Secretary, Department of Communities and Justice & Jonson
[2021] FamCA 213
•3 May 2021
FAMILY COURT OF AUSTRALIA
Secretary, Department of Communities and Justice & Jonson [2021] FamCA 213
File number(s): SYC 8730 of 2020 Judgment of: WILLIAMS J Date of judgment: 3 May 2021 Catchwords: FAMILY LAW – CHILD ABDUCTION – HAGUE CONVENTION – Child brought to Australia from United Kingdom – Consideration of whether the child was habitually resident in the United Kingdom immediately before the alleged retention date – Held child habitually resident in the United Kingdom and jurisdictional facts established – Regulatory exceptions to return raised by mother, firstly reg 16(3)(a)(ii) consent – Consideration of whether the requesting parent consented to the child remaining in Australia because of inability to travel internationally due to COVID-19 pandemic – Held no consent secondly, reg 16(3)(b) grave risk of exposure to physical or psychological harm or otherwise place the child in an intolerable situation, in circumstances where the mother alleges the risk to the child arises from the child’s experience of violence perpetrated on the mother by the father – Mother also fearful that relevant authorities would be unable to protect her or the child – Held grave risk not established – Order made for return of the child to United Kingdom – Family Law Act 1975 (Cth) s 111B – Family Law (Child Abduction Convention) Regulations 1986 – reg 16 – Return Order Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) s 111B
Family Law (Child Abduction Convention) Regulations 1986 (Cth) regs 15(2), 16
Cases cited: De L v Director General, NSW Department of Community Services & Anor [1996] HCA 5; (1996) 87 CLR 640
DP v. Commonwealth Central Authority; JLM v. Director–General, NSW Department of Community Services [2001] HCA 39
HZ & State Central Authority [2006] FamCA 466
In re M (FC) & Anor (FC) Children (FC) [2007] UKHL 55
In re R (Children) (Reunite International Child Abduction Centre and others intervening) [2016] AC 76
LK v Director-General, Department of Community Services [2009] HCA 9
McCall & McCall; State Central Authority (Applicant); Attorney-General (Intervener) (1995) FLC92-551
Re C (Abduction: Grave Risk of Psychological Harm) [1999] 1 FLR 1145
Re H (Abduction: Habitual Residence: Consent) [2000] 2 FLR 294
Re K (Abduction): Consent [1997] 2 FLR 212
Re M (Children) (Habitual Residence: 1980 Hague Child Abduction Convention) [2020] EWCA Civ 1105
Secretary, Department of Family and Community Services & Zadeh [2017] FamCA 44
State Central Authority & Metin [2020] FamCA 535
State Central Authority & Sigouris [2007] FamCA 250
Walpole & Secretary, Department of Communities and Justice [2020] FamCAFC 65
Wenceslas & Director-General, Department of Community Services [2007] FamCA 398
Zotkiewicz & Commissioner of Police (No.2) [2011] FamCAFC 147
Number of paragraphs: 181 Date of hearing: 16-17 March 2021 Place: Melbourne Counsel for the Applicant: Mr Tockar Solicitor for the Applicant: DCJ Legal, Department of Communities and Justice Counsel for the Respondent: Ms Christie SC Solicitor for the Respondent: Hague Convention Legal Practice ORDERS
SYC 8730 of 2020 BETWEEN: SECRETARY, DEPARTMENT OF COMMUNITIES AND JUSTICE
Applicant
AND: MS JONSON
Respondent
ORDER MADE BY:
WILLIAMS J
DATE OF ORDER:
3 MAY 2021
THE COURT ORDERS THAT:
1.The child, Z born … 2016, (“the child”) be returned to the United Kingdom pursuant to the Family Law (Child Abduction Convention) Regulations 1986.
2.The mother be at liberty to accompany the child to the United Kingdom.
3.The Australian Central Authority notify the United Kingdom Central Authority of the mother and child’s date of departure.
4.Paragraph 5 of the orders made 18 December 2020 is hereby discharged and the respondent or her nominee authorised in writing is permitted to collect the child’s and the mother’s passport immediately upon receipt of a sealed copy of this order.
5.Pending the child’s departure from Australia for return to the United Kingdom, the respondent continue to be restrained and an injunction issue restraining her from causing or permitting or suffering the child:
(a)to be removed from the Commonwealth of Australia and in this regard all officers of the Australian Federal Police be directed to enforce, if required, the provisions of such order;
(b)to apply for any further or other passport or passports for the child;
(c)to be removed from New South Wales;
(d)to reside anywhere other than her present residential address or any other residence at which the applicant has agreed that the said child may reside.
6.Paragraph 5 of these orders remain in force, until a letter from the applicant is received by the Australian Federal Police advising of the travel arrangements made for the child’s return to the United Kingdom AND IT IS REQUESTED that the Australian Federal Police remove the name of the child, Z born … 2016 from the Airport Watch List upon presentation for boarding the nominated flight to the United Kingdom on the date nominated for the said travel.
7.A sealed copy of these orders be provided forthwith to the Marshal of the Family Court of Australia, the Commissioner of the Federal Police and the police forces and services of the states and territories of the Commonwealth of Australia and the Secretary of the Commonwealth Department of Foreign Affairs and Trade.
8.The Marshal of the Family Court of Australia and the Commissioner and all federal agents of the Australian Federal Police and officers of the police forces and services of the states and territories of the Commonwealth of Australia are requested and empowered to take all necessary steps to give effect to these orders.
9.Liberty is reserved to the parties to apply urgently in relation to the implementation of these orders.
10.Otherwise the Application of the Secretary, Department of Communities and Justice be and is hereby dismissed.
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 Jonson has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
WILLIAMS J
INTRODUCTION
This is an application by the Secretary, Department of Communities and Justice (the State Central Authority) filed on 4 December 2020 seeking the return to the United Kingdom (“UK”) of the child, Z born in 2016, pursuant to the provisions of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”).
The respondent, Ms Jonson is the mother of the child who is a dual citizen of the UK and Australia. The requesting parent, Mr B who usually lives in the United Kingdom, is the father and he is a dual citizen of the UK and Country C. At present, he is living in Country D. Z is a dual citizen of the UK and Australia.
The relevant regulations are made pursuant to s 111B of the Family Law Act1975 (Cth), to make such provision as is necessary or convenient to enable the performance of the obligations of Australia under the Convention on the Civil Aspects of International Child Abduction, which is generally referred to as the Hague Convention.
The Convention provides a framework for the prompt return of children, where it is alleged there has been a wrongful retention of a child from her country of habitual residence. Both Australia and the UK are signatories to the Convention.
Upon establishment of the pre-requisites to a return order, the jurisdictional facts, as prescribed by reg 16(1A), there are limited circumstances or exceptions to return which may be relevant in response to an application to return the child to her country of habitual residence. Those regulatory exceptions must be read in the context of the fundamental obligation to return the child.
If the court is satisfied on the requisite standard of proof that one or more of the regulatory exceptions to return are made out, then the court has a discretion to return the child. The matters relevant to the exercise of that discretion include some consideration of the best interests of the child: HZ & State Central Authority [2006] FamCA 466.
The Regulations provide as follows:
Reg 16 Obligation to make a return order
(1) If:
(a) an application for a return order for a child is made; and
(b)the application (or, if regulation 28 applies, the original application within the meaning of that regulation) is filed within one year after the child’s removal or retention; and
(c)the responsible Central Authority or Article 3 applicant satisfies the court that the child’s removal or retention was wrongful under sub-regulation (1A);
the court must, subject to sub-regulation (3), make the order.
(1A)For sub-regulation (1), a child’s removal to, or retention in, Australia is wrongful if:
(a) the child was under 16; and
(b)the child habitually resided in a convention country immediately before the child’s removal to, or retention in, Australia; and
(c)the person, institution or other body seeking the child’s return had rights of custody in relation to the child under the law of the country in which the child habitually resided immediately before the child’s removal to, or retention in, Australia; and
(d)the child’s removal to, or retention in, Australia is in breach of those rights of custody; and
(e)at the time of the child’s removal or retention, the person, institution or other body:
(i)was actually exercising the rights of custody (either jointly or alone); or
(ii)would have exercised those rights if the child had not been removed or retained.
(2) If:
(a) an application for a return order for a child is made; and
(b)the application is filed more than one year after the day on which the child was first removed to, or retained in, Australia; and
(c)the court is satisfied that the person opposing the return has not established that the child has settled in his or her new environment;
the court must, subject to subregulation (3), make the order.
(3)A court may refuse to make an order under sub-regulation (1) or (2) if a person opposing return establishes that:
(a) the person, institution or other body seeking the child’s return:
(i)was not actually exercising rights of custody when the child was removed to, or first retained in, Australia and those rights would not have been exercised if the child had not been so removed or retained; or
(ii)had consented or subsequently acquiesced in the child being removed to, or retained in, Australia; or
(b)there is a grave risk that the return of the child under the Convention would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation; or
(c) each of the following applies:
(i) the child objects to being returned;
(ii)the child’s objection shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes;
(iii)the child has attained an age, and a degree of maturity, at which it is appropriate to take account of his or her views; or
(d)the return of the child would not be permitted by the fundamental principles of Australia relating to the protection of human rights and fundamental freedoms.
(4)For the purposes of sub-regulation (3), the court must take into account any information relating to the social background of the child that is provided by the Central Authority or other competent authority of the country in which the child habitually resided immediately before his or her removal or retention.
(5)The court is not precluded from making a return order for the child only because a matter mentioned in sub-regulation (3) is established by a person opposing return.
The Regulations require that applications for return of children, when it is alleged that they have been wrongfully removed/retained from their habitual residence, are dealt with expeditiously and as quickly as proper consideration of each matter permits (reg 15(2)).
In De L v Director General, NSW Department of Community Services & Anor [1996] HCA 5; (1996) 87 CLR 640 (“De L”), the High Court cautioned against the need for expedition resulting in insufficient hearing of issues in dispute. Some disputes are appropriate for summary determination and others require cross-examination.
In this case, Counsel for the State Central Authority cross-examined the mother and Senior Counsel for the mother cross-examined the requesting father and many of his witnesses.
The State Central Authority asserts that the child has been wrongfully retained from the UK, in accordance with regs 16(1) and (1A), on the following basis:
(a)the application was made within one year of the child’s retention (reg 16(1)(b));
(b)the child is under the age of 16 (reg 16(1A)(a));
(c)the child was habitually resident in the UK (reg 16(1A)(b));
(d)the requesting parent, the father, has rights of custody in relation to the child, which he was exercising immediately prior to the child’s retention (reg 16(1A)(c)); and
(e)the mother of the child was in breach of the left behind parent’s rights of custody.
The mother opposes the application for return and asserts that Z was not wrongfully retained in Australia on 15 October 2020. She does so for the following reasons:
Jurisdictional facts
(a)Z was not habitually resident in the UK immediately before the alleged retention date (reg 16(1A)(b)); and
Regulatory exceptions
(b)The requesting father consented to Z being retained in Australia “ for the foreseeable future” (reg 16(3)(a)(ii)); and/or
(c)there is a grave risk that returning Z to the UK would expose her to physical or psychological harm or otherwise place her in an intolerable situation (reg 16(3)(b)).
Onus of proof
The requisite standard of proof, as required by s 140 of the Evidence Act 1995 (Cth), is the balance of probabilities.
The State Central Authority bears the onus of proving the jurisdictional facts which establish that the retention was wrongful: DP v. Commonwealth Central Authority; JLM v. Director–General, NSW Department of Community Services [2001] HCA 39, being habitual residence.
The mother bears the onus of proof to establish the regulatory exceptions to return. They are consent and grave risk of exposure to physical or psychological harm or intolerable situation.
Preliminary Matters
The hearing was conducted electronically via Microsoft teams due to the COVID-19 Pandemic.
An electronic hearing enabled the requesting father to participate in the proceedings and for his witnesses to be cross-examined.
I wish to express my appreciation to both Counsel for the professional and courteous manner in which the proceedings were conducted.
Evidence and Documents relied upon by the parties
The State Central Authority relied upon the following documents:
(a)Form 2 Application filed 4 December 2020;
(b)Affidavits of the father affirmed on 10 November 2020 and 2 March 2021 together with exhibits thereto;
(c)Affidavit of Ms E, solicitor affirmed on 4 November 2020, together with exhibits thereto;
(d)Affidavit of Mr F (paternal grandfather) sworn 26 February 2021;
(e)Affidavit of Mr G (friend) sworn 26 February 2021;
(f)Affidavit of Mr H sworn 24 February 2021;
(g)Affidavit of Mr J sworn 24 February 2021;
(h)Affidavit of Ms K (father’s girlfriend) sworn 26 February 2021;
(i)Affidavit of Ms L sworn 25 February 2021;
(j)Affidavit of Ms M sworn 25 February 2021;
(k)Affidavit of Ms N sworn 26 February 2021;
(l)Affidavit of Ms O sworn 11 March 2021 (attaching records from the P Social Services Agency in the UK).
The respondent relied upon the following documents:
(a)Form 2A filed 17 February 2021;
(b)affidavits of the mother sworn 12 February 2021 and 15 January 2021 together with annexures thereto;
(c)affidavit of Ms Q (school teacher) sworn 15 February 2021;
(d)affidavit of Ms R (friend) sworn 15 February 2021;
(e)affidavit of Ms S Jonson (maternal grandmother) sworn 15 February 2021.
No documents were tendered during the trial.
Credibility of witnesses
The father gave evidence and was cross-examined by Senior Counsel for the mother. He impressed me as an honest witness who was responsive to questions asked. His frustration about the situation he found himself in, was obvious.
The following witnesses gave evidence on behalf of the father and were cross-examined by Senior Counsel for the mother:
(a)Mr F;
(b)Ms K;
(c)Ms N;
(d)Mr G.
Each of the father’s witnesses attested favourably to his character and the time they had spent with him and Z in the UK, and in the case of his father, in Country C. I accept their evidence as truthful.
The mother gave evidence and was cross-examined by counsel for the applicant. None of the mother’s other witnesses were required for cross-examination.
The mother was generally responsive to most questions in cross-examination, although she attempted to frame answers in a manner which she obviously perceived was most favourable to her case. Senior Counsel for the mother submitted that she was a witness of impeccable truth and was prepared to make concessions contrary to her interests. I do not accept that statement, particularly so in view of the mother’s conduct between April and October 2020 in relation to Z’s return to the UK and the application for permission to depart the country, which was completed with highly selective information to achieve her objective of remaining in Australia. When cross-examined about these matters, the mother did admit that her statements were “woolly” and did make some concessions about her conduct. However, the reality was she had no alternative other than to agree with the propositions put to her in relation to her conduct and disingenuous behaviour during that time. Where her evidence differs from that of the father, I generally prefer the evidence of the father.
Background
The father is presently aged 46 years and is a dual citizen of Country C and the United Kingdom. He has lived in the UK since 2004, although at the date of the trial he was living in Country D because of the COVID-19 pandemic.
The mother is presently aged 41 years and was born in Australia. She is a dual citizen of Australia and the United Kingdom. Prior to travelling to Australia with Z in February 2020, she had lived in the UK for approximately 15 years. Her parents live in Sydney.
In May 2015, the parents met in City V in the UK and commenced a relationship.
On 14 December 2015, the mother and father purchased a house in U Street, City V and commenced living together. Each contributed approximately £240,000 towards the deposit, stamp duty and related expenses, with the balance of the purchase price being funded by a mortgage.
On 8 March 2016, Z was born in City V. She holds both Australian and UK citizenship. Both the mother and father are named on her birth certificate.
Between August 2016 and February 2020, the mother and Z visited Country C on a regular basis for approximately 167 days total. Of those days, 139 were with the father’s parents. Additionally, the father’s parents travelled to City V on six separate occasions between March 2016 and June 2019 to spend time with the family.
Between January 2017 and April 2017, the family travelled to Sydney and stayed with the mother’s parents. The mother asserts that the father remained in Sydney for three weeks and prior to returning to the UK, she and Z remained in Sydney for two months.
The mother asserts that the father began threatening her regarding his financial support of her and Z from July 2017.
The mother asserts that she and Z moved out of the U Street property for about two weeks in November 2017.
In December 2017, the mother asserts that the father started to be verbally abusive towards her.
Between December 2017, and February 2018 the family again travelled to Sydney to spend time with the mother’s family. The father remained in Sydney for two weeks.
In February 2018, upon her return to England, Z was enrolled at W School in City V.
The mother alleges that on 4 June 2018, the parties separated under the one roof at U Street. The father denies separation under one roof and asserts that separation occurred on about 8 September 2019. The mother asserts that she threatened to call the police on 28 June 2018 as a result of arguments.
In September 2018, Z commenced at W School in City V and attended regularly throughout the week for three hours each morning. As a result of Z telling her nursery that “daddy hit mummy”, social services became involved with the family.
In September 2018, the parties had an altercation in Location X, including a physical altercation. Each party has a different version of the physical altercation.
Between 26 November 2018 and 8 May 2019, the mother asserts that she and Z spent that time in Sydney, which occurred after the father had been abusive towards her. The father asserts that he consented to the mother and Z travelling to Sydney for a holiday during that time, and says that the basis for travel was as set out in his letter to the mother of 24 November 2018.
In 2019, the mother opened a local bank account in Australia and organised a Medicare number for Z.
In February 2019, the mother asserts that the father was verbally abusive towards her.
In May 2019, the mother and Z returned to City V where Z was enrolled at Y School. She commenced attending in September 2019, every weekday for three hours in the morning, until February 2020.
On 12 May 2019, the mother telephoned the police about putting the Location X incident on the record.
On 25 May 2019, a policeman arrived at the parties’ home requesting to speak to the mother and advising the father she had reported him for domestic violence. The mother asserts she was unable to report to the policeman as Z was present. The mother asserts she felt unprotected by the police given “their willingness to show up unannounced and divulge information to the father”.
Between May 2019 and September 2019, the mother asserts that the father was verbally abusive towards her.
In September 2019, the mother asserts that she and Z left the U Street property and moved into temporary accommodation with her brother, in a flat owned by the maternal grandmother in Suburb AA. The mother claims that she left the relationship as a result of domestic violence. The father denies the mother’s allegations of domestic violence, however, he acknowledges that over the years both he and the mother exchanged offensive words and insults during heated arguments. He asserts that the mother engaged in physical aggression but he denies perpetrating physical abuse.
On 20 September 2019, the mother and the father accepted a place for Z to commence school as BB School in year R (Reception) in September 2020. The father paid a deposit of £11,600 and early school fees.
On 25 September 2019, the mother and Z were discussed at a Multi-Agency Risk Assessment Conference.
The mother asserts that between September 2019 and December 2019, Z was expressing the fear about her father, including nightmares.
On 14 January 2020, subsequent to a discussion between the parents about possible schools for Z to attend, the mother submitted an application to the Local Council for Z to commence Year R at several state schools, in September 2020. That was in addition to Z’s registration at BB School for commencement in September 2020.
On 20 January 2020, Ms CC, from social services forwarded a letter to the mother enclosing an assessment which she had completed in relation to Z. Ms CC advised that she did not have any concerns that Z was at immediate risk of harm and that she was closing the case.
On 30 January 2020, the father provided his written consent for Z to travel to Australia with the mother, to visit the maternal grandparents, “from 15 February up to 19 April 2020, but not after that date please”.
On 4 February 2020, the mother forwarded the father a message thanking him for providing his consent to travel and advising that she was looking at flights departing 15 February 2020 and returning 17 April 2020.
On 7 February 2020 at 12:53PM, the mother confirmed the return date of 20 April 2020, by forwarding an email to the father, “To confirm what was said over WhatsApp yesterday, we will be travelling within the dates you specified returning on the 20th April”.
On 9 February 2020, Z spent time with the father prior to travelling to Sydney with her mother on 18 February 2020. Both the mother and the Z had a return ticket, with return booked for 20 April 2020.
Between March 2020 and August 2020, the father asserts that there were “back and forth” discussions between him and the mother regarding choice of school for Z in City V, prior to an agreement being reached that she would attend BB School.
On 12 April 2020, the mother informed the father that the return flights to London had been cancelled due to the COVID-19 pandemic. In a WhatsApp message on 12 April 2020 to the father, the mother said “Our flight has been cancelled in response to the pandemic. We have every intention of returning to the UK once it is safe and tenable to do so.”
On 13 April 2020, the father emailed the mother and agreed to the mother and Z extending their stay in Australia. He wrote “I would expect her to come back as soon as the whole situation has improved (both in City V and Sydney) and it is safe for both of you to travel back to City V”.
On 12 May 2020, the mother started Z’s vaccination schedule to enable her to be immunised accordance with Australian requirements.
In May 2020, without the father’s knowledge or consent, the mother enrolled Z at DD Primary School playgroup in Sydney.
On 2 July 2020, the mother and father agreed that Z would attend BB School in City V from 7 September 2020. Z was remotely introduced to her teacher, Ms EE and the mother deposes that Z completed “a few generic tasks online assigned from the school on seven dates”.
On 27 July 2020, the father travelled from the UK to Location FF in Country D.
Between 21 July 2020 and December 2020, Z attended the DD Primary School playgroup.
The father asserts that on 26 August 2020 the mother confirmed to him on the phone that she would be travelling back to City V to enable Z to start school on 7 September 2020. The father confirmed his understanding of the conversation in a letter to the mother dated 26 August 2020.
On 30 August 2020, the mother confirmed to the father that she was looking at flights to return to England prior to Z’s anticipated start of the school term in a WhatsApp message dated 30 August 2020 the mother said “Hi [Mr B]. How are you? Choosing a flight with best timings for Z and will let you know.”
On 1 September 2020, the mother advised the father by WhatsApp that she required an exemption from the Australian government to travel to the UK. Her message said “need to get exemption from the government before we can fly. I’ll let you know what day we’ll be arriving”.
On 9 September 2020, Ms EE, Z’s teacher at BB School sent an email to the parents stating “I believe that you are aiming for Z to join us from Tuesday 15 September – is this still the case?”.
On 10 September 2020, the mother replied to the email from Ms EE and said “We do not currently have exemption to leave the country, however, when we have been approved for travel by the Australian government, I will let you know”.
In September 2020, the mother consulted an immigration lawyer. The mother asserts that following that advice she applied for permission to leave Australia temporarily for the UK, which was denied.
On 15 September 2020, the mother received an email from the Australian Department of Home Affairs advising that her request for exemption from travel restrictions had been refused.
On 16 September 2020, the mother informed the father that her application for permission to depart from Australia had been refused.
On 18 September 2020, the father forwarded a text message to the mother making it clear that he required Z to return to the UK. The message said:
“Thanks for the update. Re your unsuccessful application to leave Australia, can you please address this substantial issue as a matter of urgency. I am clearly not happy with you and Z staying in Sydney any longer. Whatever mistakes were made by you or the Home Affairs Department or both, can you please fix them and make sure that you and Z can and will return to City V ASAP. I haven’t seen Z since February. No foreign government can prevent UK citizens to return to the UK. Especially when Z is supposed to start her primary education in City V. Please let me know of your earliest return date to the UK once this admin point has been sorted. Will speak soon.”
Between 21 and 30 September 2020, the mother and Z engaged in remote activities provided by the BB School in City V.
On 25 September 2020, the father’s solicitors forwarded a letter to the mother, clarifying that the father did not consent to Z being retained in Australia and proposing that the father book one-way tickets from Sydney to London for the mother and Z, departing on or before 15 October 2020 and offering to provide a letter to the Department of Home Affairs in support of an exemption application. The letter also stated that the retention of Z in Australia after 15 October 2020, would be without the father’s consent and would constitute a wrongful retention.
On 27 September 2020, the mother forwarded a text message to the father: “As you will have seen, Z’s very happily doing all her daily BB School class lessons in addition to a one-on-one with Ms EE who’s left lots of lovely messages for Z & her work.”
On 30 September 2020, the mother forwarded an email to the father’s solicitors requesting an extension of time until 9 October 2020, to reply to the father’s solicitor’s letter of 25 September 2020.
On 23 October 2020, the mother forwarded an email to the father’s solicitors, apologising for her late reply and stating that “I continue to be in shock”. In that letter the mother asserted that the father’s consent to Z remaining in Australia was extended and that the father was endeavouring to revoke his consent to the child remaining in Australia until the COVID-19 situation had improved and it was safe to travel back to the UK. The mother also advised the father’s solicitors that she had made contingency plans for Z to attend a local primary school.
On 11 November 2020, the father left the UK to travel to Location FF, for the second time.
On 20 November 2020, the mother received an email from the head of BB School advising her that it would be better for Z to attend a local school in the event she was unable to start physically at BB School from January 2021.
In December 2020, the father paid the BB School fees of £7,380 for Z to attend the spring 2021 term.
On 14 December 2020, the mother emailed BB School and agreed with the suggestions in the email of 20 November 2020.
JURISDICTIONAL FACTS
I will address the issue of jurisdictional facts required to establish wrongful retention. I will firstly address habitual residence.
RELEVENT LEGAL PRINCIPLES - HABITUAL RESIDENCE
The question of whether a person is habitually resident in a particular country is a question of fact, not an artificial legal construct, and requires an evaluation of all relevant circumstances.
The law in relation to habitual residence in Australia is well settled. The seminal authority is the High Court decision of LK v Director-General, Department of Community Services [2009] HCA 9 (“LK”). French CJ, Gummow, Hayne, Heydon and Kiefel JJ said:
[23]… First, application of the expression "habitual residence" permits consideration of a wide variety of circumstances that bear upon where a person is said to reside and whether that residence is to be described as habitual. Secondly, the past and present intentions of the person under consideration will often bear upon the significance that is to be attached to particular circumstances like the duration of a person's connections with a particular place of residence.
…
[25] … it may be accepted that "[h]abitual residence, consistent with the purpose of its use, identifies the centre of a person's personal and family life as disclosed by the facts of the individual's activities". Accordingly, it is unlikely, although it is not necessary to exclude the possibility, that a person will be found to be habitually resident in more than one place at the one time. But even if place of habitual residence is necessarily singular, that does not entail that a person must always be so connected with one place that it is to be identified as that person's place of habitual residence. So, for example, a person may abandon a place as the place of that person's habitual residence without at once becoming habitually resident in some other place; a person may lead such a nomadic life as not to have a place of habitual residence.
…
[27] When speaking of the habitual residence of a child it will usually be very important to examine where the person or persons who are caring for the child live – where those persons have their habitual residence. The younger the child, the less sensible it is to speak of the place of habitual residence of the child as distinct from the place of habitual residence of the person or persons upon whom the child is immediately dependent for care and housing. But if, as the writings about the Abduction Convention and like instruments repeatedly urge, the question of habitual residence of a child is one of fact, it is important not to elevate the observation that a child looks to others for care and housing to some principle of law like the (former) law of dependent domicile of a married woman.
[28] … examination of a person's intentions will usually be relevant to a consideration of where that person habitually resides. Sometimes, intention will be very important in answering that question. The example of a person who leaves a jurisdiction intending not to return is one such case. But unlike domicile, considerations relevant to deciding where a person is habitually resident are not necessarily confined to physical presence and intention, and intention is not to be given controlling weight.
…
[34] … when considering where a child is habitually resident, attention cannot be confined to the intentions of the parent who in fact has the day-to-day care of the child. It will usually be necessary to consider what each parent intends for the child. When parents are living together, young children will have the same habitual residence as their parents. No less importantly, it may be accepted that the general rule is that neither parent can unilaterally change that place of habitual residence. The assent of the other parent (or a court order) would be necessary. But again, if it becomes necessary to examine the intentions of the parents, the possibility of ambiguity or uncertainty on the part of one or both of them must be acknowledged.
[35] It follows … that to seek to identify a set list of criteria that bear upon where a child is habitually resident, or to attempt to organise the list of possible matters that might bear upon the question according to some predetermined hierarchy of importance, would deny the simple observation that the question of habitual residence will fall for decision in a very wide range of circumstances. And examination of decided cases in the area does not require the identification of a closed set of criteria, or the attribution of predetermined weighting between them.
…
[45] Moreover, the approach described in [Punter] Accords with the general tenor of decisions in the United States of America. It may be observed of those decisions that there is seen to have been a division between the Circuit Courts of Appeals about the relevance of the parents' subjective intentions for the child or children concerned. When it is also observed, however, that the resolution of the competing approaches has been to invite attention to whether presence at a place has a "degree of settled purpose from the child's perspective" (emphasis added), the difference in expression of the relevant considerations may not be great. At all events, a thread common to the leading decisions in the United States remains the need to look at all of the circumstances of the case. And it is that approach, as described in Punter, which should be followed.
In In re R (Children) (Reunite International Child Abduction Centre and others intervening) [2016] AC 76, the Supreme Court in the United Kingdom, made clear that there was no “rule” that one parent cannot unilaterally change the habitual residence of the child. The decision also confirmed that habitual residence is a “question of fact” and requires an evaluation of “all relevant circumstances”. The latter observation accords with the statements in McCall & McCall; State Central Authority (Applicant); Attorney-General (Intervener) (1995) FLC92-551.
In Secretary, Department of Family and Community Services & Zadeh [2017] FamCA 44, McClelland DCJ, noted the broader approach of the United Kingdom Supreme Court in In Re R, in contrast to the approach of the High Court of Australia in LK, where it was said at [34] “it may be accepted that the general rule is that neither parent can unilaterally change that place of habitual residence”. His Honour concluded that if the approach adopted in In re R is to be applied in Australia, it should be done at the appellate level.
Bennett J in State Central Authority & Metin [2020] FamCA 535 (“Metin”) after reviewing recent English authority, considered that the proposition that one parent with parental responsibility could not achieve a change in the child’s habitual residence without the consent of the other parent with parental responsibility, was wrong, but she was bound by the High Court decision in LK.
Another divergence of approach between the Supreme Court of the United Kingdom and Australian authority, is the length of time ordinarily required to establish habitual residence. In In Re R, the Supreme Court held that there was no requirement that a child should have been resident in a country for a particular period of time. That position is in contrast to the Australian position, namely, in order to find someone is habitually resident in a place they must generally have lived there for an appreciable period: Zotkiewicz & Commissioner of Police (No.2) [2011] FamCAFC 147.
Counsel for the State Central Authority referred to several propositions which could be drawn from a consideration of the case law, as stated by Bennett J at [175] of Metin. They are as follows:
[175] There appear to be several propositions from the cases discussed above, in no order of importance:
a) Habitual residence is a factual issue to be resolved by a factual enquiry guided by legal concepts;
b) A child should have one place of habitual residence. When a child gains a new habitual residence, the child loses the old one;
c) Identification of habitual residence requires evaluation of all relevant circumstances from the child’s perspective;
d) The purposes, intentions and agreements between parents are merely relevant factors;
e) The important element is the stability of the residence and not the permanency of it;
f) Children do not lose their habitual residence immediately upon removal from a jurisdiction, even where there is a settled intention that they will no longer live there;
g) There is no particular time by which it can be assumed that habitual residence will change to the destination state;
h) One parent cannot, by intention alone, unilaterally change a child’s habitual residence without the consent of the other party;
i) A child’s habitual residence not necessarily follow that of the habitual residence of the parent with whom they live;
j) The deeper the child’s integration in the old state probably the less fast will be the child’s integration in the new state;
k) The greater the amount of adult pre-planning of the move, including pre-arrangements for the child’s day to day lie in the new state, probably the faster the child’s integration will be;
l) Where all the central members of the child’s life in the old state have moved with the child, probably the faster the child’s integration into the new state will be;
m) A child’s state of mind, particularly that of an adolescent, can be taken into account in determining habitual residence. A minority decision also countenanced that the state of mind of children aged ten years and eight years as relevant to whether that child had attained a degree of integration in the new state;
n) There can be a composite consideration, or comparison, of all circumstances in the new environment with the mirror image in the old environment in order to determine whether there has been a shift in habitual residence;
o) The harmonizing purpose behind the 1980 Convention is best served by developing international jurisprudence which is consistent as between contacting states and, thereby, readily accessible by domestic judges in contracting states who may not be familiar with Hague jurisprudence. The concept of habitual residence should be consonant with its international interpretation.
Senior Counsel for the mother referred to a recent decision of the United Kingdom of Lord Justice Moylan in the Court of Appeal of Re M (Children) (Habitual Residence: 1980 Hague Child Abduction Convention) [2020] EWCA Civ 1105 (“Re M”), where it was said that:
[68] Habitual residence is, I repeat, a question of fact which requires a global analysis of all the relevant circumstances in order to identify the child’s habitual residence at the relevant date, namely the date of the wrongful abduction or the wrongful retention. In my view, the judge reached a different decision to that which a factual enquiry would have produced as a result of asking, not where the children were habitually resident as at the end of July 2019 but whether they had by then lost their German habitual residence. This resulted in the judges analysis having the wrong focus.
…
[72] If the judge had asked himself the “essential question” as referred to by Lady Hale In re LC, at [60], namely whether the children, as at the end of July 2019, had achieved a sufficient degree of integration into a social and family environment in England such that their residence he was habitual, I have no doubt that he would have concluded that they had.
Those statements must be read in the context of the divergent law in Australia, as to parental intention.
Counsel for the State Central Authority submitted that Z was habitually resident in the UK immediately before the date of her retention in Australia for the following reasons:
(1)Z was born in the UK and has spent most of her life there;
(2)her father lives in the UK;
(3)she attended nursery school in City V (commencing September 2018);
(4)careful consideration was given by the parents to Z’s future education and arrangements were made for her to attend BB School, an independent feepaying school in September 2020;
(5)whilst in Australia, Z has been involved in online learning provided by BB School, including having one-on-one lessons with her teacher Ms EE;
(6)Z’s place at BB School has been secured;
(7)in the UK, Z was able to and did maintain regular and meaningful contact with her parental grandparents who live in Country C;
(8)her mother’s brother, Mr GG, lives in City V and lives in a property in Suburb AA owned by the maternal grandmother, which is not far from U Street;
(9)after leaving the former family home in September 2019, the mother and Z moved in to the Suburb AA property;
(10)whilst the mother emphasises that Z has established friendships with other children in Sydney, it is also apparent that in City V Z had developed friendships with other children such as the children of the father’s witnesses who were cross-examined;
(11)integration of Z’s life in the UK was deep and substantial;
(12)there was no adult preplanning of the move to Australia in February 2020, as it was intended to be a two month holiday with return scheduled to take place before 20 April 2020;
(13)central members of the child’s life in the UK have remained there and have not moved to Australia;
(14)the mother has strong connections to the UK in particular:
(a)she lived there for 15 years until travelling to Australia in February 2020;
(b)she is a dual citizen of Australia and the UK;
(c)she owns property in the UK, specifically her interest in the U Street property;
(d)she is a director of a company in the UK, having been so appointed as at 15 April 2019;
(e)her mother owns property in UK;
(f)her brother, Mr GG, resides in City V;
(15)the father’s place of habitual residence is the UK, he has no intention of leaving the UK and moving to Australia and he is not agreeable to Z remaining in Australia;
(16)little weight should be accorded to the state of mind of a four-year-old who is entirely dependent upon her parents for all decisions in regard to her welfare, including where she might live on a permanent or temporary basis;
(17)the detailed evidence provided by the mother regarding the lifestyle enjoyed by the child in Sydney and the benefits of such lifestyle are unhelpful, as this matter is not a best interests case nor a regulation 16(2) well-settled defence;
(18)it does not assist the mother’s case to make every effort to portray the child as being “at home” in Australia by:
(a)referring to Z as having “returned” to Australia, having “settled back into her old room”, “resumed her routine activities” with the maternal grandfather and Z “not coming to a new place that returning home”;
(b)referring to Z attending the DD Primary School playgroup, when in fact such attendance was online from May to July 2020;
(c)referring to her involvement with ballet gymnastics and drama;
(d)her previous visits to Australia;
(e)the activities she engages in in Sydney.
It was also submitted:
(1)the habitual residence of a four-year-old child cannot be unilaterally changed by one parent;
(2)the evidence supports that the father has never agreed to change the child’s place of habitual residence and the mother has acted unilaterally in seeking to achieve that outcome;
(3)there is presently a difference in the respective intentions of the parents, and therefore no “settled purpose of intention”;
(4)it cannot be contended that the endeavours of the mother to integrate Z into life in Australia were part of a “joint intention” with the father to permit the mother and child to relocate to Australia;
(5)contrary to the general rule in LK that neither parent can unilaterally change the child’s place of habitual residence, that is precisely what the mother is seeking to achieve;
(6)whilst all relevant factors need to be taken into account in determining the issue of habitual residence, Z at the age of four (now five) had, and has, no power to determine for herself her country of habitual residence and therefore significant weight should be attached to the general rule that neither parent can unilaterally change the child’s place of habitual residence;
(7)the evidence is overwhelming that the father was at all times adamant that he expected Z to remain in Australia on a temporary basis and that she would ultimately return to the UK;
(8)it is clear that it was never in contemplation by either of the parties at any time up to September 2020 that the mother and Z would remain in Australia on a permanent basis because of the following evidence:
(a)exhibit Mr B2 to the father’s affidavit of 10 November 2020 where both parties accepted Z’s enrolment at BB School commencing September 2020;
(b)exhibit Mr B3 to the father’s affidavit of 10 November 2020 which is the father’s letter of consent dated 30 January 2020 for the mother and Z to travel to Australia, conditional upon their return to City V on before 19 April 2020;
(c)Annexure C to the father’s affidavit of 2 March 2021 where the mother states in an email of 4 February 2020 “I am looking at the 15th February – 17th April 2020 for flights”;
(d)annexure D to the father’s affidavit of 2 March 2021, which is an email from the mother dated 7 February 2020 confirming “ we will be travelling within the dates you specified returning on 20 April”;
(e)exhibit Mr B4 to the father’s affidavit of 10 November 2020 and annexure E to the father’s affidavit of 2 March 2021, which is the mother’s WhatsApp message of 12 April 2020, advising the father “our flight has been cancelled in response to the pandemic. We have every intention of returning to the UK once it is safe and tenable to do so”;
(f)annexure G to the father’s affidavit of 2 March 2021, which is a message from the mother dated 30 August 2020, where she confirms that she would be “choosing a flight with best timings for Z and will let you know”;
(g)annexure J to the father’s affidavit of 2 March 2021, which is a message from the mother dated 1 September 2020, advising that she required to obtain an exemption from the Australian government to leave for the UK and that “I’ll let you know what day we’ll be arriving”;
(h)exhibit Mr B6 to the father’s affidavit of 10 November 2020, which is an email from the mother to BB School stating “we do not currently have exemption to leave the country, however, when we have been approved for travel by the Australian government, I will let you know”;
(i)annexure M9 to the mother’s affidavit, which is notification from the Australian Department of 15 September 2020 referring to the mother’s request to be permitted to leave Australia;
(j)exhibit Mr B7 to the father’s affidavit of 10 November 2020, evidencing Z’s involvement in late September 2020 with online tuition provided by BB School City V;
(k)annexure R to the father’s affidavit of 2 March 2021, which is a message from the mother to the father “as you’ll have seen, Z’s very happily doing all her daily Pembridge class lessons in addition to a 1-on-1 with Ms EE who has left lots of lovely messages for Z and her work”.
Senior Counsel for the mother submitted that as at the asserted date of retention, Z was habitually resident in Australia. Her submissions were primarily directed to the level of social and family integration of Z in her life in Sydney.
The evidence of the mother relied upon to support Z’s integration into life in Sydney was as follows:
(1)Z had previously travelled to Sydney in January 2017, when she was nine months old, and remained with her mother until April 2017. The father remained in Sydney for three weeks;
(2)on 29 November 2017, Z, aged 20 months, again travelled to Sydney with her mother and remained until 23 February 2018. During that time the husband visited for two weeks over Christmas;
(3)on 25 November 2018, Z, aged 2 ½ years, again travelled to Sydney with her mother and stayed until 8 May 2019. The father did not visit during that time;
(4)on 18 February 2020, Z, aged almost 4, travelled with her mother to Sydney to stay with the mother’s parents. Return tickets to City V were booked for 20 April 2020;
(5)Z’s arrival in Sydney in February 2020, when she was not quite four years old, was a return home to an established safe, settled place with a loving family, existing social ties to friends she had kept in contact with and familiar surrounds and routines;
(6)since returning to Sydney in February 2020, Z has recommenced her activities and classes and reconnected with her social life and friends. Her activities include ballet once a week, gymnastics once the week, drama classes, swimming lessons, attending playgroups, attending birthday parties and play dates and spending time with her maternal grandparents;
(7)Z leads a busy and fulfilled life in contrast to her life in City V with a distant unloved father and a tension filled house;
(8)she sees her friends regularly, including for sleepovers, which never happened with her passing acquaintances from the former nursery in City V;
(9)she frequently attends a class or playgroups, which is often followed by spending the afternoon with a friend on an adventure in local playgrounds parks;
(10)she has attended the playgrounds at HH Community Centre;
(11)she frequently walks to attend the local shops and engages in friendly banter with local various shopkeepers;
(12)she is developing an Australian accent;
(13)she loves to socialise with her friends including swimming and rollerblading with local children in the neighbourhood;
(14)she has developed a group of friends some of whom have younger siblings;
(15)she has regular tasks with her grandfather including helping to put the rubbish bins out and bring them in, collecting bottles for a recycling scheme and helping her grandmother at the hair salon she owns;
(16)she rarely talks about returning to England because she considers Australia to be her home;
(17)Z and the mother do not have a home in the UK;
(18)her involvement in BB School remote learning with Ms EE was minimal;
(19)Z kept in contact with three children whom she met in Australia during the visit between November 2018 and May 2019;
(20)she wrote a letter to Santa on 28 December 2020 saying “I have friends in this country”;
(21)even when she wasn’t physically in Australia, Z’s heart was here, which was demonstrated by the frequency with which she spoke to, thought of or communicated with her friends and family in Australia;
(22)she enjoys a remarkably close relationship with both of her maternal grandparents.
The mother’s evidence is that she, herself is much happier in Australia surrounded by her family in a loving, safe, settled environment for both herself and Z and that she effectively considers herself habitually resident in Australia.
The mother did not address the issue of the divergent intention of the parents, as a factor to be considered in determining habitual residence.
Discussion as to habitual residence and wrongful retention
The submissions of Counsel for the State Central Authority were set out in the comprehensive Applicants Outline of Case and Summary of Argument filed on 12 March 2021.
It is contended by the applicant that at the time of the retention of Z in Australia on or about 15 October 2020, that she was habitually resident in the UK and that therefore her retention was unlawful.
The contention is supported by the following evidence:
(1)in about January/February 2020, both parents agreed that the mother be permitted to travel with Z to Australia until about 19 April 2020;
(2)on 12 April 2020, the mother advised the father that her proposed return flight to the UK was cancelled due to the COVID-19 pandemic. The father agreed to the mother extending Z’s stay in Australia and returning to England when the situation had improved and it was safe to travel back to City V;
(3)the mother confirmed on 12 April 2020, that she intended to return to the UK with Z and would do so once it was “safe and tenable to do so”;
(4)on 30 August 2020, the mother confirmed that she was booking flights for herself and Z to return to the UK;
(5)on 1 September 2020, the mother advised the father that she would require permission from the Australian government to allow her to fly to the UK and forwarded him a message “I’ll let you know what day will be arriving”;
(6)on 10 September 2020, the mother advised Z’s proposed School in City V that “we do not currently have exemption to leave the country, however, when we have been approved for travel by the Australian government, I will let you know”;
(7)on 16 September 2020, the mother informed the father that her application for permission to exit Australia had been refused by the Australian authorities;
(8)on 25 September 2020, the father’s solicitors forwarded a letter to the mother advising that the father was not agreeable to Z remaining in Australia and that he required her to depart Australia for the UK on a before 15 October 2020.
It was submitted that the facts referred to in the previous paragraph establish the following:
(1)there was an initial agreement between the parents for the mother to return to the UK with Z in April 2020;
(2)that agreement was overtaken by events that make it impossible to fulfil the terms of agreement, namely cancellation of international flights because of the COVID-19 pandemic;
(3)notwithstanding the cancellation of the flights as at April 2020, the evidence demonstrates that the parties remained in agreement that the stay in Australia was to be temporary and that it was their clear intention for the mother and Z to return to the UK;
(4)pursuant to the agreement for Z to return to the UK, in August/September 2020 the mother took steps to book flights for herself and Z to return to England prior to the start of the school term on 7 September 2020;
(5)as at late August/early September 2020 there was agreement between the parents that Z would be returning to the UK by 7 September 2020;
(6)the mother’s attempts to book flights in accordance with that agreement were frustrated by the refusal of the Australian government to permit her to leave Australia;
(7)it was implicit in the agreement between the parents for Z to return by 7 September 2020, that if flights were unable to be arranged prior to that date, then flights would be arranged at the first reasonably available date thereafter;
(8)the date nominated by the father for Z’s return, 15 October 2020 represents the first reasonably available date subsequent to 7 September 2020.
Senior Counsel for the mother submitted:
(1)parental intention remains a relevant factor but not a determinative factor;
(2)if it is held that one parent can veto a change in habitual residence because of lack of intention, that would give intention controlling weight;
(3)intention should be considered as part of a consideration of the child’s facts and circumstances;
(4)in determining the child’s habitual residence, the several periods of time prior to Z’s presence in Australia from 15 February 2020, are relevant because they all speak to where that child was at home;
(5)the lengthy periods of time that the child spent in Australia with her mother cannot be characterised as quick vacations;
(6)during those periods in Australia, the mother organised local bank accounts for the child, her Medicare number and that was when the child began to meet her friends and social connections in Australia;
(7)during the period November 2018 to May 2019, in addition to attending home-schooling with her mother, she attended her local church, playgroup, ballet lessons, swimming lessons and other social activities with friends, which meant that when she returned to Australia in February 2020, she had all of those connections in place, which is relevant to the question of assessing, from the child’s perspective, how she would feel in the country of habitual residence and whether she would be connected and integrated into that country;
(8)the fact that the child spent significant periods of time in Australia and Country C when she was theoretically a resident of the United Kingdom, assist in the determination of whether or not she was integrated in the United Kingdom;
(9)her life prior to and subsequent to the parental separation was difficult and it would be difficult to describe her circumstances as settled;
(10)neither parent at the time of the original consent had an intention that Z would settle permanently in Australia;
(11)each time the mother returned to Australia, she considered it a return home from her perspective, and on the evidence before the court the same can be said about the child in terms of her family, activities, networks and social life;
(12)the child has been primarily cared for by her mother.
It was further submitted that divergent UK authority, Re M has emphasised that enquiry as to a child’s habitual residence primarily focused on the child’s integration in the new country. The roots planted each time Z came to Australia have been sustained and the integration and immersion into the country lead to a conclusion that Z was habitually resident in Australia. The only aspect missing from her experience is that her father was not living in Australia with her.
The mother’s evidence was directed towards describing in as much detail as possible the minutiae of daily life of a four-year-old, with the expectation that the more detailed the description the more persuasive her arguments would be. She adopted the approach in relation to the visits between January 2017-April 2017 and November 2017-February 2018. The description of each of those visits is couched in terms of the child effectively living in Sydney permanently, rather than enjoying an extended holiday, when it was quite clear that the mother and child would return to City V at the expiration of the extended holiday. Much of the evidence, including the child learning to walk on the steps of the Opera House, being fascinated by rainbows on the Opera House windows and assisting her grandfather doing his work, such as sweeping, cleaning leaves from the pool, planting things in the garden and washing the car, was entirely irrelevant.
Similarly, her description of Z “arriving home” in February 2020, ignores the reality that the child lived in City V with her parents until separation in September 2019, and thereafter lived with her mother in City V and spent time with her father, until February 2020, albeit she travelled to both Australia and Country C to spend time with the respective grandparents and extended family. I do not accept the suggestion that the time spent in Australia on extended holidays should be considered as accumulated time for Z’s change of habitual residence. That submission is contrary to the reality of the child returning from Australia to City V, her home, and resuming life there with her parents, albeit sometimes subsequent to the parental separation.
If the mother’s written communication with the father between 12 April and 27 September 2020 and her communication with Ms EE, is accepted as sincere and at face value, in relation to both Z’s attendance at BB School and her intention to return to the UK, then there can be no doubt that her intention until the receipt of the letter from the father’s solicitors on 25 September 2020, was for Z to return to the UK. If the sentiments expressed in that correspondence are sincere, then it would be exceedingly difficult for the mother to assert that she intended Z’s habitual residence to be Australia, prior to receipt of the letter on 25 September 2020. If on the other hand, despite the relevant correspondence, the mother’s intention was for Z to be habitually resident in Australia prior to 25 September 2020, she has engaged in disingenuous and duplicitous conduct towards both the father and Ms EE.
I am mindful that intention is not determinative of habitual residence, however it is one of many factors to be considered and I am bound by the statements in LK, in particular at [34], pertaining to the habitual residence of young children. In this case, there is no ambiguity or uncertainty about the differing intentions of the parents and that the father did not “assent” to a change in the child’s habitual residence.
I accept and agree with the submissions of Counsel for the Central Authority.
Having considered the evidence of both parties as to Z’s family life, and integration into Australia, together with my findings as to the divergence of the parents intention of Z being habitually resident in Australia, I find that Z’s degree of integration into her life in the UK prior to October 2020, was such that I find that she was habitually resident in the UK in October 2020, as at the date of her retention in Australia. Having so determined, I have not considered parental intention as a determinative factor, but rather a relevant factor.
I am there satisfied that all of the jurisdictional facts have been established by the Central Authority and find that Z’s retention in Australia as from October 2020, is a wrongful retention.
REGULATORY EXCEPTIONS TO RETURN
Having determined that Z was habitually resident in the UK, and that Z’s presence in Australia on the date of retention, was in breach of the requesting father’s rights of custody, I will now address the exceptions to return raised by the mother. I will firstly address consent (reg 16(3)(a)(ii)).
Consent (reg 16(3)(a)(ii))
Relevant legal principles consent
The Full Court in Wenceslas & Director-General, Department of Community Services [2007] FamCA 398 (“Wenceslas”) considered the distinct and differing concepts of consent and acquiescence. Consent has to arise before the act of removal or retention, acquiescence can only arise after such an act.
The respondent mother has the burden of proving on the balance of probabilities that the requesting father has consented to Z’s retention in Australia. At page 301 of Re H (Abduction: Habitual Residence: Consent) [2000] 2 FLR 294, Holman J stated:
On the facts of a particular case a court may consider that evidence of consent needs to be cogent before it can overcome the degree of improbability of consent having been given on those particular facts. But in the end there is only one question, namely has consent been established? And only one standard, namely the balance of probabilities.
In Wenceslas, the Full Court of the Family Court at [257] – [263] reviewed the United Kingdom authorities as to whether or not consent can be inferred from conduct. At [262], the Court referred to the statements of Hale J as she then was, in Re K (Abduction): Consent [1997] 2 FLR 212. At 217-8, Her Honour said:
It is obvious that consent must be real. It must be positive and it must be unequivocal. But that is a separate issue from the nature of the evidence required to establish it. There will be circumstances in which the court can be satisfied that such consent has been given, even though it has not been given in writing. It stands to reason, however, that most people who wish to retain or remove the child would be well advised to get written consent before they do so to place the matter beyond argument. There may also be circumstances in which it can be inferred from conduct.
At [264] of Wenceslas, May and Thackeray JJ said as follows:
It seems to us that the views expressed by Hale J allow for the vagaries often associated with the way in which parents communicate in matters relating to the children. As presently advised…we are of the view that consent can be can inferred from conduct; however, we are also the view that the consent must be real and unequivocal and can only be made out by clear and cogent evidence.
I will now address the issue of consent.
Paragraphs 354 to 367 of the mother’s affidavit filed in this proceeding detail her evidence that the father has consented to Z remaining permanently in Australia. The gravemente of her assertion is the father’s email of the 13 April 2020, where he states that “I would expect her to come back as soon as the whole situation has improved (both in City V and Sydney) & it’s safe for both of you to travel”. Remarkably, the mother refers to that statement as the father’s “updated consent”. Her contention is that the child travelled to Australia with the consent of both parents and thereafter remained in Australia subsequent to April 2020, with the agreement of both parties. The agreement was that her return to the UK would be postponed until it was “safe for both of you to travel”.
The mother does not address the issue of consent in the context of the parental discussions and actions between 13 April 2020 and October 2020. Much of the events during this period are highly relevant to the issue of whether or not there is clear and unequivocal evidence of consent by the father for Z to remain in Australia.
The submissions of Counsel for the Central Authority, in relation to his intention as to Z’s habitual residence remaining in the UK, as set out at paragraphs 103 and 104 hereof, are also relevant to the issue of consent, and set out a clear chronology of the sequence of events subsequent to April 2020.
Subsequent to the emails between the parents in April 2020, in July 2020 the parents reached agreement that Z would commence at BB School in City V from 7 September 2020.
On 26 August 2020, the father sent an email to the mother confirming telephone conversations and a letter from the father to the mother dated 2 July 2020. That letter confirms the father’s understanding that the mother and Z were returning to City V prior to the start of the autumn term, 7 September 2020. That letter is annexure F to the father’s second affidavit. During cross-examination, the mother confirmed that “I recall that and it was his understanding”.
On 29 August 2020, the father sent a message to the mother stating “good evening what day are you coming back dearest?” On 30 August 2020, in response, the mother sent a message to the father stating “Hi [Mr B]. How are you? Choosing a flight with best timings for Z and will let you know”. The messages are annexure G to the father’s affidavit annexed to the affidavit of Ms O sworn 2 March 2021.
Exhibit Mr B5 to the father’s affidavit is a class list of reception 2020-21 for the BB School which includes Z as a pupil in R LH with the teacher Ms EE. Exhibit Mr B6 is a series of emails between Ms EE and the parents concerning Z’s enrolment in BB School and her planned return date on or before 15 September 2020. In particular, on 10 September 2020 at 10:24AM, the mother sent an email to Ms EE, which was copied to the father, advising that “when we have been approved for travel by the Australian government, I will let you know” and that the mother had access to both seesaw and firefly, for remote learning.
The messages between the parents on 29 August 2020 and 30 August 2020 are at odds with the mother’s contention that the father had agreed to Z remaining in Australia on an open-ended basis. There was no explanation provided why these messages would have been exchanged between the parties, if there had not been an agreement that Z would return to the UK around that date. It is reasonable to assume that the date contemplated by the parties was 7 September 2020, to enable Z to start school at BB School.
The fact that the mother was actively engaging in this manner with Ms EE at BB School as late as 10 September 2020, is entirely inconsistent with her assertion that the father had agreed to Z remaining in Australia, effectively on an open-ended basis. It is also doubtful, that the mother would have been in a state of shock as at 23 October 2020, as stated in her email of 23 October 2020, that the father required Z to return to the UK, when she was fully aware of Z’s enrolment in BB School and had participated in email correspondence with the school.
During cross-examination, the mother agreed that the letter of 26 August 2020 and the subsequent exchange of text messages on 29 August 2020 and 30 August 2020 made it clear to the father that Z would be returning in September 2020.
The mother also deposed to obtaining advice from an immigration lawyer in September 2020 about applying for permission to leave Australia temporarily for the UK. During cross-examination of the mother, it transpired that she had made an application to the relevant authority as an Australian citizen and did not disclose that she was also a UK citizen wishing to return to the UK.
During cross-examination, the mother agreed with the proposition that as at 1 September 2020, the only thing stopping her returning was her failure to obtain an exemption. She attempted to qualify that by saying that she did not want to anger the father so she was trying to do the correct thing although she was hoping to buy more time prior to returning to the UK. She admitted that she was a bit dishonest and was going through the motions of being prepared to return. In response to the proposition that the court could imply that she was not being honest with the father and the school she replied that she was being deliberately “woolly”.
The mother also agreed:
(a)it was clear from the evidence that as at September 2020, she fully intended to return to the UK with Z and for Z to start BB School in September 2020;
(b)at no stage prior to September 2020 was it suggested by her to the father or the school that Z would not be returning to the UK;
(c)she had never indicated to the father or anyone else that Z was no longer a resident of the UK.
The mother was vigorously cross-examined about her application for an exemption to leave the country, which was ultimately declined. Her answers clearly demonstrate that she hoped that the application would be denied and that the application was made on the basis of her Australian passport, with no mention of herself or Z as dual citizens. She did not apply as a person who was a citizen of another country, namely the UK, despite admitting that she had lived in the UK for the past 15 years, owned property in the UK and was a parent of a UK citizen.
Senior Counsel for the mother submitted that the mother was fearful of the father and his coercive and controlling nature and that she effectively felt coerced into taking action which would appease the father. She also submitted that in the light of the father’s letter of 13 April 2020, he was not able to unilaterally change the terms and conditions of that consent, to then insist that the child return prior to September 2020. That submission does not take into account the messages and emails between the parents and the school referred to in the preceding paragraphs. I do not accept the submission of Senior Counsel for the mother that the mother was effectively paralysed by fear of the father when she was living in Sydney with the support of her family and the father had no means of travelling to the country.
The mother’s evidence leads to the irresistible conclusion that she was selective and concealing in the information she provided to obtain the exemption, and that it was her planned intention that she would be rejected, which was in accordance with her objective.
The mother further admitted during cross-examination that she was looking for the best date available in September to travel, and that she could not get a flight on a specific date then she would look at the next possible date to book a flight. It was not a question of a particular date or not at all and that she was looking at the best timings for Z.
The mother also agreed that it came as no surprise to her that the father insisted on Z’s return to the UK, in accordance with the prior communications between the parents and her efforts to travel, but it was the manner of delivery that was a shock to her. She agreed that she knew that the father was dead set on Z returning to school at BB School as close as possible to 7 September 2020.
Having regard to the mother’s own evidence referred to in the preceding paragraphs, that she was acutely aware that she had agreed to the return of Z in September 2020, I find that there was no clear and cogent evidence of real and unequivocal consent by the father to Z remaining in Australia as at the date of wrongful retention. To the contrary, there is clear and cogent evidence of the mother’s knowledge, consent and agreement that Z would be returned to the UK in time to enable her to commence school at BB School in September 2020.
The mother has not satisfied the burden of proof and this regulatory exception must fail.
Grave risk of exposure to physical or psychological harm or placing the child in an intolerable situation (reg 16(3)(b))
I will now address the issue of exposure to grave risk of physical or psychological harm or placing the child in an intolerable situation.
Relevant legal principles
The leading authority in Australia pertaining to this regulatory exception is DP v. Commonwealth Central Authority; JLM v. Director–General, NSW Department of Community Services [2001] HCA 39 (“DP”) Gaudron, Gummow and Hayne JJ stated [39]:
[39] … Of course it must be recalled that the onus of proof lies on the party opposing return. It will be for that party to demonstrate a grave risk of exposure to harm. Many factors may be relevant to that inquiry…
…
[41] … On its face reg 16(3)(b) presents no difficult question of construction and it is not ambiguous. The burden of proof is plainly imposed on the person who opposes return. What must be established is clearly identified: that there is a grave risk that the return of the child would expose the child to certain types of harm or otherwise place the child in “an intolerable situation”. That requires some prediction, based on the evidence, of what may happen if the child is returned. In a case where the person opposing return raises the exception, a court cannot avoid making that prediction by repeating that it is not for the courts of the country to which a child has been removed or retained to inquire into the best interests of the child. The exception requires courts to make the kind of inquiry and prediction that will inevitably involve some consideration of the interests of the child.”
[42] Necessarily there will seldom be any certainty about the prediction. It is essential, however, to observe that certainty is not required: what is required is persuasion that there is a risk which warrants the qualitative description “grave”. Leaving aside the rederence to “intolerable situation”, and confining attention to harm, the risk that is relevant is not limited to harm that will actually occur, it extends to a risk that the return would expose the child to harm.
[43] Because what is to be established is a grave risk of exposure to future harm, it may well be true to say that a court will not be persuaded of that without some clear and compelling evidence. The bare assertion, by the person opposing return, of fears for the child may well not be sufficient to persuade the court that there is a real risk of exposure to harm.
[44] These considerations, however, do not warrant a conclusion that reg 16(3)(b) is to be given a “narrow” rather than a “broad” construction. There is, in these circumstances, no evident choice to be made between a “narrow” and “broad” construction of the regulation. If that is what is meant by saying that it is to be given a “narrow construction” it must be rejected. The exception is to be given the meaning its words require.
[45] That is not to say, however, that reg 16(3)(b) will find frequent application. It is well-nigh inevitable that a child, taken from one country to another without the agreement of one parent, will suffer disruption, uncertainty and anxiety. That disruption, uncertainty and anxiety will recur, and may well be magnified, by having to return to the country of habitual residence. Regulation 16(3)(b) and Art 13(b) of the Convention intend to refer to more than this kind of result when they speak of a grave risk to the child of exposure to physical or psychological harm on return.
In DP at paragraph [130], his Honour Justice Kirby, in a dissenting judgment stated:
[130] … Inevitably…the application of the exception provided for in reg 16(3)(b) will be rare both by virtue of the language in which that exception is expressed and so as not to undermine the achievement of the overall object of the law…It should not therefore be surprising that they (the exceptions) have only been invoked successfully in comparatively rare instances.
Further at paragraph [132], his Honour Justice Kirby considered the language used in reg 16(3)(b) and said:
[132] The adoption of the word “grave” to qualify “risk” plainly contemplates that in some cases, an order of return will be made although there is a real, even significant (but not “grave”) risk of the kinds of harm contemplated.117 Similarly, the use of the word “otherwise” in reg 16(3)(b)118 indicates that the types of “physical or psychological harm” referred to must also be such as to place the child concerned in an “intolerable situation”.119 Therefore, the language in question, as well as its appearance in a provision enumerating limited exceptions to the general rule, make it clear beyond argument that orders of return will be made to uphold the principal object of the law in circumstances where, were the matter simply a custody dispute (however described), in all likelihood, on the evidence provided, the child's current arrangements would not be altered. Only a circumstance where the party resisting the order can establish, in the context presented by the ordinary rule of return, that that result would expose the child to a grave risk that was “intolerable … extreme and compelling”,120 will invite the application of the exception.
Ryan and Aldridge JJ in Walpole & Secretary, Department of Communities and Justice [2020] FamCAFC 65 at [58] referred to comments of Gaudron, Gummow and Hayne JJ, at paragraph [40] of DP:
So far as reg 16(3)(b) is concerned, the first task of the Family Court is to determine whether the evidence establishes that “there is a grave risk that [his or her] return … would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation”. If it does or if, on the evidence, one of the other conditions in reg 16 is satisfied, the discretion to refuse an order for return is enlivened. There may be many matters that bear upon the exercise of that discretion. In particular, there will be cases where, by moulding the conditions on which return may occur, the discretion will properly be exercised by making an order for return on those conditions, notwithstanding that a case of grave risk might otherwise have been established. Ensuring not only that there will be judicial proceedings in the country of return but also that there will be suitable interim arrangements for the child may loom large at this point in the inquiry. If that is to be done, however, care must be taken to ensure that the conditions are such as will be met voluntarily or, if not met voluntarily, can readily be enforced.
In Re C (Abduction: Grave Risk of Psychological Harm) [1999] 1 FLR 1145 at 1154, the Court of Appeal stated that:
…There is, therefore, an established line of authority that the court should require clear and compelling evidence of the grave risk of harm or other intolerability which may be measured as substantial, not trivial, and of a severity which is much more than is inherent in the inevitable disruption, uncertainty and anxiety which follows an unwelcome return to the jurisdiction of the court of habitual residence”
In State Central Authority & Sigouris [2007] FamCA 250, Bennett J said at [79]:
[79] In order for the respondent mother to make out the exception under Regulation 16(3)(b) of the regulations (Article 13(b) of the Convention), it is necessary to establish at the risk of exposure to physical or psychological harm or the children being placed in an intolerable situation in the event of their return to Greece forthwith is not only very real but “grave”.
In Walpole & Secretary, Department of Communities and Justice [2020] FamCAFC 65 (“Walpole”), Watts J at [90] made it clear that the regulations are to be interpreted according to Australian legal standards and the fact that in DP the High Court did not give a restrictive meaning to the defence of grave risk that made clear that the words of reg 16(3)(b) are to be given their natural meaning and not a narrow construction.
The mother asserts that the evidence establishes that a return order would expose Z to a grave risk of physical or psychological harm or otherwise place her in an intolerable situation. The risk to the child arises out of the child’s experience of violence (physical and verbal) perpetrated on the mother by the father and set out in the mother’s affidavit material.
The mother’s affidavit filed 13 February 2021 has multiple references to the verbal abuse and coercive behaviour she asserts was perpetrated by the father during their relationship and subsequently.
During cross-examination, the mother conceded that the father had never physically caused harm to Z.
During cross-examination of the father, Senior Counsel for the mother sought to put to the father various recordings made by the mother during the relationship. Counsel for the Central Authority objected to the recordings. Agreement was eventually reached between Counsel that I would listen to the recordings and if I determined that they were of little probative value, then Senior Counsel for the mother would not pursue her application to play the recordings in court.
I adjourned the court and listened to the recordings which were quite numerous and of varying lengths. There was no explanation as to the circumstances giving rise to the recordings, although it was abundantly clear from the recordings that the father was unaware the mother was recording him. Some of the recordings were particularly short and others lengthier. Some were arguments which seemed to take place in the presence of Z and others were not. After listening to all of the recordings I determined that they were of little probative value other than to demonstrate that the parties had a volatile verbal relationship, which was common ground between the parties.
The mother asserted that there was a physical altercation between the parties, which took place during a holiday in Location X in Country C in September 2018. Unsurprisingly both the mother and the father had very divergent evidence about what actually transpired. The mother’s evidence, at paragraph 78 of her affidavit was that the father threw her into a wall in Location X, whereupon she suffered injury to her back, head, neck, and a split lip. Annexure M 2 to that affidavit is a medical report together with a translation which states that the doctor examined the mother on 3 September 2018 and that she presented with multiple excoriations to the shoulders and to the right arm, and her lip. She also complained of pain in her head following an attack by a known person (husband).
At paragraph 83 of her affidavit, the mother deposes that in self-defence, when pinned to a wall opposite the bedroom door, she scratched the father on the right side of his nose and attempted to knee him in the groin to get him off her. Whilst she raised her right knee, it did not connect in any meaningful way.
The father’s evidence about the Location X incident, which is contained at paragraphs 97 – 103 of his affidavit of 2 March 2021, is that it was the mother, who has some martial arts training, became very aggressive and he was forced to defend himself. The mother inflicted some scratching on his face in accordance with annexure AA to that affidavit.
Having regard to my comments about the mother’s reliability as a witness and her own evidence during cross-examination of her lack of truth, I prefer the father’s evidence about the Location X incident.
The mother asserts that she has no confidence in the UK social services and police that they would or could adequately protect her or Z from the father’s violence and coercive control. The basis of her assertion is her perceived lack of action by social services and/or the police to assist her in the past.
In September 2018, Z disclosed to her nursery school teacher that daddy hit mummy and as a result, social services were involved with the family for the first time. There were two subsequent involvements with the family.
The affidavit of Susannah Louise Jerapetritis filed 11 March 2021 annexes various documents obtained from the Hammersmith & Fulham local child protection services, namely Social Work Chronology, Child and Family Assessment, Record of Outcome S47 Enquiries and Closure Record.
The documents were prepared on the basis of consultations with the mother, which did not involve the father other than to speak with him on 7 January 2020 regarding the family situation, prior to closing the case on 14 January 2020.
The mother was cross-examined about the documents obtained from child protection. The mother’s evidence during cross-examination was as follows:
(1)the father had not physically harmed Z;
(2)if a return order were made, she would accompany Z to the UK and would expect her to live with her;
(3)she would only permit supervised time between the father and Z until court orders had been obtained in England;
(4)she had been advised by social services to obtain legal advice in the UK and she had spoken to a solicitor;
(5)she spoke to social services about conversations she had with lawyers although she denied that she had plans to obtain a child arrangements order;
(6)she agreed the father had never been physically violent towards her, apart from the incident in Location X;
(7)she agreed that the statement recorded in annexure B that she has sought legal advice about next steps in regard to contact was a correct recording of what she said to social services;
(8)she agreed that the following statements on page 31 of annexure C of the affidavit are a correct recording of what she said to social services, namely:
(a)that she had not allowed the father in and has reported that she would contact the police should he show any threatening behaviours;
(b)she really does not want him to have contact with Z and definitely not unsupervised, but worries about the legal implications if she stops the father from seeing Z;
(c)she shared that the father has not been physically violent towards he apart from the incident on holiday in September 2018, but he can act aggressively and bang objects towards the house during arguments, so this is why she believes that they might think he has physically harmed her;
(d)she agreed that her report to social services on 5 October 2018 had been made when the Location X incident which occurred on 18 September 2018 was fresh in her mind, although she was not responsible for the social service recording of the incident;
(e)although the social service report recorded that “[The mother] is “thrown on the bed” by the father and accidentally bangs heads with him”, she said he threw her on the bed and her head hit the wall;
(f)she said it was wrong that they accidentally banged heads and that she did not know that the social services recording would be so closely scrutinised;
(g)she agreed that the damage to her lip was caused by accidentally banging of heads;
(h)she conceded that when she was up against the wall she scratched him;
(i)neither party reported that the father had hit her in Location X;
(j)she agreed that Z reported to child protection that “daddy hits and kicks mummy”;
(k)in response to the proposition that the kicking was an invention, she responded that Z had witnessed him kicking things, but he had never kicked the mother;
(l)she agreed that Z’s statement that the father hits and kicks mummy was not correct;
(m)in response to the proposition that Z’s comments were a consequence of what she said, she replied that all she had done is to try to protect her and keep her safe;
(n)she agreed that her evidence on the previous day was that she was prepared to be selective about what she said to authorities because she had a desire to remain in Australia;
(o)she agreed that she would do what she could and whatever was necessary to have the child remain in Australia;
(p)she agreed that her case was also concerned about psychological harm and an intolerable situation because of her allegations of controlling, coercive and abusive conduct;
(q)she agreed that the allegations had been mainly directed at her and not Z, but some of it had occurred in front of Z;
(r)she agreed she contacted the police and social services, but had not put anything on the record with the police but social services were quite firm that the situation was awful for Z and very little had been done to protect her;
(s)she was aware she could contact services and that she had previous dealings with police and victim support services;
(t)she agreed that she had approached lawyers and police and was disappointed that the authorities had failed to take her responses seriously;
(u)she honestly believed that the UK authorities had not taken her case seriously;
(v)she agreed it was apparent from the social services report that it was she who had failed to respond to efforts by the authorities to assist her;
(w)there had been multiple attempts to contact her without success and that she had failed to engage and to respond to social services;
(x)she agreed that the references in the report from social services demonstrated a concerted and ongoing effort by the authorities to assist her which could only be described as professional;
(y)she would be prepared to involve police if necessary;
(z)she understood she had the right and would be prepared to contact police if she needed to do so;
(aa)she did not agree with the proposition that her general view was to exclude the father from Z’s life despite having told social services that she did not want the father to have contact with Z;
(bb)she did not agree that she had told the agencies that she did not want Z to have contact with the father rather she did not want the child to have unsafe contact.
The submissions of the mother’s Senior Counsel about this regulatory exception are as follows:
(1)the grave risk defence in this case is not that the mother has been a victim of domestic violence and consequently it would place the child of grave risk if she were required to return with the child;
(2)rather, the mother has been the victim of domestic violence which has had a significant impact on the child;
(3)a return to the UK would have a psychological impact on the child as she would associate that environment with the domestic violence perpetrated on her mother and that would place the child at grave risk of psychological harm and in an intolerable situation;
(4)the physical violence referred to in the mother’s affidavit in Location X was serious and resulted in her being very seriously injured;
(5)the father’s version of events was not put to the mother in cross-examination;
(6)there was no inconsistency in the accounts of the mother about the Location X incident and it is not possible to point to inconsistencies in accounts in the social services documentation and the mother’s affidavit, when it is not plain who was the author of the social services document;
(7)the child protection report identifies that an enquiry should be initiated, and that the authority is worried that Z may be at risk of experiencing significant harm due to witnessing domestic abuse perpetrated by her father and that there is significant coercion and control going on in the relationship;
(8)the only reason the case was closed was because of the child was safe with the mother;
(9)the difficulties child protection had in contacting the mother are consistent with the mothers concern that she not bring to the attention of the father that she was reaching out for help;
(10)the mother’s view was that the police have not taken her allegations seriously, and if he had been physically violent towards her it would have been easier to present a case to child protective services;
(11)the mother’s view was also shared by a police officer who was part of the safeguarding community safety unit;
(12)the mother’s conduct in trying to make sure that the father isn’t aware of the fact that she has contacted the police or child protective services, and her difficulty in in engaging, is consistent with the mother presenting as a classic domestic violence victim;
(13)there is no evidence to support that the child’s comments that daddy hurts mummy and isn’t very nice, has come from anywhere other than from the child’s own experience of the father;
(14)the capacity to deal with coercive and controlling violence is extraordinarily difficult and a challenge for the courts, police and child protection services;
(15)to dismiss the concerns by saying the victim can rely on the authorities in another country is to ignore the complexity of coercive control;
(16)the Hague proceedings are a continuation of the control.
The submissions of Counsel for the Central Authority in this regard are set out in the Applicant’s Outline of Case and Summary of Argument and are as follows:
(1)the alleged risk to Z being exposed to physical or psychological harm or otherwise being placed in an intolerable situation does not meet the criteria for finding that this would constitute a “grave risk”;
(2)the following general principles can be extracted from the relevant authorities:
(a)the regulation 16(3)(b) defence will not find frequent application and has only been successfully invoked in comparatively rare instances;
(b)clear and compelling evidence of the grave risk of harm or other intolerability is required;
(c)the risk must be “substantial” and an order of return will be made albeit that the risk is real or even significant, but not grave;
(d)a return order will only be refused where the result of such order would be to expose the child to a grave risk that was “intolerable… extreme and compelling”;
(e)a “very real” risk does not in itself constitute, or amount to “grave risk”
In regards to the mother’s allegations of domestic violence:
(a)the mother has gone to great lengths to portray the father as a person who presents a risk to the child;
(b)at paragraphs[40] – [122] of her affidavit the mother sets out her allegations regarding the father’s behaviour which she contends establishes the defence of “grave risk”;
(c)a consideration of allegations reveals:
(i)almost all of the allegations relate to abusive behaviour directed by the father towards her, and not Z;
(ii)except for the incident in Location X in September 2018, none of the mother’s allegations relate to any physical violence/abuse on the part of the father;
(iii)each of the parties blamed the other for instigating the Location X incident and being aggressive towards the other party;
(iv)many of the mother’s allegations of ‘violence and coercive control’ allegedly perpetrated by the father, consist of conclusions and generalisations;
(v)the mothers mi sgivings regarding the conduct of the police (at paragraph 92 of her affidavit) lack substance and are inconsistent with the evidence, which substantiates that the police have been proactive, concerned and entirely professional;
(vi)social services in the UK, who had been approached by the mother, wrote to her on 21 January 2020 advising that they did not have any concerns that Z is at immediate risk of harm and that they were closing the case;
(vii)in dealing with social services in the UK the mother made it clear that the father has never been physically violent towards her apart from the incident in Location X;
(viii)some scepticism must attach the mother’s extraordinary ability to recall the exact words used by the father, the exact dates and the father’s tone of voice during various arguments dating back over many years.
It was further submitted that:
(a)even taken at their highest, the mother’s complaints about the father’s behaviour do not give rise to a finding of “grave risk or “intolerable situation” as contemplated in the Regulations and as interpreted in the case law;
(b)if the mother returns to the UK with Z, she will not be living with the father and will have available to her the protection of the authorities in the UK, without any concession that the mother will require any such protection;
(c)considering the mother’s complaints about the father’s behaviour, the Court shall take into consideration the various character references provided by friends and acquaintances of the father, including the father’s current girlfriend.
Conclusion as to grave risk and intolerable situation
I accept the submissions of Counsel for the Central Authority and I do not find that either individual or collectively, the factors constitute exposure to a grave risk or intolerable situation as is required by DP.
It is apparent that the report of social services is based entirely upon the mother’s version of events and that the father was not interviewed by or participated in any of the investigations until a week before closure, when he was spoken to regarding the family situation.
A return order does not require the mother to live in the same locality as the father, merely to return to the country of habitual residence. The mother is well resourced and has the capacity to obtain legal advice and obtain any necessary protection which the courts may deem necessary to protect herself and the child. Her Senior Counsel did not make any submissions about any conditions to return which would assist her in this regard.
The facts of this application may be readily distinguished from the facts of Walpole where the defence was successful. In Walpole, there was compelling evidence of the children being exposed to very serious physical violence including potential lethality, in circumstances where the requesting parent had been deported from Australia to New Zealand as a result of serious and systematic criminal conduct and a real concern that the New Zealand authorities would be unable to protect the mother and children.
I do not accept the mother’s evidence, nor submissions by her Senior Counsel about the capacity of the relevant child protective authorities, the police or the Courts of the UK, to protect the child. There is a presumption that co-signatory states have the capacity to adequately protect the child upon return, unless shown otherwise, I do not accept that the mother has satisfactorily proven otherwise.
The presumption referred to in the preceding paragraph is discussed in Gsponer at [178]:
[178] There is no reason why this court should not assume that once the child is so returned, the courts in that country are not appropriately equipped to make suitable arrangements for the child’s welfare. Indeed the entry by Australia into this convention with the other countries may justify the assumption that the Australian government is satisfied to that effect.
The sentiment in the preceding paragraph has been unanimously echoed by the High Court in De L at 658:
The Regulations reflect the objects of the Convention to settle issues of jurisdiction between the Contracting States by favouring the forum which has been the habitual residence of the child. The underlying premise is that, once the forum is located in this way, each Contracting State has faith in the domestic law of the other contracting states to deal in a proper fashion with matters relating to the custody of children under the age of 16.
In conclusion, I find the factors which the mother asserts create a grave risk of exposure to physical or psychological harm or otherwise place the child in an intolerable situation, do not individually or collectively constitute such a risk, particularly where there are protective measures which could be put in place to ameliorate the asserted risks and the mother has the capacity and capability to do so.
The mother has not satisfied the threshold test of “grave risk” or “intolerable situation”, and this defence must fail.
COVID-19 Pandemic
In the applicant’s Outline of Case and Summary of Argument, Counsel for the Central Authority submitted:
(a)the mother has done no more than ask the court to take judicial cognizance of the situation in the UK regarding COVID-19;
(b)the mother devotes 3 paragraphs of her affidavit [399]-[401] to the issue and has attached as annexure M 13, five pages of material from a source in the UK, which appears to be out of date;
(c)there is no evidence at all regarding the risk to Z, as a five-year-old healthy child who would live in an upmarket area of City V, contracting COVID-19 or the sequelae thereof.
In the Respondent’s Outline of Case, paragraph 8, it is stated:
The risk to the child arises out of the child’s experience of violence (physical and verbal) perpetrated on the mother by the father as set out in the mother’s affidavit material.
In her final submissions, Counsel for the mother refers to COVID-19 in the context of the mother’s argument that the father consented to the child remaining in Australia, the fact that COVID-19 has made travel difficult, requiring the child to return to the UK, whilst the father was living in Country D because of COVID-19, was a continuation of the control exercised by the father and to some extent in the context of the mother’s argument of habitual residence. It was not directly addressed in the context of the regulatory exception and there was no evidence adduced in that regard.
I accept the submissions of Counsel for the Central Authority.
Order to return
I have now determined that the mother has not succeeded on the requisite standard of proof that any of the regulatory exceptions to return should apply. I do not need to consider the circumstances in which my discretion to return is enlivened.
I also agree with and adopt the conclusions in the applicants Outline of Case where, Baroness Hale at [42] of In re M (FC) & Anor (FC) Children (FC) [2007] UKHL 55 said:
[42] In Convention cases… there are general policy considerations which may be weighed against the interests of the child in the individual case. These policy considerations include, not only the swift return of abducted children, but also comity between the Contracting States and respect for one another's judicial processes. Furthermore, the Convention is there, not only to secure the prompt return of abducted children, but also to deter abduction in the first place. The message should go out to potential abductors that there are no safe havens among the Contracting States.
I will make an order for return of the child as sought by the Central Authority.
I certify that the preceding one hundred and eighty-one (181) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Williams. Associate:
Dated: 3 May 2021
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