Marshman and Baric (No 2)

[2019] FamCA 1058

FAMILY COURT OF AUSTRALIA

MARSHMAN & BARIC (NO. 2) [2019] FamCA 1058

FAMILY LAW – CHILD ABDUCTION – Hague Convention – Where the mother and the child came to Australia from the United States of America – Where the mother attempted to leave Australia with the child – Where the mother and the child were stopped at the airport – Whether the child and the mother were in Australia to live for an unspecified period of time or here for a holiday – Whether the child was habitually resident in United States of America before being retained at the airport – Where it is found that the child was not habitually resident in the United States of America (or Australia) – Where the application is dismissed.

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)
Family Law (Child Abduction Convention) Regulations 1986 (Cth)

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

APPLICANT: Ms Marshman

RESPONDENT: Mr Baric

FILE NUMBER: BRC 2074 of 2019

DATE DELIVERED: 24 May 2019

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 16 May 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Page QC

SOLICITOR FOR THE APPLICANT: Simpson Family Lawyers

COUNSEL FOR THE RESPONDENT: Ms Murphy

SOLICITOR FOR THE RESPONDENT: Barry.Nilsson.

Orders

1. That the Application for a return order in Form 2 filed by the Department of Child Safety, Youth and Women on 22 February 2019, where the said Department withdrew and the mother, Ms Marshman, was substituted as the Applicant on 9 April 2019, is dismissed.

2. The any passports of the Respondent father currently held by the Department of Child Safety, Youth and Women be returned to the Respondent father and any passports of the child, C, born in 2011 (“the child”), currently held by the Department of Child Safety, Youth and Women be returned to the Applicant mother.

3. That all previous orders restraining either of the parents of the child from removing or attempting to remove the child from the Commonwealth of Australia shall remain in force pending further Order of the Federal Circuit Court of Australia or this Court.

4. That the previous order for the child’s name to be placed on the Family Law Watchlist at all international points of departure in Australia shall remain in force pending further Order of the Federal Circuit Court of Australia or this Court.

5. That all other previous orders are discharged.

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 Marshman & Baric 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 BRISBANE

FILE NUMBER: BRC 2074 of 2019

Ms Marshman

Applicant

And

Mr Baric

Respondent

REASONS FOR JUDGMENT

1. This is the determination of an application for the return of a child to the United States of America (“USA”), brought pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”). The Regulations were promulgated to give effect to s 111B of the Family Law Act 1975 (Cth) (“Family Law Act”), which provides that the Regulations may make such provision as is necessary or convenient to enable the performance of the obligations of Australia under the Convention on the Civil Aspects of International Child Abduction signed at The Hague on 25 October 1980 (“the Hague Convention”).

2. The Applicant is the mother of the child, X, who was born in 2011. He is now 8 years old. The application had originally been commenced by the Director-General of the Queensland Department of Child Safety, Youth and Women on behalf of the Australian Central Authority. Before the matter came on for hearing, the Director-General withdrew from the proceedings and the mother was given leave to continue them. A parent can be the applicant in proceedings pursuant to the Hague Convention.[1]

   [1]Family Law (Child Abduction Convention) Regulations 1986 (Cth) reg 14(1)(b).

3. The application was heard by me on 16 May 2019. The mother was represented by Queen’s Counsel instructed by a solicitor and the Respondent to the proceedings, the father, was represented by counsel instructed by a solicitor. Both parents were present in Court and cross-examination of each of them was permitted.

4. The application for the return order is made under regulation 14 of the Regulations. Regulation 16 provides that if an application for a return order is filed within one year after the child’s removal or retention and the responsible Central Authority satisfies the Court that the child’s removal or retention was wrongful under sub-regulation (1A) then the Court must, subject to sub-regulation (3), make the return order. Sub-regulation (3) enlivens a discretion not to make the return order even if the removal or retention is found to be wrongful, if certain prescribed circumstances are satisfied on the facts of the case before the Court.

5. Only if the retention is found to be wrongful in this case will I need to go on to consider these other circumstances.

6. Regulation 16(1A) provides that:

   …a child’s removal to, or retention in, Australia is wrongful if:

   (a)      the child was under 16; and

   (b)the child habitually resided in a convention country immediately before the child's removal to, or retention in, Australia; and

   (c)the person, institution or other body seeking the child's return had rights of custody in relation to the child under the law of the country in which the child habitually resided immediately before the child's removal to, or retention in, Australia; and

   (d)the child's removal to, or retention in, Australia is in breach of those rights of custody; and

   (e)at the time of the child's removal or retention, the person, institution or other body:

   (i)was actually exercising the rights of custody (either jointly or alone); or

   (ii)would have exercised those rights if the child had not been removed or retained.

7. The onus of proving each of the elements required to establish that a child’s removal to, or retention in, Australia is wrongful rests with the applicant. The requisite standard of proof required is, pursuant to s 140 of the Evidence Act 1995 (Cth), on the balance of probabilities.

8. In this particular case, due to concessions sensibly made by the father, there is really one issue that is dispositive. It is the question of the habitual residence of the child at the time immediately before his “retention” in Australia.

9. As to the retention point, it is reasonably clear that “retention” for the purposes of the determination of the application occurred on 8 November 2018, when the mother was stopped at the Brisbane Airport barrier from taking the child onto a Country H bound aircraft in breach of her “rights of custody” (as that term is understood for the purposes of the Regulations). There was no dispute about this.

10. Accordingly, the dispositive question is whether the child habitually resided in the USA immediately before that retention in Australia. That is a question of fact that I must now determine.  

Some Authoritative Guidance

1. The High Court of Australia authoritatively discussed the meaning of the term “habitual residence” as it is used in regulation 16(1A) in LK v Director General, Department of Community Services (2009) 237 CLR 582; [2009] HCA 9. Relevantly, starting from paragraph 22 of the judgment, the plurality said the following within their joint judgment:

   … The identification of what is or may be relevant to the inquiry is not to be masked by stopping at the point of describing the inquiry as one of fact. If the term “habitual residence” is to be given meaning, some criteria must be engaged at some point in the inquiry and they are to be found in the ordinary meaning of the composite expression. The search must be for where a person resides and whether residence at that place can be described as habitual.

   …application of the expression “habitual residence” permits consideration of a wide variety of circumstances that bear upon where a person is said to reside and whether that residence is to be described as habitual. Secondly, the past and present intentions of the person under consideration will often bear upon the significance that is to be attached to particular circumstances like the duration of a person’s connections with a particular place of residence.

   … Yet it may be accepted that “[h]abitual residence, consistent with the purpose of its use, identifies the centre of a person’s personal and family life as disclosed by the facts of the individual’s activities”. Accordingly, it is unlikely, although it is not necessary to exclude the possibility, that a person will be found to be habitually resident in more than one place at the one time. But even if place of habitual residence is necessarily singular, that does not entail that a person must always be so connected with one place that it is to be identified as that person’s place of habitual residence. So, for example, a person may abandon a place as the place of that person’s habitual residence without at once becoming habitually resident in some other place; a person may lead such a nomadic life as not to have a place of habitual residence.

   …

   When speaking of the habitual residence of a child it will usually be very important to examine where the person or persons who are caring for the child live – where those persons have their habitual residence. The younger the child, the less sensible it is to speak of the place of habitual residence of the child as distinct from the place of habitual residence of the person or persons upon whom the child is immediately dependent for care and housing. …

   …

   … examination of a person’s intentions will usually be relevant to a consideration of where that person habitually resides. Sometimes, intention will be very important in answering that question. The example of a person who leaves a jurisdiction intending not to return is one such case. …

   …

   First, individuals do not always act with a clearly formed and singular view of what it is intended (or hoped) that the future will hold. Their intentions may be ambiguous. …

   …

   … because the notion of habitual residence does not require that it be possible to say of a person at any and every time that he or she has a place of habitual residence, it is important to recognise that a person may cease to reside habitually in one place without acquiring a new place of habitual residence.

   Secondly, because a person’s intentions may be ambiguous, in asking whether a person has abandoned residence in a place it is necessary to recognise the possibility that the person may not have formed a singular and irrevocable intention not to return, yet properly be described as no longer habitually resident in that place. …

   (Citations omitted)

The background facts

1. The mother is a Country J citizen, holding and travelling on a Country J passport. The father is an Australian citizen, holding and travelling on an Australian passport.

2. They met on the internet in 2009. The mother was living and running a business in City K, Country L, at that time. The father was working in the resources industry in Town M, Western Australia at that time. The mother invited the father to her Christmas party in City K, Country L that year. He attended. Their relationship commenced and the father returned to live in City K, Country L with the mother in early 2010.

3. The child was born in 2011 and the couple married in that same year. They lived as a family in City K, Country L for a few years, with the father returning to Australia on his own for several months at a time during those years. The mother and child also visited Australia a couple of times during that period.

4. The father said that in late 2013, the mother gifted the father a trip to City N, Country L which he did on his own. His evidence is that on his return to the home in City K, Country L, the mother and the child were not there. His evidence was that the mother had quickly fled Country L with the child and that she was wanted there to face criminal charges of embezzlement. He said he learned that she had been cleared of some charges but had travelled to Country O before some fresh charges were laid.

5. The mother’s evidence responding to the father’s assertions is that it was in late 2014 she purchased the holiday for the father. She said that she had planned a trip for herself, the child and one of her staff to travel to Country O and to “travel Countries L and O” while the father was away on the holiday. She said that on Christmas Day 2014, the father met “X” in City P, Country O and, together, the family travelled to Country Q for New Year.

6. The mother said it was in early 2015 that they travelled to the USA as the father wanted to ski in the USA and she wanted to take the child to a theme park for his birthday.

7. The mother’s evidence goes on to say that in early 2015:

   … a dispute regarding a plot of land I was involved with in City K, Country L had began. (sic) My lawyer advised me to not return until the case was finalised in order to avoid delays or a restart in the case which involved financial settlement. I looked at it as a good opportunity to take X travelling and experiencing different cultures and visit our many friends around the world.

8. Despite the mother’s evidence that she has a business in Country L, along with considerable other investments in that country, there is absolutely no evidence whatsoever that the mother has been back to any part of Country L ever since, apart from one fleeting assertion of the mother’s that she went back to arrange a divorce from the father. That assertion is not corroborated.

9. I have grave doubts about the honesty of the mother’s evidence and no reason not to accept the father’s evidence about the circumstances under which the mother and child left Country L.  

10. The evidence, about which there is no dispute, is that the family travelled to the USA after they left Country L soon after they had met up in Country O. When they were in the USA, they both agree that they had to travel on to Country R and Country S, principally to renew the tourist visa for the father to get back into the USA. There is no evidence as to the visa status of the mother in the USA at any of the times she has been living there.

11. The father would have that he and the mother parted company in the middle of 2014, whilst the mother would have it as 2015. The father returned alone to Australia from the USA, asserting that he could no longer afford to travel. The mother and the child stayed in the USA before travelling to Country J, where it was said she renewed the child’s passport with the father’s consent. The mother’s evidence is that she and the child then travelled to Country T and stayed for a time in a friend’s apartment in City U, Country V.

12. The copies of the Country J passports of the mother and the child that are in evidence show that both of their passports were renewed in Country J, in 2015.

13. That causes me to consider the mother’s evidence about the chronological timing  of the trip and the travel to the USA and Country R is more likely to be correct with the father simply being a year in error. So, I am satisfied that the father probably came back to Australia sometime just after the middle of 2015. In any event, if I am wrong about this matter, I consider that it does not really matter that much.

14. In any event, I am satisfied (from the evidence of visas stamped in the passports issues in 2015) that at around Christmas time 2015, the mother and the child travelled to Country W and the father travelled there and met them. Together they rented an apartment and lived there as a family for a few months. The mother and the child then travelled to Country H and Country O with a friend and the father went back to Country L. It seems that they met up again in Country W soon thereafter and spent some more time together before separating again. The mother appears, in my judgment, to have been deliberately staying away from Country L.

15. They both agree that at that time it was agreed between them that the mother and the child, who was approaching school age, would travel to City G, USA where the mother had said she had been offered a job working for a company. The father said that they agreed that the child could start schooling there. He said that they even chose a school for the child and enrolled him in it. The mother and the child again travelled to Country T and spent time in City X, Country Y before travelling to City G, USA in or around August 2016.

16. The father went back to Country L and stayed there until late 2016. He said that the plan had been that he would go to City G and spend Christmas 2016 with the mother and the child but that the mother cut off all contact with him before that. Consequently, he then decided to return to Australia at around the start of 2017 and has been living here ever since.

17. The mother and the child were, it seems, living in City G, USA from late 2016 to mid 2018. Throughout 2017, the father asserts that he had difficulty being able to communicate with the child. He attributes blame for that to the mother.

18. Eventually, communication between the mother and the father was re-established. The father booked a trip to City G to see and spend some time with the child at Christmas in 2017, after receiving contact from the mother and being told that the child wanted to see him. However, in the end, he did not go, cancelling the trip. There is disagreement between the mother and the father about the reason for that cancellation. The father asserts that the mother told him that he would not be able to spend Christmas Day with her and the child as she had other plans, so he decided not to go. The mother asserts that the father had lost his job and could not afford to travel to the USA. I do not consider the determination of the issue is necessary for this decision but I consider the father’s evidence more likely to be true.  

19. The mother and the father recommenced communication in early 2018. The father said that the mother contacted him and told him that she and the child wanted to see him and that they wanted to leave City G. He said that he was very excited about this prospect and immediately began making arrangements, including booking flights for them. The mother asserts that the father invited her and the child to visit him in Australia and that she told him that they would.

20. The father said that he booked and paid for airfares for the mother and the child to travel to Australia. He also paid a large amount of money for her to bring excess baggage with her – several suitcases – and to send an extra 80 kilograms by unaccompanied air freight.

21. The mother obtained a tourist visa. The child could not be issued with a tourist visa as he was an Australian citizen as a result of an application made after his birth based on his parentage (his father being Australian). He did not have an Australian passport so one had to be applied for on an urgent basis and was obtained.

22. Tickets were purchased with E Airline for the mother and the child to fly to Region Z, Queensland via City AA, Country E, arriving in Australia in mid 2018. It was a return ticket with the return to City F, USA to be via Melbourne and City AA, Country E, leaving Region Z, Queensland in late 2018. The return ticket provided then for a stay of about two months.

23. The mother and the child shared the father’s apartment with him at a town just south of Region Z in northern New South Wales. At the commencement of the third term of school there, in late July 2018, the parents took the child to the local state primary school and enrolled the child there. He started attending school there on a daily basis.

1. The mother and the child did not return to the USA on 12 August. There is disagreement about the reasons for that.

2. The father said that was because he and the mother had started to act on a decision for her to apply for permanent residency so that she could stay here in Australia. He said that the mother simply decided to cash in the return leg of the E Airline ticket and to use that money to pay for a return flight for herself to Country E to get a fresh tourist visa. She flew to Country E by herself and stayed there for about four days, leaving the child with the father whilst she was away.

3. The mother said that she had always planned to visit Country L for business purposes before she returned to the USA and that she was planning on doing that in late July before the return ticket expired. She said that an earthquake in City BB, Country L at around that time caused her to postpone that planned trip, so she decided to stay longer so that she could still go to Country L later and then return to the USA.

4. I shall return to this issue as I consider a finding of fact on the disputed issue is necessary.

5. In late 2018, the mother was an invited guest at the wedding of a friend on the island of City CC, Country DD. Her friend is said to have paid for the mother to travel there, on her own, for the wedding. The child stayed with the father in Australia.

6. When the mother returned to Australia, she and the father experienced some unhappiness and disagreement. The father said the mother started saying that she hated it in Australia and that one evening she said to him words to the effect of “we’re leaving. I’m gonna live and City K, Country L and I’m taking X”. The father said that he became concerned that the mother would leave the country and take X without his consent. He managed to file an application urgently in the Federal Circuit Court, Lismore Registry seeking an order restraining the mother from leaving the country and facilitating the child’s name being entered on the Family Law Watchlist held by the Australian Federal Police (“AFP”).

7. There is evidence about an angry incident that happened on the night of 3 November. The father said that the next day, 4 November 2018, the mother was angry and upset, making phone calls and packing luggage. The father said that the mother told him again “we’re going”. He said that when he asked her “where are you going?” she answered “City K, Country L” whilst at the exact same time, the child said “America”. The father said the mother then said “no, City CC, Country DD”.

8. The mother and the child left and went and stayed in accommodation organised for them through a family violence service. The mother obtained a Temporary Protection Order from the local Court nearby on 8 November and later that night she was, as I have already observed, stopped whilst trying to board a H Airline flight to City EE, Country H with the child.

9. The mother said that she and the child were going to be returning to the USA via City EE, Country H.

10. They have both been in Australia since.

The issue, the arguments, the evidence and my findings

1. As has been discussed, if the child’s habitual place of residence immediately before he was stopped at the barrier at Brisbane Airport on that night of 8 November 2018 was in the USA, then a return order for the child to be returned to the USA would have to be made in this case. That much was conceded by the father.

2. I am of the view that determination of the habitual residence issue in respect of the child in this case is determined by considering the habitual residence of the mother, his principal carer for most of his young life to that point in time.

3. For the father, it was submitted that the child’s place of habitual residence on 8 November was Australia not the USA. Indeed, counsel for the father submitted that even if I was not persuaded of that fact, that at least, by 8 November 2018, the child’s place of habitual residence was no longer the USA, even if Australia had not become his place of habitual residence.

4. For the mother, it was submitted that the child’s place of habitual residence remained the USA. In fact, it was submitted that it was City G. For the mother, it was submitted that the Court would accept that the mother had brought the child to Australia for a holiday visit, and was always intending to return to City G at the completion of that visit. It was the mother’s case that she had just extended the duration of the stay for reasons connected with the postponement of a planned trip to Country L at the end of the stay in Australia. She submits that when she was stopped from taking the child out of the country, they were actually on their way back to the USA, back to her husband (an American man she had married in USA in the last two years) and back to their lives there, with the child to start back at the elementary school he had been attending before he came to Australia on a holiday visit to his father.

5. Indeed, I am satisfied that if that simple factual scenario is true, the mother would have to succeed in the proceedings. That would be because that would satisfy me that City G was indeed the child’s place of habitual residence immediately prior to him being stopped at Brisbane Airport and thus “retained” in Australia by his father.

6. For the father, it was submitted that I would not accept that factual scenario as true, but rather, I would find that the child’s place of habitual residence had become Australia. Counsel for the father further submitted that if I did not accept that then I would nevertheless find that the child’s place of habitual residence in the USA when he travelled to Australia in mid 2018 had actually been given up, or surrendered, leading to a finding that on 8 November 2018, when he was stopped at the barrier at Brisbane Airport, he did not, in fact, have a place of habitual residence.

What is the evidence for and against these findings?

1. The evidence is that the mother is married to Mr FF who lives in City G. She says that, and she relied upon an affidavit of Mr FF who said the same thing.

2. The father said in his affidavit filed 3 April 2019, that it was his “understanding” that the mother had remarried in America. He said that the child had said to him the following:

   Mum and I were living in the car in City G. A person came to the car a couple of times and us [sic] to live with him. I have two Dads now”.

   The father said that the child has referred to Mr FF as his “other dad” and had said “Mum has married Mr FF. I saw the wedding”.

3. The father gave no evidence that the mother told him she had married again or that he had asked her. He did depose to never having been aware of any divorce proceedings in Country L (the country where they married) or in any other country. He said he thought that he and the mother might still be legally married.

4. The mother said in her affidavit filed 14 May 2019 that she is “currently married to Mr FF”, saying that she and Mr FF married in City G, USA in 2017. She said that she and Mr FF live with Mr FF’s grandmother in a house in City G owned by his grandmother.

5. The mother filed and relied upon an affidavit (filed 16 May 2019) sworn by Mr FF in City G on 30 April 2019. In that, Mr FF also said that he and the mother were married in City G in 2017 and that they are in a “committed marriage relationship”. He said that they live with his mother in her home in City G.

6. He also said the following:

   With the exception of three (3) days when [the mother’s] WhatsApp number was cancelled with her American number in early July, I have always been in contact with [the mother and the child]. I am aware that [the child] has maintained regular contact with my mother… who [the child] has a very close relationship with.

   Since [the mother] left for Australia in mid 2018, we have maintained regular contact and I speak to her nearly everyday via the WhatsApp.

   [The mother’s] trip to Australia was temporary. The discussed purpose of the trip to Australia was for [the child] to visit his biological father… and his family. [The mother] was also planning to go to Country L with [the child] to deal with business in City BB and City K, Country L and then return home.

   The trip was always understood to be on a temporary basis and this was made clear by her going to Australia on a tourist visa. [The mother’s] main purpose was the Country L portion of the trip to finalize some business dealings in Country L and organize a container to be sent from Country L to the USA.

   While [the mother] was in Australia, her City G, USA phone number was cancelled unexpectedly. We lost contact for a period of time which concerned me greatly as we had had nearly daily contact up until this point. I was worried for her not knowing if she and [the child] were safe.

   I was worried about this loss of contact and I tried every way possible to contact [the mother]. Given that I knew the purpose of them going to Australia was so that [the child] could visit his biological father, I assumed that [the child] would be spending time with [the father] and that he would know how to contact [the mother], so one of my attempts to contact her was made via Facebook messenger to [the father].

   In my messages to [the father], I chose to communicate as a business associate rather that as [the mother’s] husband as I believed that [the father] would ignore my messages if he knew I was her husband.

   I learnt from [the father] that [the child] and [the mother] were safe and was in the process of changing her WhatsApp to her new Australian mobile number after her City G phone number had been cancelled.

   [The mother] contacted me as soon as she changed her WhatsApp to her Australian mobile number and we have been in regular contact since.

7. The father adduced evidence of copies of screenshots of what he said were the Facebook messenger exchanges he received on 21 July 2018 and the days after. The father said that he did not know the person he received them from. The exchange went as follows:

   OtherIs X there in Australia with you I tried reaching out to him just a friend of his mom’s are they there in Australia or back in City K, Country L  

   FatherYes mate X is here in Australia Thank you for your concern. Happy to have him home… Kind regards, Mr Baric.

   OtherDo you know where Ms Marshman is mate it’s about business and a piece of property

   Or how to get a hold of her

   I’m an investor of hers we have property in City K, Country L

   Her phone number is showing out of service now she is broke that is not a good thing for me as an investor

   I think it is great you have X now mate but is Ms Marshman safe is she okay that is all I want to no

   Is she still in City BB Country L, is she in jail is she dead please just let me no mate again it is great you have X again with you man

   I’m just a business friend is all trying to get a hold of her is all

   Thanks again mate

   Father All good here Ms Marshman said she will contact you today with here new phone number

   Other Okay thanks man!

   You no what mate just tell her not to bother and say hi too X for me will you thanks again mate and the best of luck too you with X I’m happy for you man thanks again

   Her nana is worried about him can you have her or you or X contact her vial email or text [email address and phone number provided]

   (As per the original)

8. The father said he has subsequently tried to contact Mr FF by phone but was not able to speak with him. He said he spoke with Mr FF’s mother who confirmed that Mr FF and the mother had married.

9. The mother said that she had gone back and obtained a divorce from the father in Country L before marrying Mr FF but she has not been able to get back there since to obtain any evidence of same. Though she said the father had asked her for a divorce some years ago, the mother did not assert that she had ever involved the father in divorce proceedings in Country L by serving him with Court process or that he knew about them or that she ever told him they were divorced and that she was formally married again. She adduced no evidence of any formal divorce order or that she had been back to Country L since she left in 2014.

10. There are copies of screenshots of text message exchanges between the mother and the father from 13 March 2018, adduced into evidence by the father. The mother was in the USA and the father was in Australia. From those messages, I draw the inference that the father was asking to speak with the child on the phone or by internet video call. The mother was avoiding that by telling the father that the child told her he did not like to talk to the father as it makes him sad and she said that a “better plan” for them had to be made. Clearly, they had been discussing a planned trip to Australia, too, as the father said to the mother “We will have to get your visa sorted soon and the extra baggage”.

11. There are screenshots of part of the text conversation which are as follows:

    Mother          Yes he wanted to meet you

    FatherYou should tell X the truth about that. He has to be able to process that. It’s part of his life

    Mother But it is the end for us here

    I don’t want him to have to deal with that at his age

    Father There is a new beginning for you both here. I will look after you both

    Mother It was so hard for me to deal with I just feel moving away will be better

    I cant promise that I am working on some business opportunities but what I can promise is X will never ever ever do so long without being with his daddy

    I promise I will be ooen

    Open

    Father There is a school at the end of my street 300 metres away and the…

    Mother I must be in a place I can make a lot of money Mr Baric

    I have to do that I know I can

    And I will not die without leaving X well off

    This world is too hard without money sad but true

    Father You can make money here. You can study here and get your licence. And do what you are good at legally. And make big money.

    Mother You will never ever be without your son for this amount of time ever again this I promise and I swear on the name of my Grandfather

    I am open to everything

    I will talk to you when we are there about that

    Father Thank you. I have cried a lot in the last 2 years

    Mother I am sorry it happened that way it was not a plan I swear

    (As per the original)

12. There are some more screenshots of conversation between them, a little later. Those messages say:

    Mother          As I didn’t want to stay here

    Father            Why did you decline?

    Father            Just rent them out

    Mother          I would have to stay at least 2 years

13. A little later, the conversation continues:

    Father            Okay. I can only hope that you can see a future here

    Mother          She was in Country GG taking treatment but it failed

    We will definitely find a better way than now

    And later:

    Mother          No kids no heirs only a sister didn’t want to deal with it she                is a very kool well off hippie from City HH

    So she told me to take it over

    Father            What about his wife?

    (As per the original)

14. During his oral evidence at the hearing, I asked the father about those messages and what the subject matter of the exchange evidenced in the conversation transcribed in paragraph 61a above was. He told the Court that the mother had told him she and the child had been sharing a house with an old man who had died and that X was not aware that he had died and that she was also telling the father that she did not want to stay in the USA. Clearly, the mother said “I just feel moving away will be better”.

15. The subject matter of this text exchange causes me to consider that either the mother and Mr FF are being untruthful when making assertions that the mother and the child were living with him before they came to Australia or the mother was being untruthful in that text exchange with the father transcribed above. The mother was telling the father that the child did not know of this other man’s death and that she did not want him to know. Earlier in the conversation, she was also giving reasons to the father or, described another way, she was making excuses for not letting him have a conversation with the child. That may very well be explained by the mother not wanting the father to converse with the child and to potentially learn about life in the USA from the child’s perspective. As the father has said, it was the child who told him about the mother marrying Mr FF in the USA when the child was here in Australia.

16. What is clear from the transcribed communication above, is that the father was trying to encourage the mother to consider staying in Australia with him when she came out with the child and she was giving him no promise to do so. However, she was also clearly not telling him that she and the child lived in City G with another man and that they would be returning there at the end of the trip. It seems she was giving the father hope that their relationship could potentially be reconciled.

17. The mother adduced a copy of a screenshot of another text exchange between them also. There is a date of 18 April 2018 on the page and the exchange goes like this:

    FatherBycicle tracks everywhere. I ride my bicycle every morning before I go to work

    I will have bycicles for you both when you arrive

    MotherThat will be fun

    FatherIt will be a great holiday

    MotherYes for sure

    Father            Keep in mind you can both stay if you want

    I guess what I am trying to it’s a good life here and I would love to be close to my family. And here I can offer you more support.

    Mother Thanks for that

    (As per the original)

18. Again, it evidences the father’s understanding at that point in time that the mother and the child were supposed to be just coming for a holiday but that he was encouraging the mother to consider staying if she wanted to.

19. Neither the mother, nor Mr FF put any evidence of copies of screenshots of any text or WhatsApp communications between them for the entire period of time from when they arrived in Australia until the mother was stopped at the airport in November.

20. The exchange between the father and the person (who Mr FF apparently clearly accepts was him) took place on 21 July, six weeks after the mother arrived from the USA. When I read that exchange, I get the impression it is written by a man who is sadly missing the mother and the child, having been left behind in the USA and not having heard a thing from them since they left. He also appears to possess an understanding or belief that she may have travelled to Country L and appears very concerned about the prospect of her potentially being in prison or even dead. It also conveys an impression that he had an expectation or understanding that the child was potentially being left in the father’s care in Australia.

21. I consider the exchange not to be consistent with the circumstances deposed to by Mr FF in his affidavit, namely, simply not having heard from his loving wife for a couple of days in July after having had regular and consistent communication with her since she left the USA, whilst at the same time trusting and expecting that she and the child would be returning to City G in August.

22. The evidence is that the mother brought with her and the child, apart from one suitcase each, another four suitcases as well as 80 kilograms of extra baggage flown out by freight. The father, not the mother, paid for all that. He also paid for the airline tickets for the mother and the child. From that, I draw a couple of inferences. Firstly, the mother herself did not have access to much money when she left the USA. Secondly, she was clearly planning on being away from the USA for much longer than the two months represented by the E Airline return tickets.

23. Indeed, the mother agreed that the extra baggage she had brought with her included X’s historical school records such as old report cards and certificates he had won at school in years gone by. It included a medal that the child had won in a sports competition in 2017. The mother said that she had brought those “for his father to keep” as opposed to carrying with her for permanent retention by herself, wherever she was. It was put to her that the baggage included her wedding dress. She denied that. The father said that the child’s electric guitar also was brought with them. The mother also said that she brought so much luggage with her as she brought clothes for the different seasonal conditions she would confront in Australia and Country L and that she had gifts for her Country L staff. She also said that the child’s electric guitar came with him as they would take that with them whenever they travelled. I have grave doubts about the honesty of her evidence on these matters. There is evidence that the child’s guitar lessons only began in early 2018 and no evidence that they travelled after that time save for coming to Australia. Bringing all of that luggage with her, in my judgment, is supportive of a finding that she left City G, USA without the intention of returning.

1. The evidence supports a finding that the child finished the school year at his City G, USA elementary school on 29 May 2018 and that he was then withdrawn from the school. Indeed, the mother adduced into evidence a copy of an Official Notice of Pupil Withdrawal on which she ticked the box under the heading “Primary Withdrawal Type” that said “absences or status unknown”. The mother said that she “arranged for X to be out of school in City G for the time [they] would be overseas and had planned to re-enrol him upon return”.

2. The return ticket to the USA had its return leg commencing on 12 August 2018. It is difficult to understand why the child needed to be withdrawn from school at the end of the previous City G school year, if the intention was to re-enrol him in the same school at the commencement of the next school year after the end of the American summer school holiday period. The evidence is more consistent with an intention to leave and not return, in my judgment.

3. The mother adduced into evidence a copy of a letter from the elementary school where the child had attended in City G. It is dated 26 March 2019, so is recently obtained. It is signed by the principal, Ms JJ. It confirms that the child attended the school up to 30 May 2018 and asserts she “believe[s]” that it was the intention of the “family” to re-enrol X in the school in August 2019. The principal says nothing that confirms that school knew in May 2018 that it was the intention of the “family” to return the child to that school after a break away. The letter, in my judgment, does not assist the mother.

4. The mother also adduced a copy of a letter from Music & Arts with the name “Ms KK” listed as the  Manager at the foot of the letter. The letter says that X attended guitar lessons there from early 2018 to 30 May 2018 and that:

   Ms Marshman put X’s lessons on hold for the summer and informed [Ms KK] that she planned to resume his lessons, but she was unsure of the exact date of return.

5. With the letter is a copy of a printout of a computer based record. That document sets out details of X’s lessons. It records that the child’s last lesson was 30 May 2018 and that information was notified to the business on 23 May 2018. It records as the “Stop Reason” as “Taking Summer Off”. Though there is space to enter a “Stop Comment” nothing is recorded. It does not record that the summer break was only temporary and that the child was expected back.

6. The copy of the letter is unsigned. There is no explanation given in the letter or by the mother as to why she might be referred to as “Ms Marshman”. Indeed, the other attached document records the “Customer Name” as “Ms Marshman”. There is other evidence that supports a finding that the mother, though named Ms Marshman, has been referred to by the name “Ms Marshman”, but there is no evidence explaining the use of the name “Ms Marshman”. The evidence is that the child’s name is “X Marshman Baric” as that is how he was registered in City K, Country L at birth and that is the name on his Country J passport. The mother also adduced evidence of records from a gym that the child had been recorded as attending in City G, USA in 2017 that recorded the child registered as “X”.

7. The absence of a signature on the letter from the music school and any reference in the business records of an intention to return to lessons at some later time causes me to give that letter less weight than I might otherwise in this matter. The use of the name “Ms Marshman” on the business record to describe the customer, without further explanation, causes me more concern about the value of the evidence.

8. The mother said in her affidavit:

   The father enrolled X in LL School in late July for the last term of second grade. …

9. The father said in his affidavit:

   X was enrolled in LL Public School (the school) and commenced there on 23 July 2018 at the beginning of term 3. Both Ms Marshman and I attended an appointment with the principal of the school, Ms MM in or around mid 2018, prior to the end of the second school term to arrange X’s enrolment for term 3. Ms Marshman and I explained to Ms MM that Ms Marshman and X had recently arrived from America and that we wished for X to attend LL Public School as permanent student….

10. The father adduced a copy of the enrolment form into evidence. It was signed by him on 2 July 2018 but included all of the mother’s details as well as his and asserted that they lived at the same address. The father also adduced into evidence a copy of a recently written letter from Ms MM, principal of that school. The copy of the letter bears Ms MM’s signature. She confirmed that X was enrolled as a student at the school commencing on 23 July 2018. She confirmed that both the father and the mother attended the school to enrol X and said “[d]uring this time they indicated that Ms Marshman and X had recently relocated from America to Town LL to live”.

11. There was also oral evidence that school uniforms had been bought for X when he started school in late July.

12. The mother’s evidence was, as has been mentioned already, that she had intended going to Country L whilst here in Australia before she and the child returned to the USA. In her affidavit filed 14 May 2019, she said:

    In August 2018, my plans changed when an earthquake occurred in City BB, Country L and travel warning [sic] were issued to Australian [sic] travelling to Country L.

    As a result of the earthquake in Country L it was decided X and I would extend our Australian stay to join the father and his family for Christmas 2018.

13. Accordingly, if the mother’s evidence is true, when the child was enrolled in the school and began attending school there, the mother still planned to go to Country L (presumably leaving X in the father’s care) and to come back to Australia and then return to the USA on 12 August 2018. I do not accept that the mother would have agreed to enrol the child at the school, or that she would have told the principal or acquiesced in telling the principal that it was a permanent enrolment, or that she would have told the principal or acquiesced in the principal being told that she and X had relocated to live in Australia, or that she would have acquiesced in the purchase of school uniforms for X if the intention was to take him from the country and return to the USA very soon thereafter.

14. In the witness box during the hearing, the mother gave slightly different evidence. She asserted that it was in late July that she decided to put off going to Country L as she was hearing news of tremors being experienced in City BB, Country L which she said she believed were likely to be foreshocks to a bigger earthquake. She did not say that preceded the decision to enrol the child at the Australian school. The mother was not asked to explain the difference in that evidence from that which she had deposed to in her affidavit. The difference added to my serious doubts about the mother’s honesty. I do not accept that the mother had postponed existing plans to go to Country L and return to Australia before returning to the USA on 12 August before the child was enrolled to attend school here in the third term of the school year commencing in late July.

15. The father gave evidence that he understood the mother was intending to stay in Australia and work on their relationship. He said that they did not recommence a romantic relationship but did recommence “living as a harmonious family with a view to living in close proximity to each other if [their] relationship did not work out”. The evidence is that they were sharing a small apartment and that the father had made some effort to renovate the kitchen in that apartment before the mother and the child came out to Australia, which he was proudly showing to the mother in photographs before she and the child came out.

16. The father said that he and the mother were getting along very well and that the child was very happy and enjoying having his parents together living as a family again. The father said that he and the mother spoke about the process of her obtaining permanent residence in Australia. He said the mother had discussions with a law firm about obtaining “a permanent marriage visa” in Australia. He said that she wanted to borrow money to pay for the application process which she told him cost approximately $14,000. He said that he was not able to access that amount of money, so they then decided that the mother would do a “visa run” to Country E to enable her to obtain a fresh tourist visa on her return to Australia.

17. In her oral evidence, the mother agreed that she had been to see a firm of solicitors but she denied that it was to obtain advice about a spousal visa application. She said she was seeking advice about another matter, though she did not say what it was, nor was she asked. She said that she had seen the cost of an application for a spousal visa online when researching.

18. Quite clearly, the mother and the child determined before 12 August that they were not going to commence their trip back to the USA on that day. There is no dispute that she must have made a decision to stay longer in Australia and cashed in the return ticket to the USA and used it to help pay for the return trip to Country E which she then took to get a fresh tourist visa.

19. The father said that before she went to Country E they set up a joint bank account with an Australian bank to which each of them had card access. He said he deposited money into that account so that the mother could have access to money when she went to Country E. He said that, later, she continued to draw on that account for every day expenditure.

20. This evidence adds further weight to the view that the mother had no or very little access to funds of her own. She said that her credit cards with which she operated bank accounts she has in Country L expired in May 2018 and that she has not been able to apply to renew them until she can visit Country L. I am not convinced of the honesty of that evidence.

21. The Incoming Passenger Card the mother completed when flying in to Australia from Country E after that “visa run” was adduced into evidence by the father. The mother told the Australian Government that her place of permanent residence was Country L not City G in the USA. When asked about that in her oral evidence, she alluded to something in her passport being the basis for her putting that on the Passenger Card. I have seen nothing in her passport that supports that.

22. The evidence is that soon after the mother returned to Australia from Country E she was invited to Country DD for a wedding there. The father said that the mother simply told him someone else has paid for the airfares for her to travel to Country DD and back and that she left the child with him and went there for two weeks.

23. The Incoming Passenger Card the mother completed when flying in to Australia from Country DD after attending the wedding was also adduced into evidence. The mother also completed that card asserting her place of permanent residence was Country L.

24. On 16 May 2019, the mother filed an affidavit of Ms NN, who gave her address on the island of CC, Country DD. She said she was a friend of the mother having met her in City K, Country L approximately five years ago. She said that the mother was the owner and manager of a company in Country L that employed a large group of Country L staff. She said that she was the person who got married in Country DD in 2018 and that she had invited the mother. She said that the mother initially declined the invitation as she said her credit cards had expired and that she could not renew them until she travelled to Country L. Ms NN said that she purchased the return ticket for the mother so that she could fly to Country DD for the wedding.

25. In her evidence, the mother said in early November 2018, she determined to return immediately to the USA. She said that she could not purchase the tickets because her credit cards had expired in May 2018 and she was unable to reactivate them or obtain new credit cards until she was personally in Country L.

26. She said that on 7 November 2018 the father emailed her a court document, an Initiating Application, which she said she did not understand. She said that the next day she contacted her friend, Ms NN, and asked for her assistance in booking and purchasing airline tickets to leave Australia:

    … initially to Country H as [the mother] had scheduled a meeting with [her] Country L lawyer [sic] and then onto City P, Country O on 9 November 2018 to meet [her] staff for a week and sort out banking issues. [Ms NN] paid for the tickets online whilst [they were] at the airport [Ms NN] paid and booked the continuation to City P, Country O. …

27. In her affidavit filed 14 May 2019, the mother said that on 8 November 2018 she had her then solicitors, OO Lawyers, check to see if X had been placed on any “Watch list”. She said that he was “not on any Watchlist” so she requested Ms NN to book tickets for them. However, an email from Ms PP of OO Lawyers sent to the AFP at 10.32 am on 8 November is in evidence. It says:

    We refer to the abovenamed child, X [sic] Baric (aged seven years) and enquire as to whether the child’s name presently appears on the Airport Watchlist. We are instructed that the Mother Ms Marshman, (and the subject child) travelled to Australia in mid 2018 from Country J for a holiday, and to visit the Father.

    We understand that a dispute has subsequently arisen and the Mother has reason to believe that the Father is taking steps to prevent the child from returning to Country J with her. We note that the mother is in the process of making an Application for a Protection Order, and therefore requests confirmation as to whether the child has been listed on the Airport Watchlist.

    Could you please kindy confirm as soon as possible. …

28. Also in evidence is the reply to Ms PP from the AFP. It was sent at 9.42 pm on 8 November 2018. It says:

    Thank you for your recent Family Law Watchlist enquiry. The AFP can inform you that the following child ARE currently recorded as being on the Family Law Watchlist.

    BARIC, X (DOB 2011)

29. I make two observations about that evidence. The email to the AFP reflects the mother’s instructions to her solicitors as being that she and the child had travelled from Country J to Australia, not City G in the USA, and that the father was in the process of taking steps to prevent the child from returning to Country J with her. Secondly, the AFP did not reply until that evening and when they replied they told the mother’s solicitor that the child was on the Family Law Watchlist, not, as the mother asserted, that he was not on any Watchlist.

30. Ms NN said in her affidavit that the mother told her, after she had returned to Australia from Country DD, “she was ending the vacation and returning to the USA”. She said the mother said “she would travel via Country L where she had planned to meet with her Country Ln lawyer and staff on route back to the U.S.A.”. Ms NN said she offered to lend the mother the money to assist her in leaving the father’s residence. She said that on 8 November 2018, the mother contacted her and asked her to purchase tickets for the mother and X to leave Australia. Ms NN said that she booked and paid for tickets for the mother and X to fly from Brisbane to City EE, Country H “where Ms Marshman intended to meet her Country L Lawyer”. Exhibited to her affidavit is a copy of a travel itinerary for the mother and the child on a H Airlines flight leaving Brisbane at 11.20 pm on 8 November scheduled to arrive in City EE at 5.30 am on 9 November.

31. Ms NN said that she also booked and paid for tickets for the mother and the child to travel with QQ Airlines on 9 November 2018 from City EE, Country H to City P, Country O. She said that the mother planned to meet with her Country L staff in City P, Country O. Ms NN exhibited a copy of a flight confirmation for the mother and the child booked on QQ Airlines from City EE, Country H to City P, Country O scheduled to depart City EE, Country H at 10.20 pm on Friday 9 November.

32. Ms NN said that she was in the process of looking for flights from City P, Country O to City F for 15 November and accommodation for the mother and the child in City EE, Country H and City P, Country O when she received a message from the mother telling her that she and the child had been stopped at the barrier in Brisbane.

33. I accept that the mother had no money of her own on 8 November 2018. I consider it significant that the mother did not actually have Ms NN book tickets directly from Brisbane to City F or from Brisbane to City K, Country L or some other part of Country L. After all, the mother had said she determined to leave Australia and head back to the USA and Ms NN said that the mother had told her she would travel via Country L. I also consider it very significant that the mother adduced no evidence at all of any communication with Mr FF at or around this time – no communication with him about the difficulty of her circumstances in Australia, no communication with him about buying airline tickets for her and the child to fly back to the USA immediately.   

34. The facts are still consistent with the mother deciding not to go to Country L, even when she was effectively seeking to leave Australia very quickly. The assertion that the plan then became one of meeting with her Country L lawyer in City EE, Country H is difficult to accept as true. The mother only decided on 8 November to fly out of Australia that day. Her tickets were only bought that day and she was only going to be on the ground in City EE, Country H for less than 18 hours. There is absolutely no corroborative documentary evidence adduced to show that she had arranged with her Country L lawyer to meet her in City EE, Country H that day. There is absolutely no corroborative documentary evidence adduced to show that she had arranged with her Country L staff to meet her in City P, Country O. And in respect of the mother’s evidence that she was going to meet her staff in City P, Country O “to sort out banking issues” the mother had previously given evidence that she had to actually personally be in Country L to apply for fresh credit cards to access her Country L bank accounts. Finally, on this point, there was just no evidence given by the mother at all explaining why, after all the asserted intent to travel to Country L, she did not simply have Ms NN book tickets to fly directly to Country L. Further, there is no evidence explaining why she did not stop in City K, Country L or some other part of Country L on the way back from Country DD, even if she cut her trip to Country DD short to do so, so as not to be away from the child for any longer than necessary.

My findings about all this

1. I do not accept that the mother ever actually intended travelling to Country L. I am not satisfied that she has ever been back to Country L since she left City K, Country L which was probably in or around November or December of 2014. I am far from satisfied that the mother ever obtained a lawful dissolution of her marriage to the father officiated in City K, Country L in 2011 and I consider she probably has not. I am also satisfied that there probably are outstanding criminal proceedings or investigations involving the mother in City K, Country L which explains her unwillingness to actually travel back to Country L.

2. I am satisfied that the mother probably did marry another man in City G, USA, namely Mr FF, but I am not satisfied that was not a bigamous marriage.

3. I am satisfied that the mother did not tell the father and did not want him to know that she had remarried in the USA as he still considered the mother to be lawfully married to him and was not aware of that marriage ever having been dissolved. I am satisfied she did not want to alert him to the fact that she was in a bigamous marriage. I am satisfied that she would not permit or facilitate the child speaking with him when he was in City G and the father was in Australia, as she was concerned that he might tell the father about Mr FF, as he later actually did when in Australia.

1. I am satisfied that the mother gave the father every impression that she wanted to leave City G when she encouraged him to pay for the airfares for herself and the child to travel to Australia. I am satisfied that she did tell him that there was nothing for her and the child any longer in City G – i.e. that she had no reason to stay there.

2. I am satisfied that the mother did not promise the father that she would actually reconcile their relationship or stay permanently in Australia once she was here but that she certainly gave him hope that she would consider that once she was here, depending on how things went. Indeed, I am satisfied that she communicated to him the need and desire to live somewhere she could make a lot of money. I am satisfied that she had not ruled out, in her own mind, potentially moving on to another country if she was not content to stay in Australia.

3. I am satisfied that she brought as many of her possessions and the child’s possessions with her as she considered necessary to bring on a permanent move away from City G, USA, even if she thought that she might have to move on from Australia.

4. I am satisfied that the mother did not intend travelling to Country L from Australia and back to Australia before then commencing their trip back to the USA on 12 August. Indeed, I am actually satisfied that the mother did not intend to commence flying back to the USA on 12 August on the return leg of the trip. I am satisfied that her participation and acquiescence in the enrolment of X at the Australian school in July is consistent with her having formed the intention at that time to stay indefinitely in Australia. I am also satisfied that she did make some inquiries of a lawyer about the process and cost of obtaining permanent residency through a spouse visa consistent with having formed the intention to stay if she could, but the financial circumstances of the mother and the father prevented her from taking that any further at the time.

5. I am satisfied that over the time the mother spent in Country DD in 2018 with her friend, Ms NN, and the days immediately following her return to Australia, the mother’s attitude to staying in Australia changed. Relations between the mother and the father deteriorated quickly and the mother determined that she would move on quickly and take the child with her from Australia.

6. I am satisfied that she was not seeking to fly out of Australia to return to the USA. There is absolutely no corroborative evidence of her having communicated with Mr FF in City G at or around the time that she was trying to leave Australia. The evidence is that she was about to fly with the child to City EE, Country H for a very short stop over before flying on to City P, Country O. I do not accept that the mother was going to meet her Country L lawyer in City EE, Country H that day or that such planned meeting was the reason for planning to fly to City EE, Country H instead of straight to the USA from Brisbane. I do not accept that a planned meeting with staff of her Country L business in City P, Country O was the reason for planning to fly on to City P, Country O before then returning to the USA.

7. I am not at all satisfied that the mother was intending to fly back to the USA as I consider that she had left the USA without any intention to return. Indeed, I consider it more likely than not that the mother actually planned, at very short notice, to fly back to City CC, Country DD with the child to stay with her friend, Ms NN, rather than to return to City G, USA. The absence of any evidence of communication with Mr FF at or around the time of her planned sudden departure from Australia helps me reach this conclusion. Of course, the mother would point to the affidavit of Mr FF that she caused to be filed and she relied upon and submit that he was not cross-examined upon it. However, that affidavit and the fact that Mr FF (who did not travel to Australia for the hearing) was not cross-examined on it does not persuade me that it is all truthful. In fact, I am satisfied, on the balance of probabilities, it is not. What the explanation for the provision by Mr FF of that affidavit for the mother might be, in the circumstances, is not something I consider that I must try to determine at this time. 

8. Additionally, when Queen’s Counsel for the mother was asked what orders the mother sought from the Court, he informed the Court that she merely sought orders that removed the restraint on her taking the child out of the country and facilitated her immediate departure with him from Australia. She did not positively seek an order from the Court returning the child to City G, USA. That adds weight to my satisfaction that she actually does not want to return to the USA, but rather will move on to another country.

9. Finally, and critically, all of the matters I have discussed in these reasons and all of the findings I have made, lead me to the conclusion that immediately before the child, X, born in 2011 was stopped at the barrier at Brisbane Airport on the evening of 8 November 2018, he was no longer habitually resident in City G, USA. As I said at the outset of these reasons, the onus of proof on this critical point in this matter was on the Applicant. She failed to persuade me.

10. I do not go so far as to find that the child had actually become habitually resident in Australia but I am satisfied that City G, USA, was no longer his place of habitual residence, it having been abandoned as such when the child and his mother flew out of that country in June, last year.

11. I dismiss the application for a return order.

I certify that the preceding one hundred and twenty-one (121) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 24 May 2019.

Associate: 

Date:  24 May 2019