NORTHERN TERRITORY CENTRAL AUTHORITY & ADLIN

[2020] FamCA 594

FAMILY COURT OF AUSTRALIA

NORTHERN TERRITORY CENTRAL AUTHORITY & ADLIN [2020] FamCA 594

FAMILY LAW – CHILD ABDUCTION – Hague Convention – Where the father brought the children to Australia – Where the mother is in Thailand and is seeking a return of the children to Thailand – Whether the children were wrongfully removed or retained – Whether the children’s habitual place of residence is Thailand – Where the mother was exercising her rights of custody at the time of retention – Where the parties never held a common intention that their habitual place of residence and that of the children would be Australia – Where the children’s retention in Australia was wrongful – Return order made.

FAMILY LAW – CHILD ABDUCTION – Hague Convention – Consent and acquiescence – Where the father claims the mother consented to the children travelling to and remaining in Australia – Where the father claims in the alternative that the mother acquiesced to the children residing in Australia permanently – Consideration of the subjective intention of the mother – Where the mother did not consent or acquiesce to the permanent relocation of the children to Australia. 

FAMILY LAW – CHILD ABDUCTION – Hague Convention – Discretion – Where the father claims the children would be at a grave risk of harm if returned to Thailand – Where the father alleges a risk of physical harm – Where the father raises COVID-19 as a risk – Where the father alleges removal from his care is a risk to the psychological and emotional health of the children – Where the father has the ability to return to Thailand – Where it has not been demonstrated that Thailand is incapable of protecting its citizens from threatened or actual violence – Discretion not exercised.

Family Law Act 1975 (Cth) s 111B
Family Law (Child Abduction Convention) Regulations 1986 (Cth) regs 16(1), 16(1A), 16(3), 16(5)

Convention on the Civil Aspects of International Child Abduction, opened for signature 25 October 1980, 1343 UNTS 89 (entered into force 1 December 1983)

DP v Commonwealth Central Authority; JLM v Director-General, NSW Department of Community Services (2001) 206 CLR 401
In the Marriage of Elias (1977) FLC 90-267
Jordan v Jordan (1997) FLC 92-736
LK & Director-General, Department of Community Services (2009) 237 CLR 582
Murray v Director, Family Services, ACT (1993) FLC 92-416
Punter v Secretary for Justice [2007] 1 NZ LR 40
Re B (Minors) (Abduction No 2) [1993] 1 FLR 993
Re H (Minors) (Abduction: Acquiescence) [1998] AC 72
Re J (A Minor) (Abduction: Custody Rights) [1992] 2 AC 562
State Central Authority & Sigouras (2007) 37 Fam LR 364 at 418
Quarmby and Anor v Director-General, Department of Community Services (NSW) (2005) 34 Fam LR 8

APPLICANT: Northern Territory Central Authority

RESPONDENT: Mr Adlin

FILE NUMBER: DNC 27 of 2020

DATE DELIVERED: 22 July 2020

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 20 to 22 May 2020,
16 June 2020 and
7 July 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Olsson

SOLICITOR FOR THE APPLICANT: Margaret Romeo Barrister & Solicitor

COUNSEL FOR THE RESPONDENT: Ms Pyke QC

SOLICITOR FOR THE RESPONDENT: Norman Waterhouse Lawyers

Orders

1. The application of the Northern Territory Central Authority filed 17 January 2020 be granted.

2. That the mother and the father make such arrangements as are as necessary to ensure the departure of X born … 2015 and Y born … 2017 from Australia to return to the Kingdom of Thailand within thirty (30) days from the date of these orders pursuant to the provisions of the Family Law (Child Abduction Convention) Regulations 1986 (Cth).

3. That the Northern Territory Central Authority serve sealed copies of these orders upon the Commissioner, Australian Federal Police.

4. There be liberty to relist the matter upon twenty four (24) hours notice to the parties as to the implementation of the return order.

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 Adlin 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 ADELAIDE

FILE NUMBER: DNC 27 of 2020

Northern Territory Central Authority

Applicant

And

Mr Adlin

Respondent

REASONS FOR JUDGMENT

introduction 

1. On 17 January 2020 proceedings were issued pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“Child Abduction Regulations”).

2. The Child Abduction Regulations are the means by which the Commonwealth of Australia has elected to give effect to its obligations as a signatory to the Convention on the Civil Aspects of International Child Abduction[1] (“the Hague Convention”). The Child Abduction Regulations are made under s 111B of the Family Law Act 1975 (Cth) (“the Act”). The Northern Territory Central Authority (“the Central Authority”) pursuant to the Child Abduction Regulations is seeking orders for the return of X born in 2015 and Y born in 2017 (collectively “the children”) to the Kingdom of Thailand (“Thailand”).

   [1] Convention on the Civil Aspects of International Child Abduction, opened for signature 25 October 1980, 1343 UNTS 89 (entered into force 1 December 1983)

3. The children currently reside in Australia with their father Mr Adlin (“the father”).

4. The children’s mother Ms B (“the mother”) continues to live in Thailand. She has signed an authority empowering the Central Authority to act on her behalf in respect of the application for the return of the children to Thailand pursuant to the Child Abduction Regulations.

5. Ms Olsson appeared on the instructions of Margaret Romeo, a solicitor acting on behalf of the Central Authority.

6. The mother was born in 1977.  She is 43 years of age as at the date of the proceedings and is a citizen of Thailand.  The father was born in 1969 and is 51 years of age at the date of the proceedings.  The father is a citizen of Australia.

7. The mother is a health care professional.

8. The father is currently unemployed but receives an income from the management of his share portfolio.  The father holds the qualifications as a professional.

9. The parties met in Thailand and commenced cohabitation either in mid-2012 or the beginning of 2013.

10. Notwithstanding that the parties have lived together in a marital like relationship since the commencement of cohabitation, they are not considered to be legally married under the laws of Thailand.  The parties did undergo a religious ceremony but did not seek civil registration.

11. The parties are not agreed as to a common intention as to where the family would live following the birth of the children.  The father contends that the parties had discussed moving to Darwin after the birth of children but that they would remain living in Thailand during their early years with the focus on a move to Australia to enable the children to receive and be educated in the Northern Territory.

12. The mother denies that the parties had a concluded intention to move to Australia, but concedes that it was an option to be considered if the circumstances would permit.  In particular, the discussions as between the parties was always tempered by the uncertainty of the mother being able to secure permanent residency in Australia and then whether her qualifications as a health care professional would be recognised, or even whether a transitional program resulting in recognition was an option.

13. In October 2013 the father explored the possibility of purchasing a vacant allotment at Suburb C on the outskirts of Darwin (“the C property”).  Again the parties are not agreed as to the extent of the mother’s involvement in the purchase.  It is not suggested by the father that the mother had any financial input, but he contends that the parties inspected the C property with a view to it being a potential family home upon the family taking up residence in Darwin.

14. The father purchased the C property in November 2013.  The mother considers that the father purchased the C property irrespective of her position and that the purchase was not conditional of her consent or approval.

15. Similarly, the mother did not consider that her consent or approval was a factor considered by the father in the sale of a house property at D Street, Darwin (“the D Street property”) in August 2014.

16. The mother denies that prior to the birth of X in 2015 the parties reached an agreement that X would be brought up in an English language environment and that the date for relocation to Australia to enable X to commence pre-school in Australia was at the end of 2019.

17. It is agreed that X holds dual citizenship for Australia and Thailand.  The father applied for X to obtain Australian citizenship by descent.  X’s Australian address for the purposes of the application was given as F Street, G Town, Northern Territory (“the G Town property”). 

18. In August 2015 X was diagnosed with a medical condition.  X has been treated by specialists in Thailand and following a referral from Dr H, X saw Dr J in January 2018, a specialist in Australia.

19. In circumstances not dissimilar to X, upon Y’s birth in 2017 an application was made for Y to hold Australian citizenship by descent in addition to his Thai citizenship.

20. It is likely that following Y’s birth the parties discussed the viability of the family relocating to Darwin.  The mother explored employment opportunities and then whether she could continue her employment in Thailand remotely from Australia.

21. The father concedes that the mother’s employment applications in Australia were without success resulting in the family moving to K City to enable the mother to take up her current position.

22. The father argues that the mother’s employment in K City was only intended to be temporary.  It resulted in a delay in the plans of the family to relocate to Australia by the end of 2019.

23. The mother agrees that there were aspects of the family living in K City that were not considered by the parties to be in the interests of the children.  The air quality was poor, the parties were not able to find nannies to assist in the care of the children and there were concerns as to the adequacy of the education system and certain aspects of the political climate that concerned the parties.

24. The difference is a dispute between the parties as to whether the plan to relocate was concluded or conditional on the mother gaining the ability to reside in Australia and to find employment commensurate with her qualifications.

25. In November 2018, the parties decided that they would holiday in Australia in 2019 and purchased return flights departing Bangkok on 10 May 2019, returning from Darwin on 26 May 2019.

26. The father considered that the school X was attending in K City was ultimately unsuitable given that X did not speak Thai and was the subject of social isolation.

27. Moreover, the father was further concerned as to the rising pollution levels in K City.  It is likely that the parties discussed these concerns, however, the mother does not accept the father’s proposition that the difficulties experienced by the parties and the children were such that they agreed to bring forward the permanent relocation of the family from Thailand to Darwin.

28. By 13 March 2019 the father considers that there was a concluded plan that he would relocate with the children to Darwin in May 2019 and the mother would continue to remain in Thailand with the parties maintaining a long distance relationship.

29. The mother does not resile from the proposition that the parties gave serious consideration to the family relocating to Darwin, but denies that there was a concluded plan or that the travel proposed for May 2019 was anything other than a family holiday.

30. In March 2019 the paternal grandfather died.  The parties made urgent travel arrangements such that the father and the children left Thailand in late March 2019 to attend the paternal grandfather’s funeral in Melbourne.

31. The father and the children left Melbourne after the funeral and travelled to Darwin in early April 2019.

32. The father contends that the agreement between the parties was that he would establish the family home in Darwin but that the father and the children would return temporarily to Thailand to collect the children’s belongings and then the family would travel to Darwin on 10 May 2019.  The father acknowledges that the mother would need to return to Thailand using the return ticket booked for 26 May 2019 to resume her employment with a view to an early resignation.

33. The mother does not accept that there was any such arrangement.  She highlights that in the absence of her being able to secure employment in Darwin, any move was not viable.  The father had not worked for a number of years and it was the mother’s income that supported the family.

34. On 4 April 2019 the mother made contact with the father to inquire whether he and the children would be returning to Thailand before 10 May 2019.  If not, then it was proposed that the mother would travel to Darwin on a tourist visa.  Whilst there was some uncertainty on the evidence as to whether the mother was easily able to apply for a tourist visa, the practice between the parties was that the process of application was expedited by the father writing a letter of invitation.  The father was initially reluctant to do so stating X’s behaviour as to the reason, however after a significant delay a letter was sent arriving on 29 July 2019 whereupon the mother applied for a tourist visa on 1 August 2019, with approval being given on 30 August 2019.

35. The mother arrived in Darwin on 10 September 2019 and remained with the family until she was required to depart on 16 September 2019.  There is some uncertainty as to the nature of the relationship between the parties during the visit by the mother in September 2019.

36. For her part, the mother refers to an angry exchange on 15 September 2019 when she alleges the father told her to have no further contact with the children.  The father does not agree that there was any angry exchange and considers her early departure for the airport was consistent with her travel arrangements.

37. The father agrees that there was a discussion as to the status of the parties’ relationship and it was during the exchange on 15 September 2019 that he informed the mother he was not prepared to travel with the children to Thailand.

38. It was on 10 October 2019 that the father acknowledged an email from the mother advising him that she considered the children should be with her in Thailand.

39. The father asserts that up until the mother’s declaration in October 2019 that the children should be returned to her in Thailand there had been clear agreement that the family would relocate to Darwin.  The father opines that the mother’s decision to separate was the catalyst for her unilateral change in the parties’ plans.

40. The mother agrees that she decided that the parties should separate.  The decision was made following the father’s stated position that he would not be returning the children to Thailand but that he expected that the mother would continue to provide financial support for the children in Australia.  The father emailed his banking details.

41. The mother contacted the Central Authority of Thailand to commence her application under the Hague Convention on 8 November 2019.

Documents relied upon

1. The mother relies upon the following documents:-

   (1)Amended Application initiating proceedings filed 14 April 2020

   (2)Affidavit of the mother filed 17 January 2020

   (3)Supplementary affidavit of the mother filed 17 January 2020

   (4)Affidavit of the mother filed 22 April 2020 (but adopted by the mother in her evidence).

2. The father relies upon the following documents:-

   (1)Answer and cross application of the father filed 3 March 2020

   (2)Affidavit of the father filed 3 March 2020

   (3)Affidavit of the father filed 24 June 2020

3. Each of the parties rely upon an outline of argument document.

4. The parties are agreed that the proceedings are limited to forum and are not informed by considerations that are required to be considered to determine a parenting application pursuant to Part VII of the Act. The Court is not required to consider that the best interests of a child is the paramount consideration.

5. The issues in dispute are as follows:-

   ·Right of custody

   ·Habitual residence of the children

   ·Retention of the children

   ·Consent or acquiescence

   ·Risk of harm

   ·Residual discretion

Determination

1. The documents relied upon by the father reveal that he was represented by solicitors throughout the currency of the proceedings.

2. The father provides a detailed background in his affidavit and he acknowledges that he and the children left Thailand to attend his father’s funeral, but thereafter retained the children in Australia pursuant to what he considered was the concluded plan or arrangement of the parties for the family to relocate from Thailand and take up residence in Darwin.

3. It is an important feature of the proceedings that the mother has no certainty of being able to reside in Australia other than from time to time as may be allowed by a tourist visa.

4. There is no impediment to the father and the children remaining in Australia.  The father is an Australian citizen and the children hold dual Thai and Australian citizenship.

5. No application or process has been undertaken that would enable the mother to remain in Australia other than on a tourist visa.

6. Neither party presented evidence as to the steps that could or would need to be undertaken by the mother to gain permanent residency in Australia.

7. Even though the parties had a common practice of the father providing a letter of invitation to facilitate the approval of a tourist visa for the mother from time to time, there remains some uncertainty as to the frequency and duration of times that the mother may be able to travel.

8. The Central Authority must prove that the mother was exercising her rights of custody prior to the children’s removal from Thailand and that their removal was wrongful. That must be established before my obligation to return the children pursuant to sub-regs 16(1) and 16(1A) of the Child Abduction Regulations are activated.

9. Conversely, “the best interests of a child” is not a reason in itself to refuse a return order.

10. There is a tension in Hague Convention proceedings as to whether, and if so to what extent, a Court considering an application for return of a child to a requesting country should take into account matters that might be considered relevant to a consideration of the best interests of the child. Matters that would normally involve the best interests of a child as “the paramount consideration” do not apply in proceedings under the Child Abduction Regulations. Regulation 16 requires that in some circumstances the obligation to make a return order is mandatory even though there is nonetheless some scope for discretion as to whether a return order should be made. Any such consideration does not involve consideration of the best interests of the child as “the paramount consideration”.

11. In Quarmby and Anor v Director-General, Department of Community Services (NSW) (2005) 34 Fam LR 8, the Court was faced with an application for contact by a sibling of a child subject to a return order to the United States of America. The Court was faced with a consideration as to whether the contact application took priority over the Hague Convention application. Ultimately, the Court disposed of the issue in the following manner:-

    63.Ultimately this case is about selecting the forum in which it is appropriate that issues relating to S’s future residence be determined.  The Hague Convention and the Abduction Regulations mandate that in the circumstances of this case, the child having been wrongfully removed from the USA, the appropriate forum is a court in the USA.  The issue of contact raised by A in relation to her ongoing relationship with her sister will no doubt be matters that will be properly considered in the USA in relation to any application brought by the mother for a residence order and permission to bring the child to live in Australia. …

1. The relationship between the Hague Convention proceedings and parenting proceedings has been the subject of significant judicial consideration. 

2. The remarks of Kirby J in DP v Commonwealth Central Authority; JLM v Director-General, NSW Department of Community Services (2001) 206 CLR 401 at [128] are apposite:-

   It is in this sense that provisions such as those in the Regulations are properly to be classified not, as such, as laws searching for the best interests of the child but rather as laws for selecting the forum where that search is to be undertaken and concluded.  It is easy enough to slip back into a factual enquiry into the child’s best interests, that having for centuries been the duty of common law courts in disposing of analogous cases. But such a tendency must be resisted for otherwise the attainment of the main point of the regulations and the Convention will be frustrated.

   (Footnotes omitted)

3. The father concedes that according to the laws of Thailand the mother had a right of custody of the children.

4. The father contends that there was never any settled intention for the children to reside in Thailand as their habitual place of residence.  It is not asserted that the converse is true of Australia but rather it is a matter for the Court’s determination.

5. Even assuming that the Court determines that the settled intention for the children is that Thailand is their habitual place of residence, the father relies upon the defence of consent namely, that the father travelled with the children to Australia with the mother’s informed consent that Australia would be their place of residence, or in the alternative, following their arrival in Australia the mother acquiesced to the children residing in Australia permanently.

6. As a further defence, the father raises the risk of physical harm to the children if they were required to return to Thailand.  The father considers the COVID-19 virus, and its prevalence in Thailand to be relevant to a determination of grave risk.  The father also contends that he was the children’s primary caregiver necessary to accommodate the mother continuing in her fulltime employment.

7. Sub-regulation 16(1) of the Child Abduction Regulations requires the Court to make the return order requested by the Central Authority, in this case, if three questions are answered in the affirmative.

8. The first question pursuant to sub-reg 16(1)(a), is whether an application for a return order has been made.  That is not a matter of dispute between the parties.

9. The second question pursuant to sub-reg 16(1)(b) is whether the application for a return order was filed within one year after the children’s removal or retention.  There is uncertainty as to whether the children initially travelled to Australia for the purpose of the paternal grandfather’s funeral and remained in Australia in furtherance of the parties settled intention and agreement for the children to remain permanently in Australia.  The application for the return of the children was filed on 17 January 2020.  No issue arises that the application for return was filed out of time.

10. The third question pursuant to sub-reg 16(1)(c) is whether the Central Authority has satisfied the Court that the children’s removal or retention was wrongful under sub-reg 16(1A).      

11. Sub-regulation 16(1A) requires the Court to be satisfied of five factors if it is to be satisfied that the children’s removal or retention was wrongful for the purposes of sub-reg 16(1)(c).  The Central Authority carries the burden of proof in relation to the factors referred to in sub-reg 16(1A) (see subreg 16(1)(c).

12. The first factor pursuant to sub-reg 16(1A)(a) is whether the children were under the age of 16 years at the time they were removed to Australia.  This factor is clearly satisfied.  At all material times both children were under the age of 16 years.

13. The second factor pursuant to sub-reg 16(1A)(b) is whether the children were habitually resident in a convention country immediately before their removal.

Habitual residence of the children

1. The parties are not agreed as to the children’s place of habitual residence.  The mother considers that at the time of their retention (as opposed to their removal), the children were habitually resident in Thailand.  The father contends that there was never any settled intention that Thailand would be the children’s habitual place of residence and relies upon the evidence of the ongoing discussions between the parties that at or about the commencement of the children’s schooling (but in particular X commencing primary school education) it was the clear and unequivocal intention of the parties that Australia would be the children’s habitual place of residence.

2. In Re J (A Minor) (Abduction: Custody Rights) [1992] 2 AC 562 at 578 Lord Brandon said:-

   The first point is that the expression “habitually resident” as used in article 3 of the Convention, is nowhere defined.  It follows, I think, that the expression is not to be treated as a term of art with some special meaning, but is rather to be understood according to the ordinary natural meaning of the two words which it contains.  The second point is that the question whether a person is or is not habitually resident in a specified country is a question of fact to be decided with reference to all the circumstances of any particular case … A person may cease to be habitually resident in country A in a single day if he or she leaves it with a settled intention not to return to it but to take up long-term residence in country B instead.  Such a person cannot, however, become habitually resident in country B in a single day.  An appreciable period of time and a settled intention will be necessary to enable him or her to become so.  During the appreciable period of time the person will have ceased to be habitually resident in country A but not yet have become habitually resident in country B.

3. The issue of habitual residence and the inter-relationship with the settled intention of the parties was further considered by Waite J in Re B (Minors) (Abduction No 2) [1993] 1 FLR 993 at page 995 in the following terms:-

   1.         The habitual residence of the young children of parents who are living together is the same as the habitual residence of the parents themselves and neither parent can change it without the express or tacit consent of the other or an order of the court.

   2.         Habitual residence is a term referring, when it is applied in the context of married parents living together, to their abode in a particular place or country which they have adopted voluntarily and for settled purposes as part of the regular order of their life for the time being whether of short or of long duration. 

   All that the law requires for a “settled purpose” is that the parents’ shared intentions in living where they do should have a sufficient degree of continuity about them to be properly described as settled.

4. In LK & Director-General, Department of Community Services (2009) 237 CLR 582 the High Court at [27] considered the inter-relationship between the habitual residence of a child and of a person or persons who care for the child. The following extract is informative:-

   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.  But if, as the writings about the Abduction Convention and like instruments repeatedly urge, the question of habitual residence of a child is one of fact, it is important not to elevate the observation that a child looks to others for care and housing to some principle of law like the (former) law of dependent domicile of a married woman.

5. Domicile and habitual residence are not synonymous.

6. In LK (supra) the High Court considered the importance of purpose and intention at [28]:-

   Although intention is a necessary element in deciding domicile of choice, and “habitual residence” is chosen as a connecting factor in preference to domicile, 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.  But unlike domicile, considerations relevant to deciding where a person is habitually resident are not necessarily confined to physical presence and intention, and intention is not to be given controlling weight.

7. The High Court considered that there were three considerations:-

   (1)The intentions of a person is not always certain and “may be ambiguous”[2];

   (2)A person may have “abandoned residence”[3] without forming an intention not to return;

   (3)The intentions of the child’s caregivers must be considered.  “No less importantly it may be accepted that the general rule is that neither parent can unilaterally change that place of habitual residence”[4].

   [2]LK & Director-General, Department of Community Services (2009) 237 CLR 582 at 595 [29]

   [3] Ibid 595 [33].

   [4] Ibid 596 [34].

8. There is a range of considerations which might ultimately inform as to the determination of the place of habitual residence.

9. The extent of the factual inquiry is evident from the approval by the High Court in LK[5] (supra) of a New Zealand decision of Punter v Secretary for Justice [2007] 1 NZ LR 40 where the court said at [88]:-

   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 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…

   [5] Ibid 599 [44].

10. Following the birth of each of the children the parties took the necessary steps to have the children’s births registered in Thailand to enable them to take Thai citizenship and then to apply for Australian citizenship by descent.

11. It is reasonable to find that each of the parties considered that there was merit in the children holding dual citizenship.  I do not consider that I can find as at the date of birth of X and then later Y that notwithstanding the dual citizenship of the parties, there was an intention that in some way Australian citizenship was obtained for the children as an indication of a preference, agreement or intention of the parties that the children would necessarily live in Australia.

12. The reality of the circumstances of the parties, even on the father’s case, is that it was agreed that the children would remain in Thailand until they were to commence primary school education in Australia.

13. The mother does not resile from a finding that the parties discussed the family moving to Australia.

14. The father owned property in Darwin at D Street.  In October 2013 he located the vacant allotment at Suburb C.  I accept that the property was shown to the mother, but I do not find that the evidence supports any contention that the mother actively encouraged the father’s plan to purchase the C property and then to develop it.  The purchase of the C property occurred about 18 months after the parties’ commenced cohabitation, having met in Thailand in 2012.

15. The father may well have asked the mother for her opinion as to the development of the C property into a family home.  Exhibit “3” is a chat exchange between the parties in 2014 as follows:-

    Father:this is the open day 

    the house I saw is the inside out house

    have a look while I make tea

    Mother:I’m downloading it

    Father:back soon

    Mother:Oke

    Father:what do you think?

    Mother:The first model, inside out?

    Father:yes

    Mother:Looks great.  Suitable for the C property.

    But if we stay in the outdoor part, we should install fan to prevent sandflies?

    Father:some features…not all 

    I think the C property will need more windows to capitalize on the view

    Mother:Which features that you like? 

    I agree.

    Father:the roof and ceiling structure

    Mother:Would be nice if we can have bedroom looking to the sea and still private

    Father:i agree. 

    bedroom, dining room, bathroom, kitchen

    Mother:Nice shower, half outdoor

    Father:all should have a view

    Mother:Seeing the stars while taking shower

    …

16. The mother agrees that she provided some input into the potential development of the C property but that the decision to purchase the property was that of the father alone.

17. She was not as enamoured with the property as was the father.  She considered that it was too far from Darwin and was only accessible by boat.

18. In 2015 the father arranged for the purchase of a boat marina at L Area.  Whilst in September 2014 he purchased a motor vehicle 1 and a boat to provide access between Suburb C and L area, I do not find that the purchase of the boat and marina was either at the instigation of the mother or was conditional upon her consent and approval.

19. I am satisfied that when the occasion allowed, the mother was made aware of the father’s plans and the purchase of the boat and the marina, but I do not find that she in any way instigated their purchase or the ongoing development of the C property.

20. For the majority of the time the mother remained in Thailand.  She owned and operated a business in M Province, Thailand from 1 June 2007 to 15 December 2018 whereupon she took up employment in the health industry in K City.

21. It appears that the father did not hold paid employment in Thailand from about 2016.  He is not currently employed in Darwin and lives from his financial resources and the management of his share portfolio.  The Court was not provided with any evidence as to the extent of the father’s financial circumstances and whether he is financially self-sufficient or relies upon financial provision from the mother.

22. There is little doubt that the parties were concerned that X obtain appropriate medical treatment and management for her medical condition.

23. The mother is a health care professional.  X had appropriate treatment in Thailand.

24. The mother concedes that she assisted in finding a specialist in Darwin who could manage X’s ongoing care.

25. It is likely that for significant periods the father provided for the children’s primary care.  The father concedes that in late 2017 and early 2018 the decision to move the family to K City was predicated upon a failure of the mother to find work commensurate with her Thai qualifications in Australia.

26. Paragraph 51 of the father’s trial affidavit summarises his position:-

    [The mother] and I anticipated that our move to K City would provide a solution to our childcare problems.  Consequently, we pushed back the timing of our move to Darwin.  We agree to move our relocation back to the end of 2019 as we first agreed around the time of X’s birth.

27. Whilst the mother denies that the parties had any concluded position in respect of the family moving to Australia, the evidence supports a finding that the parties were prepared to do all that was required to keep their options open.

28. The common thread that passes through the warp and weft of the parties’ discussions and plans was the ability of the mother to be able to permanently reside in Australia and obtain employment.  The father may well have cared for the children whilst the mother was at work, but she was demonstrably the breadwinner and maintained a significant parenting role.

29. It was not the father’s position that the plans of the parties involved the children taking up residence in Australia in the absence of the mother.

30. I do not find that there was any stage when the parties held a common intention that their habitual place of residence and therefore that of the children would be Australia.  The option of the family moving from Thailand to Australia was considered, but at all material times it was predicated upon them being an intact family and not the potential for a permanent separation between the mother and the children.

31. That finding does not ignore that the children did not learn the Thai language and that the requirement of the parties that the children become proficient in English was an ongoing difficulty in finding English speaking nannies to care for the children.

32. I also accept that from time to time the mother in concert with the father was concerned as to the provision of education for X, concerned in respect of poor air quality and had a dislike for some of the underlying principles imposed on the Thai population by the government.  Nonetheless, those considerations were subservient to the primary consideration that however desirable, a relocation of the family to Darwin was not viable if the mother was not able to gain residency in Australia and to find employment commensurate with her qualifications.

33. The father argues that the children are now settled in Australia having left Thailand in March 2019.  He does not consider the children were very settled in Thailand in any event.

34. He does concede that up until the children’s departure from Thailand the majority of their lives was not spent living in Australia.

35. The determination as to the children’s habitual place of residence is a matter to be determined following a consideration of the evidence as to the circumstances of the parties’ lives in Thailand and in Australia.

36. At the time that the father travelled with the children to Australia the mother was in secure employment as a health care professional in K City.

37. In November 2018 the parties had purchased tickets for the family to holiday in Australia in May 2019.

38. At the time of the purchase of the tickets the intention was that the family would return to Thailand on or about 26 May 2019.  The purchase of the tickets was not predicated upon any intention by either of the parties or concluded agreement that the family would remain in Australia.

39. I do not consider that the evidence supports a finding that on 13 March 2019 the parties brought forward their plans for the family to relocate to Darwin using the tickets purchased in November 2018.  The father’s bald assertion is that such were the concerns as to pollution levels in K City that the father and the children would travel to Australia in May 2019 without the mother and would remain in Australia with the mother remaining in Thailand.

40. There is no evidence to support that contention and accordingly, I do not accept the father’s proposition of a concluded plan between the parties that by March 2019 the parties held a common intention that the children’s habitual place of residence would be Australia.

41. I find as at 22 March 2019 there was not an agreement that the children and the father would remain in Darwin following their travel to Australia for the paternal grandfather’s funeral.

42. There is no doubt that the mother facilitated the children’s travel to Australia by the provision of a letter of authority.  That does not equate to corroboration of the father’s assertion that following the funeral, he and the children would return to Darwin to establish a home, that they would then temporarily return to Thailand prior to 10 May 2019 with the whole family then travelling to Darwin on 10 May 2019 with the mother utilising the return ticket to Thailand on 26 May 2019.

43. Following the conclusion of the evidence and final submissions having been made, the father was granted leave to re-open his case and rely upon the further evidence as contained in his affidavit filed 24 June 2020.

1. In particular, the father relies upon three outgoing passenger cards dated 3 October 2015, 25 August 2016 and 16 March 2017 that relate to the travel arrangements for X.  The first and third forms were completed by the father in his own handwriting and the second form was completed by the mother in her handwriting and bears her signature.

2. Neither party sought to be called to give further evidence and be the subject of cross-examination.

3. The submission on behalf of the father was that the documents speak for themselves and when considered with the Medicare Declaration add weight to a finding that at all material times the children’s habitual residence was Australia.

4. The Central Authority’s counsel did not challenge the authenticity of the documents and there is a concession that the passenger card dated 25 August 2016 was completed by the mother.

5. The passenger card dated 3 October 2015[6] records X’s details, lists her occupation as “sleeping/eating” and of some importance to the father, records the following assertions:-

   (1)That X is an Australian resident departing Australia temporarily to spend time in Thailand for a period of 12 Months;

   (2)That X resides in the Northern Territory;

   (3)That the main reason for overseas travel is for a “holiday”.

   [6] Affidavit of the father filed 24 June 2020, annexure “D”

6. The passenger card dated 25 August 2016[7] and completed by the mother records the following:-

   (1)That the child is an Australian resident departing temporarily from Australia to spend time in Thailand for a period of six months;

   (2)That the child resides in the Northern Territory;

   (3)That the main reason for overseas travel was “other”.

   [7] Affidavit of the father filed 24 June 2020, annexure “E”

7. The passenger card dated 16 March 2017[8] records the following:-

   (1)That the child is an Australian resident departing temporarily for Thailand for a period of 28 days;

   (2)That the child resides in the Northern Territory;

   (3)That the main reason for overseas travel is for a “holiday”.

   [8] Affidavit of the father filed 24 June 2020, annexure “F”.

8. The submission of the father’s Queen’s Counsel is that when taken together, but in particular the passenger card completed by the mother, the passenger cards provide corroboration for the contention that the settled intention of the parties was such that Australia should be considered as the children’s habitual place of residence.

9. Counsel for the Central Authority submitted that the passenger cards were irrelevant to the consideration of habitual residence and could not be taken as informing the parties’ intention as to where the children lived.

10. The passenger cards signed by the father are self-serving documents.  There is no evidence that the mother participated in the information contained in the passenger cards completed by the father.  Whilst she is not able to resile from the information on the passenger card completed by her, the weight that can be placed upon an assertion that X was an Australian resident departing temporarily from Australia to spend time in Thailand must be tested against the weight of evidence.

11. It was not the father’s evidence that from the date of X’s birth the parties had a settled intention that X, and subsequently Y, would be habitually resident in Australia.

12. At best, the father’s position was that X and then Y would live in Thailand, but that the family would relocate to Darwin to coincide with X commencing her primary school education.  As matters transpired, that did not happen.

13. Moreover, any suggestion that X lived in the Northern Territory and holidayed in Thailand is contrary to the evidence.  In fact, the number of days spent by X in Australia for the first 21 months of her life numbered 47 and taking into account a further 32 days spent in Australia in December 2017, X spent a total of 79 days in the first 30 months of her life in Australia.

14. Even taking the father’s evidence at its highest, he does not contend that the time X and then later Y spent in Thailand was for a holiday.

15. Whilst not the subject of submissions, consideration should be given to the treatment of the representation made by the mother on the outgoing passenger card that X was a resident of Australia.  A party must come to the Court with clean hands (see Re Emery Investments Trust (1959) Ch 410). The proposition that a Court should be reluctant to allow a party to resile from their own act or representation was considered by Goldstein J In the Marriage of Elias (1977) FLC 90-267.

16. Chisholm J in Jordan v Jordan (1997) FLC 92-736 considered the application of the “Elias principle” and found that it was not merely a rule or a presumption about credibility but rather should be used to prevent a party asserting something in proceedings that was asserted to the contrary at an earlier time.

17. More recent decisions have suggested that there is a greater degree of flexibility in the application of the “Elias principle” and the Court is permitted to exercise its discretion.

18. I do not consider that the mother should be bound by her representation on the outgoing passenger card dated 25 August 2016.  The information contained in the card did not reflect the then living arrangements for X.  She did not live in Australia but rather, at the time lived in Thailand.  She was not holidaying in Thailand upon her return but rather she was returning to her home.

19. It is also the case that X and then later Y held dual citizenship for both Thailand and Australia.

20. In determining habitual residence, the Court must consider the entirety of the circumstances surrounding the living arrangements of a child or children.  There is a shift away from the consideration of shared parental intention as being the sole or major determining factor in deciding habitual residence.  The emphasis should be to consider habitual residence from the child’s perspective.  In any event, the habitual residence of a child can change from one period to the next depending upon the circumstances that exist.

21. I am mindful that the father considers the weight that could be attributed to the passenger cards is strengthened by a consideration of the purported declaration of the mother in the application for the children to be registered for Medicare.

22. Similar considerations apply.  It could not be said that whatever opportunities existed for the parties to access health and other services in Australia, that did not derogate from the parties’ ability in accessing not dissimilar entitlements in Thailand.

23. It is a reasonable finding that until the parties made a decision about habitual residence, they were keen to keep their options open without opting for one country or another.

24. As discussed, I am satisfied that for the purposes of sub-regs 16(1A)(e)(i) and (ii), at the time of the children’s retention in Australia the mother was exercising her rights of custody and would have exercised those rights if the children had not been retained.

25. Accordingly, the Central Authority has satisfied me that the children’s retention in Australia was wrongful within the meaning of sub-reg 16(1A).  I am obliged to make a return order as requested by the Central Authority subject only to the applicability to any of the exceptions contained in sub-reg 16(3).

26. The father relies upon the following exceptions to a return order as contained in sub-reg 16(3) of the Child Abduction Regulations:-

    (3)A court may refuse to make an order under subregulation (1) or (2) if a person opposing return establishes that:

    (a)the person, institution or other body seeking the child’s return;

    (i)…

    (ii)had consented or subsequently acquiesced in the child being removed to, or retained in, Australia; or

    (b)there is a grave risk that the return of the child under the Convention would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation; or

    (c)each of the following applies:

    (i)the child objects to being returned;

    (ii)the child’s objection shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes;

    (iii)the child has attained an age and a degree of maturity at which it is appropriate to take account of his or her views;

    (d)…

27. The exceptions provide a basis upon which a respondent may resist an application for a return order despite the applicant establishing the factors referred to in sub-reg 16(1) of the Child Abduction Regulations (and by necessary corollary, by establishing that a wrongful removal or retention of a child has occurred with reference to five factions in sub-reg 16(1A) of the Child Abduction Regulations.

28. I am not obliged to refuse to make a return order merely because the father has established an exception within the meaning of sub-reg 16(3) of the Child Abduction Regulations due to the residual discretion provided for by sub-reg 16(5).

Regulation 16(3)(a)(ii) – Consent and acquiescence

1. The exception based on consent or subsequent acquiescence is pressed by the father in his submissions.

2. The father’s approach is firstly to argue that the mother had given consent to the father travelling with the children to Australia to attend at the paternal grandfather’s funeral and then for the children to remain in Australia as their place of residence.  In the alternative, the father contends that the mother acquiesced to the children residing in Australia permanently pursuant to the longstanding agreement between them.

3. The father’s evidence in relation to acquiescence will need “to be unambiguous and cogent if the Court is to accept it to the requisite standard of proof”.[9]

   [9]State Central Authority & Sigouras (2007) 37 Fam LR 364 at 418 [149] (Bennett J)

4. Acquiescence is a question of the actual subjective intention of the mother, not the father’s perception of her intentions.[10]

   [10] Re H (Minors) (Abduction: Acquiescence) [1998] AC 72; [1997] 2 ALL ER 225 at AC 87-90; ALL ER 235-237 (Lord Browne-Wilkinson) quoted in State Central Authority & Sigouras (2007) 37 Fam LR 364 at 418 [150] (Bennett J).

5. The actual subjective intention of the mother can be inferred from the conduct and actions of the parties.  The father bears the burden of proof in establishing actual subjective intention of the mother.[11]

   [11] The respondent bears the burden of proof with all of the exceptions contained in sub-reg 16(3) of the Child Abduction Regulations

6. The test for subreg 16(3)(a)(ii) is as follows:-

   Where the words or actions of the wronged parent clearly and unequivocally show and have led the other parent to believe that the wronged parent is not asserting or going to assert his right to the summary return of the child and are inconsistent with such return, justice requires that the wronged parent be held to have acquiesced.[12]

   [12]Re H (Minors) (Abduction: Acquiescence) [1998] AC 72 at 90.

7. The mother rejects any suggestion that she gave consent to the father retaining the children in Australia.

8. The father considers that the parties harboured a longstanding plan to relocate the family to Australia.  He agrees that even on his case the plan changed and the date upon which the parties originally intended to leave Thailand had altered to accommodate their personal circumstances.

9. The mother concedes that the possibility of a move to Australia was considered and to the extent that actions were undertaken that might one day facilitate the family taking up residence in Australia, there was no concluded agreement.

10. The father refers to a discussion with the mother on or about 13 March 2019 concerning the worsening air pollution in K City.  It is his evidence that he suggested to the mother that the parties bring forward their plans to relocate to Darwin by using the pre-existing flight bookings that had been earmarked for the family holiday in May 2019.  The father contends that the mother agreed that it was now time for the children to move to Australia.  The mother does not accept that she indicated any agreement or approval for a permanent relocation of the children to Australia.

11. The mother highlights what I consider to be the critical issue namely, the mother’s ability to come to Australia.  The father agrees that there were efforts made to explore whether the mother could obtain employment but they were unsuccessful.  It is not controversial that the ability of the mother to remain in Australia and secure appropriate employment commensurate with her qualifications was an important factor. 

12. The father argues that the parties understood that the mother might not be able to find employment in Australia and that the agreement was such that, the mother consented to the father taking the children to Australia and that the father and the children would then visit the mother in Thailand and she would visit the children in Darwin as was practicable.

13. The father concedes that the mother had just started her job as a public servant in K City and that inquiries were made to explore whether the mother could set up a remote office from Australia servicing clients in Thailand.  The concept of a remote office was not an option and I accept the mother’s evidence that it was problematic in respect of both the Australian and Thai authorities.

14. The father was informed that the paternal grandfather had passed away in March 2019.  I accept that the mother agreed that the children should accompany the father to Australia.  The father contends that this was corroboration for the implementation of the planned change in the residence of the children, whereas the mother agreed for the children to accompany the father in the belief that following the funeral they would be returning at some stage to Thailand.

15. The father accepts that there were discussions between the parties as to when he and the children would be returning to Thailand, however, he considered that they were predicated on the agreement of the parties that the children would be returning to Thailand only to pick up their personal belongings before then returning to Australia.

16. The father bears the burden of establishing that the mother gave her consent to the permanent relocation of the children to Australia.

17. I find that the father has failed to establish on the balance of probabilities that the mother gave her consent to the permanent relocation of the children from Thailand to Australia.

18. The father further argues that following the arrival of the children in Australia the mother thereafter acquiesced to the children residing permanently in Australia.  The mother rejects the father’s proposition.

19. The father and the children left Melbourne and travelled to Darwin on 4 April 2019.

20. On 13 March 2019 the mother forwarded an email to the father titled “My apology to you and our kids” (Exhibit “2”).

21. The content of the email is upon first consideration an apology for what the mother considers was her own poor conduct.

22. She concedes that she was horrible and did not deserve forgiveness.  She accepts that at times she was aggressive and has been prone to anger.  She appears to accept that her conduct had the potential and on occasion the effect of sabotaging the father’s discipline with the children.

23. The father relies upon the email as a confession and admission by the mother that she was disconnected from the day to day parenting of the children and within the home was a disruptive influence.

24. The exhibit is relied upon as evidence of the mother’s recognition that the children’s interests would be served in the care of the father.

25. The mother conceded that she forwarded the email but I am not persuaded from her evidence that significant weight should be given to the document or that strong conclusions can be drawn.

26. It is likely that the father provided the children’s primary care.  He was not employed, whereas the mother was the primary breadwinner for the family.  I also accept that the parties had difficulty in finding an appropriate nanny to care for the children.

27. The email may have some focus in terms of a parenting application or a determination of issues in respect of parental responsibility, but I do not consider that it assists in a determination of consent.  The email was exchanged prior to the expected early departure of the father and the children to Australia following the news of the death of the paternal grandfather.

28. On 4 April 2019 the mother forwarded the following email to the father (Exhibit “7”):-

    My dear Mr Adlin.

    Thank you for taking good care of the kids, rescuing them from all the pollution here.

    As I am applying for the visa,

    1.I’d like to know you guys’ travelling plans.

    The dust situation here is still bad.

    Will you guys come back before 10 May?  You can re-schedule all the tickets and I can book the tickets myself for this flight.

    As I need to put the information about family members travelling/not travelling with me to Australia.

    2.         Your official Australian address and letter of invitation to support accommodation for me there.

    I have an appointment to apply for the visa on Monday 8 April. (booking required for visa application since Nov. 2017) so my schedule to R Region is 6-7 April.

    Knowing that you must have been very busy with everything.  My thoughts are with you.

    Missing you guys a lot.

    [The mother]

29. The father relies upon the email as an indication of the mother’s consent to the children remaining in Australia.  I do not consider that the contents of the email go further than a confirmation of the mother’s position that whilst she anticipated there might be some delay arising out of the poor air quality in K City, nonetheless the expectation was that the father and the children would be returning to Thailand and then the family would return to Australia for the anticipated holiday.  There is nothing that can be read from or into the email that supports a contention that the mother was consenting to the father’s retention of the children.

30. The father places significant emphasis on his email to the mother of 5 April 2019, being Annexure “A20” to his affidavit filed 3 March 2020 (Exhibit “8”), as corroborative of the mother’s consent and acquiescence to the children remaining in Australia.

31. The entire contents of the email are as follows:-

    My dear [the mother],

    1As I reached our luggage trolley outside Darwin airport, I turned back to see our beautiful children in the overturned pram with their heads on the road, underneath the taxi that I was about to load them into.  X has for some time been developing methods to make Y scream in order to control our attention.  It didn’t take her long to work out that using her legs to push Y against the front of the pram was a really good way to achieve this objective.  I left the pram for less than a minute, unaware that this behaviour could tip the pram over…Have I really taken good care of our kids?

    2How many times have I come back from Australia to find X’s behaviour significantly worse than when I left Thailand?

    3How many times when this happened did I tell you that if this happened again, I would remove X from your influence?

    4Do you agree that since my previous 3 week trip to Australia this year, that it is clear that X’s need to control the parent-child relationship is worse than it has ever been?

    5Do you agree that X’s resulting refusal to follow instructions and her incessant desire to provoke negative attention now presents an unacceptable level of risk of serious injury to both herself and Y?

    6If I was to continue allowing you to promote this behaviour in X, could I really consider myself to be taking good care of our children?

    7My proposal is to keep X away from your influence until her behaviour is rectified.  During this time I hope that you will solve your problem in a way that allows us to live together as a family.  Do you agree to this proposal?

    8If you accept my proposal, I cannot see us returning to Thailand before the 10^th of May.  This is based on my previous experience of the time required to rectify these behaviours in X, that have been cultivated during my absence.  Do you agree that rectifying these behaviours takes a lot more time and effort than creating them?

    I wait to receive your reply to these questions.

    [The father]

1. The mother responded on the same day and agreed that there may be some advantage in X being given an opportunity to settle her behaviour before the family returns to Thailand.

2. The father had an opportunity to reflect upon the contents of the email and conceded that he was not proud of the contents of the document and the manner in which it was expressed.

3. The father even conceded that far from the difficulties (if there were any) with respect to X, his conduct may well have adversely impacted on the child.

4. It must be remembered that this discussion is in the absence of any evidence that the purported concerns of each of the parties in respect of the behaviour of X was a demonstrable feature of the child’s presentation.

5. In any event, the issues are matters for a consideration of the parenting issues as between the parties.

6. Even taken at its highest, the father’s email evinces a clear intention that once the child has settled her behaviour then the family would return to Thailand. I have already found that the father has not established that the mother gave consent to the children remaining permanently in Australia and accordingly, the contents of the email takes the matter no further than presenting the father’s intention that at least at that stage, once the air pollution in K City lessened, the family would thereafter return to Thailand.

7. I am able to find that whatever the previous intention of the father may have been, certainly as at 5 April 2019 his intention was very much to retain the children in Australia and not return them to Thailand.

8. The mother did not travel to Australia in May 2019 but rather, travelled on a tourist visa from 10 to 15 September 2019.

9. The father provided an invitation letter to the mother to assist in her visa application.

10. On 23 August 2019 the father sent a text message to the mother inquiring as to why there was a delay in the tourist visa being approved.

11. The father thought that there may be a delay following his advice to Centrelink that the parties had separated.

12. The mother did not accept that she considered the parties had separated.

13. The mother was aware of the children remaining in Darwin but not on the basis of an agreed plan that their father would not return the children to Thailand.

14. The father acknowledges that during the visit by the mother in September 2019 the father concedes that he no longer agreed for the children to return to Thailand to visit the mother at any time in the foreseeable future.  The catalyst for the father’s change in attitude was his belief that the mother had been concealing significant grievances with him and that he was disappointed that she was not prepared to communicate her concerns.  The result was a determination by the father that the children would remain in Australia.

15. I do not accept that the decision by the father to retain the children in Australia made in September 2019 was something that was anticipated or reasonably foreseeable by the mother.

16. The impediment to the mother travelling to Australia in the short term was her employment.  It was agreed between the parties that the mother would need to retain her employment as it was the only viable source of income.

17. The father attempted to demonstrate that the mother lost interest in the children and as a result it could be considered that her conduct was tantamount to acquiescence of the children remaining in Australia.

18. A more straightforward finding on the evidence is that the mother found out on 15 September 2019 that the father would not be returning the children to Thailand.

19. The father forwarded an email to the mother on 22 May 2019 advising her that in his view progress appears to have been made in X’s oppositional behaviour.

20. The father laments that the mother’s support during the difficult time with X would have been important.

21. He sums up the position in the following extract from the email (Exhibit “10”):-

    Your recent reaction to my attempts to discuss your issue around setting boundaries is not helping to improve our family’s situation.  It’s sad that you would again return to your cycle of denial to the same issue which you have previously admitted to with declarations like “I am trying my best to fix myself” and “solve my problem”.  I know that this time apart from X and Y must be extremely challenging for you as it is for all of us here in Darwin.  We here are all missing you and I hope that you will quickly move past this phase of denial so that we can work together to fix it.  This Jippy pattern does nothing to help to improve this situation, it will only make it worse.  Our family needs you my darling [the mother] to move past the maladaptive patterns of your mother if we are to solve this problem.

    When you can successfully move past this Jippy shit, I would like you to come to Darwin.  Did you continue with the visa application?  When can you get time off work and for how long?  Let me know what you think, I will need to make a decision about what to do with the existing air tickets which were for us all to return to Bangkok on this Sunday.

    Love

    [The father]

22. The father’s email readily enables a finding to be made that it was reasonable for the mother to expect that the family had not separated and that they were eagerly awaiting her being able to join them in Darwin.

23. The father now concedes that his reference to the maternal grandmother was offensive and unnecessary.

24. It is not contested that there were difficulties in the parties’ relationship, but that they were not insurmountable and the indication that the father was not prepared to return to Thailand was made clear to the mother on 15 September 2019.

25. The mother agrees that the parties discussed the ongoing medical treatment of X and her consent to surgery being performed in keeping with the treatment plan of the Darwin based specialist.

26. On 23 December 2019 the mother advised the father that she no longer was prepared for the scheduled surgery to take place in Darwin but rather, it could occur when the children returned to Thailand.

27. The mother acknowledges that on 1 November 2019 she advised the father that she would wish to separate and confirmed her email of 10 October 2019 that the children should return to be with her in Thailand.

28. The parties underwent some initial discussions in respect of a mediation but it was soon thereafter that the mother made contact with the relevant authorities necessary to commence the Hague Convention application.

29. The father refers to the following arrangements being put in place for the children consequent upon them taking up residence in Darwin in April 2018:-

    (1)The children regularly attended a pre-school story-time at P Library.

    (2)The children regularly attended a toddler story-time at the N Library.

    (3)The children commenced swimming lessons.

    (4)The father made arrangements for the children to be enrolled in a local primary school.

    (5)The father made a claim for child care subsidy in June 2019.

    (6)The children commenced child care at an early learning centre in Darwin and remained until 4 October 2019 whereupon they commenced at a different service.

    (7)X was enrolled at Q Preschool in late 2019 and commenced preschool on 3 February 2020.

    (8)The children have regular electronic communication with their paternal grandmother who resides in Victoria.

30. The father is aware that the mother seeks the return of the children to Thailand.  The mother conveyed that advice to the father on 10 October 2019 following the father’s clear indication that the children would not be returning to Thailand.

31. I find that the mother took all reasonable steps to bring the application for the return of the children as expeditiously as was reasonable in the circumstances.

32. The mother still believed that the father may well return the children, although she accepted that there would be a delay in that occurring.  The parties explored the possibility of a resolution of their differences by mediation but upon that process gaining no traction, the mother commenced the current proceedings.

33. I do not consider that the father’s evidence in relation to the purported acquiescence of the mother is “unambiguous and cogent”.

34. As such, the father has failed to establish that the mother either consented or acquiesced to the wrongful retention of the children in Australia and has failed to establish the matters referred to in the exception pursuant to sub-reg 16(3)(a)(ii) of the Child Abduction Regulations.

Sub-regulation 16(3)(b) – Grave risk

1. The high watermark of the father’s position in respect of the children being at grave risk of harm if they were to return to Thailand is predicated upon a risk of physical harm, a risk in respect of the COVID-19 virus and a risk to their psychological and emotional health by being separated from the father in circumstances where he considers he has been her primary caregiver.

2. The father has the ability to return to Thailand.  There is no suggestion that he cannot.

3. No evidence was presented as to any issues in respect of COVID-19 and whilst I can take judicial notice of the broad impact of the COVID-19 pandemic on Thailand and Australia, there is no evidence that the children would be at particular or unusual risk in Thailand.

4. I do not accept that the mother personally presents as an unacceptable risk to the children or that they would be placed in grave risk of harm if they returned to Thailand.

5. The purpose of a Hague Convention application is not to determine the future parenting arrangements in respect of the children but rather, that the children are returned to their habitual place of residence, which in this case is Thailand.

6. The father has in no way demonstrated that Thailand is incapable of protecting its citizens from threatened or actual violence.  In the words of Nicholson CJ and Fogarty J in Murray v Director, Family Services, ACT (1993) FLC 92-416 at 80-259:-

   … New Zealand has a system of family law and provides legal protection to persons in fear of violence which is similar to the system in Australia. 

   It would be presumptuous and offensive in the extreme, for a court in this country to conclude that the wife and children are not capable of being protected by the New Zealand Courts or that relevant New Zealand authorities would not enforce protection orders which are made by the Courts. 

   In our view … the circumstances in which Regulation 16(3) comes into operation should be largely confined to situations where such protections are not available…

   For us to do otherwise, would be to act on untested evidence to thwart the principal purposes of the Hague Convention, which are to discourage child abduction and, where such abduction has occurred, to return such children to their country of habitual residence so that the courts of that country can determine where or with whom their best interests lie.

7. The Court has been assisted by the reliance by each of the parties on evidence from legal practitioners in Thailand with purported experience in family law.

8. I do not propose to in any way compare or consider the affidavit evidence that each of the parties have accepted can be relied upon but it speaks of a functioning family law system that is able to determine parenting issues in respect of each of the parties.

9. I consider that the reliance by the father upon an assertion that the children will be at risk of harm if returned to Thailand is an issue only faintly pressed.

10. I find that the mother did not abandon, acquiesce or agree to the father retaining the children in Australia and as such the father has failed to establish the matters referred to in the exception to a return order pursuant to sub-reg 16(3)(b) of the Child Abduction Regulations.

11. It was not suggested that the children have expressed any wish or objection to their return.

12. It does appear however that the children are missing their mother.  The children have obviously not attained an age and a degree of maturity where it would be appropriate for the Court to take into account their views.

Conclusion

1. Given my findings concerning the inapplicability of any of the exceptions to a return order contained in sub-reg 16(3), I do not consider that I need to engage with the residual discretion as provided for in sub-reg16(5) of the Child Abduction Regulations.

2. In summary, the Central Authority has established the matters referred to in sub-regs 16(1) and 16(1A) of the Child Abduction Regulations and my obligation is therefore to make the requested return order.

3. For all of the above reasons, I find the children have been wrongly retained in Australia and are to be returned to Thailand as soon as possible.

4. I give liberty to the parties to relist the matter in respect of any ancillary orders

   as may be required to facilitate the children’s return.

I certify that the preceding two hundred and twenty two (222) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 22 July 2020.

Associate: 

Date:  22 July 2020