exhibit 2.

26. The mother deposed that the parties arranged for various household items to be shipped to Australia including the parties’ “lounges, beds… dining room table, bookshelves, the children’s bikes and toys, plates, cutlery, bowls, pots, pans, linen, towels, rugs clothes, a coffee table, pictures, side tables, lamps, Christmas decorations, gym equipment, adult bikes, office equipment including computer screens and tables and pictures”.[7]

    [7] Mother’s affidavit at paragraph 155.

27. On 23 November 2015 the family left the UK and arrived in Australia on 27 November 2015 following a stopover with friends in Singapore.

28. On 27 November 2015 the father signed an incoming passenger card which the mother had completed on his behalf. In completing the card the mother deposed that she ticked the box that noted the father was “migrating permanently to Australia”.[8]

    [8] Ibid at paragraph 160.

29. Upon their arrival in Australia, the parties initially lived with the maternal grandmother and her partner in the H Town area of New South Wales. Within days of arriving in Australia, the father expressed to the mother, as well as her mother and stepfather, his regret at the parties’ decision to come to Australia.

30. On 7 February 2016 the father sent the mother an email expressing concerns about the decision to come to Australia and proposed that he return to the UK to get the parties’ Property F flat ready for them to live in.

31. The mother contends that the inability or unwillingness of the father to adjust to life in Australia was a source of tension in their relationship that eventually led to the parties’ final separation in April 2016. The father contends that, from at least August 2015, the mother had the intention of ending the marriage and, in failing to reveal that to him prior to travelling to Australia, she had deceived him. 

32. Shortly after arriving in Australia, the mother took B to G School, where he had already been registered to attend, for an induction and made arrangements for him to commence in Kindergarten in 2016 which subsequently occurred. Arrangements were also made to enrol C at the I Childcare Centre[9] which C subsequently commenced attending on 29 January 2016.

    [9] Ibid at Annexure PP.

33. After arriving in Australia, the father attended multiple job interviews in Sydney and J Town and eventually secured employment that commenced on 29 February 2016 with a small company based in J Town. The father continued to work with that company until 31 March 2016 when his employment ended.

34. The mother also applied for two jobs in January 2016 but was unsuccessful. The mother ultimately secured employment in April 2016 as a sales assistant. The mother gave evidence that her working hours are flexible and enable her to pickup and drop-off the children at daycare and school.

35. On 7 February 2016 the mother signed a six month tenancy agreement for a property in the H Town area. The father declined to sign the lease but moved into the property with the mother and the children until the mother asked him to leave in early April 2016.

36. On 11 April 2016 the father left Australia and returned to the UK. The father acknowledged that, at the time of leaving Australia, it was his intention to return to Australia. However the father changed his mind after receiving legal advice in the UK. The father has remained living in the UK since that time although he has travelled to Australia to spend time with the children and for the purposes of these proceedings.

37. The mother has remained living in Australia with the children since 27 November 2015. The mother deposed that, after the expiration of the lease on the H Town rental property in August 2016, she and the children returned to live with the maternal grandmother.

Evidence

1. The father relied upon the following:

   a)Form 2 Application filed 13 July 2016; and

   b)Affidavits of the father filed 1 November and 15 November 2016 respectively.

2. The mother relied upon the following:

   a)Form 2A Application filed 22 September 2016; and

   b)Affidavit of the mother filed 22 September 2016.

3. In addition, the parties each filed in excess of ten affidavits providing evidence from various family members, friends and colleagues. Of those witnesses, the following were required for cross examination:

   a)Mr K – the parties’ butcher in the UK who swore an affidavit on behalf of the father filed 1 November 2016;

   b)Ms L – a friend of the parties who swore an affidavit on behalf of the mother filed 22 September 2016; and

   c)Ms M – the mother’s mother who swore an affidavit on behalf of the mother filed 4 November 2016.

4. Ms M was not, however, available to give evidence and accordingly, I did not read her affidavit. I gave brief reasons for adopting that course of action at the hearing.

Objections to evidence

1. Each party sought to cross examine the other and the witnesses that I have referred to above. Despite it being a relatively unusual occurrence for Hague Convention proceedings, in light of the nature of the controversy, I accepted that such a course was appropriate.

2. Counsel for each party made objections to a number of paragraphs of the affidavits sought to be relied upon by the other. Those objections primarily went to form and relevance.

3. In taking a number of objections on the basis of relevance, senior counsel for the father relied upon the recent decision of the Full Court in Secretary, Department of Family and Community Services & Padwa (2016) FLC 93-701 (“Padwa”).

4. With respect to senior counsel, I did not find that decision to be particularly instructive in determining the objections made to the evidence on the basis of relevance. In that case, the trial judge, who was required to determine the child’s habitual residence as at the date of retention in Australia on 19 December 2015, had adopted an approach of considering a large amount of background and historical material with a view to determining “what would the habitual residence of the child have been at November 2013?”[10] In answering that question, as posed by his Honour, it was found that the child’s place of habitual residence, as at November 2013, was Indonesia. His Honour then proceeded to explore whether circumstances had changed since November 2013 and whether those changed circumstances resulted in the child’s habitual residence changing from Indonesia to the Netherlands by December 2015. His Honour found that the change in circumstances in the period subsequent to November 2013 had not resulted in the child’s place of habitual residence changing from Indonesia to the Netherlands.

   [10] Department of Family and Community Services & Padwa [2016] FamCA 215 at [429].

5. Relevantly for these proceedings, in arriving at their conclusion, the Full Court held that his Honour had placed undue emphasis on the amount of time that the child spent in the respective countries in circumstances where “binding authority makes it plain that the amount of time is not the determinant”.[11] The Full Court also held that his Honour had erred insofar as he had “predominated the parties’ intentions as determinative of the conclusion that there had been no change to habitual residence”.[12]

   [11] Secretary, Department of Family and Community Services & Padwa (2016) FLC 93-701 at 81,308 at [24].

   [12] at 81,308 at [27].

6. While it was “not strictly necessary” for their determination, the Full Court noted that there was “merit in the challenges” made to his Honour’s evidentiary findings and their irrelevance to the issues which needed to be determined by his Honour.[13] The Full Court found that his Honour had placed “undue weight upon historical parental conduct and the conduct of the father in particular”[14] and noted:

   In particular we are unable to see how the evidence in respect of:

   ·the parenting agreement and its validity in 2013 and before;

   ·what his Honour concluded to be deceitful and despicable behaviour by the father;

   ·the arrangements going back to 2010; and

   ·the focus on the findings of habitual residence as at November 2013

   had relative importance compared to the evidence of the child’s circumstances in the two year period up until December 2015. [15]

   [13] at 81,317 at [83].

   [14] at 81, 312 at [43].

   [15] at 81,317 at [73].

7. The decision of the Full Court in Padwa is helpful in the guidance it provides to trial judges in determining the issue of a child’s habitual residence for the purposes of Hague Convention proceedings. 

8. There is, however, nothing in that decision of the Full Court that suggests that a narrow or strict approach should be taken in respect to the admissibility of evidence by a trial judge in Hague proceedings, particularly at the preliminary stages of a final hearing. In that respect, I note s 55(1) of the Evidence Act 1995 (Cth) provides in relation to “relevant evidence”:

   The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.

1. In considering the operation of s 55, in R v Rg [2006] NSWSC 15 Buddin J said:

   21. In R v Le [2000] NSWCCA 49, Sully J observed:

   In considering whether [the] evidence was admissible in terms of s 55 of the Evidence Act, it is in my opinion important to keep clearly in mind a distinction between the question whether a particular piece of evidence is probative, and therefore admissible at all; and the very different question of the weight fairly to be given to that evidence after it has been admitted properly.

   It is to be observed that s 55 speaks of a rational effect that is brought about “directly or indirectly”. This is very broad language, and it suggests, in my opinion, a wide rather than a narrow focus to the inquiry whether a proffered piece of evidence has the rational potential which s 55 requires.

   22. Mr Odgers in his text “Uniform Evidence Law” (6^th ed, Lawbook Co 2004) sets out the Australian Law Reform Commission’s rationale for the proposal on which the provision in based:

   The definition requires a minimum logical connection between the evidence and the “fact in issue”. In terms of probability, relevant evidence need not render a “fact in issue” probable, or “sufficiently probable” – it is enough if it only makes the fact in issue more probable or less probable than it would without the evidence – ie it “affects the probability”. The definition requires the judge to ask “could” the evidence, if accepted, affect the probabilities. Thus, where a judge is in doubt whether a logical connection exists between a fact asserted by evidence and a “fact in issue”, he should hold that the evidence is relevant if satisfied that a reasonable jury could properly find such a logical connection. (at 162-163)

2. A similar approach was taken in McNeil v Commissioner of Taxation[16] wherein Conti J provided the following useful guidance at 44[23]:

   …admissible evidence need not render a fact in issue probable, or sufficiently probable, and that it is enough if the evidence merely makes a fact in issue more probable or less probable than it would otherwise be the case without that evidence. Or put another way, it is required of the court to determine whether the evidence tendered, if accepted, would affect, directly or indirectly, the court's assessment of the probability of the existence of a fact in issue in the proceedings.

   [16] (2003) 202 ALR 35.

3. It is also important to appreciate that evidence may be admissible even if it only enables the Court to contextualise evidence of discrete actions and events. In that context, in  R v MacFarlane,[17] Ambrose J referred to the Wigmore on Evidence[18] as correctly stating the position that “background evidence” may be admissible:

   … This is because it is in fact always necessary to place a transaction or controversy into some sort of setting or framework before an sense can be made out of the evidence submitted to the jury. (To give or even frame an answer, we must know how to pose the question.) And in many cases – if not in most of these cases – it will not be possible, except through tortured reasoning, to show how every particular fact constituting the background against which disputed evidence are assessed is ‘relevant’; it will not be possible, in short, to describe how every part of a setting for a controversy makes some fact in issue more or less probable. To be sure, any part of the background may turn out to have some identifiable bearing on the probability of some fact in issue, and it is also true that ‘background’ facts may themselves be or become the subject of controversy at trial. But these realities do not change the fact that at a trial the story has to start somewhere and that preliminary and background descriptions of the events in question are not inadmissible merely because it is not possible to gauge in any realistic or meaningful way whether such background alters the assessment of some particular controverted fact.

   [17][1993] 1 Qd R 202 at 227.

   [18] (Tillers rev., 1983) Vol.1 at 660.

4. It is to be noted that, in Padwa, the Full Court summarised the relevant “background facts” that they had regarded as being “essential” to the trial judge determining the child’s place of habitual residence. In other words the material identified by the Full Court, though “of a narrow ambit and largely uncontroversial”, was not irrelevant simply because it constituted background to the case that had to be determined by the trial judge.

5. In these proceedings, a degree of “background evidence” is clearly relevant as it gives context to the parties’ decision to travel to Australia. Some of that background evidence is also relevant to considering the mother’s alleged deceit and, in particular, whether she failed to reveal her true intentions for wanting to travel to and remain in Australia.

6. Having noted that, however, I accept that some evidence in respect to the parties’ conduct and alleged intentions may be so remote so as not to be relevant to the issues that I am required to determine in these proceedings.

7. In other instances, the evidence that was objected to was in the form of statements which had been made by witnesses as to what one or both of the parties had said to them in respect to the purpose of the parties travelling to Australia. In circumstances where the witness was unavailable for cross examination, evidence of that nature was struck out from the affidavits relied upon by the parties.

8. On the first day of the final hearing I made a determination in respect to those instances where the evidence was clearly irrelevant or otherwise objectionable. Indeed, in many instances, counsel were in agreement as to the material that should not be admitted into evidence. There nonetheless remained a substantial number of unresolved objections. In order to enable the hearing to proceed as expeditiously as possible, the parties helpfully agreed that I would subsequently determine, in my Reasons for Judgment, whether to admit into evidence the material that was objected to.

9. Given the number of objections that were taken by each of the parties, it is not productive for me to focus upon and provide reasons for the acceptance or rejection of each separate part of the evidence objected to. I am confident that a reading of these Reasons for Judgment will inform the parties and their legal representatives of how I have treated the individual parts of the evidence objected to. It can be taken that, if they are referred to as forming part of my reasoning process, I regard the fact(s) as being relevant and admissible. If they are not referred to, it can be inferred that I regard them as “irrelevant or, more likely, of insufficient weight or probative value to influence the reasoning process”.[19]

The Law

[19]Bell Group Ltd (in Liq) v Westpac Banking Corporation (No. 9) [2008] WASC 239 at [959].

Overview

1. Section 111B(1) of the Family Law Act 1975 (Cth) (“the Act”) relevantly provides that:

   (1)The regulations may make such provision as is necessary or convenient to enable the performance of the obligations of Australia, or to obtain for Australia any advantage or benefit, under the Convention on the Civil Aspects of International Child Abduction signed at The Hague on 25 October 1980 (the Convention) but any such regulations shall not come into operation until the day on which that Convention enters into force for Australia.

2. The Regulations which have been made pursuant to this power are the Family Law (Child Abduction Convention) Regulations 1986 (Cth) to which I have previously referred to.

3. Regulation 1A provides that the Regulations are intended to be construed:

   (a)    having regard to the principles and objects mentioned in the preamble to and Article 1 of the Convention; and

   (b)    recognising, in accordance with the Convention, that the appropriate forum for resolving disputes relating to a child's care, welfare and development is ordinarily the child's country of habitual residence; and

   (c)    recognising that the effective implementation of the Convention depends on the reciprocity and mutual respect between judicial or administrative authorities (as the case may be) of convention countries.

4. Article 1 of the Hague Convention provides that its objects include “to secure the prompt return of children wrongfully removed to or retained in any Contracting State”.

5. Regulation 2(2) provides that “[t]he removal or retention of a child is wrongful in the circumstances mentioned in Article 3 of the Convention”. Article 3 of the Convention provides:

   The removal or retention of a child is to be considered wrongful where –

   a)   it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and

   b)     at the time of the removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

   The rights of custody mentioned in sub-paragraph a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.

6. In these proceedings it is accepted that both parties had the requisite rights of custody of the children. There is an issue, however, that as to whether, at the time(s) of the alleged wrongful retention, the children were habitually resident in Australia rather than in the UK.

7. Regulation 16 provides that where a child has been wrongfully removed or retained, and proceedings are commenced within one year after that child’s removal or retention, the Court “must”, subject to specified exceptions set out in regulation 16(3), order the return of the child forthwith.

8. Regulation 16(3) sets out the exceptions to the mandatory obligation imposed on the Court to order the return of the child. Relevantly, in the context of these proceedings, regulation 16(3)(a)(ii) provides that one such exception is where the “person opposing return” establishes that “the person, institution or other body seeking the child's return… had consented or subsequently acquiesced in the child being removed to, or retained in, Australia”.

9. Regulation 16(5), however, provides that, even if the party opposing return establishes a ground set out in regulation 16(3), the Court nonetheless may exercise its discretion as to whether or not it should make an order for the return of the child.

Contentions

The father

1. The father’s contentions were summarised in a memorandum provided to the Court by senior counsel for the father which read as follows:

   1.         The children were at all material times habitually resident in the UK.

   2.         Their travel [to Australia] was only committed to by the father for 6 months, at the conclusion of which they would return to the UK, in the absence of any other agreement between the parents.

   3.         If the father is rejected as to the 6 months issue then if what he did agree to might otherwise support conclusion [sic] that there was a mutual intent to support habitual residence in Australia, his agreement, fundamentally on the understanding that the family would be intact, is undermined by the mother’s conduct in withholding facts and misleading him such that there was in truth no consensus of minds.

   4.         In the alternative, if the finding is of consent per Reg. 16.3 (a) (ii) then the court would not exercise the discretion thereby conferred by reason of the circumstances (misleading and withholding facts) to refuse to return.

The mother

1. The mother’s primary contention was that the parties emigrated to Australia in November 2015. The mother conceded, however, that she had informed the father (to ease his concerns) that she was prepared to review the decision after a period of six months.

2. The mother further contended that even if it is found by the Court that the children remained habitually resident in the UK, the father had failed to establish that the children had been wrongfully retained in Australia.

3. Finally, the mother argued that if it is established that the children have been wrongfully retained in Australia, the father had nonetheless consented to that occurring.

Issues

1. Accordingly, the issues to be determined in these proceedings are as follows:

   ·Were the children habitually resident in the UK immediately before they were allegedly wrongfully retained in Australia?

   ·If it is determined that the children were habitually resident in the UK, were the children wrongfully retained in Australia?

   ·Did the father consent to the children being retained in Australia and if so, was any such consent given by the father vitiated by deceit?

   ·If consent by the father to the children’s retention in Australia is established, should the Court nonetheless exercise its discretion to order that the children be returned to the UK?

Consideration: Habitual Residence

Approach

1. As previously noted, regulation 1A(2)(b) provides that the Regulations are intended to be construed as:

   recognising, in accordance with the Convention, that the appropriate forum for resolving disputes relating to a child's care, welfare and development is ordinarily the child's country of habitual residence.

2. In Re B (A Child) (Reunite International Child Abduction Centre and others intervening)[20] Lord Wilson (with whom Baroness Hale of Richmond DPSC and Lord Toulson JSC agreed) said:

   A child’s habitual residence in a state is the internationally recognised threshold to the vesting in the courts of that state of jurisdiction to determine issues in relation to him (or her).

   [20] [2016] AC 606 at [27].

3. His Lordship further added:

   A child’s habitual residence is also the thread which unites the provisions of [the Hague Convention]. This Convention applies to a child habitually resident in a contracting state immediately before his wrongful removal or retention: article 4. It is the law of that state which dictates whether his removal or retention was wrongful: article 3(a). It is that state to which, subject to exceptions, other contracting states must order the child to be returned: article 12.

4. In these proceedings the proposition that the children were wrongfully retained is predicated on the children being habitually resident in the UK immediately before the date of the alleged wrongful retention.

5. In determining that a child’s habitual residence could unilaterally be changed by one parent, the UK Supreme Court has taken a broader approach than that taken by the High Court of Australia. This is reflected in the UK Supreme Court’s decision in Re R (Children).

6. In Re R (Children), Lord Reed JSC (with whom Baroness Hale of Richmond DPSC, Lord Clarke of Stone-Cum-Ebony, Lord Wilson and Lord Hughes JJSC agreed) said that, in determining the country of habitual residence:

   16. … It is therefore the stability of the residence that is important, not whether it is of a permanent character. There is no requirement that the child should have been resident in the country in question for a particular period of time, let alone that there should be an intention on the part of one or both parents to reside there permanently or indefinitely.

   17. As Baroness Hale DPSC observed at para 54 of A v A, habitual residence is therefore a question of fact. It requires an evaluation of all relevant circumstances. It focuses on the situation of the child, with the purposes and intentions of the parents being merely among the relevant factors. It is necessary to assess the degree of integration of the child into a social and family environment in the country in question. The social and family environment of an infant or young child is shared with those (whether parents or others) on whom she is dependent. Hence it is necessary, in such a case, to assess the integration of that person or persons in the social and family environment of the country concerned. The essentially factual and individual nature of the inquiry should not be glossed with legal concepts which would produce a different result from that which the factual inquiry would produce. In particular, it follows from the principles adopted in A v A and the other cases that the Court of Appeal of England and Wales was right to conclude in In re H (Children) (Reunite International Child Abduction Centre intervening) [2015] 1WLR 863 that there is no “rule” that one parent cannot unilaterally change the habitual residence of a child.

7. On the other hand, in LK v Director-General, Department of Community Services[21] (“LK”), the High Court said that “it may be accepted that the general rule is that neither parent can unilaterally change that place of habitual residence”. Nevertheless, the High Court recognised that determining whether such a shared intention existed will not always be a clear and precise exercise. In that context the High Court continued:

   [I]f it becomes necessary to examine the intentions of the parents, the possibility of ambiguity or uncertainty on the part of one or both of them must be acknowledged.

   [21] (2009) 237 CLR 582 at 596[34].

8. The challenges associated with determining whether shared parental intention existed was also acknowledged by the Full Court in Zotkiewicz & Commissioner of Police (No. 2)[22](“Zotkiewicz”) wherein the Full Court said:

   The reference by the High Court in this passage [LK at 599[44]) to a “shared intention” gives rise to the question of how the law deals with cases where the intentions of one parent may be described as “settled”, but the other parent has different intentions that cannot be so described.

   [22] (2011) FLC 93-472 at 85,765 at [25].

9. It remains to be seen whether the Full Court (or the High Court) will resolve that dilemma by applying Re R (Children) to find that, insofar as the intention of the parents is relevant in determining whether there has been a change in a child’s place of habitual residence, it is unnecessary to find the existence of a shared parental intention.

10. In circumstances where a change in geography occurs before the alleged wrongful removal or retention and that change occurred with the knowledge and consent of the other parent,[23] there is some attraction to the approach taken by the UK Supreme Court in Re R (Children) that, for the purposes of determining habitual residence under the Hague Convention, the stability of residence from the child’s perspective (rather than the parent’s intention) is important. In that respect, I note that in Padwa, the Full Court made reference to the desirability of consistency of approach between Hague Convention countries.[24] Nevertheless, if the approach taken by the UK Supreme Court in Re R (Children) is to be applied in Australia, it should be done at an appellate level. Accordingly, and for the avoidance of doubt, I do not in these proceedings apply the reasoning of Re R (Children) in respect to it being unnecessary to find shared parental intention to establish a change in habitual residence of a child. 

    [23] Wenceslas & Director-General, Department of Community Services (2007) FLC 93-321 at 81,557 at [239] referring to Frederich v Frederich 983 F.2d 1396 (6^th Cir. 193) at 1402.

    [24] at 81,311 at [35].

11. Moreover, it is not necessary in these proceedings to resolve the apparent difference in approach between the UK and Australian courts. In that respect, I note that in LK at 594[28] the High Court said that “intention is not to be given controlling weight” in deciding habitual residence. As noted, the Full Court in Padwa, consistent with LK, found that the trial judge fell into error in having “predominated” parental intention over other more pertinent considerations.

12. Further, in applying LK, the Full Court in Zotkiewicz held that reservation or ambiguity on the part of one party did not necessarily preclude a change in the child’s place of habitual residence. The Full Court said in that respect:[25]

    We also accept that merely because the purpose of an international relocation may be to allow parents to work on their relationship does not mean their purpose in relocating cannot be regarded as “settled”. Re B [(Minors) (Abduction) (No. 2) [1993] FLR 993] is an example of one such case. Similarly, the fact one party may be reluctant to agree to a move to a new jurisdiction; has misgivings about the state of the marital relationship; and has taken advice about a divorce before departing, does not mean they will not acquire a place of habitual residence in the new jurisdiction (see Feder v Evans-Feder [1995] USCA3 892; (1995) 63 F. 3d 217).

    [25] at 85,766 at [78].

1. A further point of difference with the approach taken by the UK Supreme Court is in respect to the length of time ordinarily required in order to establish habitual residence. As noted, in Re R (Children), the UK Supreme Court held that there is no requirement that the child should have been resident in the country in question for a particular period of time. The Australian position was explained in Zotkiewicz[26] in the following terms:

   We also do not discern from anything said in LK that there has been any departure in Australia from the proposition that in order to find someone is habitually resident in a place they must generally have lived there for an “appreciable period”.

   [26] at 85,765 at [74].

2. Nonetheless the Full Court acknowledged that “[w]hat amounts to an ‘appreciable period’ will differ from case to case”. The Full Court further noted the UK Court of Appeal decision in Re F (A Minor) (Child Abduction) [1992] 1 FLR 548  (“Re F (A Minor)”)at 555 wherein Butler-Sloss LJ said:

   The judge was entitled to make the finding that the family did intend to emigrate from the UK and settle in Australia. With that settled intention, a month can be, as I believe it to be in this case, an appreciable period of time.

3. It is also of note that in Padwa[27] the Full Court held that the period of time that a child spent in a country was “not determinative” of whether the child had become habitually resident in that country.

   [27] at 81,315 at [57].

4. Once again, it is unnecessary for the purposes of these proceedings to resolve the apparent difference in emphasis between the UK and Australian courts.  Ultimately, in these proceedings, the differing emphasis has little practical effect when the approach suggested by the High Court in LK is followed. In LK at 599[44], the High Court cited with approval statements made by the New Zealand Court of Appeal in Punter v Secretary for Justice[28] (“Punter”) that “a broad factual inquiry” was required to determine whether there had been a change in a child’s place of habitual residence. The High Court approved the analysis in Punter[29] that:

   Such an inquiry should take into account all relevant factors, including settled purpose, the actual and intended length of stay in a state, the purpose of the stay, the strength of ties to the state and to any other state (both in the past and currently), the degree of assimilation into the state, including living and schooling arrangements, and cultural, social and economic integration. In this catalogue, SK v KP [[2005] 3 NZLR 590] held that settled purpose (and with young children the settled purpose of the parents) is important but not necessarily decisive. It should not in itself override what McGrath J called at [22], the underlying reality of the connection between the child and the particular state.

   [28] [2007] 1 NZLR 40.

   [29] at 61-62[88].

5. In conducting a broad factual inquiry for the purposes of these proceedings, in order to determine the “underlying reality of the connection between the child and [Australia]”,[30] it stands to reason that the existence of a shared intention on the part of the parents to establish residence in Australia, and the taking of preparatory steps consistent with that intention, will enhance the likelihood of the children becoming settled in Australia in a relatively short period of time.

   [30] Punter at 62-63[88].

6. In setting aside orders for the return of the children to Israel, the High Court in LK concluded:[31]

   [31] at 601[49].

   Where, as here, the parent’s intentions at the time of departure from Israel were expressed conditionally (to live in Australia unless…) and the mother took the steps she did, both before and after arrival in Australia, to establish a new and permanent home for the children in Australia, it should have been found that the children were not habitually resident in Israel in July 2006. The possibility that they might again take up habitual residence in Israel (if their parents were reconciled) does not deny that they had ceased to be habitually resident there. Whether they were habitually resident in Australia when the father asked for their return need not be decided. What is decisive is that the children left Israel with both parents agreed that unless there were a reconciliation they would stay in Australia, and their mother, both before and after departure, set about effecting that shared intention.

   (Emphasis added)

7. As will be discussed, the High Court’s reference to the preparatory steps taken in that case in the context of the parties’ “intentions at the time of departure” being “expressed conditionally” has relevance to these proceedings.

8. In these proceedings, the father carries the onus of establishing that, on the balance of probabilities, as at the date of the mother’s alleged wrongful retention of the children in Australia, the children were habitually resident in the UK. As such, I will consider the father’s contentions and the relevant evidence in that context.

Did the parties have a shared intention to emigrate to Australia?

1. It was not in dispute that the mother intended for the parties to emigrate to Australia with the children in November 2015.

2. The father’s argument as to his intention was summarised by senior counsel for the father in the following terms:

   If your Honour accepts that the consensus between the parents, in accordance with my client’s case, is that there was an agreement to come to Australia for a period of six months, at the conclusion of which there was no further commitment but to return if they failed to agree on anything further, then, in our submission, if that was the common understanding and that was the basis upon which the children came here for a closed window, then habitual residence could not be applied in Australia and would have, at the relevant date, remain with the United Kingdom. [32]

   [32] Transcript 28 November 2016, page 63.

3. Senior counsel for the father referred to the father’s response to paragraph 114 of the mother’s affidavit (at page 5 of the father’s affidavit filed 15 November 2016) as providing confirmation of that consensus. In that response the father deposed:

   As the time for our departure to Australia became closer [the mother] and I discussed on an almost daily basis the move to Australia. I said to her words to the effect: “I am very concerned this will not work out…” and “I am not committing to move to Australia permanently or indefinitely. I have put $50,000 in account [sic]. That will see through 6 months in Australia. If it doesn’t work out we can return.”

   Prior to travelling to Australia with [the mother] I prepared a “return budget” setting up the costs involved in returning to Australia.

   [The mother] sat with me while we prepared the budget on a piece of paper. I don’t have a copy of the document. It is in the UK.

   [The mother] said to me at the time I prepared this document: “we can give it a go for 6 months or so”. When I continued to say to [the mother]: “I am really nervous about this…” [The mother] said: “Stop worrying. It will work out. We can come back if you don’t like and it doesn’t work out for us” or words to that effect.

   I would not have moved, nor consented to the children moving to Australia if [the mother] had said to me: “we can’t go back to the UK” or “I will be staying in Australia”.

   (Emphasis added)

4. The last sentence of that paragraph is significant in that it is an acknowledgement by the father that he and the children “moved” to Australia, albeit he says that he would not have consented to that occurring if the mother had advised him that she would not return with him and the children to the UK. I will subsequently discuss the issue of consent in these proceedings.

5. More significantly, the father’s response to paragraph 114 of the mother’s affidavit is inconsistent with the father’s oral evidence in a fundamental respect. The difference concerns who made the statement referring to going to Australia “for 6 months”.

6. The father’s oral evidence, during cross examination, was as follows:

   MS CHRISTIE: And you certainly raised with [the mother] the idea that the move to Australia might be in the nature of a six-month trial. You raised that with her, didn’t you?

   THE FATHER: Well, of course. Yes. That was the agreement.

   MS CHRISTIE: Well, sir, when you say – doing the best you can to pinpoint a time – there was an agreement as in you and she both agreed it would be a six-month trial?

   THE FATHER: A month before we left.

   MS CHRISTIE: October. Was it a conversation that the two of you had?

   THE FATHER: So – no. October, September.

   MS CHRISTIE: Was it – which is it or you don’t know?

   THE FATHER: September

   …

   MS CHRISTIE: Doing the best you can… It’s your evidence about the agreement that you say was the basis upon which the court should find that this was always only a six-month trial?

   THE FATHER: Okay. Well, the biggest bit I remember of that conversation was actually working out the return budget, and I remember writing down £340,000 and I remember deducting all the moving costs back again, and we wrote it down on a couple of yellow sticky notes at my desk in my office, and I said, “Right. That’s the deal. We’re going to go for six months. We’ve got the budget of $50,000. That’s a return budget if it all goes wrong” and, quite frankly, it was so badly organised, I thought we would be back in six months, and I had no vision beyond six months. [33]

   [33] Transcript 17 November 2016, page 40.

   (Emphasis added)

7. It is to be noted that the affidavit version of the conversation has the mother saying “we can give it a go for 6 months or so” whilst the father’s oral evidence has the father saying “we’re going to go for six months”.

8. The inconsistency between the two versions of the conversations raises doubt as to the weight that I am able to give to the father’s evidence as to the existence of an agreement between himself and the mother to return from Australia to the UK after a period of six months.

9. Moreover, both the father’s affidavit and his oral evidence are inconsistent with the father’s affidavit sworn on 23 May 2016, which was annexed to the Form 2 Application filed by the State Central Authority initiating these proceedings. At paragraph 13 of that affidavit, the father deposed that the parties agreed that they “would go for a trial period of up to six months” and in paragraph 14 further deposed that it made “financial sense to take everything with us even though we might be staying in Australia for only a few weeks or months”.[34]

   [34] Emphasis added.

10. If the version of the alleged agreement reflected in the 23 May 2016 affidavit is correct, then the agreement was not for a “closed window” of six months. Rather, it was an agreement to come to Australia for an undefined period that could be up to six months.

11. Indeed, the fact that the father signed the UK’s ICACU application form on 13 May 2016, being prior to the expiration of six months subsequent to the parties’ arrival in Australia on 27 November 2015, is itself contrary to the existence of the agreement that the father contends he entered into with the mother in September 2015. In that respect, no explanation was provided by the father as to why he completed the UK’s ICACU application form at a time earlier than what he contends was the expiry of the six month “closed window” which would have been on 27 May 2016.

12. It is of note that, on the basis of the father’s own evidence, there were three possible agreements between the parties. They were:

    1.An agreement to come to Australia from an undefined period of “up to six months”;

    2.An agreement to come to Australia to “give it a go for 6 months or so”; and/or

    3.An agreement to come to Australia for “a closed window” of six months and, in the absence of any further agreement between the parties, to return to the UK thereafter.

13. As a result of these inconsistencies in the father’s own evidence regarding the nature of the agreement(s) that he alleges he entered into with the mother, the father has failed to satisfy me that he entered into any such agreement with the mother.

14. Moreover, as I will discuss, the father’s contention as to the existence of any such agreement to come to Australia for only a defined period of six months is inconsistent with the weight of the evidence.

Evidence

Declaration on incoming passenger card

1. It is significant that, on the flight to Australia, the father signed an incoming passenger card declaration for the purposes of Australia’s migration, quarantine and customs laws (Exhibit 3). Significantly, the card signed by the father:

   ·indicated to the question “Do you intend to live in Australia for the next 12 months?” in the affirmative; and,

   ·indicated that the father was “Migrating permanently to Australia”, as opposed to a “Visitor or temporary entrant” or a “Resident returning to Australia”.

2. It is not to the point that the card was completed by the mother. The card was signed by the father. As will be discussed, despite unsatisfactory aspects of the father’s evidence, I am satisfied that he was aware that those boxes had been checked when he signed the card.

3. The requirement for incoming passengers to complete incoming passenger cards accurately is prescribed in the Migration Act 1958 (Cth) - including that “no incorrect answers are [to be] given” (s 102(b)) and such documents cannot contain “false or misleading” information (s 234(1)(c)).

4. The oral evidence provided by the father as to the circumstances in which he signed the incoming passenger card was most unsatisfactory. It was accepted that the father suffers from dyslexia and, as a result, frequently relies upon another person (including in the past the mother) to complete formal documents for him. In that context the father was asked a number of questions, by counsel for the mother, with a view to establishing the father’s knowledge of the contents of the incoming passenger card in circumstances where, despite not completing the card, he nonetheless signed it.

5. After prevaricating as to whether he did in fact read the card before signing it, the father was referred to an earlier holiday to Australia where he had failed to disclose a previous conviction on the incoming passenger card. The father then acknowledged that he was aware of the significance of incoming passenger cards and the importance of those cards containing accurate information.

6. Having been referred to that incident and the advice that he subsequently received, the father agreed to the proposition put to him by counsel for the mother that “You would have read the whole thing to make sure that you’re making a truthful declaration wouldn’t you, [Mr Lawson]?”

7. The failure of the father to declare his previous conviction on incoming passenger cards that he completed prior to 2013 when visiting Australia, presented some difficulty for the father in 2012 when he applied for a visa to enable him to emigrate to Australia. As a result the father provided to an officer of the Migration Branch of the Australian High Commission a “Declaration to explain the reason why I ticked no on the boarding cards” dated 4 September 2012. In that declaration the father stated: “I did not read the boarding card. I know it sounds terrible now when entering a new country but I did not even look at it”. Subsequently, the father acknowledged in the declaration that “ignorance is no excuse” (Exhibit 3, page 37).

8. In the context of the apparently sincere apology set out his declaration, while recognising that the father suffers from dyslexia, there surely comes a point where the father should reasonably be expected to accept responsibility for the accuracy of important documents that he signs, including an incoming passenger card.

9. As stated by Deputy President McMahon in  Lachmaiya v Department of Immigration and Ethnic Affairs (1994) 19 AAR 148 at 155:

   The observance of truth in dealing with officials in migration matters (particularly where the truth is known only to the person making the statement) is of fundamental importance to the control mechanism which this country exercises in visa applications in dealing with the many reasons for coming to Australia.

10. The background to which I have referred satisfies me that the father was well aware of the significance of signing the incoming passenger card on 27 November 2015 and the importance of it containing accurate information.

11. The question then becomes whether the information contained on the incoming passenger card accurately represented the father’s intentions.

12. In that respect I note that courts generally presume that members of society will act lawfully. In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 at 450, the High Court referred to:

    … a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.

    (Footnotes omitted)

13. Taking a similar approach, in Re H and Ors,[35] Lord Nicholls relevantly stated:

    [35] Re H and Ors (Minors) (Sexual abuse: Standard of Proof) (1996) 1 All ER 1 at 16-17.

    When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability. Fraud is usually less likely than negligence. Deliberate physical injury is usually less likely than accidental physical injury... Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation.

    Although the result is much the same, this does not mean that where a serious allegation is in issue the standard of proof required is higher. It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred. The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established.

    (Emphasis added)

14. In light of the circumstances to which I have referred, it is, in my view, improbable that the father provided false and misleading information on his incoming passenger card when he travelled to Australia with the mother and the children in November 2015. Accordingly, I find that the declaration contained in the incoming passenger card which the father signed upon entering Australia in November 2015, is indicative of the fact that as at that time the father intended to emigrate permanently to Australia.

Shipment of personal belongings

1. The most compelling evidence of the existence of a shared intention for the parties to emigrate to Australia with the children, albeit with the mother agreeing to a review, is the decision of the parties to ship their personal belongings from the UK to Australia. It was not in dispute that the anticipated time for the arrival in Australia of those items was between six to 12 weeks and at a cost of approximately £6000.[36] It is improbable that the parties would have taken that course of action if they had agreed to stay in Australia only for a defined period of six months.

   [36] Mother’s affidavit at Annexure S.

2. In Re F (A Minor) the UK Court of Appeal held that, despite the fact that the parties had purchased return tickets, the trial judge was entitled to find that the parties had intended to emigrate from the UK to Australia. An important aspect of the trial judge’s findings was the fact that the parties had shipped 19 cases of their personal belongings to Australia. In that respect, Butler-Sloss LJ said:

   …the number of packing cases, in itself, is compelling evidence contrary to the suggestion of a holiday, even an extended one. The point about the tickets, in my judgement, is not sufficient to displace the evidence to the contrary.

1. In these proceedings, it is of note that, in addition to the shipping all of their personal belongings to Australia, the father only purchased one-way tickets for the parties and the children.

2. The father’s evidence that “we decided to take our things because we wanted our furniture with us and did not want the prospective tenants in our flat at Property F to damage it”[37] is implausible. In that respect, I note that, on 23 October 2015 the father sent an email to the mother in which he complained about the cost of moving the parties’ personal belongings to Australia. In that email,[38] the father described the parties’ furniture in the following terms:

   Far out shit furniture we are better to forget it and buy stuff there at this rate, our old sofas are crap in fact most of stuff is all crap and not worth moving as far as I can see. Why don’t we get a 20 ft container for the car and all the kids stuff.

   [37]Father’s affidavit sworn 23 May 2016 at paragraph 14, annexed to the Form 2 Application filed 13 July 2016.

   [38] Mother’s affidavit at paragraph 144.

3. Ultimately, the parties utilised a 40 foot container and brought their personal belongings as well as the father’s BMW motor vehicle to Australia.

4. Accordingly, I find that the fact that the parties went to the expense of shipping their personal belongings to Australia in the circumstances outlined above is a further significant indicator that the parties had a shared intention of emigrating to Australia.

One-way tickets

1. As noted, the father did not purchase return airline tickets for the parties and the children to travel to Australia.

2. The father denied that the purchase of one-way tickets reflected an intention to move to Australia permanently. The father’s oral evidence in that respect was as follows:

   MS CHRISTIE: Now, the reason you purchased one-way tickets was … because you were moving to Australia, isn’t it?

   THE FATHER: Actually, no. They were – I had various quotes of flights and they were the cheapest, so I bought them. I think you will think in legal terms, but I just saw some flights on the Internet that were cheap, so I bought them, and they were one-way. That was it. There was no more thought to it.

3. When it was pointed out to the father that a one-way ticket would necessarily be cheaper than a return ticket, the father indicated that, as at October 2015, he had not been aware of the possibility of purchasing open ended tickets.

4. Subsequently, when it was put to the father that he did not buy a return ticket because he did not know the date on which he intended to return, the father acknowledged that “I wouldn’t have known the exact date – no, of course not.”

5. While it is but one element of the evidence, I find that the failure of the father to purchase return airline tickets for the parties and the children is more consistent with the mother’s evidence that the parties intended to emigrate to Australia. It is inconsistent with the father’s assertion that the parties agreed to return to the UK after a “closed window” of six months – he, himself stating that he had not known what the return date would be.

Tenanting the parties’ UK home for a period of 12 months

1. It was common ground between the parties that on 18 November 2015 they entered into a tenancy agreement to rent their Property F flat. The tenancy agreement (Exhibit 2) provides “for the term of twelve months commencing on 21 November 2015”. Clause 12.1 of the tenancy agreement provided:

   Notice is hereby given that possession might be recovered under Ground 1, Schedule 2 of the Housing Act 1988 if applicable. That is, that the Landlord used to live in the property as his or her main home; or intends to occupy the property as his or her main home.

2. Consistent with clause 12.1 of the tenancy agreement, the second schedule to the agreement specified a “special condition” that:

   The Landlord may bring the tenancy to an end at any time before the expiry of the Term (but not earlier than six months from the Commencement Date or the date of this Agreement which ever shall be the later) by giving to the Tenant not less than two months written notice stating that the Landlord requires possession of the premises.

3. The second schedule also contained a special condition which enabled the tenant to provide a similar period of notice to the landlord.

4. The father argued that the special condition enabling termination of the tenancy agreement after a period of six months was specifically included in the tenancy agreement to enable the parties to reoccupy their former home in the event that they returned from Australia after a period of six months. The mother, on the other hand, argued that the special condition was included because it was part of the pro forma tenancy agreement used by the leasing agents chosen by the parties.

5. It is unnecessary to resolve the competing factual contentions in that respect. If the parties intended to remain in Australia only for a “closed window” of six months, it is in my view improbable that the parties would have entered into a tenancy agreement for a period of 12 months. Moreover, there was no evidence presented to the Court by the father (who carries the burden of proof in respect to the issue of habitual residence) that the tenants were provided with two months’ notice of a termination of the tenancy agreement so that the parties could resume living in their former home after spending a period of six months in Australia.

6. The decision of the parties to tenant their Property F flat for a period of 12 months is not, in itself, evidence of the parties’ intention to emigrate to Australia but it is certainly consistent with an intention of the parties to remain in Australia for a period longer than a “closed window” of six months.

Decision to voluntarily liquidate the father’s UK business

1. The father relied upon an affidavit of Mr N filed on 1 November 2016, which explained the circumstances in which the business operated by the father in the UK was placed into voluntary liquidation. Relevant passages of the affidavit are as follows:

   3. I have acted as accountant and taxation adviser to [the father] and his company, [Company D] Limited, since July 2007. In October 2015, on the basis of my advice, [the father] instructed me to put the company into Members Voluntary Liquidation (MVL).

   4. I recommended the MVL after [the father] told me that the family intended to go to Australia to “give it a go” for six months. From my discussions with [the father] around the middle of 2015 it was clear to me that he was tentative and uncertain about a move to Australia and wanted to keep his options open for a return to England in case it did not work out the family.

   5. The MVL allowed the shareholders of the company to treat the distribution of retained profits as a capital distribution, and as such upon meeting detailed criteria, they would be entitled to claim “entrepreneurs relief”. This is a legitimate tax relief allowed under UK company law enabling the shareholders to save 18% on the tax rate that would otherwise have been payable on the reserves of the company upon liquidation.

   …

   7. [The father] asked whether he could keep [Company D] “open” in case the family returned from Australia after a few months. I explained that [Company D] would have to be closed otherwise the entrepreneurs relief would not apply. I advised that he could return to England at any time and set up a new company doing business in a different field and that, in that situation, the revenue would not “clawback” the 18% relief. On the basis of this advice [the father] instructed me to go ahead with the MVL.

2. The actions of the father in placing the business that he had operated since approximately 2005 into voluntary liquidation, before travelling to Australia, is again but one piece of evidence that needs to be considered in the context of the totality of the evidence. However, it is consistent with the mother’s contention that the parties intended to emigrate to Australia and that the father would establish a new business in Australia. It is improbable, in my view, that the father would have taken that course of action if his agreement with the mother had been to remain in Australia only for a “closed window” of six months.

Communications

1. In the context of the competing factual contentions of the parties, I have had regard to objectively verifiable evidence in the form of email and text message communications between the parties and with third parties. In view of the number of those communications, I will give an overview of the nature of those communications and discuss only those that I regard to be of most relevance.

2. The communications sent by the father to the mother in the period prior to 2015 indicated general support for the mother’s desire to move to Australia. For instance, on 23 October 2013 the father sent an email to the mother (at the time she was staying in Australia) in which he wrote “we will do what you want with Australia honey, I’m 100% with you on the move”.[39]

   [39] Mother’s affidavit at Annexure I.

3. In the first half of 2015 communications between the parties primarily related to the prospect of the father establishing a business in Australia. Most attention seems to have been given to the possibility of establishing a “glamping” holiday business. Those emails suggest some optimism on the part of the father to the possibility of establishing such a business. For instance, on 10 February 2015 in the context of such discussions, the father sent an email[40] to the mother which was  titled “further great news for stay vacations” and read:

   Also it means people will stay with [Australia] to have a holiday this is great for us as well.

   This move to [Australia] must be this year git [sic] to get our money up over the coming months to do it.  

   [40] Ibid at Annexure K.

4. The communications between the parties after June 2015 suggest some concerns on the part of the father regarding the viability of establishing a business in Australia but nonetheless are expressed in terms of a commitment to move to Australia for a period of several years. For instance, on 19 June 2015 the father sent an email to the mother canvassing the funds required to establish a “glamping” holiday business. In that email the father referred to the funds required to establish such a business: “Bearing in mind we have to slive [sic] for two years on the money we have and push 100k into clamping [sic] to get 13 tents going, um lots to chew over still.”[41]

   [41] Ibid at Annexure Q.

5. Despite those concerns on the part of the father, the communications between the parties, and to third parties, in the period from September 2015 until the parties left for Australia is consistent with the parties maintaining a commitment to emigrating to Australia. The most significant email in that respect, is an email sent by the father on 16 September 2015[42] to a representative of the Australian Department of Foreign Affairs in which he wrote:

   [42] Ibid at Annexure EE.

   Hi …,

   Hope you are doing well

   I just wanted to confirm all is ok for my visa after much saving and working we [are] ready to move permanently to [Australia], I am about to close my company in the Uk with a view to being in [Australia] by year end at the absolute latest more like October November time.

   We have the moving company ready to go and property being rented out etc. so we are well down the road.

   I guess I just wanted re-assurance that all is in order for our long-awaited move so I can go ahead and close my Uk company, we have already been research  hard [sic] to start our new business in Australia.

   (Emphasis added)

6. The parties also continued to confer with one another about sustaining themselves and making arrangements for the children when they arrived in Australia. In an email dated 21 September 2015[43] the father expressed his concern to the mother regarding expenses they were incurring in the UK and said:

   As for [Australia] outgoings [sic] I’m unclear so far but it does seem you will need to get that job asap. I can will [sic] need to look after [B] and [C] so [B] to confirm [B] [sic] starts school in Jan time so we need [C] in nursery so I can start the new business if she can be part-time every day that would help me.

   [43] Ibid at Annexure FF.

7. I have placed particular emphasis on communications between the parties in the period subsequent to September 2015 – September 2015 being the month during which the father asserts he entered into an agreement with the mother to travel to Australia only for a “closed window” of six months.

8. On 3 October 2015 the father sent the following text messages[44] to the mother which included an enquiry regarding B’s schooling after he completes his education at G School:

   You know if [the mother] can provide the security of a job. I think with finance we can build the tent empire. I think it might suit us. I keeping [sic] thinking property may be speak to [Mr O] …

   Where would [B’s] school be after [G School] and what age would he change to it.

   [44] Ibid at Annexure II.

9. Those text messages are inconsistent with the father’s assertion that, in September 2015, he entered into an agreement with the mother to spend only a “closed window” of six months in Australia. It is also significant insofar as it focuses on the parties’ son and reflects a shared intention for him to be educated in Australia for a number of years, including beyond primary school.

10. On 19 October 2015 the father sent a text message[45] to the mother in which he commented about moving out of the parties’ flat in the UK. His comments included the following statement:

    I’m trying. I am happy to be out of the flat. It will be nice to be in the house. If tenants took off maybe I can sell it after 5 years.

    [45] Ibid at Annexure JJ.

11. That text message is significant insofar as it acknowledges the possibility of ultimately selling the parties’ home in the UK. This is more consistent with the mother’s assertions that the parties intended to emigrate to Australia.

12. On 9 November 2015 the father sent the mother an email[46] regarding the prospect of renting a home in Australia for one year. That email included the sentence that:

    [46] Ibid at Annexure MM.

    Lots have air con some have an office and garages and stuff so that looks like we can get decent place for year one.

    (Emphasis added)

13. Once again, that email contemplates a longer term commitment to staying in Australia and is inconsistent with the father’s assertion that the parties had entered into an agreement or had an understanding that they would only travel to Australia for a “closed window” of six months.

The mother’s conversation with the parties’ butcher in June 2015

1. In support of the father’s contentions, the father called evidence from the parties’ butcher in the UK, Mr K. Mr K swore an affidavit on 7 October 2016 in which he provided details of conversations he had with the both the father and the mother in the middle of July 2015.

2. In view of its significance, as a result of an objection as to form, I gave senior counsel for the father leave to lead oral evidence from Mr K in respect to the alleged conversation that he had with the mother in the middle of July 2015. That oral evidence was given as follows:

   I said… “How are things with you?”, and she said, “Oh, good. We are getting ready to move to Australia”, and I said, “Oh, right. Really?”, and then from that she said to me, “Yes. We are going to Australia for a six-month trial to try it out”… or words to that effect.[47]

   [47] Transcript 28 November 2016, page 5.

3. In answer to questions from counsel for the mother, Mr K acknowledged that he did not make a note of the conversations he had with either of the parties.

4. When asked by counsel for the mother whether the information Mr K provided to the father’s solicitor in May 2016, regarding conversations he had had with the parties in July 2015, was accurate, Mr K replied:

   I think so. Yes. I mean, it is reasonably vague because, you know, I have a lot of conversations with a lot of people. It was a passing conversation.[48]

   [48] Ibid, page 8.

5. The following exchange, concerning the accuracy of Mr K’s recollection, subsequently took place between counsel for the mother and Mr K:

   MS CHRISTIE: I want to say to you, you cannot, with certainty, say that the discussion of a trial period of six months was a discussion that you had with [the mother]?

   [MR K]: Well, my understanding was the plan was to come back if it didn’t work out.

   MS CHRISTIE: And I want to say to you to the extent that you formed that understanding …?

   [MR K]: So that’s a six-month trial.

   MS CHRISTIE: [Mr K], I want to say that to the extent that you formed that understanding you did so as a consequence of your discussions with [the father]?

   [MR K]: No. No. It was the words that were told to me by [the mother].

6. The first point to note, in respect to the evidence of Mr K, is that it refers to a conversation occurring between himself and the mother in mid July 2015 - a period of at least six weeks prior to the alleged agreement in September 2015 to come to Australia only for a “closed window” of six months.

7. A further concern I have with Mr K’s evidence is that it was not based on any contemporaneous note and was given in the context of him acknowledging that he was “reasonably vague” because it was a “passing conversation” and he has “a lot of conversations with a lot of people”.

8. I also note that Mr K said that he formed the understanding to which he referred only from discussions he had with the mother and not with the father. This is inconsistent with paragraph 5 of his affidavit wherein Mr K deposed:

   I had some similar conversations with [the father] about the same time, in about the middle of July 2015, and he also made it clear that the trip was intended as a six-month trial period to see if they could make a life for the family in Australia. It is clear to me from what he said that [the father] did not see it as a permanent move when he discussed his plans with me in about July 2015. He was very clear that if it did not work out for the family in Australia they would return to England.

9. Accordingly, I do not place significant weight on Mr K’s evidence. As I will discuss, the difference between the parties is essentially in respect to what would happen after the parties lived in Australia for a period of six months. The evidence of Mr K does not assist me in determining which of the competing positions is more probable.

Evidence of the mother

1. As noted the mother’s contentions were relatively straight forward, being that after many years of contemplating a move to Australia, the parties decided to emigrate to Australia in November 2015. However, the mother acknowledged that as the time to depart the UK became closer, the father expressed some reluctance.

2. At paragraph 114 of her affidavit the mother deposed:

   There were other times when [the father] said to me, things like: “We’ll give it a go for 12 months. If we don’t like it, we can always come back.” [The father] also made reference to a 6 month and 2 year time limits. Putting a time limit on things seemed to calm [the father] down. However, after a short period, he would usually go back to planning out years of our family living in Australia. To my mind, our move to Australia was a permanent one.

3. I have previously set out the father’s response to paragraph 114 of the mother’s affidavit. In addition to the conversations that the father attributes to the mother in his response to paragraph 114, in response to paragraph 75 of the mother’s affidavit, the father deposed in his affidavit filed 15 November 2016 that:

   All discussions were premised on the basis that the move to Australia was for a trial period of 6 months. I said to [the mother] nearly each time we discuss these matters: “it is only a trial. We need to be able to return if things don’t work out” or words to that effect. [The mother] said: “stop worrying. We can come back if things don’t work out…” or words to that effect.

4. In cross examination the mother conceded that, in order to ease the concerns of the father, she informed him that “after six months we would reassess”. On several occasions the mother indicated that that reassessment would take place in the context of her view that the parties had emigrated to Australia.[49]

   [49] See transcript 28 November 2016, pages 36 -7.

1. Further, in respect to B’s experience at school, the mother stated at paragraph 215 of her affidavit:

   His teacher this year’s [Ms T], whom [B] appears to like. His friends in class are, [R], ...

2. The mother was also not challenged on her evidence that B had received his half yearly school report and he is doing well which, the mother noted, is consistent with his teachers’ feedback.[57]

   [57] Ibid at paragraph 219.

3. The parties’ daughter C commenced attending at the I Childcare Centre on 29 January 2016 where she attends two days per week. The mother was not challenged on her evidence that:

   From speaking to her teachers, [C] has settled in well, has made several friends and is comfortable with the educators. On mornings that I take [C] to day care, [C] is excited to go there. She is rarely upset when I deliver her there and leave, although she occasionally is briefly upset. When I collect her of an afternoon, she is ordinarily talkative and enthusiastic about what she has done in that day.[58]

   [58] Ibid at paragraph 220.

4. In a letter dated 27 November 2016[59] the director of the I Child Care Centre stated:

   [C] settled into the service very quickly and was confident to say goodbye to her Mum and engage with the educators. It did not take [C] long before she would engage in activities on offer alone or with her peers. [C] is happy to see her Mum and brother when they arrived to collect her each day. Upon arrival both [the mother] and [B] enquire about [C’s] day directly with [C] and [the mother] also converse with staff. [B] and [C] usually have a little play together before departing for the day. On some occasions staff have observed some competitiveness or some sibling rivalry between [B] and [C], all of which staff would deem typical sibling behaviour. [C] is content to play alone or with groups of children. [C] has struck up a strong friendship with 2 peers in her class and they seek each other out on arrival and spend a day together engaged in a variety of activities.

   [59] Ibid at Annexure PP.

5. The mother was also not challenged on her evidence in respect to the network of friends that the children have developed which was stated at paragraphs 216 and 217 of her affidavit in the following terms:

   [B] has had numerous play dates with his friends, particularly [R] and [U], and he has also been invited to a birthday party recently. Both [B] and [C] spend time with [V] as his little brother, [W], plays with [C] every Thursday at Pre-school group.

   At least once a month, [C], [B] and I travel to Sydney for a weekend to visit [B] and [C’s] friends...

6. Finally, the mother was not challenged on her evidence that the children are also engaged in extra-curricular activities including B attending swimming lessons and C attending basketball lessons and preschool groups.[60]

   [60] Ibid at paragraph 168.

7. The mother was not challenged on her evidence that, since arriving in Australia, she has obtained employment as a sales assistant. The mother is also in receipt of the social security entitlements in Australia, including a parenting payment and Family Tax Benefit Part A and Part B (Exhibit 4).

8. The evidence to which I have referred in respect to the circumstances of the children subsequent to departing the UK on 25 November 2015 satisfies me that, as at that date, the children ceased to be habitually resident in the UK. Alternatively, the extent to which the children have become assimilated into life in Australia, including in attending school and preschool, engaging in extra-curricular activities and developing a circle of friends, then satisfies me that immediately before 28 May 2016 the children were habitually resident in Australia.

9. In that respect I note that, even on the father’s case, the purpose of staying in Australia for that six month period was to trial “living” in Australia and, in so undertaking that trial, the children have become assimilated into Australia to such an extent that it has now become their place of habitual residence.

10. That situation, in my view, substantially distinguishes this case from the example referred to in closing submissions of a military officer or diplomat leaving their country of habitual residence for a defined period with the intention of returning to that country. An important distinction in those cases is that the travel would be in the course of that person’s employment which would continue upon that person’s return to the country of habitual residence. In the case at hand, the father liquidated his business in the UK and sought, and was continuing to seek, employment in Australia. Further, in such a scenario, the children of the diplomat or military officer would be in no doubt that they would return to resume their education and social contacts in their country of habitual residence. That is not the situation in this case where the children were farewelled by friends and family. 

11. Having determined that immediately before the alleged wrongful retention of the children they were not habitually resident in the UK, I find that the Regulations do not apply.

12. For completeness I will nonetheless address the issue of alleged wrongful retention and, subsequently, the defence of consent.

Consideration: Wrongful Retention

1. It is quite clear that retaining a child in a foreign country beyond the date consented to by a parent or party with rights of custody becomes a situation of wrongful retention on the day after the agreed date of return.[61]

   [61] Director-General, Department of Families & BW (2003) FLC 93-150 at 78,490-1.

2. It was not in dispute that, at all times, the parties each had rights of custody in respect to the children.

3. To succeed in establishing that a child has been wrongfully retained within Australia, as contemplated by Article 3 of the Hague Convention, the father must establish an event occurring on the specific occasion that constitutes the act of wrongful retention. In that respect, in Re S(A minor) (Custody: Habitual Residence) [1998] AC 750 Lord Slynn said:

   It must, however, be necessary to point specifically to the event which constitutes the removal or the retention. This is necessarily so because of the provision of article 12 that for an order for the return of the child to be made at the date of commencement of the proceedings a period of less than one year must have elapsed "from the date" of the wrongful removal or retention.

4. In this case there is no question that the children lawfully travelled to Australia and were lawfully present in Australia up until the point where the father alleges that the children were wrongfully retained in Australia. The father bears the onus of establishing that the event occurred resulting in the children’s lawful presence becoming a wrongful retention.

5. I reject the contention that the children were wrongfully retained in Australia as alleged in the UK’s ICACU application form completed by the father on 13 May 2016. In that form the father contended that “[the mother]’s refusal to allow the children to come back to England with me on 12 April 2016 was a wrongful retention of them in Australia”.

6. That contention is wholly without merit for the following reasons:

   ·There was no evidence of any request being made by the father for the mother or the children to return to the UK with him on that day.

   ·Indeed, as noted, in April 2016, the father purchased a return ticket with a view to returning to Australia.

   ·On 7 April 2016 the father sent a text message to the mother in which he advised the mother “I’m tryin [sic] to stay here some way more than you think - need to cut [the UK] out of my mind fully…”

   ·The father acknowledged that it was his intention when he left Australia on 11 April 2016 to return to Australia and that that intention changed only after he received advice subsequent to him arriving in the UK.

   ·That contention is directly contrary to the father’s primary contention that the parties agreed to travel to Australia with the children for a “closed window” of six months and then, in the absence of further agreement between them, would return to the UK.

7. The father has also failed to satisfy me that the children were wrongfully retained on 28 May 2016, being the day following the expiration of the six month period subsequent to the parties’ arrival in Australia. My reasons for so finding are as follows:

   a)For reasons I have previously given, the father has failed to satisfy me that in September 2015, or at any other such time, he entered into an agreement with the mother that they would travel to Australia with the children only for a “closed window” of six months after which time, in the absence of further agreement between them, they would return to the UK.

   b)I have found that it was the joint intention of the parties to emigrate to Australia, albeit with the mother committing to review that decision after a period of six months.

   c)Leaving aside issues such as the nature of that review, how it would take place and how any difference of opinion would be resolved, the facts are that such a review did not take place as the father left Australia prior to the expiration of that six month period.

   d)The father acknowledged that prior to leaving the UK in November 2015, he did not purchase return tickets because “I wouldn’t have known the exact date” of such return. 

8. Accordingly, the father has failed to satisfy me that the children have been wrongfully retained in Australia and, further, if even that was found to be the case, the date that such wrongful retention occurred.

Consideration: Consent

1. As noted, the mother argued that, even if it was to be found that the children were wrongfully retained in Australia, the father consented to that occurring in terms contemplated by regulation 16(3)(a)(ii).

2. In order to establish the defence of consent, the mother must establish that the father consented to the children being retained in Australia.

3. In Wenceslas & Director General, Department of Community Services (2007) FLC 93-321 (“Wenceslas”) at 81,559,[62] the Full Court referred to the views of Hale J in Re K (Abduction: Consent) [1997] 2 FLR 212 at 217-8:

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

   [62] at [262].

4. The Full Court in Wenceslas further said at 81,560:[63]

   It seems to us that the views expressed by Hale J allow for the vagaries often associated with the way in which parents communicate in matters relating to their children. As present advised… we are of the view that consent can be inferred from conduct; however, we are also of the view that the consent must be real and unequivocal and can only be made out by clear and cogent evidence.

   [63] at [264].

5. Consent does not necessarily have to be in writing but can be inferred from the aggrieved party’s words and conduct. In Re C (Abduction: (Consent) [1996] 1 FLR 414, Holman J said:

   If it is clear, viewing a parent's words and actions as a whole and his state of knowledge of what is planned by the other parent, that he does consent to what is planned, then in my judgment that is sufficient to satisfy the requirements of Art 13. It is not necessary that there is an express statement that 'I consent'. In my judgment it is possible in an appropriate case to infer consent from conduct.[64]

   [64] Referred to in Wenceslas at 81,559 at [260].

6. In that context the aggrieved party’s overall attitude, statements and conduct including “in standing by while [the other party] made preparations … [may demonstrate] a course of conduct from which [the aggrieved party’s] consent could be inferred”.[65]

   [65] Re M (Abduction) (Consent: Acquiescence) [1999] 1 FLR 171 at 189.

7. Consent does not imply that “the person concerned is happy or content with the outcome that has been agreed”.[66]

   [66] Secretary, Department of Family and Community Services & Prim [2015] FamCA 16 at [83], citing Re M (Abduction) (Consent: Acquiescence) [1999] 1 FLR 171 at 188 and 190.

8. Consent once provided and acted upon cannot be taken away. Specifically, in Re K (Abduction: Consent),[67] Hale J stated that consent could not be taken away by the aggrieved party “subsequently thinking better of it”.

   [67] [1997] 2 FLR 212 at 218.

9. In a similar context, in Regino & Regino,[68] Lindenmayer J concluded on the facts before him that:

   I am quite satisfied, on the balance of probabilities that, before the wife departed from the United States with M on 25 November 1993, she intended that, thenceforth, she and the child would reside permanently in Australia and that the husband knew of and accepted that intention… In my view, that consent, once given in those circumstances, could not be subsequently withdrawn by the husband, so as to be considered inoperative for the purposes of the sub-regulation, in relation to the wife’s retention of the child in Australia after the husband changed his mind and demanded the child’s return.

   [68] (1995) FLC 92-587 at 81,820.

10. In these proceedings I have found that it was the shared intention of the parties to emigrate to Australia. This matter is therefore not one of wrongful removal as contended in section 6(a) of the UK’s ICACU application form completed by the father on 13 May 2016.

11. In that context, the father’s primary argument is that the children have been wrongfully retained in Australia as at 28 May 2016 - being the day subsequent to the expiration of the six month period after the parties arrived in Australia on 27 November 2015.

12. If I am incorrect in finding that the children were not wrongfully retained in Australia on that date, I nonetheless find that the father consented to the children remaining in Australia after that date for the following reasons:

    a.As I have noted, on 7 February 2016 the father sent the mother an email acknowledging that obtaining “rented accommodation may help” the concerns he had about sharing accommodation with the maternal grandmother and her partner.

    b.The draft rental agreement prepared by the real estate agents responsible for the H Town rental property identified both the father and the mother as the tenants of the premises.

    c.The mother was not challenged on her evidence that the father was with her at the time she signed the lease. 

    d.The father’s objection was to a lease of “more than 6 months” being from the date in early February 2016.

    e.The father moved into that accommodation with the mother and the children and remained living there until early April 2016.

13. The mother was reasonably entitled to infer from this conduct that the father consented to her entering into the lease on the rental property which went through to August 2016 – that is, after the date of the alleged wrongful retention. Viewed from the alternative perspective, the father was not entitled to “stand by” while the mother undertook steps to secure accommodation for herself and the children for a period that went beyond the alleged date of wrongful retention.

14. I also note that on 7 April 2016, the father sent the mother a text message informing her that he had booked a return ticket to the UK – the return leg being to Australia. The terms of that text message have been set out earlier. In that text message the father spoke of returning to Australia and basing himself in Sydney where he would look for business opportunities. As noted the text message concluded with the father stating: “I’m tryin [sic] to stay here some way more than you think - need to cut [the UK] out of my mind fully…”

15. I further note that on 11 April 2016, the father sent a text message to the mother in the course of which he said: “I do think if i come back I must try and start a business but this time I need to plan it investigate before I get here so I have an attack plan”. The father further said “it will tKe [sic] balls and loans to do a new thing that’s all you need and some luck”.

16. As previously mentioned, during the course of oral evidence the father admitted that, as at 11 April 2016, it was his intention to return to Australia. Again, as result of those text messages sent to her by the father, the mother was entitled to infer that the father intended to return to Australia and that he consented to her remaining in Australia with the children in the meantime.

17. There was no evidence of any communication from the father to the mother in the period between 11 April 2016 and 28 May 2016 that could reasonably be said to be an indication that the father had withdrawn his consent to the mother remaining in Australia with the children beyond that date.

18. The fact that the father subsequently thought “better of it” after he returned to the UK does not negate the consent that he provided to the mother remaining in Australia beyond the date of the alleged wrongful retention.

19. Accordingly, I find that the father consented to the mother remaining in Australia with the children beyond 28 May 2016, which is the date that the father alleges the children were wrongfully retained in Australia.

Was the father’s consent based on deceit?

1. It is clear that one parent deceiving the other of the true purpose of a child’s travel may vitiate consent.

2. In Re B (A Minor) (Abduction),[69] Waite LJ said:

   As for the issue of consent, the question whether a purported consent to the child's removal obtained from the aggrieved parent was or was not a valid consent is similarly to be determined according to the circumstances of each case. The only starting-point that can be stated with reasonable certainty is that the courts of the requested State are unlikely to regard as valid a consent that has been obtained through a calculated and deliberate fraud on the part of the absconding parent. That applies in my judgment whatever the purpose for which the consent is relied on -- whether it be to nullify what would otherwise be considered a wrongful breach of rights of custody for the purposes of Art 3, or as a consent of the kind that is expressly referred to in Art. 13(a).

   [69] [1994] 2 FLR 249 at 261.

3. Senior counsel for the father, appropriately in my view, conceded that the father carried the onus of proving, on the balance of probabilities, the existence of deceit on the part of the mother.

4. For reasons that I have previously given the father has failed to satisfy me that he was deceived into travelling to Australia or that the mother had an ulterior purpose in encouraging him to travel to Australia. For those same reasons, the father has failed to satisfy me that the father’s consent to the mother remaining in Australia beyond 28 May 2016 was obtained by deceitful conduct on the part of the mother.

Exercise of discretion

1. As previously noted, despite my finding that the father consented to the mother remaining in Australia, the Court retains a discretion as to whether or not to order the return of the children to the UK.

2. In  H v H (Abduction: Acquiescence) [1996] 2 FLR 570 at 574, Waite J provided some practical guidance by identifying the various factors that might be taken into account in the exercise of such discretion. They included:

   (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 is 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.

1. In these proceedings it was not in dispute that there are equally suitable forums in both Australia and the UK to determine the children’s future in the context of the breakdown of their parents’ relationship.

2. It is not possible in these proceedings to make a determination as to the likely outcome of any such substantive proceedings, whether in Australia or the UK.

3. No evidence has been presented to the Court that the mother would be subject to any adverse action by the UK authorities if an order was made for her to return to the UK with the children.

4. I have referred to, in some detail, the extent to which the children have now assimilated into Australian life. It is reasonable to assume that an order affecting the immediate return of the children to the UK would be upsetting for the children.

5. It is also reasonable to assume that such an order would disrupt B’s education where, although he has just completed Kindergarten, he appears to be progressing well.

6. Such an order would also impact upon the friendships that the children have established in Australia and possibly result in a severance of those friendships.

7. In terms of considering the purpose and underlying philosophy of the Hague Convention, I note that in Department of Health and Community Services, State Central Authority & Casse,[70] Kay J said:

   I am not entirely sure that the framers of the Convention intended it to apply to cases were the parties and the children took themselves, by mutual agreement, to a country other than their “habitual residence” then one of the parties decided to go “home”. Whose right of custody should then prevail? That of the parent who was to go “home” or that of the parent who wants to stay? A wrongful removal entails taking the child from a country in breach of a custodial right. A wrongful retention entails retaining the child in a country in clear breach of such right. When does this right arise where the parties are in the new State by agreement?

   [70] (1995) FLC 92-629 at 82,316.

8. In these proceedings I have found that the Regulations do not apply because, as at the date(s) of alleged wrongful retention, the children were not habitually resident in the UK. Leaving aside that issue, while I share the doubt expressed by Kay J, I have approached this matter from the perspective of assuming that the Hague Convention, as reflected in the Regulations, applies. I am satisfied, however, that on the facts of this matter, refraining from ordering the children to be returned to the UK will not undermine the purpose and intent of the Hague Convention.

9. Finally, as an additional consideration, I note that for a considerable period of time the parties had contemplated moving from the UK to Australia. During the course of 2015 the parties acted upon that shared intention. While it is regrettable that the father found difficulty in adjusting to life in Australia and that appears to have been at least one factor in the breakdown of the parties’ relationship, it remains the case that the parties emigrated to Australia with the children and the children are well settled here.

10. In all those circumstances, I am not satisfied that, despite finding that the father has consented to the children remaining in Australia, I should nonetheless order that the children be returned to the UK.

Costs

1. At the conclusion of closing submissions counsel for the mother sought leave to make an additional submission that the Court should make an costs order against the State and Commonwealth Central Authorities as a result of costs thrown away by the respective Authorities withdrawing from these proceedings. Those costs included the fact that the final hearing, which was initially listed on 22 August 2016, had to be adjourned as a result.

2. Neither the State Central Authority nor the Commonwealth Central Authority provided reasons for withdrawing from the proceedings. In the circumstances, the fact that they declined to do so was appropriate.

3. Despite not being in a position to determine why the Authorities withdrew from the proceedings, I note that regulation 7 provides:

   A court must not make an order that requires the Commonwealth Central Authority or a State Central Authority to pay costs in relation to his or her exercising the powers, or performing the functions, of the Commonwealth Central Authority.

4. I am therefore satisfied that regulation 7 precludes me from making the order for costs sought by the mother and I will accordingly dismiss the mother’s application for costs against the State and Commonwealth Central Authorities.

5. I note that, in the orders made on 11 November 2016, the Authorities were to be provided with notice of the grounds relied upon by the mother in support of such an application and be given not less than fourteen days to reply.

6. In light of the mother’s application for costs against the Authorities being dismissed, it is unnecessary for that to occur.

I certify that the preceding two hundred and seventy three (273) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McClelland delivered on 2 February 2017.

Associate: 

Date:  2 February 2017