Northern Territory Central Authority & Adlin (No. 2) - [2021] FamCA 200

FAMILY COURT OF AUSTRALIA
Northern Territory Central Authority & Adlin (No. 2) [2021] FamCA 200

File number(s): DNC 27 of 2020

Judgment of: WILLIAMS J

Date of judgment: 15 April 2021

Catchwords: FAMILY LAW – CHILD ABDUCTION – HAGUE CONVENTION – Children brought to Australia from Thailand – Consideration of the children’s habitual residence at the time of retention – Held, jurisdictional facts established and children’s retention in Australia was wrongful – Whether mother acquiesced to the children remaining in Australia – Held, the mother did not acquiesce – Grave risk of intolerable situation considered – Held, children not exposed to intolerable situation – Family Law Act 1975 (Cth) s 111B – Family Law (Child Abduction Convention) Regulations 1986 – reg 16 – Return Order

Legislation:
Family Law Act 1975 (Cth) s. 111B

Family Law (Child Abduction Convention) Regulations 1986 (Cth) regs 15(2), 16, 26

Cases cited:
De L v Director General, NSW Department of Community Services [1996] HCA 5

DP v. Commonwealth Central Authority; JLM v. Director–General, NSW Department of Community Services [2001] HCA 39

HZ & State Central Authority [2006] FamCA 466

In re R (Children) (Reunite International Child Abduction Centre and others intervening) [2016] AC 76

LK v Director-General, Department of Community Services [2009] HCA 9

McCall & McCall; State Central Authority (Applicant); Attorney-General (Intervenor) (1995) FLC92-551

Police Commissioner of South Australia v Temple (1993) FLC 92-365

Re A & Anor (Minors) (Abduction: Acquiescence) [1992] 1 All ER 929

Re C (A Minor) (Abduction) (CA) [1989] 1 FLR 403

Re C. (Abduction: Grave Risk of Physical or Psychological harm) [1999] 2 FLR 478

Re C. (Abduction: Grave Risk of Psychological Harm) [1999] 1 FLR 1145

Re H (Minors) [1998] AC 72

Re E. (A Minor) (Abduction) [1989] 1 FLR 135

Secretary, Department of Family and Community Services & Zadeh [2017] FamCA 44

State Central Authority & Handbury [2019] FamCA 668

State Central Authority & Metin [2020] FamCA 535

Walpole & Secretary, Department of Communities and Justice [2020] FamCAFC 65

Wenceslas & Director-General, Department of Community Services [2007] FamCA 398

Zotkiewicz & Commissioner of Police (No.2) [2011] FamCAFC 147

Number of paragraphs: 168

Date of hearing: 25-26 February, 12 March 2021

Place: Melbourne

Counsel for the Applicant: Ms Olsson

Solicitor for the Applicant: Margaret Romeo

Counsel for the Respondent: Ms Christie SC

Solicitor for the Respondent: Hague Convention Legal Practice
ORDERS

DNC 27 of 2020

BETWEEN:
NORTHERN TERRITORY CENTRAL AUTHORITY

Applicant

AND:
MR ADLIN

Respondent

ORDER MADE BY:

WILLIAMS J

DATE OF ORDER:

15 APRIL 2021

THE COURT ORDERS THAT:
1.The children, X born … 2015 and Y born … 2017 (“the children”) be returned to the Kingdom of Thailand pursuant to the Family Law (Child Abduction Convention) Regulations 1986.
2.The respondent father forthwith:
(a)advise the applicant of his address in Suburb S, or any other address where the children currently reside;
(b)deliver the children’s Australian passports to the Darwin registry of the Family Court of Australia; and
(c)deliver the children to the mother at her current residential address in Darwin.

3.In the event the father does not comply with paragraph 2(c) hereof, the applicant be at liberty to apply for an urgent recovery order for the return of the children to the mother or her nominee.
4.The Australian Central Authority notify the Thai Central Authority of the children’s date of departure.
5.Pending the children’s departure from Australia for return to Thailand, the respondent continue to be restrained and an injunction issue, restraining him from causing or permitting or suffering the children:
(a)to be removed from the Commonwealth of Australia and in this regard all officers of the Australian Federal Police be directed to enforce, if required, the provisions of such order;
(b)to apply for any further or other passport or passports for the children;
(c)to be removed from the Northern Territory;
(d)prior to compliance with paragraph 2(c) of these orders, to reside other than at his present residential address or any other residence, at which the applicant has agreed the said children may reside.

6.Paragraph 5 of these orders remain in force, until a letter from the applicant is received by the Australian Federal Police advising of the travel arrangements made for the children’s return to Thailand AND IT IS REQUESTED that the Australian Federal Police remove the name of the children, X born … 2015 and Y born … 2017 from the Airport Watch List upon presentation for boarding the nominated flight to Thailand on the date nominated for the said travel.
7.A sealed copy of these orders be provided forthwith to the Marshal of the Family Court of Australia, the Commissioner of the Federal Police and the police forces and services of the states and territories of the Commonwealth of Australia and the Secretary of the Commonwealth Department of Foreign Affairs and Trade.
8.The Marshal of the Family Court of Australia and the Commissioner and all federal agents of the Australian Federal Police and officers of the police forces and services of the states and territories of the Commonwealth of Australia are requested and empowered to take all necessary steps to give effect to these orders.
9.Liberty is reserved to the parties to apply urgently in relation to the implementation of these orders.
10.Otherwise, the Application of the Northern Territory Central Authority be and is hereby dismissed.

AND THE COURT NOTES THAT:
A.It is requested that the Family Consultant, Ms T, if available to do so, explain to the children that they will be returning to Thailand with their mother.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
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).
REASONS FOR JUDGMENT
Williams J
INTRODUCTION

This is an application by the Northern Territory Central Authority (the NT Central Authority) filed on 17 January 2020 seeking the return to Thailand of the children, X born in 2015 and Y born in 2017, pursuant to the provisions of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”).
This is the second hearing of the application for return of the children. The first hearing ordered the return of the children to Thailand. The respondent successfully appealed and the matter was remitted for rehearing.
The respondent, Mr Adlin is the father of the children. The requesting parent, Ms B, who lives in Thailand, is the children’s mother. The relevant regulations are made pursuant to s 111B of the Family Law Act 1975 (Cth), to 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, which is generally referred to as the Hague Convention.
The Convention provides a framework for the prompt return of children, where it is alleged there has been a wrongful removal or retention of a child from his/her country of habitual residence. Both Australia and Thailand are signatories to the Convention.
Upon establishment of the pre requisites to a return order, the jurisdictional facts, as prescribed by reg 16(1A), there are limited circumstances or exceptions to return which may be relevant in response to an application to return the child to his/her country of habitual residence. Those regulatory exceptions must be read in the context of the fundamental obligation to return the child.
If the court is satisfied on the requisite standard of proof that one or more of the regulatory exceptions to return are made out, then the court has a discretion to return the child. The matters relevant to the exercise of that discretion include some consideration of the best interests of the child: HZ & State Central Authority [2006] FamCA 466.
The Regulations provide as follows:
Reg 16 Obligation to make a return order
(1)      If:
(a)an application for a return order for a child is made; and
(b)the application (or, if regulation 28 applies, the original application within the meaning of that regulation) is filed within one year after the child’s removal or retention; and
(c)the responsible Central Authority or Article 3 applicant satisfies the court that the child’s removal or retention was wrongful under sub-regulation (1A);
the court must, subject to sub-regulation (3), make the order.
(1A)For sub-regulation (1), 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.
(2)      If:
(a)an application for a return order for a child is made; and
(b)the application is filed more than one year after the day on which the child was first removed to, or retained in, Australia; and
(c)the court is satisfied that the person opposing the return has not established that the child has settled in his or her new environment;
the court must, subject to subregulation (3), make the order.
(3)A court may refuse to make an order under sub-regulation (1) or (2) if a person opposing return establishes that:
(a)       the person, institution or other body seeking the child’s return:
(i)was not actually exercising rights of custody when the child was removed to, or first retained in, Australia and those rights would not have been exercised if the child had not been so removed or retained; or
(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; or
(d)the return of the child would not be permitted by the fundamental principles of Australia relating to the protection of human rights and fundamental freedoms.
(4)For the purposes of sub-regulation (3), the court must take into account any information relating to the social background of the child that is provided by the Central Authority or other competent authority of the country in which the child habitually resided immediately before his or her removal or retention.
(5)The court is not precluded from making a return order for the child only because a matter mentioned in sub-regulation (3) is established by a person opposing return.
The Regulations require that applications for return of children, when it is alleged that they have been wrongfully removed from their habitual residence, are dealt with expeditiously and as quickly as proper consideration of each matter permits (reg 15(2)).
In De L v Director General, NSW Department of Community Services [1996] HCA 5, the High Court cautioned against the need for expedition resulting in insufficient hearing of issues in dispute. Some disputes are appropriate for summary determination and others require cross-examination.
In this case, Counsel for the NT Central Authority cross-examined the father, and Senior Counsel for the respondent cross-examined the mother. Both Counsel cross-examined the family consultant, Ms T.
The NT Central Authority asserts that the children have been wrongfully retained in Australia since October 2019 in accordance with regs 16(1) and (1A), on the following basis:
(a)the application was made within one year of the children’s retention;
(b)the children are under the age of 16;
(c)the children were habitually resident in Thailand as at the date of their retention;
(d)the requesting parent, the mother, has rights of custody in relation to the children, which she was exercising immediately prior to the children’s retention; and
(e)the retention of the children was in breach of the mother’s rights of custody.
The father disputed that the children were habitually resident in Thailand as at the date of the retention, but otherwise conceded the remaining jurisdictional facts.
If the Court found that the children were habitually resident in Thailand at the date of retention, and therefore all the jurisdictional facts were established, then the father relied on the exceptions to return in reg 16(3)(a)(ii) and 16(3)(b), namely:
(i)the mother had acquiesced to the children remaining in Australia; and
(ii)a return would place the children in an intolerable situation.
Onus of proof
The NT Central Authority bears the onus of proving the jurisdictional facts which establish that the retention was wrongful: DP v. Commonwealth Central Authority; JLM v. Director–General, NSW Department of Community Services [2001] HCA 39. In this case that is the whether the children were habitually resident in Thailand as at October 2019, the date of retention.
The respondent bears the onus of proof to establish the regulatory exceptions to return. They are acquiescence and intolerable situation.
Preliminary Matters
The hearing was conducted electronically via Microsoft teams, due to the COVID-19 Pandemic.
An electronic hearing enabled both the requesting parent and the respondent to participate seamlessly in the proceedings.
I wish to express my appreciation to both Counsel for the professional and courteous manner in which the proceedings were conducted.
Background
The father is aged 52, is an Australian citizen and resides in Darwin. The mother is aged 43 and is a citizen of and resides in Thailand. The children are dual citizens of Thailand and Australia.
The parents met in Thailand in 2012 and commenced living together in July 2012 as asserted by the father or at the beginning of 2013 as asserted by the mother. They underwent a religious marriage ceremony in 2014 but did not register the marriage. According to the father, they separated in April 2019 and according to the mother, they separated in September 2019.
The children were born in Thailand in 2015 and 2017. The family lived in R Region until moving to K City in December 2018, to enable the mother to accept employment in K City.
The father is a professional but since 2016 had not been in paid employment, until he commenced work in Darwin in July 2020. The mother is a health care professional.
Both parties agree that the family members travelled between Thailand and Australia on numerous occasions, whilst they were living in Thailand.
Between 25 June 2012 and March 2019, the father travelled to Australia for significant periods of time on 25 occasions, as summarised in Exhibit 6 to his affidavit filed 19 February 2021.
Between 23 November 2013 and 16 March 2017, the mother travelled to Australia on five occasions. Between 24 September 2015 and 28 March 2019, X travelled to Australia on five occasions, and between 15 February 2019 and 28 March 2019, Y travelled to Australia on two occasions.
When X was in Australia, she sought treatment from Australian doctors for a medical condition.
Whilst the family lived in Thailand, the mother was the primary breadwinner subsequent to the father ceasing work after X’s birth. The father asserts that he was the primary care of the children since their birth, although he concedes that he was assisted by Thai nannies. The mother disputes the father’s version of her lack of involvement with the children.
In November 2018, the family purchased tickets for a holiday in Darwin between 10 May 2019 and 26 May 2019.
In March 2019, the paternal grandfather died in Melbourne. Both parents agreed for the children to accompany the father to Melbourne to attend their grandfather’s funeral. The father asserts that there were various discussions between the parents about when and how the children would return to Thailand and utilisation of the tickets which had been previously booked for a holiday.
On 28 March 2019, the father and the children flew from Bangkok to Melbourne. On 4 April 2019, the father and the children flew to Darwin where they have remained since that date.
During that period there was email communication between the parents and the mother had somewhat limited communication with the children.
The mother travelled to Darwin to spend time with the father and children on 10 September 2019, prior to departing for Thailand on 16 September 2019.
Subsequent to her return to Thailand, the mother forwarded the father an email on 10 October 2019, seeking the children’s return to Australia.
On 11 October 2019, the following day, the father forwarded an email to the mother, which did not respond to her request to return the children, but rather asked for the mother to financially support the children in Darwin.
The mother contacted the Thai Central Authority in November 2019 and the first application seeking return of the children to Thailand was filed in Darwin on 17 January 2020.
Evidence and Documents relied upon by the parties
The NT Central Authority relied upon the following documents:
(a)Amended Form 2 Application initiating proceedings filed on 7 January 2021;
(b)the application for return of the children signed by the mother on 16 December 2019;
(c)affidavits of Ms B filed 17 January 2020, 29 January 2021 and 22 February 2021;
(d)affidavits of Mr U filed 17 January 2020 and 17 February 2021;
(e)Hague Convention report of family consultant Ms T dated 3 February 2021.
The respondent relied upon the following documents:
(a)Amended Form 2A Response filed 21 January 2021;
(b)affidavit of Mr Adlin filed 19 February 2021;
(c)affidavit of Ms V filed 17 February 2021;
(d)affidavit of Ms W sworn 4 November 2020 and filed 16 November 2020 in NOA 53 of 2020.
At the commencement of the trial, Counsel for the NT Central Authority objected to the affidavit of Ms Z filed 19 February 2021, on the basis of relevance. Ms Z is the assistant director of a child care centre that the children attended commencing 7 October 2019. Her observations of the children subsequent to that date and her various opinions about the children are not relevant to this application. After hearing submissions from both Counsel that objection was upheld.

Counsel for the NT Central Authority also objected to the affidavit of Ms W. That objection was resolved by Counsel by consent, by the joint tender of an Agreed Statement of Facts which was tendered as exhibit A & R 1.
Both Counsel tendered documents during the trial as follows:

Exhibit Number

Exhibit Description

A&R 1

Joint Exhibit

A 1

Father’s affidavit sworn 25 February 2020 and filed 3 March 2020 – paragraphs 76-85

R 1

Extracts of Google Hangout Chats in August 2019

Regulation 26 enables the court to direct a family consultant to report to the court on such matters that are relevant to the proceedings as the court considers to be appropriate and that such a report may be received in evidence in any proceedings. In this matter a reg 26 report was ordered to address:
whether there is likely to be any physical and/or psychological impact on the children if the children are returned to Thailand.
The report dated 3 February 2021 was prepared by Ms T, Family Consultant.
Credibility of Witnesses
The mother presented as a calm and responsive witness, who used her best endeavours to answer questions as directly as possible. Sometimes she sought clarification of questions, which is entirely understandable given that her native language is Thai. She did not require the assistance of an interpreter. She did not seek to cast her answers to questions in the manner most advantageous to her and made appropriate concessions. I consider her a witness of truth.
The father presented as a combative and feisty witness. He was intent on answering all questions in a manner that he perceived would be most advantageous to him and which would accord with his narrative of events. He was reluctant to make any concessions at all. An example of this was his unwavering evidence that he was the primary carer of the children to the extent that he nearly always remained in the same room as the children, notwithstanding nannies had been employed to care for them. When asked why it was necessary to employ nannies in these circumstances, he attempted to justify the engagement of nannies on the basis that they would also assist with domestic tasks. He also had some difficulty in conceding that the children’s trips to Australia, whilst they lived in Thailand, could be described as holidays. He took every opportunity to promote his caring for the children and belittle and denigrate the mother’s involvement with the children, as he obviously thought that would be of significant assistance to him. He was not an impressive witness. Where the evidence of the mother and the father differs, I prefer the evidence of the mother.
Ms T was a responsive and highly credible witness. I accept her evidence.
Ms V was not required for cross examination. Her evidence was not particularly relevant and was of little assistance.
JURISDICTIONAL FACTS
I will firstly address the issue the children’s habitual residence as at the date of retention, October 2019.
Relevent legal principles – habitual residence (reg 16(1A)(b))
The question of whether a person is habitually resident in a particular country is a question of fact, not an artificial legal construct, and requires an evaluation of all relevant circumstances.
The law in relation to habitual residence in Australia is well settled. The seminal authority is the High Court decision of LK v Director-General, Department of Community Services [2009] HCA 9 (“LK”). French CJ, Gummow, Hayne, Heydon and Kiefel JJ said:
[23]… First, 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.
…
[25] … 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.
…
[27] 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.
[28] … 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.
…
[34] … when considering where a child is habitually resident, attention cannot be confined to the intentions of the parent who in fact has the day-to-day care of the child. It will usually be necessary to consider what each parent intends for the child. When parents are living together, young children will have the same habitual residence as their parents. No less importantly, it may be accepted that the general rule is that neither parent can unilaterally change that place of habitual residence. The assent of the other parent (or a court order) would be necessary. But again, if it becomes necessary to examine the intentions of the parents, the possibility of ambiguity or uncertainty on the part of one or both of them must be acknowledged.
[35] It follows … that to seek to identify a set list of criteria that bear upon where a child is habitually resident, or to attempt to organise the list of possible matters that might bear upon the question according to some predetermined hierarchy of importance, would deny the simple observation that the question of habitual residence will fall for decision in a very wide range of circumstances. And examination of decided cases in the area does not require the identification of a closed set of criteria, or the attribution of predetermined weighting between them.
…
[45] Moreover, the approach described in [Punter] Accords with the general tenor of decisions in the United States of America. It may be observed of those decisions that there is seen to have been a division between the Circuit Courts of Appeals about the relevance of the parents' subjective intentions for the child or children concerned. When it is also observed, however, that the resolution of the competing approaches has been to invite attention to whether presence at a place has a "degree of settled purpose from the child's perspective" (emphasis added), the difference in expression of the relevant considerations may not be great. At all events, a thread common to the leading decisions in the United States remains the need to look at all of the circumstances of the case. And it is that approach, as described in Punter, which should be followed.
There is a divergence in judicial authority in the United Kingdom and Australia, about whether one parent can unilaterally change the habitual residence of a child, noting the statements in LK (supra) at [34].
In In re R (Children) (Reunite International Child Abduction Centre and others intervening) [2016] AC 76, the Supreme Court in the United Kingdom, made clear that there was no “rule” that one parent cannot unilaterally change the habitual residence of the child. The decision also confirmed that habitual residence is a “question of fact” and requires an evaluation of “all relevant circumstances”. The latter observation accords with the statements in McCall & McCall; State Central Authority (Applicant); Attorney-General (Intervenor) (1995) FLC92-551.
In Secretary, Department of Family and Community Services & Zadeh [2017] FamCA 44, McClelland DCJ, noted the broader approach of the United Kingdom Supreme Court in In Re R, in contrast to the approach of the High Court of Australia in LK, where it was said at [34] “it may be accepted that the general rule is that neither parent can unilaterally change that place of habitual residence”. His Honour concluded that if the approach adopted in In re R is to be applied in Australia, it should be done at the appellate level.
Bennett J in State Central Authority & Metin [2020] FamCA 535 after reviewing recent English authority, considered that the proposition that one parent with parental responsibility could not achieve a change in the child’s habitual residence without the consent of the other parent with parental responsibility, was wrong, but she was bound by the High Court decision in LK.
Another divergence of approach between the Supreme Court of the United Kingdom and Australian authority, is the length of time ordinarily required to establish habitual residence. In In Re R, the Supreme Court held that there was no requirement that a child should have been resident in a country for a particular period of time. That position is in contrast to the Australia position, namely, in order to find someone is habitually resident in a place they must generally have lived there for an appreciable period: Zotkiewicz & Commissioner of Police (No.2) [2011] FamCAFC 147.
The mother’s evidence as to habitual residence is as follows:
Intention
(a)before she decided to separate from the father, she shared the intention to live in Australia notwithstanding she had concerns about the how the family would go financially and how to raise the children in Australia. At the time, the father and the children went to Australia in March 2019, there was no concrete plan for a permanent relocation to Australia;
(b)discussions about X’s education occurred when X was one year old;
(c)both parents agreed that the children should learn English, although her opinion was that the children should learn both Thai and English. The father did not agree because of a theory he subscribed to, that teaching two languages might delay language development. She went along with him because she thought the children would still learn Thai whilst living in Thailand;
(d)the only attempt she had made to further her education as a health care professional in Australia prior to 2012, was an application for a one-month course at the AA University in 2009. Her application was not successful;
(e)when she was pregnant with Y, at the request of the father she looked at property in R Region, Thailand. They both inspected a property she had found though it was not to the liking of the father;
(f)she did not actively participate in looking for property in Darwin or making decisions about how the family would live in Darwin, she just went along with the father’s decisions;
(g)at the time of the Google Hangout Chats, 2014, which are annexure 5 to the father’s affidavit of 19 February 2021, the relationship was intact and there were discussions that Suburb C would be their home. The mother asserts that the father initiated all discussions and she went along with him;
(h)the father had a lot of concerns about living in Thailand and because they argued frequently, she went along with what he said in order to keep him happy;
(i)she was content for the children’s education and health to be covered in the event they moved to Australia, so she registered the children for Medicare and vaccinations in Australia;
(j)in relation to registering the children for Medicare in Australia, she was advised by the father to sign the relevant statutory declarations and she cooperated with whatever it took to have the children’s health covered;
(k)she thought that the children should learn Thai, so that they would have more flexibility living or studying both in Thailand and Australia;
(l)there was never any agreed plan that the children would not be educated in Thailand, rather that was the father’s plans and she only spoke English to the children because she didn’t want any more fights and disagreements;
(m)she agreed that the intent was initially that once the family was completed and the children were ready to start their education, the family would move to Darwin however she later realised it would be difficult for her to keep the family running financially, raise the children and start a new career in a new country;
(n)the father talked about living in Darwin many times however in order to prevent arguments or fights she did not oppose him as she wanted to placate him and keep the peace;
(o)there was no joint intention to relocate the family to Darwin sooner rather than later, or by the end of 2019, because of the matters referred to at paragraph 115 of the father’s affidavit, namely X’s problems adjusting to school, difficulties with nannies, air pollution in K City, medical care for X in Thailand and the father’s experiences with a tropical disease. At that time the family was not prepared and was not ready to relocate to Darwin and that issue was still a discussion;
(p)between 2013 and 2019, the father made many inquiries about obtaining employment for the mother in Darwin, including conducting his own research about suitable jobs for the mother, arranging employment interviews for her, drafting emails to the BB Hospital, drafting an application for a position as a health care professional at the CC Health Service in Darwin;
(q)the mother went along with the decisions made by the father to avoid conflict but she had no say in any of the decisions;
(r)there was never any suggestion that the father would make an application for a spouse visa for the mother to live in Australia and he did not ever do so;
(s)at the time the children travelled to Australia in March 2019 the intention was for the children to return to Thailand, and thereafter for the family to travel for a holiday in May 2019, as had been planned and booked in November 2018;
(t)the mother securing employment in Australia with a position commensurate to her employment in Thailand, which had not occurred, was essential for the move to Australia to be viable.
Settled purpose and ties to Thailand
The parents lived in Thailand from the commencement of their relationship in 2012/2013. They initially lived in R Region before moving to K City in December 2018.
The mother is a Thai citizen and has worked as health care professional during the relationship. The father lived in Thailand, but exited the country frequently to enable him to comply with his visa restrictions. There was no suggestion that the family was permanently resident anywhere, other than Thailand.
The children were born in Thailand and prior to travelling to Australia in March 2019, lived all of their lives in Thailand. Prior to March 2019, the children travelled to Australia on limited occasions, including holidays and for X to obtain medical treatment. They were cared for by their parents with the assistance of Thai nannies. X had commenced her preschool education in Thailand in January 2019. The family regarded its home base as Thailand.
The children were immersed in their life in Thailand, to the extent permitted by the father, as he sought to distance the mother from her friends and family and insisted that the children only spoke English in the home.
X attended school in Thailand from January 2019 until March 2019, where all lessons and social interaction were in Thai.
They did not socialise with the maternal family as the father did not approve of the maternal grandmother. He referred to her as “Ms DD” in a derogatory manner.
The father’s evidence as to habitual residence is as follows:
Intention
(a)as from 2012, the parties discussed relocation to Australia, and in particular, Darwin;
(b)he did not and never contemplated obtaining Thai citizenship or permanent residence because of his intention that the parties would live in Australia;
(c)he believed the mother shared his intention for the following reasons:
(i)the mother told him she had unsuccessfully attempted to further her education as a health care professional in Australia prior to 2012;
(ii)the mother had travelled to Australia prior to the relationship and told him she felt a strong attraction for the lifestyle offered;
(iii)he did not acquire any real estate in Thailand;
(iv)he did not dispose of any real estate in Australia, and was never requested to do so;
(v)he and the mother had discussions where they would live in Australia;
(vi)the mother actively participated in looking for property and making decisions about where they would live in Darwin, in particular the Suburb C property;
(vii)both parents agreed that the children should not learn Thai and that they should learn English;
(viii)the family made frequent trips to Australia;
(ix)the mother frequently discussed the difficulties of living in Thailand;
(x)the mother facilitated the children being registered for Medicare and vaccination in Australia;
(xi)the parties discussed particular schools for the children in Australia.
(d)there was agreement between the parties that the family would live in Thailand for the children’s early years because the mother could not cope with moving, establishing her career in a different country and pregnancy, all at the same time;
(e)the parties had never contemplated educating the children in Thailand until they were unable to find a suitable nannies for X in January 2019, whereupon she was enrolled in a school in Thailand;
(f)the parents ensured the children took up their Australia citizenship by descent as soon as possible after each of their births, with X receiving her Australian passport on 25 September 2015 and Y becoming an Australian citizen on 4 October 2017;
(g)the decision to move to Darwin was brought forward as a result of the father reading an article published in a newspaper in 2019, which identified the air pollution in K City as the worst in the world;
(h)he suggested using the pre-existing flight bookings for 10 May 2019 to fly to Darwin, on the basis that the mother would remain working in Thailand for the time being, because she had recently started her job as a health care professional;
(i)the children would visit the mother in Thailand and she would visit the children in Darwin, as often as practical;
(j)the parties agreed on 22 March 2019, after the death of the paternal grandfather, that there was no adequate care for the children so the children would travel to Australia with the father;
(k)on 25 March 2019, the parties had a discussion about travel options for the father and children after they left Melbourne.
Settled purpose and ties to Thailand and/or Australia

When the children lived in Thailand, the father asserts that he was with them nearly all of the time, despite nannies being employed to care for them.
The children did not have contact or meaningful relationships with their extended maternal family. The children met the maternal grandfather and stepbrother on one occasion and spent time with the maternal grandmother on half a dozen occasions.
The children only spoke English and the father ensured as much as possible, any other child carers did the same.
It was intended that the children would commence school in Darwin and the preference was the EE School in Darwin.
The father submits that subsequent to March 2019, the children have become immersed in Australian life to the extent that their habitual residence, as at October 2019, is Australia.
Upon their arrival in Darwin on 4 April 2019, the children and father were greeted by an old friend at the airport who drove them to the father’s property at G Town, where another friend lives across the road. The children and the father also spent time in the father’s house in L area.
Between April 2019 and June 2020, the father was not employed and he submits that he created an age-appropriate weekly routine for them including visits to libraries to enable the children to mingle with children their own age and attending a local café in a church on Saturday mornings. The children attended playgrounds where they developed friendships with peers, and also attended the Darwin Museum and Art Gallery.
On Anzac Day 2019, the children attended a dawn service. In May 2019, the children were enrolled in swimming lessons, attended a community reading program and attended events convened by a charity, FF Services.
In July 2019, both children commenced childcare at GG Childcare in Darwin, where they made new friends, and both children had birthday parties for their respective birthdays. They have attended events at the Darwin Festival and events during Water Safety Awareness Week, in September 2019.
In October 2019, the father and children moved to an apartment in the suburb of Suburb HH, where they made more friends. On 2 October 2019, the children commenced a new childcare centre, JJ Childcare.
The children now attend KK School in Darwin, where X is in transition and Y is in preschool. Both children commence at 8:00am, with X concluding at 2:30pm and Y at 11:00am. They then attend afterschool care each day.
Discussion
Counsel for the Central Authority submitted that as at October 2019, both children were habitually resident in Thailand. The parents met in 2012 in Thailand and cohabited in that country from 2013 to March 2019. Both children were born in Thailand and spent most of their lives there prior to March 2019. X had travelled to Australia prior to March 2019 for holidays amounting to approximately 79 days and Y had travelled to Australia on one occasion for 23 days. Although the parties were not legally married, the children are the legitimate children of the mother, according to Thai law. The children received all of their immunisations and substantive medical care in Thailand. X’s medical condition was diagnosed in Thailand in 2015 and a second opinion was obtained in Darwin in 2017. After that date, X resumed her medical treatment in Thailand. The mother remained working and the family lived in Thailand between 2012 and 2019, firstly in R Region and then from December 2018, in K City. The mother’s travel to Australia was limited and for holidays. The mother has no rights of entry into Australia and requires a Visa to enable her to do so. During the relationship, there was no attempt to seek a spousal Visa for the mother to enable her to enter and remain in Australia. Whilst it is accepted that there were discussions about the possibility of the mother securing employment in Australia, none of the attempts to do so had been successful.
The father’s affidavit of 19 February 2021 at paragraphs 89 - 127 sets out in detail his plan to move the family to Australia. That affidavit is replete with references to his intention, and not the joint intention of the family, although he attempts to explain his belief that the mother shared that intention. The mother’s evidence was in stark contrast that there was no shared intention to relocate at that time and that the father’s decision was a unilateral decision. She acknowledges that there were discussions about a potential move to Australia, however at all times that was subject to the mother obtaining both an appropriate Visa and appropriate employment, neither of which ever transpired.
The evidence does not support a pattern of the family preparing to settle in Australia such as selling chattels and making concrete plans to relocate to Australia in March 2019. To the contrary, the family’s plans, which were made in November 2018, were for the family to holiday in Australia in April/May 2019, and that is why return tickets were purchased.
The father’s evidence about the family life in Thailand attempted to downplay the role of the mother in the children’s life and to portray her as distant and unconnected with the children, despite the fact that the family all lived together until March 2019 and the mother’s evidence of her involvement with the children, albeit she worked to support the family. X attended preschool in Thailand in January 2019 and the mother’s evidence was that she dropped off and collected X from school during the period she attended.
The mother’s evidence that the father’s acquisition of property and chattels in Darwin from 2014 onwards is that this occurred at his instigation and with little input from the mother.
The father’s evidence about the children’s activities between March 2019 and October 2019 can be characterised as the father keeping the children occupied during an extended holiday. The children’s enrolment in childcare for considerable periods and the attempt to construe this as evidence of habitual residence, was done without the mother’s knowledge or consent.
Senior Counsel for the father submitted that the children were habitually resident in Thailand at March 2019, however by October 2019, they were habitually resident in Australia. The period between March 2019 and October 2019 was relevant to the issue of habitual residence, as was the period prior to March 2019, which warranted an examination of the children’s connection with Thailand at that time. She submitted that the Central Authority had adduced a paucity of evidence about the children’s living circumstances as at October 2019, which supported the proposition that the children’s connection with and immersion in Thailand, at that date was almost negligible.
The father’s case is that there was a joint intention to move to Australia at some time in the future which was agreed to by the parents and that the mother simply changed her mind, rather than never sharing that intention. The submissions of the Central Authority that the children were immersed in Thailand prior to March 2019 was inconsistent with the facts of the children’s living circumstances at that time. The mother’s own evidence was that the children were not engaged in or exposed to Thai culture in any meaningful way because the father did not like Thai culture.
Senior Counsel for the father submitted that the following facts were agreed about the children’s time in Thailand prior to their removal to Australia in March 2019:
(a)the mother worked long hours in Thailand;
(b)around Christmas 2018 the family moved to K City, which then precipitated discussions about exposure to air dust;
(c)the father had no rights of custody in Thailand;
(d)the children did not speak Thai;
(e)X only attended school in Thailand for a period of approximately eight weeks ceasing on 13 March 2019;
(f)the children did not see or spend time with the maternal family;
(g)the children did not socialise with other children;
(h)the children were not exposed to Thai culture.
In contrast, the level of integration in Australia between March 2019 and October 2019 was that the children:
(a)lived in Darwin in a house owned by the father, a houseboat and then a rental property;
(b)attended local libraries and commenced reading;
(c)attended swimming and play dates with friends;
(d)were registered with Centrelink;
(e)commenced their education at childcare and subsequently KK School;
(f)have regular contact with neighbours, adults and Australian culture such as attending Anzac Day celebrations.
It was further submitted that because the children’s ties to Thailand were so loose prior to March 2019, the children’s integration into Australia between March 2019 and October 2019 was so complete that by October 2019 their habitual residence could only be considered as Australia and not Thailand.
In regard to parental intention, I prefer the evidence of the mother to that of the father. The father’s overbearing and dominant attitude was obvious during cross-examination, as was the mother’s demeanour of acceptance and passivity. I am satisfied that the evidence substantiates a finding that there was no joint intention for the family to permanently relocate to Australia in March 2019.
I find that despite the father’s intention of making Australia his permanent home and the permanent home of the children, at the time of retention, the mother clearly did not share that intention.
I accept the mother’s evidence that her consent to relocation to Australia permanently was conditional upon her being able to obtain employment in Australia, at a level commensurate with her employment in Thailand, and that was not possible as at October 2019. I also accept that neither of the parents had taken any steps to secure the mother’s residential status in Australia, as at October 2019.
I am mindful that intention is not determinative of habitual residence, however it is one of many factors to be considered and I am bound by the statements in LK, in particular at [34], pertaining to the habitual residence of young children . In this case, there is no ambiguity or uncertainty about the differing intentions of the parents and that the mother did not “assent” to a change in the children’s habitual residence.
In terms of the children’s integration in Thailand, it is accepted by the father that the children were habitually resident in Thailand prior to March 2019, despite his attempts to minimise the children’s connection with that country. Prior to March 2019, X was not yet four years old and Y was still effectively a baby. I do not find it unusual that the children’s life was centred around their family home and that they were cared for by nannies, with their parents either in the home or at work. I certainly do not accept the proposition that because they did not have such an active life as they enjoyed in Darwin after March 2019, that their ties to Thailand were any less or “loose”, to enable a rapid integration into Australia between March 2019 and October 2019.
Having considered the evidence of both parties as to the children’s family life, and integration into Thailand, together with my findings as to the divergence of the parents intention of permanently relocating to Australia with the children at that time, I find that the children’s degree of integration into their life in Thailand prior to March 2019, was such that I find that they were both habitually resident in Thailand in October 2019, as at the date of the retention in Australia.
I am there satisfied that all of the jurisdictional facts have been established by the NT Central Authority and find that the children’s retention in Australia as from October 2019, is a wrongful retention.
EXCEPTIONS TO RETURN
I will now raise the regulatory exceptions raised by the father, namely:
(a)acquiescence;
(b)there is a grave risk that return of the children would place them in an intolerable situation.
I will firstly address whether the mother acquiesced to the children’s retention in Australia.
Relevant Legal Principles – Acquiescence (reg 16(3) (a)(ii))
The Full Court in Wenceslas & Director-General, Department of Community Services [2007] FamCA 398 considered the distinct and differing concepts of consent and acquiescence. Consent has to arise before the act of removal or retention, acquiescence can only arise after such an act.
In Police Commissioner of South Australia v Temple (1993) FLC 92-365, at 79,828, Murray J referred to (and agreed with) the principles enunciated by their Lordships in Re A & Anor (Minors) (Abduction: Acquiescence) [1992] 1 All ER 929 and paraphrased them as follows:
1.In determining whether a parent could be said to have acquiesced in the unlawful removal or retention of a child by the other parent within art. 13 of the convention each case has to be considered on its own special facts.
2.Acquiescence can be either:
(a)
(i)active acceptance signified either by express words of consent, in which case there has to be clear and unequivocal words, or
(ii)by conduct and the other party has to believe that there has been an acceptance, or
(iii)conduct inconsistent with an intention by the aggrieved parent to insist on legal rights and consistent only with an acceptance of the status quo, or
(b)passive acquiescence inferred from silence and inactivity for a sufficient period in circumstances where different conduct is to be expected on the part of the aggrieved parent”.
3.A parent cannot be said to have acquiesced in the unlawful removal or retention of a child within art.13 unless
(a)he is aware of the other parent’s act of removing or retaining the child,
(b)is aware that the removal or retention was unlawful and
(c)is aware, at least in general terms, of his rights against the other parent, although it is not necessary that he should know the full or precise nature of his legal rights under the convention.
4.Since acquiescence is not a continuing state of mind, an acceptance of the unlawful removal or retention cannot be withdrawn once known to the other party, although an attempt to do so soon after the acceptance is notified to the other party will be relevant to the exercise of discretion to return the child”.
At [264] of Wenceslas, May and Thackeray JJ said as follows:
It seems to us that the views expressed by Hale J allow for the vagaries often associated with the way in which parents communicate in matters relating to the children. As presently advised…we are of the view that consent can be can inferred from conduct; however, we are also the view that the consent must be real and unequivocal and can only be made out by clear and cogent evidence.
In Wenceslas, at [252] – [257] the Full Court analysed the authorities and adopted the approach that acquiescence may be passive, by conduct, as well as active by words. Acquiescence may be inferred by the Court from a course of conduct by the party seeking to rely upon the convention or the regulations, without any words expressed to the other party such as might otherwise be thought to be involved.
Whether or not a wronged parent has acquiesced in the removal or retention of a child, depends upon their actual state of mind, which is a question of fact to be determined in all the circumstances of the case and where the burden of proof falls on the “abducting parent”: State Central Authority & Handbury [2019] FamCA 668 Bennett J at [242], adopting Lord Browne-Wilkinson in Re H (Minors) [1998] AC 72 at [90].
The father’s evidence as to acquiescence is as follows:
(a)in April 2019, the mother agreed to the children remaining in Australia in accordance with an email dated 5 April 2019, from her to the father, in response to an email he had sent the mother earlier that day, which is annexure A–15 to his affidavit filed 19 February 2021;
(b)the mother continued to participate in decisions for the children premised on the children living in Darwin such as:
(i)supporting X seeing her specialist in Darwin, after having been informed of the appointment on the day prior, 7 May 2019;
(ii)agreeing with the specialists recommendations for X’s treatment plan, including surgery to occur in Australia;
(iii)subsequent to a request by the father on 11 June 2019, providing X’s Thai immunisation records to the father to enable the Australian immunisation register to be updated;
(iv)in an email to the father on 20 July 2019, thanking him for taking care of the kids;
(v)on 24 October 2020 during a video call, restating her approval for X’s surgery to go ahead in Australia, including saying “I will be so relieved when our little girl is fixed”;
(vi)not withdrawing her consent to medical treatment until 23 December 2020, after she had obtained legal advice.
(c)between May 2019 and September 2019, the mother did not raise the issue of the children returning to Thailand.
The mother’s evidence about acquiescence is as follows:
(a)she gave permission for the children to travel to Australia in March 2019, but she did not permit them to live in Australia after that trip;
(b)the letter of consent provided by her, was for the father to take the children out of the country;
(c)because she had a ticket to leave Thailand on 10 May 2019 to travel to Australia, that was her plan, and she asked the father for some help with the Visa application to enable her to do so, however he did not cooperate;
(d)in April 2019, she intended to go to Australia and join the family, and asked the father to provide her with an invitation letter to help with her Visa application. In response, the father emailed her complaining about X’s behaviour. She responded to that email by asking whether he wanted her to join the trip or if he wanted her to stay in Thailand, until X’s behaviour was rectified;
(e)in April 2019, she did not tell the father she was not going to Australia in May 2019, rather she said she could wait and asked him when she should go. That was in her email of 5 April 2019;
(f)she did not tell the father not to travel to Thailand using the tickets which had previously been purchased, rather she said she was not going to Australia at that time;
(g)her email of 23 May 2019 meant that the father should postpone the tickets (for the family’s return to Thailand on 26 May 2019, because she had not yet travelled to Australia, and she did not mean that she did not want them to go back;
(h)her email of 23 May 2019 was about postponing the return tickets, not to prevent the family returning to Bangkok, Thailand;
(i)after 26 May 2019, she wanted to go to Australia to visit the children;
(j)the first time she raised the issue of the children returning to live in Thailand was her email of 10 October 2019;
(k)she did not respond to the father’s email of 11 October 2019 which asked her to contribute financially to the children;
(l)she agreed the father had forwarded a further email on 3 November 2019 and she went to the Thai Central Authority soon after receipt of that email.
The relevant email exchanges between the parents subsequent to the father and the children’s return to Darwin on 4 April 2019 were as follows:
(a)on 4 April 2019 at 10:13PM, the mother forwarded the following email to the father (Annexure B to mother’s affidavit filed 29 January 2021):
My dear Mr Adlin.
Thank you for taking good care of the kids, rescuing them from all 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 reschedule 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 November 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.
Ms B
(b)On 5 April 2019, the father sent an email to the mother at 14:31PM as follows:
My dear Ms B,
1. As 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?
2. How many times have I come back from Australia to find X’s behaviour significantly worse than when I left Thailand?
3. How many times when it happened did I tell you that if this happened again, I would remove X from your influence?
4. Do 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?
5. Do 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?
6. If 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?
7. My proposal is to keep X away from your influence until her behaviour is rectified. During this time I hope that you will solve our problem in a way that allows us to live together as a family. Do you agree to this proposal?
8. If you accept my proposal, I cannot see us returning to Thailand before the 10 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 await to receive your reply to these questions.
Mr Adlin
(c)On 5 April 2019 at 17:39PM, the mother replied to the father’s earlier email that day as follows:
My dear Mr Adlin,
1. You are taking good care of our kids. What happened is my failure to take care of our kids.
2. Every time you went out of Thailand, I made X’s behaviour worse.
3. You have told me many times that you will take them away from my influence and I haven’t improved or made it better.
4. I couldn’t agree more that her behaviour is getting worse when she spends time with me.
5. I totally agree that her not following instructions is harming her and Y’s lives.
6. If you let me influence our kids you wouldn’t consider yourself as taking good care of our kids.
7. I agree with your proposal to keep the kids away from me until X’s behaviour is rectified and I will solve my problem in a way that brings us together again.
8. I agree that coming back to Thailand before 10 May doesn’t allow enough time to rectify her behaviour. And rectifying takes a lot more time on cultivating her bad behaviours.
If you think 10 May is not enough. Please let me know so I will postpone my Visa application.
I am truly sorry for letting our family down. I will try my best to rectify myself. Thank you again for applying my email which had calmed my frustration about what’s happening. And thank you for doing your best to fix things that is not your responsibility.
I love our family more than anything I prepare to sacrifice myself for this big project.
Love,
Ms B

It is abundantly clear from the mother’s emails that she agreed to postpone the family’s return to Australia, because of the blame the father was placing on her for the children’s behaviour in Darwin, when ironically, they were under his care and control and she was in Thailand. There is no suggestion or contemplation by either parent in the three emails that the family would remain permanently in Australia.
To the contrary, the father’s email of 5 April 2019 contemplates a time when the family could live together again, once X’s behaviour has resolved. That sentiment is echoed in the father’s email to the mother of 22 May 2019, which is annexed to the mother’s affidavit filed 29 January 2021, which states:
Whilst I am so relieved to report what appears to me to be progress towards the rectification of X’s behavioural problems, I am conscious that this process is vulnerable to any influence that would encourage her to reassert a position of control over any adult figure. I propose to postpone our return to Thailand until we can consolidate this improvement further. This will also give you more time to understand why you have so consistently struggled to set boundaries for X for so long.
There was a divergence in evidence about whether the parties were separated during the period April 2019 and September 2019. It was the father’s case that the parties had separated in April 2019, whereas the mother thought that the relationship was intact, until she travelled to Australia in September 2019.
As submitted by Senior Counsel for the father, I do not need to make a finding about the actual date of separation. However, what is relevant is the mother’s belief that the relationship was intact until September 2019. In the context of submissions about passive acquiescence, the mother’s consent to the children remaining in Australia for further short periods, was in the context of her belief that the relationship was still intact and that the children would return to Thailand. I do not find that during the period April 2019 to October 2019, the mother was aware that the retention of the children in Australia was unlawful. She had never expressly agreed to the children remaining in Australia on a permanent basis.
The chain of emails do not in any manner whatsoever support the father’s contention that the mother agreed and/or acquiesced to the children remaining in Australia on a permanent basis and I find accordingly.
The father emailed the mother on 22 May 2019 asking what he should do with the air tickets which were booked for the family to return to Bangkok the next Sunday, being 26 May 2019.
On 23 May 2019, the mother replied by email that the ticket should be postponed and not used for the father and the children to return to Bangkok on Sunday, 26 May 2019.
Senior Counsel for the father cross-examined the mother about the contents of her email of 23 May and implied the postponement of the tickets effectively condoned the father and the children’s presence in Australia.
The mother’s evidence was the reference to postponing the tickets was because she had not yet been to Australia, not that she meant that she did not want the family to return to Thailand. I accept the mother’s evidence that her statements about postponing the tickets were in the context of her not having yet visited Australia. I do not accept that the email exchange of 22 and 23 May 2019 could possibly be construed as the mother’s acceptance of the children remaining indefinitely in Australia.
Senior Counsel for the father submitted that the mother’s failure to travel to Australia and lack of contact with the children between May 2019 and September 2019 was demonstrative of her disengaging with the children and could be characterised as her acquiescence to the children remaining in Australia.
The mother provided a plausible reason why she was not able to travel to Australia earlier than September 2019, as she was constrained by her work obligations and her delays in obtaining the requisite Visa to enable her to do so. She also gave plausible evidence about the difficulties she encountered in communicating with the father and the children. The mother blames the father for failing to provide her with a letter of support to obtain a visa and the father blames the mother’s lack of a decisive date for his inability to provide the letter. In any event, the mother travelled to Australia in September 2019, when it became apparent to her that the father was not prepared to return to Thailand with the children. I do not accept the submission that the mother’s failure and/or inability to return to Australia prior to September 2019 can be construed as her acquiescence to the children remaining in Australia permanently. In the context of the mother’s belief that the marriage subsisted until September 2019, and the other relevant evidence, it would be impossible to make any finding that her subjective intention was that the children should remain in Australia permanently.
The mother’s evidence is that during her trip to Australia in September 2019, the father told her that he and the children would return to Thailand within a month. However, on the evening of 15 September 2019, there was an argument between the parents, when the mother asserts that the father got angry with her and told her not to contact the children anymore. She travelled to the airport in the middle of the night and returned to Thailand. On 10 October 2019, she emailed the father asking for the children to be returned to Thailand. I accept the evidence of the mother that on the evening of 15 September 2019, the father told her he would not be returning the children to Thailand.
In relation to the father’s contention that the mother’s acquiescence to the children remaining in Australia can be inferred from her consenting to X’s medical treatment in Australia, I do not find the mother consenting to X receiving medical treatment in Australia can be construed as her acquiescence to X or Y living in Australia on a permanent basis. Both parties agree that X had consulted a specialist in Darwin prior to April 2019 and that the parents had discussed her surgery occurring in Australia. The ongoing discussions were a continuation of the parties’ original plan for X’s medical treatment, and nothing to do with where the children would live on a permanent basis.
I accept and find that the mother’s subjective intention at all times prior to her visit to Australia in September 2019, was that the children would remain in Australia for a limited period and would ultimately return to Thailand with the father and resume family life in that country, as they had done prior to March 2019.
In conclusion, I am not satisfied to the requisite standard, that there is any clear and cogent evidence that the mother has acquiesced to the children remaining in Australia on a permanent basis. This ground of exception to mandatory return must fail.
Grave risk of exposure to physical or psychological harm or placing the child in an intolerable situation (reg 16(3)(b))
I will now address the exception of grave risk of placing the children in an intolerable situation.
The father asserts that the children will be placed in an intolerable situation if they are returned to Thailand, as they will be separated from him, their primary carer.
Relevant legal principles
The leading authority in Australia pertaining to this regulatory exception is DP v. Commonwealth Central Authority; JLM v. Director–General, NSW Department of Community Services [2001] HCA 39 (“DP”). Gaudron, Gummow and Hayne JJ stated:
[39] … Of course it must be recalled that the onus of proof lies on the party opposing return. It will be for that party to demonstrate a grave risk of exposure to harm. Many factors may be relevant to that inquiry…
…
[41] … On its face reg 16(3)(b) presents no difficult question of construction and it is not ambiguous. The burden of proof is plainly imposed on the person who opposes return. What must be established is clearly identified: that there is a grave risk that the return of the child would expose the child to certain types of harm or otherwise place the child in “an intolerable situation”. That requires some prediction, based on the evidence, of what may happen if the child is returned. In a case where the person opposing return raises the exception, a court cannot avoid making that prediction by repeating that it is not for the courts of the country to which a child has been removed or retained to inquire into the best interests of the child. The exception requires courts to make the kind of inquiry and prediction that will inevitably involve some consideration of the interests of the child.”
[42] Necessarily there will seldom be any certainty about the prediction. It is essential, however, to observe that certainty is not required: what is required is persuasion that there is a risk which warrants the qualitative description “grave”. Leaving aside the rederence to “intolerable situation”, and confining attention to harm, the risk that is relevant is not limited to harm that will actually occur, it extends to a risk that the return would expose the child to harm.
[43] Because what is to be established is a grave risk of exposure to future harm, it may well be true to say that a court will not be persuaded of that without some clear and compelling evidence. The bare assertion, by the person opposing return, of fears for the child may well not be sufficient to persuade the court that there is a real risk of exposure to harm.
[44] These considerations, however, do not warrant a conclusion that reg 16(3)(b) is to be given a “narrow” rather than a “broad” construction. There is, in these circumstances, no evident choice to be made between a “narrow” and “broad” construction of the regulation. If that is what is meant by saying that it is to be given a “narrow construction” it must be rejected. The exception is to be given the meaning its words require.
[45] That is not to say, however, that reg 16(3)(b) will find frequent application. It is well-nigh inevitable that a child, taken from one country to another without the agreement of one parent, will suffer disruption, uncertainty and anxiety. That disruption, uncertainty and anxiety will recur, and may well be magnified, by having to return to the country of habitual residence. Regulation 16(3)(b) and Art 13(b) of the Convention intend to refer to more than this kind of result when they speak of a grave risk to the child of exposure to physical or psychological harm on return.
In DP at paragraph [130], his Honour Justice Kirby, in a dissenting judgment stated:
… Inevitably…the application of the exception provided for in reg 16(3)(b) will be rare both by virtue of the language in which that exception is expressed and so as not to undermine the achievement of the overall object of the law…It should not therefore be surprising that they (the exceptions) have only been invoked successfully in comparatively rare instances.
Ryan and Aldridge JJ in Walpole & Secretary, Department of Communities and Justice [2020] FamCAFC 65 at [58] referred to comments of Gaudron, Gummow and Hayne JJ, at paragraph [40] of DP:
So far as reg 16(3)(b) is concerned, the first task of the Family Court is to determine whether the evidence establishes that “there is a grave risk that [his or her] return … would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation”. If it does or if, on the evidence, one of the other conditions in reg 16 is satisfied, the discretion to refuse an order for return is enlivened. There may be many matters that bear upon the exercise of that discretion. In particular, there will be cases where, by moulding the conditions on which return may occur, the discretion will properly be exercised by making an order for return on those conditions, notwithstanding that a case of grave risk might otherwise have been established. Ensuring not only that there will be judicial proceedings in the country of return but also that there will be suitable interim arrangements for the child may loom large at this point in the inquiry. If that is to be done, however, care must be taken to ensure that the conditions are such as will be met voluntarily or, if not met voluntarily, can readily be enforced.
Was the father the primary carer of the children prior to March 2019
The father’s submission is predicated upon the assertion that he has been the primary care of the children at all times, including whilst the family resided in Thailand prior to March 2019 . I will firstly address whether the evidence supports a finding that the father was the primary carer of the children prior to March 2019.
The father asserts that whilst the family lived in Thailand, prior to March 2019 he was the primary care of the children. That is disputed by the mother.
The father’s evidence, referred to earlier in these reasons, was that he was effectively with the children at all times, even when the parents had engaged nannies to care for the children.
He painted a picture of the mother as a disengaged, distant, workaholic mother who spent little time with the children and did not have a close relationship with them.
The mother’s evidence was that subsequent to the birth of each child she breastfed each child, lived with and looked after the children, whilst also being the principal breadwinner for the family. At paragraph 8 of her affidavit sworn 29 January 2021, she describes her involvement with the children when the family lived in R Region Hospital’s accommodation prior to 17 December 2018. She deposes to taking care of the children prior to commencing work at 9:00AM, coming home at lunchtime and having lunch with the children, giving the children baths, reading books, settling them into a nap prior to going back to work in the afternoons. Some days she had the afternoon off work and stayed home with the children. Thereafter she went to work at her private office from 5:00PM or 6:00PM until 8:00PM when she again went home, bathed the children read the books and put them to bed. Whilst the family employed nannies she read them books before they went to bed.
Between 8 November 2018 and 17 December 2018, when the father was in Australia, she cared for the children without the assistance of a nanny, as they were preparing to move to K City. Subsequent to the family moving to K City, she commenced work again on 2 January 2019, and cared for the children after work. After X commenced school on 14 January 2019, the mother took her to and collected her from school each day.
Between 2012 and 2019, the father was absent in Australia on approximately 287 days after X’s birth and 98 days after Y’s birth, according to annexure A-6 of the father’s affidavit. During those times the mother cared for the children with the assistance of nannies.
As stated earlier in these reasons, I prefer the evidence of the mother to the father and accept the submission of Counsel for the Central Authority that the mother was submissive and passively accepted the father’s conduct in the home, to minimise and reduce conflict.
I find that prior to March 2019 when the children travelled to Australia from Thailand, each parent cared for the children to the best of their ability and that neither parent could be described as the children’s primary carer during that period.
I will now consider the role of each parent between March 2019 and October 2019 and thereafter.
As from March 2019, when the children have been in Australia, it must be accepted that the father has been the children’s primary carer. That is however, not to ignore the relationship between the children and the mother during that time. The mother was criticised by Senior Counsel for the father for her lack of involvement with the children between March and October 2019.
In the context of the emails between the parents referred to earlier in these reasons, and in particular the emails of 5 April 2019 and 22 May 2019, the father was intent on keeping the mother from visiting the children in Australia until in his opinion, X’s behaviour had improved. He clearly blames the mother for X’s dis-regulated behaviour and is very strident in his criticism. Thereafter there were problems with the mother obtaining a Visa to visit Australia, with both parents effectively blaming the other. Exhibit R-1 is a printout of Google Hangout chats as at August 2019 which demonstrates the ongoing problems with the mother obtaining a visa.
The father is critical of the mother’s lack of engagement with the family during that time and I accept there were periods when she could have had more electronic contact with the children. The mother’s evidence was that between 5 April 2019 and 7 May 2019 she tried to contact the father and the children by texting him on Hangouts, even sending him photos of the children and emailed him .She received no response to her efforts and eventually realised that the father was probably angry with her because he disagreed with her child rearing practices. Between March and June 2019, the mother asserts that it was difficult to speak to the children without the father’s involvement and that there were times the father sent her an invitation for video chat, but she was unavailable. The mother also deposes that she and the father continuously had conflicts and arguments and chats with the children was impossible if the father was angry with her. Annexure A to her affidavit of 29 January 2021 is a series of Google Hangouts chats between the mother and the father in July and August 2019. As deposed to at paragraph 39, the mother’s evidence is that she perceived the father as blaming and projecting fault on to her, even though she explained why she did not have a chance to chat with the children at the agreed time. That conduct is entirely consistent with the accusatorial nature of the email of 5 April 2019, referred to earlier in these reasons. The father demonstrated a bombastic and uncompromising attitude during cross-examination, and I accept the mother’s evidence that it was difficult to engage with the children, if the father was angry or aggrieved.
The mother eventually travelled to Darwin between 10 and 16 September 2019. During that time, the mother asserts that there was a conversation between them that the children would be returned to Thailand within a month. The mother departed Darwin on the evening of Sunday, 15 September 2019, after an argument with the father, wherein she asserts that the father told her not to contact the children anymore and that the children did not need her.
Subsequent to the mother’s return to Thailand in September 2019 the children have remained in the sole care of their father. Since he returned to full-time employment in July 2020, the children were enrolled in various childcare facilities prior to commencing at KK School. As the father works from 8:00AM until 5:00PM each day the children attend after-school care, with X attending from 2:30PM and Y attending from 11:00AM each weekday.
The report of Ms T dated 3 February 2021, was ordered at the insistence of the father.
The children were interviewed by Ms T for the report prior to the mother travelling to Darwin earlier this year, and in circumstances where they had only seen the mother, since March 2019, for a brief period of time in September 2019.
Ms T impressed me as a highly competent and experienced family consultant. She has been employed as a family consultant in the Darwin Registry since August 2018 and prior to that, between December 2016 and August 2018, as a regulation 7 family consultant and family report writer, based in Darwin. Her credentials were not challenged. She was a responsive and thoughtful witness and I accept her evidence.
Ms T’s report identified that X missed her mum and that her preferred place to live would be in Thailand “because mummy lives there”. The report conveyed a sense of X yearning for her mother and a strong emotional tie between X and her mother. At paragraph 31 of the report, Ms T noted that the impact on the children of living in Australia, particularly evidenced by X’s comments, is emotional distress as result of disruption to their relationship with their mother. At paragraph 32, she stated “it was the writer’s strong impression that X missed her mother very much, and that she felt a keen sense of loss and longing in relation to her mother.”

In relation to Y, the family consultant commented at paragraph 33, that due to Y’s young age and lack of ability to coherently express his emotions, the writer was unable to gain a clear picture of Edmond’s inner world, but would appear that he is accustomed to experiencing primary care by his father, and may not be as keenly impacted as X by separation from his mother. Y did not recall memories about living in Thailand, but clearly knew about his mother, and appeared to feel a sense of relationship with her.
It is remarkable that X’s strength of feeling was so acute after a prolonged separation from her mother, and that need demonstrated a sense of relationship with her mother.
In terms of the children’s tie to geographical location, Ms T stated that geographic locations become more relevant at a later age after children have developed more involvement in extraneous activities such as school and extracurricular activities.
Senior Counsel for the father was critical of Ms T for not having read the father’s affidavit and only relying on the mother’s material. Ms T’s evidence during cross-examination was that she was not necessarily guided by the affidavit material of the parties, but rather her observations. The opportunity for an adjournment for Ms T to read the father’s material was declined by the father’s counsel.
Senior Counsel for the father was also critical of Ms T for failing to identify how the children would be impacted by separation from their father. Ms T’s evidence was that provided the parent with whom the children lived was cognisant of the importance of the relationship with the other parent, the children would likely be less affected.
Ms T concluded that the children looked physically healthy and robust and if there were no particular health or developmental issues, then relocation to Thailand would be unlikely to cause them any significant physical discomfort or advantage.
Ms T conceded that she was not aware of X’s medical problems and her prior treatment in Australia. There was no evidence of imminent plans for X to undergo surgery, which would be thwarted by a return to Thailand. X’s return to Thailand as a result of these proceedings does not necessarily preclude her from undergoing surgery in Australia at some time in the future, should the parents decide to do so.
During cross-examination, Ms T conceded that the removal of the children from the father could have an impact on their sense of security and connection with adults although their sense of loss was likely to be ameliorated if the parent with whom they resided encouraged a relationship with the non-residential parent.
The father submitted that the separation between himself and the children situation is exacerbated by two matters:
(a)the father’s uncertain immigration status in Thailand;
(b)travel restrictions imposed by the COVID-19 pandemic.
The father submits that he has no rights of custody in Thailand and that the mother has not taken any steps in that regard. At paragraph 23 of her affidavit filed 29 January 2021, the mother agrees with that submission although she states that the father is able to file an application to the Thai court to be declared the legitimate father of the children and she would not oppose any such action by the father. There were no submissions as to whether an appropriate condition to return would be for the mother not to oppose any such action, if the father chose to do so.
Exhibit A & R 1 one is a Statement of Agreed Facts in relation to Thai law, which was tendered by consent by both parties which refers to the father’s rights under Thai law with respect to the children. In that statement, the parties were unable to agree about the interpretation of section 1584/1 of the Thai Civil and Commercial Code which reads in translation as follows:
The father or the mother would be entilled [sic] to contact his or her child as may be suitable in the circumstances irrespective of whether who is the person [sic] exercising the parental power or the guardian.
They were in agreement about the following:
(a)there is a process for recognising (at law) the father’s status as a legal parent of the children (legitimation);
(b)the process of child legitimation under Thai law may take “some time” and/or a “few court hearings”;
(c)even if the father applies for legitimation, a Thai court may, under certain circumstances, give sole parental power to the mother.
Senior Counsel for the father submitted that the current COVID-19 international travel restrictions impact on the father’s ability to travel to Thailand. A-17 to the father’s affidavit is a printout from the Department of Home Affairs website in relation to criteria to enable an exemption for an Australian citizen to leave the country. Senior Counsel for the father submitted that the current restriction on international travel for Australian citizens departing the country, has been extended until June 2021. It was submitted that the father’s understanding was that he would not be granted an exemption on the basis of compassionate or humanitarian grounds. No evidence was adduced what would constitute compassionate or humanitarian grounds nor evidence supporting the father’s belief, as would be required to discharge the father’s onus of proof.
Annexure A-18 to the father’s affidavit is a printout from the IATA website about restrictions on foreign nationals entering Thailand. The father deposes that he does not qualify for any exemptions identified in that document, despite the document identifying that the restrictions do not apply to passengers who are spouses, parents or children of a national of Thailand. There was no other evidence adduced by him about difficulties he may have entering Thailand in the future, in circumstances where he bears the onus of proving the regulatory exception. Both the children are nationals of Thailand and as submitted by Counsel for the Central Authority, the father is named on both the children’s birth certificates and passport, which would lend weight to the father’s capacity to deal with Thai authorities in this regard.
Neither Counsel made submissions about authorities relevant to a situation where a parent opposing return has created obstacles for the children, and then seeks to rely on them. In this case, a parent who has had primary care of the children since March 2019, and in the face of opposition from the mother since October 2019, is asserting the children will be placed in an intolerable situation, if they are returned to Thailand, without him. This is particularly so because of the length of time which has elapsed since the children would have been retained in Australia, and the limited contact which has taken place between the mother and the children since the children’s retention against her will.
This issue was discussed by the English Court of Appeal in both Re C (A Minor) (Abduction) (CA) [1989] 1 FLR 403 and Re C. (Abduction: Grave Risk of Physical or Psychological harm) [1999] 2 FLR 478. In Re C (A Minor) in the context of asserted psychological harm and intolerable situation for a child, in circumstances where a return order was made and the mother refused to accompany the child, Butler-Sloss LJ said:
Is a parent to create the psychological situation, and then rely on it? If the grave risk of psychological harm to a child is to be inflicted by the conduct of the parents who abducted him, then it would be relied upon by every mother of a young child who removed him out of the jurisdiction and refused to return. It would drive a coach and four through the Convention, at least in respect of applications relating to young children I, for my part, cannot believe that this is in the interests of international relations. Nor should the mother, by her own actions, succeed in preventing the return of a child who should be living in his own country and deny him contact with his other parent.
As Balcombe LJ said in Re E. (A Minor) (Abduction) [1989] 1 FLR 135:
“…the whole purpose of this convention is…to ensure that parties do not gain adventitious advantage by either removing a child wrongfully from the country of its usual residence, or having taken the child, with the agreement of any other party who has custodial rights, to another jurisdiction, then wrongfully to retain that child”
Although the factual circumstances of this matter differ, the principles of a self-induced dilemma are similar and I have regard to those statements.
In terms of whether the children will be placed in an intolerable situation, what is of particular persuasive significance, is Ms T’s observations about X’s yearning for her mother and her desire to be reconnected with her, despite the limited contact between them since March 2019. Additionally, Y identified as knowing about his mother and appearing to have a sense of relationship with her. Ms T identified that the children’s physical/geographical location was not personally significant to them other than it meant separation from their mother. That would be more relevant, if the children were older and had developed attachments to locations. She was also of the view that the children’s inability to speak Thai may initially impact the ease of their transition to Thailand, but because both are young and appeared cognitively bright, she thought it likely and to be expected that they would pick up a new language relatively quickly, as they had previously been exposed to that language. I accept Ms T’s evidence.
In Re C. (Abduction: Grave Risk of Psychological Harm) [1999] 1 FLR 1145 at 1154, the English Court of Appeal referred to the degree of grave risk of harm or other intolerability as follows:
There is, therefore, an established line of authority that the court should require clear and compelling evidence of the grave risk of harm or other intolerability which must be measured as substantial, not trivial, and of a severity which is much more than is inherent in the inevitable disruption, uncertainty and anxiety which follows an unwelcome return to the jurisdiction of the court of habitual residence.
There will inevitably be some loss and grief for the children at being removed from their father, as they, and in particular X has already experienced, because of the removal of her mother from her life. That is a constant dilemma when children are removed from their country of habitual residence and or retained in another state, without the consent and approval of the left behind parent. Separation from one parent and some adverse consequences are inevitable. I find that the asserted intolerable situation for the children is not substantial and severe, as is required by the regulatory exception.
As I have previously referred to, the father bears the onus of proving this regulatory exception. He has not adduced evidence which has satisfied me that he would be precluded from obtaining an exemption to international travel on compassionate or humanitarian grounds to enable him to leave Australia and enter Thailand. It is evident from the facts of the case that the children, and in particular X have been able to retain a relationship with their mother despite the infrequency spending face-to-face time with her and, on the father’s evidence the limited electronic interaction with her during their time in Australia. If the children are returned to Thailand, the father is able to commence proceedings in Thailand. There is no evidence that the mother is unlikely to cooperate with electronic time between the father and the children, if the children were returned to Thailand and she deposes to being amenable to doing so. I accept her evidence in that regard.
Having considered the evidence of each of the parents and Ms T, I am unable to conclude that the return of the children to Thailand would result in them being placed in an intolerable situation, and I so find.
This ground of regulatory exception to return must fail.
Order to return
I have determined that the father wrongfully retained the children in Australia and that the father has not established the regulatory exceptions to return. I therefore intend to make an order that the children are returned to Thailand.
Counsel for the State Central Authority submitted that if I ordered the return of the children to Thailand, consideration should be given to supportive orders including:
(a)the father should forthwith deliver the children’s Australian passports to the Darwin Registry of the Family Court;
(b)Ms T should explain the decision to the children;
(c)the children should be delivered forthwith to the mother and that in the event the father does not do so, a recovery order be issued;
(d)the father should provide his address in Suburb S, to the Central Authority.
Senior Counsel for the father did not make any submissions about the supportive orders, as sought by the Central Authority.
I agree the orders proposed are warranted and will make orders accordingly.

I certify that the preceding one hundred and sixty-eight (168) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Williams j.
Associate:
Dated: 15 April 2021

File number(s):	DNC 27 of 2020
Judgment of:	WILLIAMS J
Date of judgment:	15 April 2021
Catchwords:	FAMILY LAW – CHILD ABDUCTION – HAGUE CONVENTION – Children brought to Australia from Thailand – Consideration of the children’s habitual residence at the time of retention – Held, jurisdictional facts established and children’s retention in Australia was wrongful – Whether mother acquiesced to the children remaining in Australia – Held, the mother did not acquiesce – Grave risk of intolerable situation considered – Held, children not exposed to intolerable situation – Family Law Act 1975 (Cth) s 111B – Family Law (Child Abduction Convention) Regulations 1986 – reg 16 – Return Order
Legislation:	Family Law Act 1975 (Cth) s. 111B Family Law (Child Abduction Convention) Regulations 1986 (Cth) regs 15(2), 16, 26
Cases cited:	De L v Director General, NSW Department of Community Services [1996] HCA 5 DP v. Commonwealth Central Authority; JLM v. Director–General, NSW Department of Community Services [2001] HCA 39 HZ & State Central Authority [2006] FamCA 466 In re R (Children) (Reunite International Child Abduction Centre and others intervening) [2016] AC 76 LK v Director-General, Department of Community Services [2009] HCA 9 McCall & McCall; State Central Authority (Applicant); Attorney-General (Intervenor) (1995) FLC92-551 Police Commissioner of South Australia v Temple (1993) FLC 92-365 Re A & Anor (Minors) (Abduction: Acquiescence) [1992] 1 All ER 929 Re C (A Minor) (Abduction) (CA) [1989] 1 FLR 403 Re C. (Abduction: Grave Risk of Physical or Psychological harm) [1999] 2 FLR 478 Re C. (Abduction: Grave Risk of Psychological Harm) [1999] 1 FLR 1145 Re H (Minors) [1998] AC 72 Re E. (A Minor) (Abduction) [1989] 1 FLR 135 Secretary, Department of Family and Community Services & Zadeh [2017] FamCA 44 State Central Authority & Handbury [2019] FamCA 668 State Central Authority & Metin [2020] FamCA 535 Walpole & Secretary, Department of Communities and Justice [2020] FamCAFC 65 Wenceslas & Director-General, Department of Community Services [2007] FamCA 398 Zotkiewicz & Commissioner of Police (No.2) [2011] FamCAFC 147
Number of paragraphs:	168
Date of hearing:	25-26 February, 12 March 2021
Place:	Melbourne
Counsel for the Applicant:	Ms Olsson
Solicitor for the Applicant:	Margaret Romeo
Counsel for the Respondent:	Ms Christie SC
Solicitor for the Respondent:	Hague Convention Legal Practice

ORDER MADE BY:	WILLIAMS J
DATE OF ORDER:	15 APRIL 2021

Exhibit Number	Exhibit Description
A&R 1	Joint Exhibit
A 1	Father’s affidavit sworn 25 February 2020 and filed 3 March 2020 – paragraphs 76-85
R 1	Extracts of Google Hangout Chats in August 2019