Police Commissioner of South Australia & Agustina (No. 2) - [2020] FamCA 1100

FAMILY COURT OF AUSTRALIA
Police Commissioner of South Australia & Agustina (No. 2) [2020] FamCA 1100

File number(s): ADC 3887 of 2020

Judgment of: BENNETT J

Date of judgment: 22 December 2020

Catchwords:
FAMILY LAW – CHILD ABDUCTION – repudiatory retention where taking parent acts in bad faith – where application made more than one year after retention - where child found to be settled in her new environment – where Family Law (Child Abduction Convention) Regulations 1986 cease to apply and return application must be dismissed.

FAMILY LAW – CHILD ABDUCTION – where acquiescence is relied on as an exception to mandatory return but it is found not to have occurred.

FAMILY LAW – CHILD ABDUCTION – where grave risk of harm and intolerable situation are found not to apply as an exception to mandatory return – where Court asked to take judicial notice of the affect of the COVID-19 pandemic in Australia and in the United States of America – consideration of matters of which judicial notice can be taken.

Legislation:
Convention of 25 October 1980 on the Civil Aspects of International Child Abduction

Evidence Act 1995 (Cth)

Family Law (Child Abduction Convention) Regulations 1986 (Cth)

Cases cited:
A v A (Children: Habitual Residence)(Reunite International Child Abduction Centre Intervening) [2013] UKSC 60

Director General, Department of Community Services v M and C (1999) 24 Fam LR 168

Director General, Department of Families, Youth & Community Care &Thorpe (1997) FLC 92-785

Director-General, Department of Families, Youth and Community Care v Bennett [2000] FamCA 25

DP v Commonwealth Central Authority; JLM v Director-General, NSW Department of Community Services (2001) 206 CLR 401

Handbury & State Central Authority and Anor [2020] FamCACF 5

HZ & State Central Authority [2006] FamCA 446

Lukatz v Lukatz Fam C (Dist TA) 2637/91

McGregor & McGregor [2012] FamCAFC 69

MW v Director General, Department of Community Services (2008) 244 ALR 205

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

Re A & Anor (minors) (abduction: acquiescence) [1992] 1 All ER 92

Re A (Minors)(Abduction: Custody Rights) [1992] Fam 106

Re H (Minors) [1998] AC 72

Secretary, Department of Family and Community Services & Magoulas [2018] FamCAFC 165

State Central Authority & Handbury [2020] FamCA 668

State Central Authority & Sigouras [2007] FamCA 250

TB v JB [2000] EWCA Civ 337

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

Number of paragraphs: 137

Date of last submission/s: 8 December 2020

Date of hearing: 3-4 & 8 December 2020

Place: Melbourne

Counsel for the Applicant: Mr Keane

Solicitor for the Applicant: Crown Solicitor’s Office

Counsel for the Respondent: Mr Toca

Solicitor for the Respondent: Hague Convention Legal Practice

Counsel for the Independent Children's Lawyer: Mr Hemsley

Solicitor for the Independent Children's Lawyer: Legal Services Commission of South Australia

Requesting Father: Mr Chen
ORDERS

ADC 3887 of 2020

BETWEEN:
COMMISSIONER OF POLICE FOR THE STATE CENTRAL AUTHORITY OF SOUTH AUSTRALIA

Applicant

AND:
MS AGUSTINA

Respondent

AND: INDEPENDENT CHILDREN'S LAWYER

AND MR CHEN (REQUESTING FATHER)

ORDER MADE BY:

BENNETT J

DATE OF ORDER:

21 DECEMBER 202021 DECEMBER 2020

THE COURT ORDERS THAT:
1.The application of the State Central Authority of South Australia filed 19 August 2020 be and is hereby dismissed.
2.Paragraphs 3 and 4 of the Order made on 2 September 2020 (injunction placing the child on the Airport Watch List and the child being removed from the state of South Australia) be discharged.
3.Paragraph 5 of the Order made 2 September 2020 be discharged and the mother be entitled to retrieve any passports lodged for safe keeping with the Court.
4.The requesting parent (‘the father”) is granted leave to make an oral application in relation to ongoing audio visual communication between the girls, X, born in 2010 and Y born in 2012 and the girls and the parent with whom a girl does not reside.
5.Until a Notice of Address for Service is filed on behalf of the father to the contrary, the father’s address for service details appear in the records of the court as Mr Chen, O Street, City H, State of E, USA, …@gmail.com, ….
6.The father’s application proceed within this matter number and the father be designated the applicant and the mother be designated the respondent. The Central Authority is not a party to the father’s application. The father is not a party to the application of the State Central Authority.
7.The father and the mother be, and are each excused, from compliance with any requirements in the Family Law Rules 2004 for filing or serving documents in support of the father’s oral application.
8.The mother and the father do all acts and things to facilitate electronic communication via FaceTime between X and Y for one hour duration each Saturday being from 12.30pm to 1.30pm Adelaide time (being 6.00pm to 7.00pm City H time on Friday) and the children be afforded privacy during such communication.
9.The mother and father each facilitate the other being able to communicate via FaceTime with the child in his/her care.
10.Liberty is reserved to the parties to apply urgently in relation to implementation of this Order. For this purpose, contact should be made with the Case Coordinator or my Associate, …@familycourt.gov.au.
11.The order for the appointment of the Independent Children's Lawyer be and is hereby discharged.

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 Agustina has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BENNETT J

INTRODUCTION

[1]

THE LAW

[7]

ISSUES TO BE DETERMINED

[15]

ONUS OF PROOF

[19]

STANDARD OF PROOF

[21]

FINDINGS OF FACT

[22]

DOCUMENTS RELIED UPON

[23]

CREDIBILITY OF WITNESSES

[28]

RELEVANT HISTORY

[33]

REPUDIATORY RETENTION

[75]

REGULATION 16(2) AND X BEING SETTLED IN AUSTRALIA

[85]

ACQUIESCENCE AS AN EXCEPTION TO MANDATORY RETURN

[95]

GRAVE RISK & INTOLERABLE SITUATION

[114]

MATTERS WHICH WOULD INFORM THE EXERCISE OF THE COURT’S DISCRETION TO REFUSE RETURN UPON ONE OR MORE EXCEPTIONS TO RETURN BEING MADE OUT (WHICH IS NOT THE CASE HERE)

[130]

THE AGREEMENT BETWEEN THE PARENTS ABOUT COMMUNICATION GOING FORWARD

[131]

CONCLUSION

[133]

INTRODUCTION

By application filed on 19 August 2020, the State Central Authority of South Australia (“State Central Authority”, “SCA” or “the applicant”) seeks the return of the child, X, born in 2010 and aged 10, to the United States of America (“USA”) pursuant to reg 14 of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”). The Regulations give effect to Australia’s obligations under the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (“the 1980 Convention”) which entered into force between Australia and the USA on 1 July 1988.
The application is made on the request of the father, Mr Chen (“father” or “requesting parent”) against the respondent mother, Ms Agustina (“mother” or “respondent”). The mother and the father are jointly referred to as “the parents”.
On 12 November 2020, I requested that an Independent Children's Lawyer (“ICL") be appointed to represent X’s interests. In due course, Mr Kent, solicitor, was appointed. He has represented the child’s interests well within the confines of these forum selection proceedings.
The hearing proceeded over three days on the Court’s Microsoft Teams platform. There was cross examination of witnesses. Apart from being cross examined, the requesting parent observed the proceedings from City H.
I have dismissed the application of the SCA because it was instituted more than one year following the wrongful retention of X by the mother in Australia and therefore, X is settled here within the meaning of reg 16(2) of the Regulations. These reasons address the parties submission as to wrongful retention and the exceptions to mandatory return which the mother contended would have arisen on the facts of the case if X had not been found to be settled within the meaning of reg 16(2). Those exceptions are that the father acquiesced in the mother’s retention of X in Australia and that a return of X to the USA will expose X to psychological harm or otherwise place X in an intolerable situation.
The father was made a party to the proceedings for the purpose of binding him and giving effect to the Orders which are based on the parents’ agreement, reached at the end of the hearing, about communication between themselves and the children going forward.
THE LAW
It is the Regulations, rather than the 1980 Convention, that has force of law in Australia. Whilst the law to be applied is provided for in the Regulations, the Court’s interpretation of the underlying concepts should have regard to the autonomous meaning given by contracting states internationally to Articles of the Convention and related concepts.[1] As the 1980 Convention is expressed in different languages and applies to a range of legal systems, in which common law jurisdictions such as ours are in the minority, courts strive to ensure “that the Convention must have the same meaning and effect under the laws of all Contracting States.”[2] In these reasons I reference our legislation as well as corresponding Articles of the Convention to which our law is intended to give expression.
[1] A v A (Children: Habitual Residence)(Reunite International Child Abduction Centre Intervening) [2013] UKSC 60.
[2] Per Lord Browne-Wilkinson in Re H (Abduction: Acquiesnence) [1998] AC 72, [87(f)].
The retention of a child occurs when the child is taken out of one contracting state, in this case USA, and into another contracting state, in this case Australia, by agreement of a person with rights of custody over the child (the father) and is not returned as and when agreed.
Not every retention of a child across international borders qualifies for a return of the child under the Regulations. The Regulations apply only to a retention that is wrongful within the meaning of reg 16(1A). The pre-requisites to a finding that the retention was wrongful,[3] are that:
(a)the child is under 16 years (regulation 16(1A)(a); Article 4);
(b)the child was habitually resident in the country they were removed from immediately prior to their removal (regulation 16(1A)(b); Article 4);
(c)immediately prior to the retention, the left-behind parent had rights of custody in relation to the child under the law of the country of habitual residence (reg 16(1A)(c); art 3). Rights of custody is defined by reg 4 and includes rights relating to the care of the person of the child and, in particular, the right to determine the place of residence of the child;
(d)the retention of the child was in breach of the left-behind parent’s rights of custody (reg 16(1A)(d); art 3(a)); and
(e)at the time of the retention the left-behind parent was actually exercising the rights of custody (either jointly or alone) or would have exercised those rights had the child not been retained (reg 16(1A)(e); art 3(b)).
The above are pre-requisites to a return order are also referred to as jurisdictional facts.
[3]Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, art 35.
In this case, the respondent mother conceded that all jurisdictional facts were met and that the retention was wrongful within the meaning of reg 16(1)(A).
The retention of a child is not a continuing state of affairs. It occurs on a specific occasion and that occasion must be identified because the date of the retention is the date at which several jurisdictional facts must be assessed and time starts to run in other respects.
Once all the jurisdictional facts are met, the application is identifiable as either:
(a)An application which is brought within 12 months of the date of wrongful retention and to which reg 16(1) applies; or
(b)An application which is brought more than 12 months after the date of wrongful retention and to which reg 16(2) applies.
In either case, the date of which “the application is brought” is the date on which the Form 2 application was filed with the Court. The distinction between the sub-sections is, when the application is filed more than a year after the retention there is an opportunity for the respondent to “establish that the child has settled in his or her new environment”. If the child has so settled, the Regulations do not apply and the summary return mechanism is not available.[4] If the child is not found to be settled, the return is mandatory unless an exception to return is made out.
[4]Secretary, Department of Family and Community Services & Magoulas [2018] FamCAFC 165, 16.
In this instance, the SCA’s application was filed on 19 August 2020. The SCA specified 21 August 2019 as the date of wrongful retention in its application, orally at a directions hearing on 12 November 2020 and, finally, in its outline of case. [5] The date, 21 August 2019, was the date for which the return leg of X’s flight to USA was booked and paid. During cross examination of the mother by counsel for the SCA, it became apparent that the mother had formed the intention not to return X to the father well prior to 21 August 2019 and, moreover, the father recognised the mother’s repudiation of their agreement as early as 29 July, 2019. The repudiation of an agreement to return a child, prior to the agreed date for return, is repudiatory retention. In practical terms, the date on which the repudiatory retention takes place is the date from which the time starts to run pursuant to reg 16(2). It is also the basis that a left behind parent can make a request through his/her Central Authority for a return application to be transmitted to the Central Authority of the contracting state in which the child is present.
[5] Applicant’s Outline of Case filed 1 December 2020 [8].
If the application is brought within one year after the wrongful retention (or the respondent has failed to satisfy the Court that the children are settled as provided in reg 16(2)), reg 16(1) provides that prompt return is mandatory unless one of the five exceptions to return under reg 16(3) is made out and the Court exercises its discretion to refuse return.
ISSUES TO BE DETERMINED
On the afternoon of the first day of the hearing, counsel for the respondent mother sought leave to amend the mother’s Form 2A Response to state that the retention had been repudiatory in nature and dated from 29 July 2020. The SCA did not oppose the amendment. Moreover, it conceded that, if the retention was found to be repudiatory and to predate the filing of the SCA’s return application by more than a year, X could be regarded as settled within the meaning of reg 16(2).
I will consider the exceptions to mandatory return relied upon by the mother although, consequent upon my finding as to repudiatory retention and X being settled, the exceptions have no practical application to this case at first instance. The exceptions are:
(a)The left-behind parent subsequently acquiesced in the mother’s retention of X in Australia (reg 16(3)(a)(ii) implementing art 13(a));
(b)There is a grave risk that, if returned, X would be exposed to physical or physiological harm or otherwise placed in an intolerable situation (reg 16(3)(b) implementing art 13(b));
Initially, the respondent mother also alleged that X objects to being returned to the USA and has attained an age and degree of maturity at which it is appropriate to take account of her views within the meaning of reg 16(3)(c) implementing art 13. However, that was not pursued at the trial.
If the retention is wrongful and none of the exceptions to return apply, a return is mandatory and not pre-conditioned on the best interests or welfare of the particular child. If one or more of the exceptions to return are made out, the Court has a discretion to refuse to return the child. Amongst other things, the best interests of the individual child will inform the exercise of the Court’s discretion to refuse return.[6]
[6]HZ & State Central Authority [2006] FamCA 446.
ONUS OF PROOF
The applicant SCA bears the onus of proving the jurisdictional facts which characterise a retention as “wrongful”. They are the date of retention and habitual residence. As indicated, this was conceded by the respondent mother.
The respondent mother bears the onus of proving that X is “settled”. The onus of establishing one of the discretionary grounds for declining to order the return of a child lies on the mother who opposes return: DP v Commonwealth Central Authority; JLM v Director-General, NSW Department of Community Services (2001) 206 CLR 401 at pp 88,389, 88,390, 88,403. See also Arthur (supra) at [43].
STANDARD OF PROOF
As required by section 140 of the Evidence Act 1995 (Cth) I will apply the balance of probabilities as the standard of proof.
FINDINGS OF FACT
A statement of fact is a finding of fact.
DOCUMENTS RELIED UPON
The trial was conducted with an Electronic Court Book.
The SCA filed the following material:
(a)Form 2 – Family Law (Child Abduction Convention) Regulations – Application Initiating Proceedings filed by the Applicant on 19 August 2020;
(b)Affidavit sworn by the father on 27 July 2020 and filed under cover of the Form 2 Application (as annexure ‘C’);
(c)Supplementary affidavit sworn by the father on 12 August 2020 (as annexure ‘D’);
(d)Affidavit of Law regarding Rights of Custody in State of E sworn by Ms J (attorney licensed to practice law in the State of E) on 1 August 2020 and filed under cover of the Form 2 Application (as annexure ‘N’);
(e)Affidavit in Reply sworn by the father on 16 October 2020 and filed on 23 October 2020.
The respondent mother relies on:
(a)Form 2A – Answer/ and Cross Application filed by the mother on 24 September 2020
(b)Affidavit sworn and filed by the mother on 23 September 2020;
(c)Affidavit of her husband, Mr F, sworn by him on 13 November 2020 and filed on 18 November 2020.
There were a number of Exhibits.
Regulation 26 provides that the Court may direct a Family Consultant to undertake an assessment and to report to the Court on such matters as the Court considers to be appropriate and for the Court to receive the report into evidence. A Family Consultant is an expert psychologist or social worker with a high level of training and experience in child development and parenting after separation and divorce. Family Consultants are employed directly and exclusively by the Family Courts in a section of the Courts called Child Dispute Services, which is located within the Registry. A reg 26 report was ordered to be prepared principally on the issue of X’s alleged objection to return to the USA. It was written by Family Consultant Ms G and is dated 15 October 2020. It is in evidence. The mother did not prosecute her objects to return argument and the Family Consultant was not required for cross examination. Some reference was made to the reg 26 report in the context of X being settled.
CREDIBILITY OF WITNESSES

The father was cross examined and impressed me as an earnest and honest witness. His life views lacked some subtlety but his account appeared to me to be accurate. He spoke of the girls with emotion.
The respondent mother was cross examined. She had the services of an interpreter. The mother was a nervous and stressed witness. My impression is that her stress was directly referrable to her trying to give evidence which she perceived would assist her case. Her response to simple questions was very frequently “I don’t remember”. More than once she said “I feel foolish” or words to that effect. My impression was that the mother felt embarrassed because she could not think of an answer that would cast her in a favourable light rather than her not being able to give a responsive answer.
The mother’s credibility was challenged in relation to her statement to the children’s school in City H that the requesting parent had a “record” for having perpetrated family violence against her. That document is Exhibit “SCA 1”. The mother agreed that she had intended to convey that the father had been convicted of a criminal offence. I accept that the father was not convicted and that, some time ago, the document relied upon by the mother as evidence of the father’s criminal record was interpreted to her in terms which did not describe any conviction of the father. However, given the mother’s imperfect English and her unfamiliarity with the criminal justice system in the USA, I am not as critical of the mother’s credibility on this issue as counsel for the SCA and the Independent Children’s Lawyer would have me be. The document addresses the mother as a victim of family violence and a responsible government authority outlines the services and supports available to the mother on the basis that she is a victim of family violence. The father was removed from the home by police and returned to the home in the company of some official who sounds like a social worker. The father was required to pay money to secure his freedom. The mother’ statement was incorrect but it did contain more than a kernel of truth. That said, I do not regard the mother as a credible witness.
The mother appeared to be uncomfortable when confronted by the inaccuracies and falsehoods in documents submitted on her behalf and to portray the father poorly. The mother takes little responsibility for her situation. For a significant period she absolved herself of responsibility, vis a vis herself and the father, by having Mr F communicate with the father and complete any necessary applications or visa related documents for herself or X. Many direct questions in cross examination about matters which the mother could be presumed to know were responded to by the mother with “I don’t know”. My impression is that the mother knew the answer but she did not want to take responsibility for the answer. I have little confidence in the mother’s truthfulness. I accept the submission of the Independent Children’s Lawyer and the applicant SCA to the effect that the mother was not a witness on whose evidence I can place any store.
The mother’s husband, Mr F, was a similarly poor witness on whose evidence I place little weight. He was vague, answered “I can’t remember” on numerous occasions. He acted as the mother’s champion vis a vis the father and authorities such as the children’s school and the government. My impression is that he considered he should do whatever was necessary to get one or both girls to Australia on the basis that the end would justify the means.
RELEVANT HISTORY
The father was born in China in 1969 and is 51 years old. The mother was born in Country B in 1979 and is 41 years old.
The parents met in City A, Country B in January 2010, when the mother was working there and the father was on holiday from City H where he was then living. The mother’s evidence was that the father returned to City H a month later and returned when the mother told him that she was pregnant. The father’s evidence is that he remained in Country B from January to May 2010.
X, the subject child of these proceedings, was born in Country B in 2010. The mother says that the father returned to Country B approximately four days before the birth before leaving for City H in March 2011. The father says he came to Country B in October 2010 and left in August 2011.
On 2 May 2011, X was granted USA citizenship and she and the mother moved to City H to live with the father shortly after. The father says that it was August 2011 when the mother and X moved. The mother held a tourist visa that was valid for 5 years. The visa required the mother to leave the country every 6 months and renew her visa whilst abroad. Therefore, the mother and X (and later Y) travelled to China every 6 months to visit the paternal grandparents.
In August 2011, X was diagnosed with a medical condition. The father wanted X to become a USA citizen so that the family could access the USA medical system for X’s treatment.
X’s younger sister Y was born in City H on 24 January 2012. Y is a citizen of Country B and the USA.
The mother’s evidence is that the father assaulted her on 23 February 2013. She annexes to her affidavit sworn 23 September 2020 at “A-01” a photograph of her with a black eye that she says the father inflicted. In cross examination the mother explained that she did not want to press charges against the father because she was worried about the children. The father was required to pay bail to be released after being held overnight. The mother said that she believed the father had been charged with assault (battery) until as recently as 2019 when some documents which she had received upon the father’s release from custody were translated for her. The father deposes in his affidavit sworn or affirmed 16 October 2020 that it was the mother who had attacked him on 23 February 2013. He says that the mother is trained in martial arts and that it was self-defence whereby he elbowed the mother during the “fight” whilst he was holding one of the girls. The father says that he called the police, was taken into custody for questioning, was arrested as part of the mandatory requirements in relation to domestic violence incidents in City H but was released the following day. He says that regardless of whether the mother had pressed charges or not, the police must investigate the incident. No charges were laid and the investigation was closed. He annexes the Certificate of Release by City H Police Department. The mother deposes that this was the first time that the father had physically assaulted her.
The mother, through Mr F, later made reference to this incident in an email to X’s school in City H on 27 March 2019 which is annexed to the mother’s affidavit at “A-03”. She stated:
I am mother of [X] and [Y]. As you may be aware, I live forcibly estranged from my daughters in Australia.
I am again concerned about the physical and emotional welfare of my abducted children.
I was recently contacted by the girls’ father who appeared in an alarmed state. The last time this occurred was when he contacted me immediately after he had physically assaulted his wife with instructions to me to down play his violent past when questioned by children’s services (he already has a criminal record for physical battery to me).
On the current occasion he has called me asking if I will “have” [X] as, paraphrased he remarked about himself, “I am in big trouble”.
I am very concerned about my daughters and request that the school follow this up. I am concerned myself about contacting the police as if he suspects that I initiated an investigation, he would cease the little communication I have with m girl at the moment.
I have written this with the assistance of my husband [Mr F].
The father’s evidence is that from April to December 2013, the family travelled to China and Country B and stayed with the paternal grandparents in China. The father says that the family returned to City H to live in December 2013 and remained there until January 2015 when the family moved back to Country B.
In April 2015, the mother says that the father suggested that the family travel to China to visit the paternal grandparents for a month before returning back to Country B. At [59-64] of the mother’s affidavit sworn 23 September 2020, the mother deposes that the father told her after a week of being in China, “you can stay here with the children or you can go back to Country B by yourself”. The father enrolled the children in school in China and told the mother he would return to City H. The father told the mother that she could stay with his parents but that she would need to return to Country B to renew her visa every 3 months, at his expense. The mother says that whilst living at the paternal grandparents’ home, the father assaulted her again by pushing her to the ground in front of the children and paternal grandparents. However, the father denies the assault or any “violence”.[7]
[7] Father’s affidavit sworn or affirmed 16 October 2020.
In July 2014, the father returned to City H and returned to China in late 2015 for X’s birthday. The mother deposes that during this time she signed an application for X to renew her USA passport but says that she did so under duress by the father who threatened that she would not see her daughters unless she signed. X and Y were living with the paternal grandparents’ home in China whilst the father was living in City H.
The mother deposes that in April 2016, the father called her whilst she was in China to inform her that he planned to take the girls back to City H and that she “had to go back to Country B to live”. The father deposes that in April 2016, the mother “left China and our children stayed with my parents”. The father’s evidence is that on 8 August 2016, the parents discussed their children’s future and that he suggested that the mother could take Y to Country B and that the father could take X back to the USA. The father’s evidence was that the mother did not agree to separate the girls so he asked to take both girls to the USA and the mother agreed that he do so. The WeChat conversation from August annexed to the father’s affidavit as Exhibit “E” demonstrates the parents’ interaction with one another in 2016 which led to the girls ceasing to reside with the mother. I set it out extensively because the style and content of the discussion is helpful background against which to understand the subsequent communications (or lack thereof) between the mother and the father in 2019 and 2020 which is the period relevant to this application. The conversation was:
Mother: Why
Mother: [X Y] stay with me?
Father: Sleep with you. But eat with my parents.
Mother: How I am gonna live there
Father: Not sure yet.
Mother: Why changes
Father: Because my parents was not happy with you
Mother: So they want take [Y X] from me?
Father: They just do not want to live with you.
Mother: Ok
Father: You live by yourself.
Mother: So how I am going live there
Father: Let me rent something for 3 months.
Mother: How I am gonna eat
Father: Eat with my parents ok
Mother: Please no
Father: No what?
Mother: Please I don’t want eat with them
Father: Or you eat whatever you like.
Mother: I don’t have money
Mother: And how my internet too
Father: I am not sure about internet yet.
Mother: I really need that
Mother: Please thinking about that too
Father: Ok
Mother: Thank you
Father: When 3 months ended. You go back to [Country B] yourself? I buy tickets.
Mother: And when I go see [X Y] again
Father: When you miss them, you see them. Please give 2 months before I buy another ticket.
Mother: So I am just like this
Father: Yes. Or you make enough money. You take [Y]. Or you find yourself a good family.
Mother: Can we just be good even we not together anymore
Mother: This is hard time for me
Mother: They are my kids too
Mother: I know they are not parents
Mother: If I make enough money maybe only dream
Father: I am not [Country B]. I know you do not understand. I do this only for the good of my kids.
Mother: I feel want to working out of [Country B] but all need money
Mother: I need to more study but need money too
Father: You do whatever you need to do. I am not rich.
[…]
Mother: Miss them very much
Father: I know. Not easy. I miss them too.
Mother: And worry about to leave them again
Father: I want to take them back to USA. [X] needs to see a doctor so bad. But needs money to flight.
Mother: Yes please do something for [X]
Mother: Please help her
Father: Not enough money yet.
Mother: Understand
Father: If [X] come, we flight. When can I have money to get [Y]?
Mother: No understand
Father: If [X] is in USA. I can not work two jobs.
Mother: You have 2 job now?
Father: Yes. Still working in office.
Mother: So what you gonna do
Father: Save some money. Take [X] back.
Mother: Yes that’s what I wants too
Mother: I want [X] hand and foot better
Mother: I want to see [X] like other girls
Mother: Everytime I show people here walking like [X] my heart is broke
Mother: Really sad
Father: Can I take [X] and [Y] together to USA? You come to see them in the summer. I leave the house in the summer.
Mother: I am really sorry
Mother: Yes you can
Mother: I want them good
Mother: Usa is better for [X Y]
Father: I should have enough money next month to light them to USA
Mother: And when your planning take them back
Father: Not all sure. I want to as soon as next month.
Mother: Next months
Mother: How I am gonna see them
Father: If you are Ok with it. I will go to take them to USA
Mother: But if that the better time for you to take them
Mother: I have no choose
Father: What about you?
Mother: I just in here
Mother: I have no choose
Mother: You can take them with you
Father: I do not have money to flight you until next year
Mother: Yes
Mother: You take them
Mother: I can wait
Mother: I really miss them
Mother: But please don’t take them away from me
Mother: [X’s] doctor will give me paper. You can use it to make a Visa. You come to see them.
Mother: I love my baby girls
Mother: You take care [X] first
Father: But you can not stay with me.
Mother: Don’t leave [Y]
Mother: Its okay if I cant stay with you
Mother: But you know I cant leave in usa
Mother: Live
Father: I will buy you ticket come and go. You visit Kids.
Mother: Thank you
Father: Ok. I will start to look for a home to get ready for the kids. Will try to tkame them back to USA next month.
Mother: Yes
Father: Will let you know when I have a plan. Thanks
Mother: So you going back to China soon?
Father: Maybe next month.
In October 2016, the father took both children from China to the USA. This was the last time that the mother saw the girls together. The mother returned to Country B on a ticket provided to her by the father. The mother’s evidence was that, thereafter, she tried to contact the father to communicate with the children in the USA but the father did not respond. The mother’s evidence was that she could not contact girls until April 2017 when she commenced some brief contact every one or two months.
The mother’s evidence was that she met Mr F online in December 2016. Mr F’s initial evidence was that he met the mother in December 2015. Ultimately, Mr F changed his evidence to agree they met over the internet in December 2016.
Mr F and the mother met face to face in April 2017.
On 25 November 2017, the mother moved to Australia to live with Mr F.
In early 2018, the father married his now wife Ms Q.
On 9 May 2018, Mr F contacted the childrens’ school in City H by email to the school’s principal Ms P. The email correspondence is marked Exhibit “SCA 1”. He wrote (omitting formal and irrelevant parts):
I am writing on behalf of [Ms Agustina], my partner and mother to [X] and [Y]; students at your school. [Ms Agustina] has asked me to correspond on her behalf as English is a second language to her [Country B language].
Some relevant context to this letter’s intent:
[X] and [Y] were illegally abducted, that is, taken without consent from [Ms Agustina] by the father while in China in 2016 to the United States. The abduction occurred after the father [Mr Chen] enacted aggravated assault upon [Ms Agustina] while at their then and now his current address in the U.S. He was convicted for this assault. [Mr Chen] is a U.S citizen with a U.S passport.
We are currently exploring what [X’s], [Y’s] and their mother’s rights are regarding this abduction act according to child abduction laws expounded in the Hague Treaties.
Since the fathers return with the children to the U.S he has ‘allowed’ his children communication with the mother (living in both [Country B] and Australia) weekly. This has been often at his unstable emotional whim, always highly censored as to what the mother and children talk about and often with one child only and more often of a very short duration. For the last 1.5 months he has allowed no communication. [Ms Agustina] has not seen online or talked with her girls.
Prior to the children’s abduction [Ms Agustina] had a very close and loving relationship with her daughters (although under the extremely suppressive and autocratic conditions of the father). The removal of her children has been at the very least devastating to her re-enacted daily. The children’s loss is, as the children have shown online, similar. Additionally we believe the children are experiencing varying levels and degrees of reportable neglect from their father.
Purpose of this communication:
[Ms Agustina] wishes as mother to be as present as she can, given the circumstances, in her girls education. News letters from the school, teacher/parent communication, girls academic timetable and so on would be greatly appreciated.
Most important [Ms Agustina] requests that she, [X] and [Y] can re-establish communication access (video conference) independent of the father while they are at school on a given weekday that would suit the girls program. Please give this last request real consideration as the mother and her daughters are victims of this man’s continued illegal whim.
[Ms Agustina] also understands that the father is taking the children permanently to the State of [S]. This information was given to her in one of her recent conversations with [Y]. She would greatly appreciate if that information could be authenticated.
Lastly we would greatly appreciate if you are privy to any public organizations in the State of [E] that legally challenge abductions enacted by U.S citizens.
We have included relevant documents that authenticate the mother/daughter relationship.
It would also be greatly appreciated if [Ms Agustina’s] correspondence with the school remain confidential from the father.
The response to the father’s email by Ms P was only:
If you are ever concerned with children's safety please call 911 or the [City H] Policy Non Emergency line at … or ….
In August 2018, an incident occurred between the father and Ms Q. The father’s evidence was that Ms Q slapped his face, he called the police and Ms Q was arrested. In his oral evidence, he conceded that calling the police was an inappropriate thing to do and that he was just being “lazy” as he did not want to deal with the conflict. The father’s evidence was that the girls were in their bed room at the time of the incident and not directly involved. In September 2018, the childrens’ school in City H was contacted by Child Welfare Services about the incident. The children, the father and Ms Q were all interviewed. The investigation was closed on 31 December 2018 with the father deposing that his wife, Ms Q, had been charged with a “misdemeanour”.
In January 2019, the mother received a telephone call from the father during which he said that he had a “big problem” and was unable to look after X. The father asked the mother to assume care of X in Australia. The father deposes that he was motivated to ask the mother if X could live with her and Mr F because he believed that he had a life threatening illness, a liver tumour, and he needed to be proactive about the future care of his children. The father’s evidence was that he recognised that he could not care for both daughters if he became gravely ill. X has more complex needs so he suggested that X could live with the mother and he would retain Y whom he described as “self sufficient” and able to care for herself. Y at this time was 7 years old.

The father gave evidence in a quiet and deliberate way. When discussing the separation of the girls he became emotional and exclaimed “I will care for Y until the last breathe I have”. He denied showing favouritism towards Y and says that he loves both his children. The father’s evidence is that, going forward, the girls should be together. He acknowledged it had not been a good idea to separate the girls but rationalised that “with a life threatening condition, if I don’t have the power to look after [both children] I will do what I have to all the way to the end.” The father’s evidence was that, after January 2019, he received a clean bill of health. Counsel for the respondent mother was critical of the father for not producing evidence of his medical tests but the father deflected the question and the issue of his health history was not pursued.
On 25 March 2019, a further domestic violence incident occurred between the father and Ms Q which the father admitted involved “physical contact”. Ms Q visited her physician the following day, the father says for a “regular check-up”, and “mentioned” the argument to her physician. The physician was required to make a report and contacted police, “over my wife’s objection”. The police and Child Welfare Services commenced an investigation, interviewing the father and Ms Q and children, but the investigation was closed without any charges being laid. A letter from Child Welfare and certificate of release from the police are attached to the father’s affidavit sworn or affirmed 16 October 2020. The respondent mother was contacted by USA Child Welfare Services in relation to this incident.
In early 2019, the mother married Mr F in Australia.
In March 2019, the respondent mother and the requesting parent commenced making plans for the mother to travel to China to meet the children during the children’s USA summer vacation of June 2019 when they could visit the paternal grandparents. The father was no longer worried about his health. At this time, there was no plan for X to enter Australia or to reside permanently with the mother. When the respondent mother then became pregnant with her child with Mr F and the father became concerned about his aging parents being able to care for the mother during pregnancy. On 1 April 2019, the father proposed that X could visit the mother in Australia whilst Y visited the paternal grandparents in China. This is the visit that gives rise to the current application.
On 2 April 2019, the father and Mr F (who was corresponding on behalf of the respondent mother) agreed that X would arrive in Australia from 19 June 2019 and return before the start of the school year in the USA. X’s return flight was booked for 21 August 2019. The text of the email correspondence between the father and Mr F, at annexure “L” to the father’s affidavit, omitting formal and irrelevant parts, reads:
2 April 2019 at 3:05AM ([City H] time)
Hi [Mr Chen]
We have been researching [X’s] trip to Australia.
I have communicated directly with Qantas, the main carrier between [State of E] and Australia. They confirmed that they provide a chaperone service for unaccompanied minors. This is simply organized when booking the ticket (needs to be done by phone). So there is no problem with the flight: a qantas staff will accompany her the whole duration including clearing immigration/customs and flight transfer. The flight will be two legs:
1. [State of E]-Sydney/Melbourne
2. Syd/Mel -Adelaide.
Qantas is an excellent company in all aspects.
Regarding her visa: we have been advised we need to simply make an application for a visitors visa. No passport stamp needed. Immigration keep the record on their data base for when she would check in and clear customs. The granting of a visitors visa take between 1 and around 10 days. We would need to apply for the visa a bit ahead of booking the flight. I propose that we split the cost (flight/visa) in 1/2. We are very open to [X] to come over at any time from now. As I remarked we have a selection of good primary schools here so she would be able to keep up with her education. We have also excellent health services of which she will have access to. She will have, as [Ms Agustina,] private health cover.
Please let us know your thoughts and intentions regarding the above ASAP.
[Mr F]
On 2 April 2019 at 9.44AM ([City H]), the father replied:
Hi [Mr F]
Thanks for your email. Congratulations for your marriage and the upcoming little one.
Please check with Qantas again. There are certain restriction for unaccompanied minors for Quanta USA. .The restriction might be different for Australia.
[X] must be returned to USA before that school starts again in Aug 24th.
If book around trip ticket for [X], we will split the cost. I need agreement from both of you.
X needs to learn to be independent, in the way for her thinking and living. Her sister has been too dominating. Use the time to build her confidence.
Thanks
[Mr Chen]
On 4 April 2019 [Mr F] responded:
Hi [Mr Chen]
I’ve again contacted Qantas and both times they confirmed X will be able to travel as an unaccompanied minor on the flight to Australia. This is a regular service they offer. You can check with Qantas by calling 131313 (perhaps +61 131313). My children have used it before. Qantas has an excellent customer service/safety record so we have no concerns with this carrier’s services.
Regarding when [X] visits here, as I remarked we are more than happy to receive her anytime from now. She can school for a period here so she keeps up with her studies. Please let us know ASAP when the earliest date she can come.
We also assure you she will be back in time to commence school after the US summer break.
[PS: Australian Visitors VISA (family) are granted for 3 months with the possibility of extending].
Back to you.
Thanks
[Mr F]
The visa application made for X to travel to Australia, being a temporary Australian visa to a child under the age of 18 years and being Exhibit “ICL3”, is dated 8 May 2019. The details of both parents are filled out and both have signed the form.
X arrived in Australia on 19 June 2019.
On 29 July 2019, the mother sent the father an email informing the father of her intention to retain X in Australia rather than to send her back to the USA on the flight booked for 21 August 2019. The following email exchange occurred:
29 July 2019 at 11.03PM
Hello [Mr Chen] .. I decide [X] gonna stay with me in here for a while .Because i am her mom. We gonna spent time together I wasn't with her for 4 years. She can go to school in here also. If you let [Y] can stay with us in here thats will be fantastic. I never gonna stop you to call your daughter and communicate with them..And we are welcome for you and your wife to come here and visit your daughter
The father responded:
3 August 2019 at 10.19PM
[Ms Agustina],
Please let [X] back to US. No need to break the trust that we build over this summer. You need both kids. Not just one. They both need you too. Please let [X] continue her schooling in [City H]. You will spend time with both of them next summer.
Let's make a better plan than before. Let's not flight for the sake of this two kids. They have been though so much over the past few years. Not easy for them neither.
Thanks
[Mr Chen]
Then ten or so days later there was the following interchange:
On 14 August 2019 at 4.51PM from the father to the mother
[Ms Agustina],
[X's] school starts on august 27th. She is in a special education program. She has two teachers working with her one-on-one on daily basis. They are the same teachers with who she has been work since kindergarten. Her leg brace is scheduled to be upgraded as well.
[Y] is coming back to [City H] next week. [Y] is on vacation in China with my brother family in the next few days.
Please send [X] back. Both girls surely miss one another. Let's make plan for next year. You will be with both of them.
Thanks
[Mr Chen]
On 17 August 2019 7.50PM from the mother to the father
[Mr Chen] .. Let [X] with me this time.. We are organising now [X's] special needs in both education and health care. [X] will be enrolled in the local school where she will receive support in all the areas she needs and the same as she receives in [City H]. About the operation we are organising an independent paediatric specialists opinion.
I remember you told me before when you take [X] from China 4 years ago, shes going to [City H] to have operation but why until now shes dont have? And now you told me shes gonna have operation next year. Shes has a visa to stay in australia for 12 month so let shes stay with me a while.
I am going to exercise this right for her to stay with the view of permanency beyond this 12 months. Please be gracious about this decision.
It is also [X] wish.
She is well looked after here
On 17 August 2019 at 8.50PM – Father to the mother
[X] has been receiving physical therapy and occupational therapy biweekly. And her operation should be done between 9 to 10 years old. Doctor needs to see her 6 month before the operation. Ideally, her operation should be done next summer in May or June.
There were the following communications:
18 August 2019 at 4.35PM –Mother to father
Please you need to changes her ticket to [City H]. Shes wants to stay with me in here. That was [X] wish .. I am asking to her many time already. I know this is gonna be sad for [Y]. But if you ok [Y] come here to stay with her and me thats gonna be good for [Y] also [X]. And you can come here and visit them .. We have a room for you to stay with your wife. I am never gonna stop you to communicate with your daughter and never gonna telling bad things about you to your daughter. Because i know very well how the felling.
18 August 2019 at 8.39PM - Father to the mother
You can change [X's] plan like this. You can also change [Y's] plan if she is with you.
I knew [X] missed you so much. That is why I sent her to you. I also knew that she will miss her life in [City H] so much. She is the type of girl that keeps it all inside of her. You have no power to manipulate her.
It is in you and kids' best interests to send [X] back to [City H]. So that, [X] will continue missing you and will make her choice when she is a few years older. I am done talking to you.
X’s anticipated date of return to the USA, 21 August 2019, came and went. X remained in Australia.
In 2019, baby Z was born in Australia to the mother and Mr F.
On 27 September 2019, the father sent the mother and Mr F an email which stated:
Please give me the plan of [X’s] schooling. And why she has not went to school yet.
X was then enrolled in R School. The mother deposes that the school has obtained special funding to assist X with her needs.
In June 2020, Mr F partially completed an application for X to reside in Australia permanently. The document is marked exhibit “ICL2”. The application form does not contain any details for the father other than his name. The mother signed the form on 22 June 2020. Mr F gave evidence that he did not submit the form to the father or the authorities and that this was just a draft. He said that he could not submit it without the consent of the father and he knew that the father would not provide his consent to the application to enable it to be submitted. By this time, X was nine and a half years old and had been in Australia for a year.
On 4 July 2020, during a video call, the father says that the mother asked him to sign a visa application for X to obtain permanent residency in Australia. The father refused to give his consent. The mother wrote to the father in a series of messages via WeChat messenger:
I hv think from [X] to show you
And from the Americans children association
So please be nice to me or you going to lose [Y] too
I hv police record also from [City H]
You still need me to sign Y paspord some day
Be nice the best way you have to do to me
[…]
Be nice the best way you have to do to me
America and Australia they work together for children
I know exactly what happened in your house with your wife
I am not stupid like you think… I am not gonna hurt Y
The key is be nice only and respect to me. Okay.
You try to make Y don’t think she have a mom ? I know that.. fucking Chinese.
On 7 August 2020, Mr F wrote to the Department of Home Affairs about a 445 visa for X which visa allows a child to stay in Australia while their parent applies for a permanent visa. The italicised parts of the correspondence reproduced below are the parts which Mr F conceded in cross examination were statements he knew to be false:
Dear Case Officer
This letter serves in part as a response to the recent request for further information for the visa 445 application of [X].
We have requested formalised consent for [X] to immigrate to Australia from the father [Mr Chen] who has refused.
We now wish to put forward what we feel are compelling reasons and evidence as to why it remains in [X’s] best interest to join her mother in Australia.
[X] has now been living with us since her entry to Australia June 2019. She has been witness to the birth of her brother in September last year and has enjoyed a growing relationship with her new sibling. She attends [R School] in which she has established meaningful friendships, is a recipient of additional support and is enjoying classroom life with her cohorts.
She enjoys socialisation with her step brother and sister, [U] and [V] as well as integration with my extended family (my parents, brothers, sisters in law, nieces and nephews).
The greatest benefit to [X’s] arrival in Australia is her reconnection and reconciliation with her mother [Ms Agustina].
Some back ground information:
[X] and her sister [Y] were abducted by the father [Mr Chen] without maternal consent, following an assault charge in which [Mr Chen] enacted aggravated assault in the presence of the children against [Ms Agustina] when they were partnered. The assault occurred in [City H] and was intercepted and recorded by the [City H] County Police where he was arrested. Bail of $20,000 USD had his release.
The abduction, as defined by the Hague convention, occurred initially in [Country B], from where they were then taken by the father to China where they lived with their paternal grandparents for a year in the absence of either himself or their mother prior to him returning to take them to the USA.
Currently the father has ceased all communication between the sisters as well as [Y’s] communication with her mother. This last act follows the highly censored and sporadic communication he had ‘allowed’ [Ms Agustina] to have with her daughters over their estrangement duration. It also follows two events last year in which the [City H] Department of Children’s Services had contacted [Ms Agustina] following a double aggravated assault [Mr Chen] enacted towards his new wife of 4 weeks. At the time he communicated with [Ms Agustina] claiming he was in ‘big trouble’ with the police and that the children would need to live with the mother. As a result he agree at the time to allowing a twelve month 600 visa application upon my request. Since he has changed his mind and demands X to return to him.
It is pointed out that, with the 2019 [State of E] Summer holidays then approaching the fathers choice was to send the younger daughter [Y] to spend that time with his family in China and [X] with her mother [Ms Agustina] in Australia. His reasons given by him for not sending both children to their mother for holidays was in his words when asked, “…I am not ready to loose [Y]…”.
This statement and action demonstrates as we have witness, he values [X] less due to her disability over [Y] who is without. [Y] being the ‘display daughter’ for family in China. We have witnessed this same difference in values towards his daughter in his actions of supporting extra curricular learning experiences for [Y] while withholding the same for [X]. These include instrumental and fine art tuition and after school social group activities.
We are currently involved in an application with the Hague to have, ultimately, both children join their mother permanently here in Australia. At this point we are applying for [Ms Agustina’s] rightful access to [Y], her presently remaining estranged daughter.
Please consider allowing the successful processing of [X’s] 445 visa to join her mother as base upon the following summary of what we feel are compelling. As we collect, evidence of various aspects mentioned above will be sent to the Child Visa Application centre. Accompanying this letter today will be a historic [City H] police report for [Ms Agustina’s] assault and an account from [X] when she first arrived in Australia. We have requested reports from [R School], from the [City H] County Child Welfare Services, from [City H] County Police and from a former therapist and teacher at [K School] and await their responses.
Summarised:
1. [X] has indicated without reserve she wishes to remain with her mother in Australia.
2. [X] has indicated she fears her father for his violence.
3. We feel, based upon our observations while [X] was with her father, that her needs as a child with a disability were not met emotionally, developmentally or comparatively with her sister [Y]. [X] is now receiving excellent support led by [Dr L] at our local medical practice, from her school and most importantly, from her mother.
4. [Z], an Australian citizen and [X’s] 11 month old brother enjoys a growing and deepening sibling relationship. [X] was present at [Z’s] birth and continues to be directly involved as an older sister in raising he infant brother. We believe that their separation would now be significantly emotionally detrimental to both.
5. [X] is now settled into life in Australia. Family life is emotionally stable and without violence.
6. The house hold is financial with both parents working; myself as an educator and [Ms Agustina] in private business in allied health.
7. [X] attends school as remarked above and is now well integrated and has much to look forward to with the schools planned intentions for her.
8. I have great concern for [Ms Agustina] my wife, should she be separated from X a second time. I have witnessed [Ms Agustina’s] resilience over the loss and absence of her children since she and I first met (the approximately same duration of the daughter’s estrangement) however, the last month in which the father has ceased all communication has seen her mental well being diminish significantly. I feel a second removal of [X] will be devastating for both. We also know as a certainty, if [X] returns to the USA, [Ms Agustina] and her daughters will loose all contact at the hand of the father.
9. The return of [X] to her father as remarked above will see the final estrangement of both daughters with their mother. It will see [X] returning against her wishes to live with her mother. It will ensure to continuity of her a witness and recipient to the active and passive violence of the father and the associated developmental outcome that would bring. It would uproot her from the supportive family and community situation she now thrives in.
Please stand by for the to be attached documents.
Sincerely
[Mr F], sponsor and husband to [Ms Agustina] and sponsor to [X].
On 27 July 2020, the requesting parent signed his application to the US Department for the return of X to the USA under the 1980 Convention. [8] In due course that application was transmitted by the US State Department to the Australian Central Authority and then to applicant Central Authority for the State of South Australia.
[8] Applicant’s Form 2 application, Annexure B.
On 19 August 2020, the applicant SCA filed the Form 2 Application for the return of X.
REPUDIATORY RETENTION
Repudiatory retention is a variety of retention under the 1980 Convention. It occurs when a party subjectively and objectively evinces an intention not to return a child to the other contracting state ahead of the date of return. Amongst other things, recognition of a repudiatory retention enables a left behind parent to request a return order under the 1980 Convention without waiting until the agreed return date to pass.

I discussed repudiatory retention at length in State Central Authority & Handbury [2020] FamCA 668, a decision subsequently upheld on appeal Handbury & State Central Authority and Anor [2020] FamCAFC 5. The necessary elements of repudiatory retention are identified in the following passage:
230. […] In the recent case In the matter of C (Children) the UK Supreme Court held unanimously (Lord Hughes with whom Lady Hale and Lord Cranworth agreed with Lords Wilson and Kerr dissenting on the outcome of the case on its facts) that, as a matter of principle:
a) repudiatory retention is possible in law;
b) the 1980 Convention does not apply if, by the time of the alleged repudiated retention, the child has acquired habitual residence in the state in which the request for return is made. If a child becomes habitually resident in the destination state before the repudiatory retention, the destination state has primary jurisdiction to take measures including parenting orders; [34]
c) the 12 month time limit (under the equivalent of our r.16(2)) for seeking a mandatory return, without consideration of whether the child is settled in the new environment, runs from the point that the repudiatory retention occurs; [46 48]
d) repudiatory retention occurs when a retaining parent forms a subjective intention formed not to return the child to the state of habitual residence at the expiration of the period which was agreed between the parents as the date upon which the child would be returned;
e) repudiatory retention must be an identifiable event and cannot be regarded as a continuing process because of the need to count forward the 12 month period specified in Article 12; [51(v)]
f) it would be unwise to attempt an exhaustive definition of proof or evidence of a subjective intention on the part of the detaining parent. An objectively identifiable act of repudiation is required, but it need not be communicated to the left behind parent nor does an exact date need to be identifiable. A privately formed decision would not, without more, constitute a repudiatory retention; [50 51]
g) a repudiated retention can occur and pass without the left behind parent being aware. This is because the 12 month period (under the equivalent of our r.16(2) 2)) is not a limitation period operating between parents but a provision in the child’s interest of a point at which those negotiating the 1980 Convention recognised that mandatory summary return ought not be available without express consideration of the degree to which the particular child had settled in the requested state; [50 51].
The Full Court’s dismissal of the taking parent’s appeal in Handbury established that repudiatory retention is part of Australia’s Hague jurisprudence in return matters. I apply those principles to this case.
I am satisfied that the respondent mother had formed a subjective intention to repudiate the agreement to return X to the USA well prior to 21 August 2019 and probably as soon as she and Mr F thought that they could succeed in having X enter Australia. I find that the objectively identifiable act of repudiation was the mother’s email communication to the requesting parent on 29 July 2019 in which she informed the father that: “I decide X gonna stay with me in here for a while .Because i am her mom.”[9] The mother confirmed her resolve on 17 August 2019 when she wrote to the father “I am going to exercise this right for her to stay with the view of permanency beyond this 12 months. Please be gracious about this decision.”[10]
[9] See para [63] earlier in these reasons.
[10] See para [65] earlier in these reasons.
Counsel for the SCA submitted that the repudiation did not date from 29 July 2019. Counsel for the SCA contends that the two month visit was always a ruse on the mother’s part, it was merely a means to get X to Australia. Counsel for the SCA submits that, because the mother did not intend to abide the agreement, there was no “agreement” as to the return date between the requesting parent and the respondent mother. It was submitted that, if there was no agreement, there could be no repudiation of an agreement. I do not accept that submission.
Counsel for the SCA also constructed an alternative submission, as best I understand, to illustrate that repudiatory retention is not applicable to this case. He submitted that, if the mother always intended to keep X in Australia for as long as she could (which I am satisfied is the case), the mother’s subjective intention to repudiate the agreement with the father would have pre-dated even X’s arrival in Australia. I do not accept that submission either. It is, with respect, a non sequitur. A retention or removal cannot, by definition, be wrongful until a child has been actually retained in, or actually taken across an international border.[11] Accordingly, regardless of when the mother first decided (subjectively) to deceive the father about her intention to retain X, a wrongful retention could not have occurred until after X entered Australia. The necessary ingredients of repudiatory retention in this case is the movement of the child from one contracting state to another contracting state, the subjective intention of the respondent mother to retain the child as well as an objectively identifiable act on the part of the mother to repudiate her agreement to return X on 21 August 2019.
[11] See Lukatz v Lukatz Fam C (Dist TA) 2637/91
I am satisfied that the agreement to return the X by 21 August 2019 can be reasonably construed from the communications between the requesting parent and Mr F on 2 April and 4 April 2019 when, as set out earlier. The father wrote, and Mr F did not demur from the proposition that: “[X] must be returned to USA before that school starts again in Aug 24th. If book around trip ticket for [X], we will split the cost. I need agreement from both of you.”[12] The agreement was acted upon when the father and Mr F cooperated on the joint purchase of a return airline ticket with a return journey for X to USA on 21 August 2019.
[12] See par [59] earlier in these reasons.
I accept that the respondent mother admitted in cross examination that she intended to retain X in Australia. Mr F acknowledged that he and the mother entered into an agreement with the father, to return X to the USA on 21 August 2020, whilst not intending to adhere to that agreement. Mr F induced the father to agree to a visitor visa, which could be extended for more than three months, on the basis that a visitor visa would entitle X to attend an Australian school for the duration of her stay in Australia whereas a visa with a maximum stay of 3 months would not permit X to attend school. Once in Australia, the mother and Mr F told the father that X’s stay, which was for the agreed period of two months, would be extended for a “while” and then to the 12 months for which the child’s visitor visa could be extended. Further, whilst seeking the father’s consent for X to remain here for the 12 months permitted by the visa issued to the child, they actually proposed to retain X in Australia permanently - if they were able to do so - and regardless of any objection by the father. The significance of the mother’s duplicity is not, as the SCA contends, that there was no agreement about how long X would remain in Australia. In my view, the correct construction is that X travelled to Australia pursuant to an agreement reached between Mr F for the mother and the father, for X to arrive here on 19 June 2019 and return home to the USA on 21 August 2019, but that the mother always intended to breach the agreement. The fact that the mother acted in bad faith and did not intend to abide the agreement does not vitiate the agreement nor disentitle the father, who acted in good faith in reliance on the agreement, from relying on the agreement.
I find that there was and clear and unambiguous agreement reached between the mother (through Mr F) and the requesting parent for X to visit the mother in Australia from 19 June 2019 and 21 August 2019.
I find that the mother’s retention of X in Australia was repudiatory in nature and dated from 29 July 2019 when the mother informed the father by email that: “I decide X gonna stay with me in here for a while. Because i am her mom.” [13] In sum, the repudiatory retention of X by the mother occurred on 29 July 2019.
[13] See par [63] earlier in these reasons.
REGULATION 16(2) AND X BEING SETTLED IN AUSTRALIA
Regulation 16(2) is expressed as:
(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.
If the repudiatory retention dates from 29 July 2019 (as I have found it did), the last date upon which the SCA’s application could have been filed in Court and be dealt with as a reg 16(1) case was 28 July 2020. As the SCA’s application was filed on 19 August 2020, which is one year and 22 days after the mother repudiated the agreement to return X. Therefore, reg 16(2) applies.
The SCA conceded that over the last 18 months or so X has settled in Australia. However, reg 16(2) requires the Court, not the applicant, to be satisfied of X’s settled status. In reaching that satisfaction “the only test to be applied, is whether the children have settled into their new environment.”[14]
[14] See Court in Director General, Department of Community Services v M and C (1999) 24 Fam LR 168.
I was referred by counsel for the mother and the ICL to the reg 26 report which, it was submitted, indicated that X had settled in Australia. The following passages of the Family Consultant’s observations appear to be relevant:
14. There was no sense that [X] was discomforted by the interview process, nor did she seem in any way burdened or even aware of the gravitas of her circumstances. She spoke of missing her father, stepmother and younger sister, [Y] (checking with the writer to make sure '[Y]' was spelt correctly), although this seemed tempered by her obvious enjoyment of her baby brother [Z] and her excited account of having been in Australia when [Z] was born.
[…]
19. [X's] sadness about not spending any time with her mother since October 2016 until she arrived in Australia in June 2020 was palpable and clearly underpinned her primary or sole objection to returning to [City H]. It could be surmised that [X] has been grieving the loss of her relationship with her mother for the past 3 years and 8 months, and it is therefore not surprising that she identifies feeling "so sad" at the prospect of being separated again from her mother…
20. Finally, [X] is a young nearly 10 year old child. She is not mature enough to take into account all of the factors involved, especially with respect to the ramifications of being separated from her younger sibling, 8-year old [Y], with whom she has lived all of [Y's] life and with whom she is reportedly very close. It is not surprising therefore, that [Y] would feel confused by her loss with respect to her separation, first from her mother, and now from her sister.
The above passages do not directly address X’s integration into life in Australia but they create an impression that she is comfortable here and not itching to return to the USA. Of course, it would have been possible to have directed the Family Consultant to assess the extent to which X has become settled. However, the relevance of X’s settled status was not apparent at the time I ordered the report be prepared or until the respondent mother amended her Form 2A Response on the afternoon of the first day of this final hearing. There was no application to have X further assessed by the Family Consultant nor to adduce from the Family Consultant whatever impressions (if any) she had formed about X’s sense of being settled in Australia.
I have regard to the fact that X attends school and extracurricular activities in Australia as well receiving medical care in Australia. The medical care is extensive given her condition.
No party, including the Independent Children's Lawyer, contended that X is not settled in her new environment (Australia). X is 10 years old and has been living in Australia for 18 months. She completed half a school year in Australia in 2019 and the totality of this school year in Australia. She has an infant brother. From my vantage point, it does not appear that anything will change for X if this application is dismissed. She will continue on with life as she has been. She will, of course, grieve for her sister and miss her father but her existence will continue on as it has been.
I am satisfied, more probably than not, that X is settled in Australia.
Historically, there has been a difference of judicial opinion in Australia about the consequences of a child being found to be ‘settled’ within the meaning of reg 16(2). That controversy was resolved by the Full Court in Secretary, Department of Family and Community Services & Magoulas [2018] FamCAFC 165. Magoulas was an appeal by the Central Authority against the dismissal of a return application to the Ukraine. At first instance, it was held that the child was ‘settled’ in his new environment (Australia) within the meaning of reg 16(2), that the Regulations had no further operation and the State Central Authority’s application must be dismissed. On appeal, the State Central Authority contended that the primary judge erred in the application of reg 16(2) “in finding he had no residual discretion to order the return of the child and in not exercising that discretion”. The Full Court held:[15]
On a proper reading of regulation 16, it follows that where in accordance with regulation 16(2) it is established that the application had been filed more than one year after the child was wrongfully removed to/retained in Australia and has settled in his or her new environment, the circumstances contained in sub-regulation (3) do not apply. This is because, as regulation 16(2)(c) makes plain, sub-regulation (3) and thus sub-regulation (5) only apply where the temporal pre-condition is met and the person opposing return has not established that the child is settled in his or her new environment. The effect of this is that neither the provisions which require the return of the child (regulation 16(1)) nor those which permit an order for return (regulation 16(5)) apply once the provisions contained in regulation 16(2) have been established. Further there is nothing in regulation 16 which signals that a court is obliged, or in the exercise of some residual discretion, may order the return of a child if regulation 16(2) applies and the person opposing return establishes that the child is settled in his or her new environment.
[15] Secretary, Department of Family and Community Services & Magoulas [2018] FamCAFC 165, [18].
As I am satisfied that the mother has established that X is settled in her new environment. As such, the Regulations no longer apply and the application of the SCA must be dismissed.
ACQUIESCENCE AS AN EXCEPTION TO MANDATORY RETURN
The mother relied on acquiescence as an exception to mandatory return and I will address the parties’ submission in this regard.
Pursuant to reg 16(3)(a)(ii), a Court may refuse to make a return order if a person opposing return establishes that the person seeking return had consented or subsequently acquiesced in the child being removed to or retained in Australia. This sub-regulation gives expression to art 13(a) of the 1980 Convention.
As outlined by the Full Court in Wenceslas and Director-General Department of Community Services [2007] FamCA 398, at [246], the exceptions of consent and acquiescence are distinct. Consent arises before the act of removal or retention. Acquiescence can only arise after the removal or retention.
Acquiescence is not defined in the Regulations or in the 1980 Convention. In the early case of Re A (Minors)(Abduction: Custody Rights) [1992] Fam 106, Stuart-Smith LJ distinguished between active and passive acquiescence. Active acquiescence is signified by express words of consent or by conduct which is inconsistent with an intention of the party to insist on his rights and consistent only with an acceptance of the status quo. Passive acquiescence results from silence and inactivity in circumstances in which the aggrieved party may reasonably be expected to act. It is for the Court to infer from such inactivity whether the aggrieved party had accepted or acquiesced in the removal or retention.
The evidence of consent or acquiescence may be by words or inferred by conduct. The consent (and in my view the same applies to acquiescence) must be real and unequivocal and can only be made out by clear and cogent evidence (see Wenceslas’s case [264] which was considered by, but not the subject of challenge before, our High Court in MW v Director General, Department of Community Services (2008) 244 ALR 205).
I hold to the approach which I described in State Central Authority & Handbury [2020] FamCA 668 at paragraph [242]:[16]
1) For the purposes of Art 13 of the Convention, the question whether the wronged parent has ‘acquiesced’ in the removal or retention of the child depends upon his actual state of mind.
(2) The subjective intention of the wronged parent is a question of fact for the trial judge to determine in all the circumstances of the case, the burden of proof being on the abducting parent.
(3) The trial judge, in reaching his decision on that question of fact, will no doubt be inclined to attach more weight to the contemporaneous words and actions of the wronged parent than to his bare assertions in evidence of his intention. But that is a question of the weight to be attached to evidence and is not a question of law.
(4) There is only one exception. Where the words or actions of the wronged parent clearly and unequivocally show and have led the other parent to believe that the wronged parent is not asserting or going to assert his right to the summary return of the child and are inconsistent with such return, justice requires that the wronged parent be held to have acquiesced.
[16] See also State Central Authority & Sigouras [2007] FamCA 250.
As to the subjective intention of the left behind parent, in Re H (Minors) [1998] AC 72, upon the applicant father learning of the removal of his three children from Israel, he sought assistance from the Beth Din (the local rabbinical court). His efforts at the Beth Din were unsuccessful and he then made an application for summary return of the children under the 1980 Convention. Waite LJ in the Court of Appeal held that the father’s failure to make “any overt statement that he was insisting upon the summary (as opposed to the eventual) return of the children” amounted to active acquiescence. On appeal Lord Browne-Wilkinson, delivering the judgment of the House of Lords, held: “The fact that there has been some active conduct indicating possible acquiescence does not, on any view justify ignoring the subjective intentions of the wronged parent.” The House of Lords allowed the appeal due to a “misdirection” of law in finding that the father had acquiesced, and ordered the immediate return of the children to Israel. Specifically, the House of Lords disagreed with the Court of Appeal that the father acquiesced by pursuing remedies in the Beth Din in accordance with his religion rather than promptly bringing proceedings for summary return under art 12.
Acquiescence can be inferred from a failure to act as well as from words or explicit conduct. In Director General, Department of Families, Youth & Community Care &Thorpe (1997) FLC 92-785, Lindenmayer J quoted extensively from English authority which describes a factual situation similar to the circumstances of X’s father, as follows: [17]
[17]Director General, Department of Families, Youth & Community Care &Thorpe [1997] FamCA 45, at [3.42].
3.42Balcombe LJ, in Re R (supra), then refers [...] and quotes the following passage, from the judgment of Sir Donald Nicholls, V-C, in Re AZ (A minor) (Abduction: acquiescence) [1993] 1 FLR 682 at 691:-
"If the person who had care of the child consented to the removal or retention he cannot afterwards, when he changes his mind, seek an order for the summary return of the child pursuant to convention. Likewise if he acquiesces. It seems to me that the underlying objectives of the convention require courts to be slow to infer acquiescence from conduct which is consistent with the parent whose child has been wrongly removed or retained perforce, accepting as a temporary emergency expedient only, a situation forced on him and which in practical terms he is unable to change at once. The Convention is concerned with children taken from one country to another. The Convention has to be interpreted and applied, having regard to the way responsible parents can be expected to behave. A parent whose child is wrongly removed to, or retained in, another country is not to be taken as having lost the benefits the Convention confers, by reason of him accepting that the child should stay where he or she is for a matter of days or a week or two. That is the one edge of the spectrum.
At the other edge of the spectrum the parent may, again through force of his circumstances, accept that the child should stay where he or she is for an indefinite period, likely to be many months or longer. There is here a question of degree. In answering the question the court will look at all of the circumstances and consider whether the parent has conducted himself in a way that would be inconsistent with him later seeking a summary order for the child's return. That is the concept of underlying consent and acquiescence in Art 13. That is the touch stone to be applied."
3.43Balcombe LJ then refers, finally, to, and quotes a passage from, the judgment of Waite LJ, in Re S (Minors) (Abduction: Acquiescence) [1994] 1 FLR 819 at 831, as follows:-
"There is a common thread that runs through all of those passages. It can be stated in this way. Acquiescence is primarily to be established by inference drawn from an objective survey of the acts and omissions of the aggrieved parent. This does not mean, however, that any element of subjective analysis is wholly excluded. It is permissible, for example, to inquire into the state of the aggrieved parent's knowledge of his or her rights under the Convention; and the undisputed requirement that the issue must be considered 'in all the circumstances' necessarily means there will be occasions when the court will need to examine private motives and other influences affecting the aggrieved parent which are relevant to the issue of acquiescence but are known to the aggrieved parent alone. Care must be taken by the court, however, not to give undue emphasis to the subjective elements: they remain an inherently less reliable guide than do inferences drawn from overt acts and omissions viewed through the eyes of an outside observer. Provided that such care is taken it remains within the province of the judges to examine the subjective forces at work on the mind of the aggrieved parent and give them such weight as a judge considers necessary in reaching the overall conclusion in the totality of the circumstances that is required of the court in answering the central question: has the aggrieved parent conducted himself in a way that is inconsistent with his later seeking a summary return?

Counsel for the mother referred the court to the decision of Murray J in Police Commissioner of Australia v Temple (1993) FLC 92-365. At 79,828, her Honour referred to (and agreed with) the principles enunciated by their Lordships in Re A & Anor (minors) (abduction: acquiescence) [1992] 1 All ER 92 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”.
I respectfully agree with the statements of Balcombe LJ and Murray J. Accordingly, I would add to the propositions set out above [102] that the left behind parent must be aware of the taking parent’s retention or removal of the child and must also be cognizant, at least in general terms, of his or her rights under the 1980 Convention to seek a summary return of the child to the state from whence the child has been wrongfully taken or from which the child is wrongfully retained.
Counsel for the mother submitted that, in taking into account all of the circumstances of the case, I ought to infer acquiescence from a number of acts and omissions by X’s father, which the respondent mother’s counsel submits were inconsistent with the father later seeking a summary return under the 1980 Convention.
First, the mother relies on the fact that, in January 2019 the father contacted the mother and told her “X is to live with you”. This clearly pre-dated the father finding out that he was not suffering a fatal illness. It is also prior to the unambiguous agreement for X to fly home on 21 August 2019. It is not an act from which I could infer acquiescence or consent.
Second, after the mother had advised the father on 29 July 2019 that X would be staying in Australia for “a while”[18] and on 17 August 2019 that “I am going to exercise this right for her to stay with the view of permanency beyond this 12 months”[19] the father wrote to the mother on 27 September 2019[20] asking for details of X’s enrolment in school in Australia. The mother contends that this enquiry indicated the father’s acceptance that X would remain in Australia. I do not accept that the father’s enquiry was inconsistent with an intention by the father to insist on his legal rights and consistent only with an accepting that X would stay in Australia. The parents clearly prioritise education. Mr F had used the attraction of X being able to go to an Australian school during the agreed two month stay as the basis upon which to apply for the visitor visa which could be extended. The email of 2 April 2019 from Mr F to the father (at [58] of these reasons) raises private health insurance coverage and X’s enrolment in school in Australia as features of the two months stay to which the parents agreed.
[18] See para [63] earlier in these reasons.
[19] See para [63] earlier in these reasons.
[20] See para [69] earlier in these reasons.
The father’s unchallenged evidence is that, by the end of July 2019 he did not think that he had any option other than to await the expiration of X’s visa to stay in Australia. He did not become aware of the 1980 Convention until he was making enquiries at about the time that the child’s visa was to expire. He immediately refused to sign an application for X to have a permanent visa for Australia when it was submitted to him. The father’s enquiry about X’s education and enrolment in school in September 2019[21] is was an enquiry about how she was being educated in Australia. As the above quote from Lord Browne-Wilkinson describes:
“[..] the underlying objectives of the convention require courts to be slow to infer acquiescence from conduct which is consistent with the parent whose child has been wrongly removed or retained perforce, accepting as a temporary emergency expedient only, a situation forced on him and which in practical terms he is unable to change at once. The Convention is concerned with children taken from one country to another. The Convention has to be interpreted and applied, having regard to the way responsible parents can be expected to behave.”
[21] See para [72] earlier in these reasons.
The father’s enquiry about X’s enrolment in school in September 2019[22] was an enquiry made whilst the father thought he was powerless to do anything to rectify the situation. It was an enquiry about education; it is not evidence of acquiescence.
[22] See para [72] earlier in these reasons.
Third, the mother contends that I should infer acquiescence from the fact that the father waited for almost one year after X’s retention in Australia before filing and application for her return to the USA. According to the mother, the last email from the father requiring X’s return to the USA was on 31 July 2019 and he took no further action to have X returned until he made his application to the Central Authority in the United States on 27 July 2020. The father’s unchallenged evidence was that he did not think that he could do anything to force the child’s return and he was waiting until X’s visitor visa expired and she would be required to leave Australia. As the expiration date of the visa drew near, the father contacted the USA Embassy in Melbourne requesting their help in relation to X and was then informed about the 1980 Convention which is in force between Australia and the USA. The father could not say the precise date on which he made contact with the US Embassy but recalled that it was shortly after he refused to give consent for an application to be made for X to reside in Australia permanently. He says that after his refusal, he received a “threatening” message from the mother in July 2020 which I take to be the WeChat message extracted at [71] above.
Upon learning of the 1980 Convention, the father acted promptly. Murray J’s analysis in Temple’s case is apposite here. That is, the left behind parent must be 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 [1980] convention.” I accept that the father did not find out about the 1980 Convention remedy until very late and, once seized of the knowledge, he prosecuted his rights diligently. The fact that the father’s application was not made to the US Department of State until July 2020 is not evidence of acquiescence on the part of the father.
Fourth, the mother contends that the father was not proactive in pursuing, or pleading for, X’s return for 10 or so months after the mother informed him that X would remain in Australia. On 23 June 2020, Mr F asked the father to sign a consent to X obtaining permanent residency in Australia. In his reply, the father refused to sign and requested that X be returned to the USA. He did not acquiesce. As the father was unaware of his rights under the 1980 Convention, his inactivity did not amount conduct different to that which could be expected on the part of an aggrieved parent.
Having regard to all of the circumstances of this case, I am not satisfied that the father acquiesced within the meaning of reg 16(3)(a)(ii).
GRAVE RISK & INTOLERABLE SITUATION
The mother submitted that X’s separation from her mother, the alleged family violence perpetrated by the father, the mother’s lack of standing to reside in the USA and the COVID-19 situation in the USA would cause X to be placed at grave risk and/or an intolerable situation should she be returned to the USA.
In relation to X’s separation from her mother, the mother says that the father has continually caused the children to be separated from the mother citing examples such as when the father told the mother she could return to Country B whilst the children lived in China and when he sought to take the children to the USA whilst the mother was in Country B. The mother also says that with no arrangements having been made for the mother to spend time with Y and with the mother not having spent time with the girls together since October 2016, if X is returned, there is evidence to suggest that the father would not facilitate a meaningful relationship between the mother and X.
The State Central Authority in response submitted that the Full Court in Director-General, Department of Families, Youth and Community Care v Bennett [2000] FamCA 25 in considering a comment made by Chain Prath J in Issak, A v Issak P on the defence of grave risk of harm in the context of children being separated from their mother held:
The burden of proof required to show grounds for the defence pursuant to Section 13(b) of the Hague Convention is heavy…The children will now have to be separated from their mother after having become attached to her following the abduction. But that is harm which is present in every abduction and is not such as to warrant a refusal to return abducted children. [23]
[23] Director-General, Department of Families, Youth and Community Care v Bennett (2000) 155 FLR 121, [32] (Kay, Coleman and Barlow JJ) citing the District Court of Israel in Issak, A v Issak, P March 3 1993, PS 5382/92.
The State Central Authority further submits (correctly in my view) that this Hague return application does not determine custody rights and that provisions around contact and maintaining a meaningful relationship in the long term would be considered in custody proceedings instituted in the USA. Furthermore, it does not behove the mother to complain of the separation of the sisters as it is the mother who has brought about the current separation.
It was submitted on behalf of the mother that the allegations of family violence made by the mother as well as the incidents reported in relation to the father’s current wife, is evidence that the father is a risk to the child and that the child is at risk in the father’s home. The mother makes other allegations of coercive control and financial abuse.
The State Central Authority concedes that the relationship between the mother and the father is one of high conflict and that the father has made concessions about “aggressive behaviour” in recent times between himself and Ms Q. The father admits that he physically assaulted Ms Q in self defence, as well as another argument that involved a physical altercation with Ms Q. However, Child Welfare Services have investigated all allegations, including making contact with the mother in Australia. Child Welfare Services have not taken matters any further and have closed all investigations without consequence, as well as police authorities not taking matters any further. The father denies the incident that the mother’s refers to, where she says that the father assaulted her in front of the children.
There was little evidence about the mother’s ability to reside in the USA. The State Central Authority’s response is that the mother has not given evidence that she is excluded from travelling to the USA and the father has not precluded the mother from travelling to visit the child in the USA.
There was negligible evidence about COVID-19 in the USA causing grave risk or intolerable situation notwithstanding that it was a plank of the mother’s opposition to return. The mother’s written submissions asked me to take judicial notice of the pandemic status in the USA as “the worst affected country in the world in respect of the pandemic, while Australia is one of the least affected.”[24] There was no expert evidence provided.
[24] Mother’s Case Outline, [2.5.2].
In McGregor & McGregor [2012] FamCAFC 69, the Full Court of this Court considered the impact on common law principles of judicial notice at common law of s 144 of the of the Evidence Act 1995 (Cth). In McGregor’s case the judge at first instance has recourse to various academic writings, which he employed in his reasons for decision, without providing the parties notice that he would take the content into account. The Full Court stated that judicial notice only permits a court to take into account “knowledge which is not reasonably open to question”. The requirements of s 144 are in additional to that fundamental premise, not an expansion of the premise. They said at paragraph 74: “It is not open to a judge to use s 144 of the Evidence Act to “inform” him or herself of matters in respect of which reasonable minds might differ.”
Section 144 of the Evidence Act provides :
(1)Proof is not required about knowledge that is not reasonably open to question and is:
(a) common knowledge in the locality in which the proceeding is being held or generally; or
(b) capable of verification by reference to a document the authority of which cannot reasonably be questioned.
(2) The judge may acquire knowledge of that kind in any way the judge thinks fit.
[…]
(4) The judge is to give a party such opportunity to make submissions, and to refer to relevant information, relating to the acquiring or taking into account of knowledge of that kind as is necessary to ensure that the party is not unfairly prejudiced.
Stephen Odgers SC’s, Uniform Evidence Law states: “An example of a matter of “common knowledge in the locality” would be, in a trial in a court sitting in Sydney, the location of the Sydney Harbour Bridge.”[25] Notably, this trial was conducted on using an electronic platform. I sat in Melbourne with my Legal Associate. The applicant SCA and the Independent Children's Lawyer participated from the Adelaide Registry in South Australia. The respondent mother and her solicitor and counsel participated from the Sydney Registry in New South Wales. Identification of the “locality” from which the common knowledge must come was not the subject of submissions.
[25] Stephen Odgers SC, Uniform Evidence Law (Thomson Reuters, 2020) EA.144.60.
In a recent decision by our Deputy Chief Justice, Kardos & Harmon [2020] FamCA 328, on an alleged contravention of parenting orders at the height of the pandemic in Australia, his Honour considered the effects of domestic travel restrictions and health advice concerning travel. The parents in this matter lived in different states being South Australia and the Northern Territory and the final parenting orders required the mother to deliver the child to Darwin or Brisbane airports for the child to spend four days per month with the father. The father was to deliver to the child to Adelaide airport at the conclusion of the time. The mother failed to deliver the child to Darwin or Brisbane contending that due to the pandemic she had reasonable excuse for not delivering the child. The mother stated concerns for the child’s health and the effect of state border restrictions and the imposed fourteen day quarantine period for the mother after delivering the child. Our Deputy Chief Justice took judicial notice of the following publically recorded documents:
(a)The document titled “Coronavirus Disease (COVID-19) Advice for the Public” issued by the World Health Organisation, last updated as at 29 April 2020;
(b)The “Coronavirus Disease 2019 (COVID-19) CDNA National guidelines for public health units” issued by the Australian Government Department of Health version 2.8 current as at 1 May 2020; and
(c)The South Australian Department of Health on its Internet website “Latest Updates on COVID-19 - Known flights with confirmed cases of COVID-19”
His Honour found that the mother had reasonable excuse for non-compliance due to the health concerns for the child, the requirement for fourteen days quarantine and the financial burden on the mother to pay for quarantine outweighing the ability for the mother to travel to deliver the child. I was not referred to any publications on the pandemic by counsel in this case.
As the Full Court in McGregor’s case observed:
66.In recommending the inclusion of this section, the Australian Law Reform Commission (“ALRC”) said:
Under the proposal judges can inform themselves about common knowledge and about knowledge that is capable of verification from authoritative sources… It is also proposed that where the judge makes his own enquiries to acquire either category of knowledge he should inform the parties where there is a risk of unfair prejudice.
(ALRC Interim Report No. 26, Evidence, Volume 1, 1985, at 545)
67.It is important to note from the outset that the information to which the section refers is of a kind not reasonably open to question and is capable of verification from authoritative sources. Examples abound of the type of information to which this section, and before it the common law, included as “judicial knowledge” or information shared between the judge and the rest of the community.
68.The requirements of s 144(1)(a) limit the potential operation of the section and may only be able to be determined after evidence of “common knowledge” generally, or in “the locality” is received. In practice there would be few issues in respect of which reference to extrinsic materials would not be “reasonably open to question”. This we think would be particularly so in relation to social science issues in parenting proceedings.
69.In X & X (2000) FLC 93-017 the Full Court of the Family Court considered the extent to which a judge was entitled to take judicial notice of the effects of genital herpes pursuant to s 144(1). The judge proceeded on the basis that it was generally known that genital herpes was a condition that may incurable; that it may be dormant for lengthy periods; and it may surface from time to time. The Full Court concluded that the application of the test prescribed by s 144 would not have permitted the judge to have accepted without proof the range of facts upon which his Honour relied on the basis of his own knowledge.
70.In KB v TC (2005) FamCA 458 at [87] the Court said “that the benefit to be derived for a child from sibling relationships is not a matter” of general common knowledge. The Court noted, as is frequently the case with respect to parenting issues, that there are various credible schools of thought which could not be enlivened by s 144.
71.A more recent example is in Mains v Redden [2011] FamCAFC 184 which involved consideration of whether administering a number of conventional and almost universally administered vaccinations of children against a variety of conditions was in the child’s best interest. The conflict of expert opinion evidence in relation to the benefits and risks of immunisation precluded any prospect of the Court taking “judicial notice” under s 144 of the Evidence Act. If an issue in proceedings is controversial, it is almost inevitable that there will be differing credible expert opinions in relation to it and demonstrably it would not fall within the operation of s 144.

In this case, it was submitted that I could take judicial notice of the USA being “the worst affected country in the world in respect of the pandemic, while Australia is one of the least affected”. The matter of which I was asked to take judicial notice is not a fact which, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding. It was so widely expressed as to make it irrelevant. For instance, are the situations of Australia and the USA to be compared on the basis of proportion of population, the number of infections or the number of fatalities or the number of fatalities as a proportion of infections? Moreover, it says nothing of the locations in which the child might be placed. If “affected” intended to encapsulate the extent to which citizens are subjected to legal restrictions on their freedom of movement, freedom to congregate and compulsion to wear face masks? If so, people Australia might be much more “affected” than the people in the USA.
I could take judicial notice of the fact that there is a COVID-19 pandemic. However, the impact of the pandemic in Australia or in the USA is not a matter of which I can take judicial notice because it is obviously a matter upon which credible expert opinion would differ. Litigation in these unusual times calls for precise and up to date evidence, not generalisations. There is simply insufficient evidence for me to conclude that the pandemic or its attendant circumstances would have exposed X to a grave risk of harm or have placed her in an intolerable situation.
MATTERS WHICH WOULD INFORM THE EXERCISE OF THE COURT’S DISCRETION TO REFUSE RETURN UPON ONE OR MORE EXCEPTIONS TO RETURN BEING MADE OUT (WHICH IS NOT THE CASE HERE)
If an exception was found to apply, the Court would have a discretion to refuse return. The Full Court of this Court in HZ & State Central Authority [2006] FamCA 446, approved the application of factors discussed by Hale LJ in TB v JB [2000] EWCA Civ 337 as appropriate to inform the exercise of the courts discretion to refuse return. These factors touch on the welfare and best interests of the child. I would also take into account the extent to which the purpose and underlying philosophy of the Hague Convention would be at risk of frustration if a return order were to be refused. This is a wrongful retention of the most blatant kind and the mother has acted in bad faith. It is not productive for me to express a view about whether I would have exercised a discretion that could have only arisen on a different set of facts including that one or more exceptions to mandatory return applied to this case.
THE AGREEMENT BETWEEN THE PARENTS ABOUT COMMUNICATION GOING FORWARD
The parents were able to agree on what communication there should be between the girls going forward. I propose to make orders in those terms. In order to do so, I gave leave to the father to make an oral application for the Order and excused him and the mother from filing any documentation. There was no agreement about what communication the parents should have with the child who is not in his/her care. There was, however, a recognition that communication should take place.
There was no agreement about face to face time with or between the sisters. That is incredibly sad. Unfortunately, there is insufficient trust between the parents that he/she does not even trust the legal system of the contracting state of the other party to uphold an agreement which they might reach. For Australia’s part, the parties need only contact my Chambers or the Chambers of the other first instance judge of the International Hague Network of Judges, Justice Williams, and we will prioritise any response or the determination of any application.
CONCLUSION
Having found that the application was made more than a year after X was retained in Australia and that X is settled in her new environment, I must dismiss the application.
A major feature of the 1980 Convention and our Regulations is to provide prompt repatriation of children who are wrongfully retained out of a country where they belong, with which they are familiar and where evidence and people relevant to their future parenting arrangements are located. This was a retention of the most blatant kind and the mother acted in bad faith. I feel considerable sympathy for the father and for the girls. However, the Court is applying a forum selection treaty which provides a prompt return remedy preconditioned on a number of factors. The drafters of the 1980 Convention negotiated a period of up to 12 months from the time of removal or retention as the temporal precondition for a mandatory return in a case to which the exceptions do not apply. The time of 12 months is arbitrary but the consequences which flow from its application are anything but arbitrary, they are child focussed and designed to minimise the harmful effects of international parental child abduction on the children concerned.
Because more than 12 months has passed since the wrongful retention, the Court must look at X’s circumstances and could only order a return if she is not settled. This safeguard is as much a part of the policy underpinning the 1980 Convention as is the prompt return remedy. The timing of the father’s enquiries of embassy officials, obtaining of advice and his request for the return application was in his hands. As a consequence of the delay, X has assimilated into life in R Town in South Australia. She is settled.
Any future proceedings about X will need to take into account that she has acquired habitual residence in Australia and that Australia is the preeminent jurisdiction for determination of parenting matters concerning X.
For the aforementioned reasons, I am satisfied that the orders set out at the beginning of these reasons give effect to the Regulations.

I certify that the preceding one hundred and thirty-seven (137) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bennett.
Associate:
Dated: 22 December 2020

File number(s):	ADC 3887 of 2020
Judgment of:	BENNETT J
Date of judgment:	22 December 2020
Catchwords:	FAMILY LAW – CHILD ABDUCTION – repudiatory retention where taking parent acts in bad faith – where application made more than one year after retention - where child found to be settled in her new environment – where Family Law (Child Abduction Convention) Regulations 1986 cease to apply and return application must be dismissed. FAMILY LAW – CHILD ABDUCTION – where acquiescence is relied on as an exception to mandatory return but it is found not to have occurred. FAMILY LAW – CHILD ABDUCTION – where grave risk of harm and intolerable situation are found not to apply as an exception to mandatory return – where Court asked to take judicial notice of the affect of the COVID-19 pandemic in Australia and in the United States of America – consideration of matters of which judicial notice can be taken.
Legislation:	Convention of 25 October 1980 on the Civil Aspects of International Child Abduction Evidence Act 1995 (Cth) Family Law (Child Abduction Convention) Regulations 1986 (Cth)
Cases cited:	A v A (Children: Habitual Residence)(Reunite International Child Abduction Centre Intervening) [2013] UKSC 60 Director General, Department of Community Services v M and C (1999) 24 Fam LR 168 Director General, Department of Families, Youth & Community Care &Thorpe (1997) FLC 92-785 Director-General, Department of Families, Youth and Community Care v Bennett [2000] FamCA 25 DP v Commonwealth Central Authority; JLM v Director-General, NSW Department of Community Services (2001) 206 CLR 401 Handbury & State Central Authority and Anor [2020] FamCACF 5 HZ & State Central Authority [2006] FamCA 446 Lukatz v Lukatz Fam C (Dist TA) 2637/91 McGregor & McGregor [2012] FamCAFC 69 MW v Director General, Department of Community Services (2008) 244 ALR 205 Police Commissioner of Australia v Temple (1993) FLC 92-365 Re A & Anor (minors) (abduction: acquiescence) [1992] 1 All ER 92 Re A (Minors)(Abduction: Custody Rights) [1992] Fam 106 Re H (Minors) [1998] AC 72 Secretary, Department of Family and Community Services & Magoulas [2018] FamCAFC 165 State Central Authority & Handbury [2020] FamCA 668 State Central Authority & Sigouras [2007] FamCA 250 TB v JB [2000] EWCA Civ 337 Wenceslas and Director-General Department of Community Services [2007] FamCA 398
Number of paragraphs:	137
Date of last submission/s:	8 December 2020
Date of hearing:	3-4 & 8 December 2020
Place:	Melbourne
Counsel for the Applicant:	Mr Keane
Solicitor for the Applicant:	Crown Solicitor’s Office
Counsel for the Respondent:	Mr Toca
Solicitor for the Respondent:	Hague Convention Legal Practice
Counsel for the Independent Children's Lawyer:	Mr Hemsley
Solicitor for the Independent Children's Lawyer:	Legal Services Commission of South Australia
Requesting Father:	Mr Chen

ADC 3887 of 2020
BETWEEN:	COMMISSIONER OF POLICE FOR THE STATE CENTRAL AUTHORITY OF SOUTH AUSTRALIA Applicant
AND:	MS AGUSTINA Respondent
AND:	INDEPENDENT CHILDREN'S LAWYER
AND	MR CHEN (REQUESTING FATHER)

ORDER MADE BY:	BENNETT J
DATE OF ORDER:	21 DECEMBER 202021 DECEMBER 2020

INTRODUCTION	[1]
THE LAW	[7]
ISSUES TO BE DETERMINED	[15]
ONUS OF PROOF	[19]
STANDARD OF PROOF	[21]
FINDINGS OF FACT	[22]
DOCUMENTS RELIED UPON	[23]
CREDIBILITY OF WITNESSES	[28]
RELEVANT HISTORY	[33]
REPUDIATORY RETENTION	[75]
REGULATION 16(2) AND X BEING SETTLED IN AUSTRALIA	[85]
ACQUIESCENCE AS AN EXCEPTION TO MANDATORY RETURN	[95]
GRAVE RISK & INTOLERABLE SITUATION	[114]
MATTERS WHICH WOULD INFORM THE EXERCISE OF THE COURT’S DISCRETION TO REFUSE RETURN UPON ONE OR MORE EXCEPTIONS TO RETURN BEING MADE OUT (WHICH IS NOT THE CASE HERE)	[130]
THE AGREEMENT BETWEEN THE PARENTS ABOUT COMMUNICATION GOING FORWARD	[131]
CONCLUSION	[133]