Secretary, Department of Communities and Justice & Paredes - [2021] FamCA 128

FAMILY COURT OF AUSTRALIA
Secretary, Department of Communities and Justice & Paredes [2021] FamCA 128

File number(s): CAC 2536 of 2020

Judgment of: WILLIAMS J

Date of judgment: 17 March 2021

Catchwords: FAMILY LAW – CHILD ABDUCTION – HAGUE CONVENTION – Child brought to Australia from Brazil – Consideration of whether the child was habitually resident in Brazil immediately before the alleged retention date – Amendment of alleged date of retention to alternative retention dates – Was the child’s presence in Australia on the alleged retention date in breach of the requesting father’s rights of custody – Consideration of repudiatory retention in the context of the mother issuing proceedings in the Family Court in Australia – Held jurisdictional facts established – Regulatory exceptions to return raised by mother, firstly reg 16(3)(a)(ii) consent and/or acquiescence – Consideration of the impact of the father’s proceedings in the first family Court of Brazil – Held no consent or acquiescence, 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 respondent adduced expert medical evidence about the COVID-19 pandemic – Consideration of limited comparable case law – Held grave risk not established, thirdly, reg 16(3)(c)(i)-(ii) child’s objection to return – Held exception to return fails, fourthly, reg 16(3)(d) return would not be permitted by the fundamental principles of Australia relating to human rights and fundamental freedoms – Held this ground not established – Order made for return of the child to Brazil – Mother provided with the opportunity to obtain a COVID-19 vaccine prior to return to Brazil – 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, rr. 4(2), 14, 15, 16, 26, 29(4)

Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children

United Nations Convention on the Rights of the Child

Cases cited:
C v G (Child Protection (Poland): grave risk defence) [2020] IEHC 217

C v G [2020] IECA 233

Central Authority & Wageman and Anor [2012] FamCAFC 176

De L v Director General, NSW Department of Community Services (1996) 187 CLR 640

Director-General, Department of Communities, Child Safety and Disability Services & Pelt [2012] FamCA 343

Director-General, Department of Families, Youth and Community Care & Bennett [2000] FamCA 253

DP v Commonwealth Central Authority: JLM v Director – General, NSW Department of Community Services (2001) FLC 93-081

Friedrich v. Friedrich, 78 F.3d 1060 (6th Cir. 1996)

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

HZ & State Central Authority [2006] FamCA 466

In re C and another (Children) (International Centre for Family Law, Policy and Practice intervening) [2019] AC 1

In Re F (Hague Convention: Child’s Objections) [2006] FamCA 685

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

In the matter of C (Children) [2018] UKSC 8

IN v DK, N (a child) [2020] EWFC 35

KR v HH [2020] EWHC 834 (Fam)

LK v Director-General, Department of Community Services (2009) 237 CLR 582

McCall & McCall; State Central Authority (Applicant); Attorney-General (Intervener) (1995) FLC 92-551

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

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

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

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

Re E.(Children) (Abduction: Custody Appeal) [2011] UKSC 27

Re H (Abduction: Habitual Residence: Consent) [2000] 2 FLR 294

Re H (Minors) [1997] AC 72

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 & Handbury [2019] FamCA 668

State Central Authority & Metin [2020] FamCA 535

State Central Authority & Sigouris [2007] FamCA 250

Tarritt & Director-General, Department of Community Services [2008] FamCAFC 34

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: 270

Date of hearing: 27-29 January 2021

Place: Melbourne

Counsel for the Applicant: Mr Tockar

Solicitor for the Applicant: DCJ Legal, Department of Communities and Justice

Counsel for the Respondent: Mr Nicholls QC

Solicitor for the Respondent: Nicholes Family Lawyers

Counsel for the Independent Children's Lawyer: Mr Howard

Solicitor for the Independent Children's Lawyer: Legal Aid ACT
ORDERS

CAC 2536 of 2020

BETWEEN:
SECRETARY, DEPARTMENT OF COMMUNITIES AND JUSTICE

Applicant

AND:
MS PAREDES

Respondent

ORDER MADE BY:

WILLIAMS J

DATE OF ORDER:

17 MARCH 2021

THE COURT ORDERS THAT:
1.Subject to paragraphs 2, 3, 4 and 5 of these Orders, the child, Z born … 2010, (“the child”) be returned to Brazil, pursuant to the Family Law (Child Abduction Convention) Regulations 1986.
2.Within seven days of the date of these Orders, the mother notify the State Central Authority whether she consents to be immunised against COVID-19.
3.In the event the mother advises the State Central Authority of her consent to be immunised, then the mother forthwith do all acts and things to obtain the requisite immunisation, and the State Central Authority be requested to arrange, if possible, to expedite the vaccine for the mother.
4.The child’s return to Brazil be effected as soon as practicable after the mother is immunised against COVID-19.
5.In the event the mother does not advise the State Central Authority, within the time prescribed by these orders, that she consents to COVID-19 immunisation, then the child’s return to Brazil be effected as soon as practicable.
6.The mother be at liberty to accompany the child to Brazil.
7.The Australian Central Authority notify the Brazilian Central Authority of the mother and child’s date of departure.
8.Paragraph 6 of the orders made 13 November 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.
9.Pending the child’s departure from Australia for return to Brazil, 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 the Australian Capital Territory;
(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.

10.Paragraph 9 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 Brazil AND IT IS REQUESTED that the Australian Federal Police remove the name of the child Z born … 2010, from the Airport Watch List upon presentation for boarding the nominated flight to Brazil on the date nominated for the said travel.
11.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.
12.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.
13.Liberty is reserved to the parties to apply urgently in relation to the implementation of these orders.
14.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 Paredes 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

On 11 November 2020, the Secretary, Department of Communities and Justice (“State Central Authority” or “SCA”) filed an Application, which was amended on 28 January 2021 seeking the return of the child Z born in 2010 and aged 10, (“the child”) to Brazil pursuant to reg 14 of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”).
The application is made at the request of the child’s father, Mr B (“the father”) and the respondent is her mother, Ms Paredes (“the mother”).
The relevant Regulations are made pursuant to s.111B of the Family Law Act 1975 (Cth), to make such provision as is necessary or convenient to enable the performance of the obligations of Australia under the Convention on the Civil Aspects of International Child Abduction, which is generally referred to as the Hague Convention.
The Convention provides a framework for the prompt return of children, where it is alleged there has been a wrongful removal or retention of a child from his/her country of habitual residence. Both Australia and Brazil 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 mandatory return, which may be relevant, in response to an application to return the child to his 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 subregulation (1A);
the court must, subject to subregulation (3), make the order.
(1A)For subregulation (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 subregulation (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 subregulation (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 subregulation (3) is established by a person opposing return.
The Regulations require that applications for return of children, when it is alleged that they have been wrongfully removed from their habitual residence, are dealt with expeditiously and as quickly as proper consideration of each matter permits (reg.15(2)).
In De L v Director General, NSW Department of Community Services (1996) 187 CLR 640, 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 matter the mother and her expert witness, Dr H, were cross examined by both Counsel for the State Central Authority and the Independent Children’s Lawyer. The father was not a witness in the proceeding.
The State Central Authority asserts that the child has been wrongfully retained in Australia in accordance with reg 16(1A) on the following basis:
(a)the child is under 16 years (reg 16(1A)(a));
(b)the child was habitually resident in the country she was removed from, Brazil, immediately prior to her retention in Australia (reg 16(1A)(b));
(c)immediately prior to the retention, the left behind parent had rights of custody in relation to the child under the law of the country of habitual residence (reg 16(1A)(c));
(d)the retention of the child was in breach of the left behind parent’s rights of custody (reg 16(1A)(d));
(e)at the time of the retention the left behind parent was exercising those rights of custody or would have had the child had not been removed or retained (reg 16(1A)(e)).
The State Central Authority also asserts that the application was made within 12 months of the date of wrongful retention and therefore is one to which regulation 16(1) applies.
The mother conceded that:
(a)the application for a return order was filed within 12 months of the day that it is alleged that that the child was wrongfully retained (reg 16(1)(b));
(b)the child is under 16 years of age (reg 16(1A)(a));
(c)the father had rights of custody in respect of the child in Brazil on the date on which it is alleged that she was wrongfully retained in Australia (reg 16(1A)(c));
(d)the father was exercising the rights of custody at the time of retention (reg 16(1A)(e));
The mother opposes the application for return and asserts that the child was not wrongfully retained in Australia on about 14 April 2020, or alternatively 19 May 2020, or at all. She does so for the following reasons:
Jurisdictional facts
(a)The child was not habitually resident in Brazil immediately before the alleged retention date (reg 16(1A)(b)); and
(b)The child’s presence in Australia on the alleged retention date was not in breach of the requesting father’s rights of custody (reg 16(1A)(d)).
Regulatory exceptions
(c)Subsequent to the alleged retention date, the father acquiesced to the child being retained in Australia (reg 16(3)(a)(ii)); and/or
(d)There is a grave risk that returning the child to Brazil would expose her to physical or psychological harm or otherwise place her in an intolerable situation (reg 16(3)(b)); and/or
(e)The child objects to being returned to Brazil, and has attained an age and degree of maturity at which it is appropriate to take account of her views (reg 16(3)(c)); and/or
(f)The child’s return would not be permitted by the fundamental principles of Australia relating to the protection of human rights and fundamental freedoms (reg 16(3)(d)).
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) FLC 93-081 (“DP”). They are habitual residence and that on the date of alleged retention, the child’s presence in Australia was in breach of the father’s rights of custody.
The mother bears the onus of proof to establish the regulatory exceptions to return. They are acquiescence, grave risk of harm or intolerable situation, the child’s objection to being returned to Brazil and that the child’s return to Brazil would offend the fundamental principles of Australia relating to protection of human rights.
Preliminary Matters
The hearing was conducted electronically via Microsoft Teams, due to the COVID-19 Pandemic. An electronic hearing enabled the father to observe the proceedings.
I wish to express my appreciation to all Counsel for the professional and courteous manner in which the proceedings were conducted.
Amendment of date of wrongful retention
On the first morning of the hearing, Counsel for the State Central Authority sought leave to amend the date of wrongful retention in the Form 2 Application, to state that the wrongful retention of the child occurred on about 14 April 2020, or alternatively on 19 May 2020.

The reason for the amendment was that on 19 May 2020, the mother filed an Application in the Family Court of Australia, Sydney registry seeking, amongst other orders, an order for the child to live with her and for the mother to have sole parental responsibility for decisions in relation to the child’s education and place of residence.
In support of the oral application, Counsel for the State Central Authority submitted:
(a)the mother filing an application in the Australian courts was a clear repudiation of any agreement for the child to remain in Australia beyond that date;
(b)all relevant material and facts were before the court to enable the court to make a determination, if there was an alternative date for retention in the Amended Application;
(c)the State Central Authority was only aware of a different date of wrongful retention after reading the mother’s material;
(d)the Court should look at the factual situation and it is likely that there would not be significant other material for the mother to put in evidence as to the events between 14 April 2020 and 19 May 2020.
Senior Counsel for the mother opposed the oral application on the following basis:
(a)the regulations do not contemplate any amendments to applications;
(b)it is not correct to say all facts are before the Court because the mother’s evidence as to habitual residence was directed to the events immediately prior to 14 April 2020 and not 19 May 2020;
(c)as a matter of principle, an amendment cannot be made as Hague proceedings are summary in nature and envisage that the applicant will identify one date as the date of wrongful retention;
(d)the State Central Authority has had sufficient time to cast its case and a different date would prejudice the mother as she has not had an opportunity to adduce any evidence as to the events between 14 April 2020 and 19 May 2020;
(e)if the court were minded to accede to the oral application:
(i)the State Central Authority should elect a specific date as the date of wrongful retention;
(ii)the mother should be afforded an opportunity to amend her Answer, adduce any further relevant evidence and consider whether the evidence of any of the mother’s witnesses would require amendment.
I determined that the oral application for the amendment of the date of retention should be granted, on the basis of:
(a)the mother should be afforded an opportunity to adduce any further relevant evidence and to consider whether any of the affidavits of her witnesses would require consequential amendment. The proceedings were adjourned until 10:00AM on the following day to enable the mother to do so;
(b)the Form 2 Application could be amended in accordance with the proposed Amended Form 2 submitted by the State Central Authority.
In granting leave to amend the date of wrongful retention, I have had regard to Police Commissioner of South Australia & Agustina (No. 2) [2020] FamCA 1100, where Bennett J permitted, albeit unopposed, the amendment of a Form 2A Response to state that the retention had been repudiatory in nature and dated from a different date as originally pleaded.
In In the matter of C (Children) [2018] UKSC 8 at paragraph 51(v) Lord Hughes (with whom Lady Hale and Lord Carnwath agreed) said:
There is no occasion to revisit the decision of the House of Lords in In re H; In re S (para 28 above) that wrongful retention must be an identifiable event and cannot be regarded as a continuing process because of the need to count forward the 12-month period stipulated in article 12. That does not mean that the exact date has to be identifiable. It may be possible to say no more than that wrongful retention had clearly occurred not later than (say) the end of a particular month…It may of course be permissible for the left-behind parent to plead his case in the alternative, but that is a different thing.
Senior Counsel for the mother was unable to cite any authority in support of the proposition that there should not be amendments to an application in Hague proceedings. I am of the view that the statement of Lord Hughes in In the matter of C clearly contemplates the situation where there may not be one specific date of retention and alternate dates may be proposed as the date of retention, albeit cast as a “no later than” date. During his final submissions, Senior Counsel for the mother conceded that Lord Hughes in In the matter of C, at paragraph 51(v) does contemplate running cases in the alternative, in the context of the date of retention.
During the course of the trial, Senior Counsel for the mother drew the court’s attention to a decision of the Full Court of this Court, Central Authority & Wageman and Anor [2012] FamCAFC 176. At paragraphs 93 – 95, the Full Court said:
[93] We do not agree that it was necessary to be satisfied that the wrongful retention occurred on the asserted date or, in the circumstances of this case, any other date, given that, if there was “retention” within Regulation 16, the Central Authority undoubtedly filed its application within one year of such retention. The jurisdiction to make a return order pursuant to Regulation 16(1) is enlivened by finding “jurisdictional facts”. Those jurisdictional facts include a finding that there has been “wrongful retention” within the meaning of the Regulations, and that the Central Authority’s application was filed within one year of such retention.
[94] Nothing in the Regulations or the Convention suggests that an application for orders that asserts a date of wrongful retention, a date which ultimately is not accepted by the court, must be dismissed and a fresh application filed which is the thrust of his Honour’s determination on this point. Were that to be the case, it would be inconsistent with the Convention’s imperative of timeliness.
[95] In our view, the Regulations required his Honour to enquire whether at the date of hearing before him there had been a wrongful retention of the children in Australia and that the wrongful retention occurred before the application for orders was filed. If it transpired that the evidence did not support a finding of wrongful retention on the date alleged in the application, but nonetheless establishes wrongful retention prior to the hearing, the application may still be competent. Other than as to being satisfied that the application was brought within one year of the alleged wrongful retention, the focus of his Honour’s consideration on whether the retention occurred on 30 March 2012 or at one minute past midnight on 31 March 2012 was, in our view, misdirected.
Adopting the statements in Wageman, the court’s enquiry should be directed to whether, at the date of hearing, there had been a wrongful retention of the child in Australia and the wrongful retention occurred before the application for orders was filed, when the application was undoubtedly filed within one year of the retention. There is no necessity to focus on whether the retention occurred on a particular date as opposed to another. In this matter, there was no issue that the application, which was filed on 28 January 2021, was filed within one year of either of the proposed retention dates, namely 14 April 2020 or 19 May 2020. Bearing that in mind, I am satisfied that the amendment to the application as sought by the State Central Authority was appropriate. I am also satisfied that the mother was accorded procedural fairness to enable her Senior Counsel to obtain instructions, provide advice and be in a position to address the proposed amendment to the application.
Documents relied upon by the parties
The State Central Authority relied upon the following documents:
(a)the Form 2 Application filed on 11 November 2020 and amended on 28 January 2021 and the English translation of documents referred to at paragraph 1.1 to 1.25 of the applicants Outline of Case and Summary of Argument;
(b)Declaration of Right dated 10 December 2020 (translated from Portuguese);
(c)affidavit of Ms O (Legal Officer, Department of Communities and Justice) sworn on 20 January 2021 and filed on 21 January 2021, together with exhibits A – J;
(d)affidavit of Ms O sworn and filed 22 January 2021, together with exhibits A – B.
The father did not swear any affidavits and did not give evidence in this proceeding. Regulation 29(4) permits the statements in documents summarising evidence, or which were received in to evidence in a convention country in relation to the custody of a child, are admissible as evidence of any fact stated in the document.
The respondent mother relied upon the following documents:
(a)affidavit of the mother sworn and filed on 8 January 2021, together with exhibits 1 - 12;
(b)affidavit of Mr C (Brazilian lawyer) sworn 7 January 2021 and filed 8 January 2021, together with exhibits 1 - 3;
(c)affidavit of Ms D (the mother’s sister) sworn 7 January 2021 and filed 8 January 2021, together with exhibit 1;
(d)affidavit of Ms E (church pastor) sworn 7 January 2021 and filed 8 January 2021;
(e)affidavit of Mr F (mother’s husband) sworn 13 January 2021 and filed 15 January 2021;
(f)affidavit of Ms H (Migration Agent) sworn and filed 15 January 2021, together with exhibits 1-4;
(g)affidavit of Ms G (Brazilian psychologist) sworn 13 January 2021 and filed 15 January 2021 together with exhibits 1-2;
(h)affidavit of Ms I (Australian Legal Practitioner) sworn and filed 15 January 2021 together with exhibits 1-9;
(i)affidavit of Dr H sworn 14 January and filed 15 January 2021, together with exhibits1-4;
(j)affidavit of Dr H sworn 24 January 2021 and filed 25 January 2021, together with exhibits 5-9;
(k)affidavit of mother sworn and filed 15 January 2021, together with exhibits 1-4;
(l)financial statement of mother sworn 25 January 2021 and filed 26 January 2021.
Regulation 26 enables the court to direct a family consultant to report to the court on such matters that are relevant to the proceedings as the court considers to be appropriate and that such a report may be received in evidence in any proceedings. In this matter a reg 26 report was ordered to address:
(a)what (if any) objections the child has to returning to Brazil;
(b)whether any such objection of the child shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes;
(c)whether the child has attained an age and degree of maturity, at which it is appropriate to take account of her views.
The report dated 23 December 2020 was prepared by Ms J, family consultant and is in evidence. Ms J was cross-examined by Counsel for the Independent Children’s Lawyer. She impressed me as a competent professional witness. Her evidence is referred to in detail later in these reasons.
Credibility of witnesses
As the father did not swear any affidavits he was not subject to cross-examination. The mother was cross-examined by both Counsel for the State Central Authority and Counsel for the Independent Children’s Lawyer. She impressed me as a witness who was happy to respond directly to questions which she thought would enhance her case. When confronted with questions and propositions adverse to her interests, her responses at times were obtuse and not believable. An example of this was her answers to questions about how a 10 year old would be aware of matters pertaining to payment of school fees and financial obligations of the father and whether she had attempted to influence the child’s comments to the family consultant. At times she begrudgingly made concessions when faced with documents which proved her evidence incorrect. Examples of this were the payments made by the father to the mother and the father’s payment of the child’s health insurance. She answered all questions put to her in English, although it is not her native language. She had an excellent command of English and did not require the assistance of an interpreter.
Dr H was cross-examined by both Counsel for the State Central Authority and Counsel for the Independent Children’s Lawyer. He impressed me as a competent and credible professional witness who answered all questions directly and in a responsible manner. The only question he did not answer directly, was whether or not he considered returning the child to Brazil would constitute a grave risk to her physical or psychological harm. He was evasive about that question.
Background
The father was born in Brazil and is aged 28 years and the mother was also born in Brazil and is aged 27 years. The child was born in City K in Brazil in 2010 and both parents are named on her birth certificate.
From April 2010 until August 2018, the child and her mother lived with the maternal grandfather in City K in Brazil. In 2015, the father married his now wife and in 2015 they had a daughter, Y, who is presently five years old.
In early 2018, the mother decided to move to Australia, prior to moving to Australia on 28 August 2018. From that time until 18 April 2019, the child lived with her father in City K.
In December 2018, the parents signed an application to enrol the child in a school in Australia and for her to be granted an Australian visa. The child arrived in Australia on 18 April 2019 and has lived with her mother in Australia since that date.
In September 2019, the parents exchanged text messages about the length of the child’s stay in Australia. The father asserts that the child was to remain in Australia until the end of 2019, whereas the mother asserts that the child was scheduled to return to Brazil one year after her arrival in Australia, namely April 2020.
In October 2019, the father asserts that he reluctantly agreed to extend the child’s stay in Australia until April 2020 and that her return to Brazil should occur around 14 April 2020.
In October 2019, the mother and the child moved from Suburb L to Suburb M and the child changed primary schools.
In November 2019, the mother commenced a de facto relationship with her new husband, Mr F, who is a Brazilian citizen who moved to Australia in November 2013.
On 19 March 2020, the father signed an application to extend the child’s Australian Visa, he asserts in order to assist the mother to be allowed to work in Australia.
On 2 April 2020, the father rejected the mother’s request to enter into a parenting agreement so that the child could remain permanently in Australia.
On 2 May 2020, the mother forwarded a message to the father advising that her lawyer was working on a “custody agreement” and asking whether he was agreeable to making a deal. He reported his response was that the child was going back to Brazil.
In 2020, the mother and Mr F married in Sydney.
On 19 May 2020, the mother filed an Initiating Application in the Family Court of Australia at Sydney, seeking orders for the child to live with her and for the mother to have sole parental responsibility in respect of the child’s education and place of residence.
In May 2020, the mother, Mr F and the child moved to Canberra and the child commenced at school at N School.
On 28 May 2020, the father filed an Extrajudicial Notification in Brazil requesting the return of the child to Brazil.
On 22 June 2020, the father filed an application to the Brazilian Central Authority seeking the child’s return to Brazil, in accordance with the provisions of the Hague Convention.
On 4 August 2020, procedural orders were made in the Family Court of Australia in relation to the mother’s parenting proceedings.
On 28 August 2020 the father filed an application for custody in the family Court at City K.
On 7 October 2020, orders were made in the First Family Court in City K granting provisional joint custody of the child to the mother and father for a period of 180 days, noting that the mother and the child did not then live in the jurisdiction.
On 11 November 2020, an application for return was filed by the State Central Authority, which was served with the on the mother on 17 November 2020.
JURISDICTIONAL FACTS
I will address the issue of jurisdictional facts required to establish wrongful retention. I will firstly address the child’s habitual residence as at the dates of asserted wrongful retention.
Relevant legal principles - habitual residence (reg 16(1A)(b))
The question of whether a person is habitually resident in a particular country is a question of fact, not an artificial legal construct, and requires an evaluation of all relevant circumstances.
The law in relation to habitual residence in Australia is well settled. The seminal authority is the High Court decision of LK v Director-General, Department of Community Services (2009) 237 CLR 582 (“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.
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[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.
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[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.
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[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.
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[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.

Counsel for the State Central Authority, in his Case Outline, referred to the divergence in judicial authority in the United Kingdom and Australia, about whether one parent can unilaterally change the habitual residence of a child, noting the statements in LK (supra) at [34].
In In re R (Children) (Reunite International Child Abduction Centre and others intervening) [2016] AC 76, the Supreme Court in the United Kingdom, made clear that there was no “rule” that one parent cannot unilaterally change the habitual residence of the child. The decision also confirmed that habitual residence is a “question of fact” and requires an evaluation of “all relevant circumstances”. The latter observation accords with the statements in McCall & McCall; State Central Authority (Applicant); Attorney-General (Intervener) (1995) FLC 92-551.
In Secretary, Department of Family and Community Services & Zadeh [2017] FamCA 44, McClelland DCJ, noted the broader approach of the United Kingdom Supreme Court in In Re R, in contrast to the approach of the High Court of Australia in LK, where it was said at [34] “it may be accepted that the general rule is that neither parent can unilaterally change that place of habitual residence”. His Honour concluded that if the approach adopted in In re R is to be applied in Australia, it should be done at the appellate level.
Bennett J in State Central Authority & Metin [2020] FamCA 535 after reviewing recent English authority, considered that the proposition that one parent with parental responsibility could not achieve a change in the child’s habitual residence without the consent of the other parent with parental responsibility, was wrong, but she was bound by the High Court decision in LK.
Another divergence of approach between the Supreme Court of the United Kingdom and Australian authority, is the length of time ordinarily required to establish habitual residence. In In Re R, the Supreme Court held that there was no requirement that a child should have been resident in a country for a particular period of time. That position is in contrast to the Australia position, namely, in order to find someone is habitually resident in a place they must generally have lived there for an appreciable period: Zotkiewicz & Commissioner of Police (No.2) [2011] FamCAFC 147.
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:
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, 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.
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[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.
The mother’s case is that the child has been in Australia since 18 April 2019 and she travelled to Australia from Brazil, with the consent of both parents, although there is disagreement about the intended length of the child’s stay in Australia. Since that date, the child has become integrated and immersed in her life to the extent that her habitual residence is now Australia.
The mother’s evidence about the extent of the child’s integration into her community in Australia is as follows:
(a)by 14 April 2020 and 19 May 2020, the child was a 10 year old who had been living in Sydney for nearly a year. By that time she was living the life of an ordinary English-speaking 10 year old who was well integrated into friendship groups, church community and the Australian school system;
(b)she initially attended L School and quickly became proficient in English to enable her to converse with teachers and friends;
(c)since her move to Canberra in May 2020 she has maintained contact with two of her close friends from L School;
(d)in October 2019, the child and her mother moved to an apartment in another suburb of Sydney, Suburb M, to be closer to friends and community of their church and to the mother’s then boyfriend, Mr F;
(e)subsequent to the move, the child was enrolled in a new school, M School, from the start of term four 2019;
(f)the child made new friends at school as well as keeping in touch with her friends from her prior school. On the weekends, either the mother or Mr F drove her to the Suburb L area for play dates with her friends from Suburb L and they also hosted the child’s friends at their home in Suburb M;
(g)at both schools the child took part in school and/or extracurricular activities and expressed to her mother how much she enjoyed the activities and her preference for Australian schools;
(h)the child progressed well academically and socially at both schools, which is evidenced by her school reports which is annexure M-8;
(i)prior to her move to Canberra in May 2020, the child attended P church, in Sydney, where she made friends, enjoyed attending Sunday school and participated in church camps, choir and Sunday school activities;
(j)although the services at the P church were conducted in Portuguese, Sunday school was conducted in English;
(k)the child, the mother and Mr F often attended social gatherings with members of the congregation and the child enjoyed visiting her church friends at their homes for play dates;
(l)from 21 March 2020, P Church services were run online and the mother assisted with the conduct of online services. The online services included a children segment which the child appeared to enjoy;
(m)the mother observed that by 14 April 2020, the child appeared to be adjusted to life in Australia and was able to undertake activities such as walking through shopping centres, taking public transport with either her mother or Mr F, paying for lunch and dinner or going for walks in the park or down the street, in contrast to her life in Brazil when she was often frightened or hesitant to do such things;
(n)prior to the implementation of COVID-19 restrictions, the child spent time with Mr F and’s family members who lived in Australia;
(o)the child speaks Portuguese at home however since before April 2020 she had been asking to speak English at home.
The mother’s evidence about the child’s connections with Brazil by 14 April 2020 is as follows:
(a)the only member of the child’s family in Brazil who have travelled to Australia to see the child is the mother’s father who accompanied the child to Australia and her stepmother, Ms H who visited over Christmas 2019 and January 2020;
(b)since the child’s move to Australia the mother has encouraged her to maintain her relationship with her father, via electronic communication however she has expressed reluctance to do so;
(c)when she first moved to Australia, the child initially spoke with her step grandmother Ms H, either via WhatsApp or video call one or two times a day. The frequency has now diminished so that as of April 2020 she would speak to Ms H once or twice a fortnight;
(d)the child does not speak regularly with any other family members in Brazil although from time to time she will have a video call with other family members such as the mother’s sister Ms D, Ms D’s children and her grandfather;
(e)the child does not have any friends in Brazil with whom she maintains contact;
(f)the child remains in electronic contact with her closest friend from Brazil, X, although X now lives in Portugal. The mother has observed that they communicate almost entirely in English;
(g)apart from her father and maternal grandfather, none of the child’s family from Brazil forwarded any gifts for her 10^th birthday in 2020, although a number of her friends in Australia gave her gifts, including a gift from a member of the P church in Sydney.
Because of the amendment to the application to include the alternative asserted date of retention to 19 May 2020, Senior Counsel for the mother was granted leave to adduce evidence in chief from the mother about events or circumstances between 14 April 2020 and 19 May 2020. The mother’s evidence in chief was brief and was as follows:
(a)on 21 April 2020, her husband received a phone call offering him a job in Canberra with a start date on 28 April 2020;
(b)at the time they lived in Suburb M in Sydney and the child attended M School;
(c)she and Mr F married at home in Sydney in 2020 with close friends and family although there were not many people in attendance because of COVID-19;
(d)Mr F had three family members in Sydney;
(e)at that time, the child was attending school online and also attended church meetings online;
(f)they started looking for a house in Canberra on 21 April 2020 and moved to Canberra on 21 May 2020;
(g)the child had her last day at M School in-person and she has since been enrolled in the N School;
(h)she and the child had a meeting with the school principal of the N School, who was impressed by the child’s English skills.
The mother’s evidence during cross-examination by Counsel for the State Central Authority, relevant to this issue was as follows:
(a)her father accompanied the child to Australia in April 2019;
(b)her stepmother Ms H visited over Christmas 2019 and January 2020;
(c)she was unable to say whether her family would have visited her more absent COVID-19;
(d)she denied telling the child that the father had not sent money to Australia;
(e)she was unable to explain how the child was aware of that unless somebody had communicated that to her;
(f)the child could have listened to her mother saying that to somebody else;
(g)she agreed it would not be good for a child to hear that;
(h)in response to the proposition that the child’s words to the family consultant that the father was really irresponsible for not sending money were her words, she said that the child had lived through that, the school fees had not been paid and when they went to the hospital, health insurance had also not been paid;
(i)the school did not contact the child about outstanding school fees;
(j)she agreed that the child had just overheard “really irresponsible” and that they were her words;
(k)she agreed that the allegation that the father was financially really irresponsible was not true and that the father had been more regular in his payments since the proceedings had started, although during 2019 he had promised to send money and had not done so;
(l)after putting to the mother the actual dates of funds which had been transferred to her by the father, in accordance with the document at page 102 of the Form 2 Application, which demonstrated fairly regular payments, she did not want to reconsider her evidence about the father’s lack of payments;
(m)she did not know whether the comment of “really irresponsible” also related to non-payment of health insurance;
(n)she agreed that health insurance had been paid up-to-date;
(o)she denied that she had made it clear to the child what she wanted to convey to the family consultant, either directly or indirectly she denied having spoken to the child directly about the high crime rate in Brazil;
(p)when she lived in Brazil she had to calm the child down because she had been really scared;
(q)she did not recall whether she had said to the child that Australian education was preferable to Brazil, although that was her opinion;
(r)she denied having said to the child that private schools in Brazil were too expensive and said that she had established that herself;
(s)when pressed about the implausibility of a 10-year-old making her own enquiries about the expense of education in Brazil, she was serious about that evidence.
The mother also relied upon the child statements to the family consultant, Ms J, as to her degree of integration into a social and family environment in Australia, which would establish that she was habitually resident in Australia and not Brazil.
Those statements include:
(a)she objected to being returned to Brazil and wishes to remain living in Australia;
(b)her objections were primarily that she has a better quality of life in Australia and perceives that Australia offers greater educational opportunities;
(c)she has a negative assessment of the schools available to her in Brazil and perceives that they offer a lower standard of education compared to the opportunities available in Canberra;
(d)she is safer and more settled in Brazil;
(e)she expressed concern for her safety in Brazil from the high levels of crime and the risks from the COVID-19 pandemic;
(f)an unsatisfactory relationship with her father, whom she perceived as irresponsible and that she was at risk in his care because of his excessive consumption of alcohol, his alleged neglect of her emotional well-being and lack of interest in her;
(g)living in Australia would positively affect the quality of life she would have lived with her mother, compared to them living in Brazil.
The mother was also cross-examined by Counsel for the Independent Children’s Lawyer about the child’s comments to Ms J, the family consultant. Her evidence was as follows:
(a)in response to the proposition that she must have discussed the positives of living in Australia with the child, she said that she had made enquiries about what she enjoyed;
(b)she had told the child various positives about life in Australia including that public security is not an issue and she would not have to be scared;
(c)in response to the proposition that Counsel for the State Central Authority had asked her whether she had talked to the child about relative crime and her safety before her arrival, she responded that she was just comforting her and said the child would be safer here;
(d)she agreed that if the child had spoken about crime rates, she had either spoken to the child directly about it or she had overheard her mother, and said that it could have come from that;
(e)she had talked a lot about the school system because it was very different from Brazil and the child had told her about her experiences;
(f)she had also spoken about Australia in a positive light in the context of being more financially comfortable in Australia than in Brazil;
(g)when faced with her concessions to Counsel for the Central Authority about the father having made payments she said that she had had discussions with the child about money in the context of money for her birthday and her father sending money from which she could choose a gift;
(h)she may have heard discussions between the mother and the father on the phone about the mother expecting money which did not arrive;
(i)such discussions would have occurred in 2019 a few times;
(j)she agreed the child might have obtained that information from overhearing;
(k)the child was aware that money had not been paid to the school or the health fund;
(l)in response to the proposition that she had discussed negative things about Brazil with the child, she responded that she knew the mother preferred to live in Australia;
(m)the child was aware of the mother’s preference because she had told her and as part of that discussion she had discussed negative things about living in Brazil;
(n)those negatives included safety issues and living in Australia meant that she could financially support her and provide a house;
(o)she agreed that she had discussed the perspective of life in Brazil was not positive, meaning that if she worked the same job in Brazil she could not offer her the same comfort as in Australia.
Affidavits were also filed by the mother’s now husband, Mr F and Ms E, the pastor of P church in Suburb Q in Sydney, in support of the extent of the child’s integration of life in Australia. Neither witness was required for cross-examination.
Mr F corroborates the mother’s evidence about the mother and the child socialising with his extended family, including his cousin Ms R and her family who lived in Sydney, and socialising with his Australian cousin Ms S and her family in Canberra.

Ms E corroborates the mother’s evidence that the child became involved in church life after her arrival in Australia including making friends, participating in church camps, choir and Sunday school. She also deposes that she has observed that the child appears to be well liked by other children and adults in the church.
Counsel for the State Central Authority submitted that the child’s habitual residence as at either 14 April 2020 or 19 May 2020 was Brazil for the following reasons:
(a)habitual residence of a 10-year-old child cannot be unilaterally changed by one parent;
(b)the father has never agreed to change the child’s place of habitual residence and the mother has acted unilaterally in seeking to achieve such an outcome;
(c)there is a genuine difference in the respective intentions of the mother and the father and accordingly no single purpose of intention;
(d)unlike the facts in LK, the endeavours of the mother to integrate the child into life in Australia could not be considered a “joint intention” with the father to allow the mother and child to relocate;
(e)it was accepted in LK that the general rule is that neither parent can unilaterally change the child’s place of habitual residence, and that is precisely what the mother is seeking to achieve in this case;
(f)whilst all relevant factors need to be taken into account in determining a question of habitual residence, the child has no power to determine for herself her country of habitual residence and significant weight should be placed on the general rule that neither parent can unilaterally change the child’s place of habitual residence;
(g)there is copious evidence that the father was at all times adamant that the child’s stay in Australia was temporary and she was to return to Brazil. Examples of such evidence are messages between the parents as follows:
(i)I already told you she is not going to live there (Australia);
(ii)…Her house is here (Brazil);
(iii)she will come back and that said, there is no other option;
(iv)there is nothing to talk about, we have agreed the child would go and stay (in Australia) until the end of the year.
(h)on 2 May 2020, the father confirmed “the deal is the child coming back to Brazil”;
(i)the mother in her affidavit of 8 January 2021 at paragraphs 29 and 34 states that the agreement was that the child would return to Brazil at the end of April 2020;
(j)in September 2019 the father advised the mother “Her future here will be she return to living here as she has always lived, study here as she has always studied. That’s it. That’s how it’s going to be”;
(k)in March 2020 the father said “But for now I’m not intending for her to return… She won’t live there, [Ms Paredes]”;
(l)discussions between the mother and the father in April 2020 at paragraph 65 to 67 of the mother’s affidavit of 8 January 2021 confirm the father’s opposition to the child living in Australia;
(m)there can be no doubt on the mother’s own evidence that there was no joint purpose and intent for the child to remain permanently in Australia.
It was further submitted, that referring to all other factors in consideration of her habitual residence, establishes that the child remained habitually resident in Brazil at the relevant date, namely:
(a)travelling to Australia in 2019 at the age of nine, the child had lived all her life in Brazil;
(b)the child had attended the same school in Brazil, T School in City K, from year 1 to 3 before changing schools when she lived with her father after her mother’s departure from Brazil to Australia;
(c)she lived with her maternal grandfather and mother in Suburb U in City K;
(d)the child has a half sibling in Brazil, Y, aged five, her father’s daughter;
(e)the paternal family and almost all of the maternal family live in Brazil, including the maternal grandfather, with whom she has lived for most of her life and who accompanied her to Australia in April 2019;
(f)she maintains contact with her aunt Ms D and cousins and her maternal step grandmother;
(g)she maintains regular contact electronically with her father;
(h)the purpose of the child’s travel to Australia was for her to learn English;
(i)the child was fully integrated into life in Brazil where she grew up, went to school and had many family members;
(j)there was little preplanning of the move by both parents, only the mother;
(k)none of the central members of the child’s extended family in Brazil have moved to Australia;
(l)little weight should be placed on the state of mind of a child as young as the child, as her attachment is to her mother and not to Australia as a country;
(m)the child’s family, friends and other significant persons who have remained in Brazil represents a continuing link with that country;
(n)in Australia, the child has moved three times since April 2019 and has attended three different primary schools;
(o)the church she has been involved with in Sydney and Canberra is a link to her Brazilian heritage and is indicative of the extent of her involvement in an identification with the Brazilian community in Australia;
(p)consistent with her Brazilian identity and heritage when she is at home with her mother and stepfather she speaks Portuguese;
(q)the families identification with and connection to Brazil is exemplified by the fact that the mother has sought to consult an online psychologist in Brazil for psychotherapy rather than a clinician in Australia;
(r)looking at all the facts of the whole, the child could not be habitually resident in Australia.
I agree with and adopt the submissions of Counsel for the State Central Authority, referred to in the previous paragraphs, as to the factors relevant to the child’s habitual residence.
The matters of particular significance in conducting a broader factual enquiry and my findings are:
(a)there can be no doubt on the mother’s own evidence that there was no joint purpose, intent or agreement between the parents for the child to remain permanently in Australia and I so find. I refer further to this issue when considering the exception of consent and acquiescence;
(b)there was no common agreement between the parents to change the child’s place of habitual residence;
(c)the child’s integration in Brazil was deep and long-standing, particularly so as she was born in Brazil and lived there for nine years prior to her arrival in Australia;
(d)she has significant extended family in Brazil and that is where her father resides;
(e)she maintains contact with her father and some extended family in Brazil presents a continuing link for her;
(f)the child’s express state of mind is primarily to secure her residence with her mother, irrespective of which country her mother lives in;
(g)her comments to the family consultant have undoubtedly been significantly influenced by her mother either directly or indirectly;
(h)her integration in life in Australia is inherently and closely linked to her Brazilian heritage, as evidenced by her participation in the Brazilian church and speaking Portuguese at home;
(i)her mother’s significant identification with her Brazilian heritage is evidenced by:
(i)her consulting a health practitioner in Brazil rather than one in Australia;
(ii)significant socialising with the Brazilian community, including her husband’s relatives in both Sydney and Canberra;
(iii)the child’s integration into Australian life has been disrupted by three moves and attendance at three different schools in a relatively short period of time.
The evidence satisfies me that the child was habitually resident in Brazil immediately prior to both 14 April 2020 and 19 May 2020, and I find accordingly.
I will now consider whether the child’s presence in Australia on the alleged retention date was in breach of the father’s rights of custody.
Breach of the requesting father’s rights of custody (reg 16(1A)(d))
The mother’s case is that the child’s presence in Australia was sanctioned by her father and that the communication between her parents demonstrates that the father exercised his rights of custody by agreeing to the child stay in Australia until:
(a)sometime after 14 April 2020; and then
(b)sometime in June or July 2020; and then
(c)until COVID-19 pandemic in Brazil was over.
The mother contends that the child’s retention in Australia was sanctioned by the father, was not wrongful and that there is no evidence that she denied or repudiated the father’s rights before April 2020 and that at the time of filing of the application, the child was lawfully present in Australia.
Furthermore, the child’s presence in Australia was sanctioned by the First Family Court of Brazil on 7 October 2020 and therefore the application for a return order which was filed on 11 November 2020, was filed in circumstances when her presence had already been sanctioned by a court in the requesting state. I do not accept this submission and refer to my reasons under the heading acquiescence. That order was an expression of the existing factual situation and could not possibly be construed as condoning the child’s presence in Australia.
The submissions of Senior Counsel in his Case Outline refer to the evidence as to the various agreements between the parents, which is evidenced by the exchange of text messages between the parents between September 2019 and 2 May 2020.
The mother’s evidence about the agreement between the parents is set out at paragraph 59 of her affidavit sworn 8 January 2021 and in the annexures to her affidavit of 15 January 2021.
The progression of messages is exhibited to the mother’s affidavit of 15 January 2021. She was not cross-examined about that evidence. The consequent agreements may be summarised as follows:
(a)on 27 September 2019, five months after the child’s arrival in Australia, the father’s position was that the agreement was that the child would be in Australia until the end of the year and he was therefore going to arrange a flight for her in January. The mother did not agree that at that time there had been an agreement to return the child to Brazil in December 2019;
(b)on 29 September 2019, the father’s position changed to a limited extent, in that he accepted that the child’s return to Brazil would be a precursor to a discussion about where she would live;
(c)on 7 November 2019, the father agreed that he would buy flights for 15 April 2020;
(d)there were messages from November 2019 to the effect that the father started to consider that he would come to Australia to visit the child, or whether he would arrange for her to return to Brazil;
(e)on 24 February 2020, the father was still undecided about whether he would travel to Australia or whether the child would travel to Brazil;
(f)on 24 February 2020, the father stated that he would buy tickets for the child to return to Brazil, but he was planning to travel to Australia before he purchased her ticket;
(g)24 February 2020, in response to a question from the mother as to whether he had any idea when he would come to Australia, the father replied it would be sometime after April;
(h)on 25 February 2020, the father’s position was that it would be good for him to go to Australia before buying the flights and it would help in making a decision;
(i)the mother considered that the message evidenced that the father had agreed to the child remaining in Australia beyond April 2020;
(j)on 25 February 2020, the father agreed to the child staying in Australia until June or July 2020, unless he decided to travel to Australia during that period instead;
(k)on 18 March 2020, the father maintained that position that he had agreed to the child staying in Australia until an unidentified date in July 2020;
(l)on 2 April 2020, the father’s position was that he did not expect the child to return to Brazil until the current COVID-19 situation in Brazil improved;
(m)on 6 April 2020, the father’s position was that he was not considering an agreement right now, but would wait until the COVID-19 situation was over to see what could be done;
(n)on 2 May 2020, in response to the mother’s suggestion of entering into a parenting agreement, the father’s position was that the agreement was for the child to return to Brazil and he was just waiting for the coronavirus situation to improve a bit and then she would be returning to Brazil.
Counsel for the State Central Authority submitted that the child’s presence in Australia was in breach of the father’s rights of custody, as her continuing presence in Australia is contrary to the father’s wishes and without his consent or authority, and that there is no merit in the mother’s contention to the contrary.
I accept the unchallenged evidence of the communications between the parents and find that there was an agreement for the child to remain in Australia on a temporary basis, namely until the coronavirus situation had improved, as referred to in the preceding paragraphs.
At paragraph 7(b) of the mother’s affidavit of 8 January 2021 she concedes that the father:
“…had rights of custody in respect of the child in Brazil on 14 April 2020, the date of the wrongful retention alleged in the application”.
Subsequent to granting leave to the applicant to amend the date of wrongful retention to either 14 April 2020 or 19 May 2020, there was no evidence or submissions that the father did not have rights of custody in respect of the child in Brazil on the later date. Clearly he did have rights of custody as of 19 May 2020.
Reg 4(2) provides:
for the purposes of subregulation (1), rights of custody include rights relating to the care of the person of the child and, in particular, the right to determine the place of residence of the child.
Counsel for the State Central Authority further submitted that even if it is accepted that the father agreed in April/May 2020, and in particular on 2 May 2020, to the child remaining in Australia until July 2020, or even later, the mother’s actions of filing an application in the Family Court of Australia at Sydney on 19 May 2020, seeking orders that the child live with her in Australia and that she have sole parental responsibility for the child’s education and place of residence, should be regarded as a repudiatory retention of any prior agreement.
In his final submissions, Senior Counsel for the mother submitted that if the retention date was 19 May 2020, then her retention must be classified as a repudiatory retention, because it takes place when the child’s presence in Australia has been sanctioned by the father.
Repudiatory retention occurs when a retaining parent forms a subjective intention not to return the child to the state of habitual residence at the expiration of the period which was agreed between the parties as the date upon which the child would be returned: In re C and another (Children) (International Centre for Family Law, Policy and Practice intervening) [2019] AC 1.
Whether the father’s rights of custody were breached in the context of a repudiatory retention, was considered by the Full Court of this Court in Handbury & State Central Authority and Anor [2020] FamCAFC 5.
At [49] of Handbury the Full Court said:
…and we agree, in order to establish a breach of custody rights, there must be a subjective intention not to comply with the prior agreement, which is manifested by objective evidence.
In this case, the mother’s subjective intention was for the child to remain in Australia beyond the timeframe contemplated by the agreement between the parties. She was cross-examined about her attendance at various lawyers prior to issue of the proceedings on 19 May 2020, and her evidence was:
(a)she conceded that some time prior to April 2020 she had already decided that it was best for the child to live in Australia and not to return to Brazil;
(b)she had been thinking about the child remaining in Australia for a long time beforehand;
(c)she attempted to retract the evidence referred to in subparagraphs (a) and (b) hereof and said that it was her wish that the child would remain in Australia, but she wasn’t intending to keep her here without the father’s consent;
(d)she had first personally attended on a solicitor on 18 February 2020, in respect to the proposed parenting proceedings in Sydney and had phone call discussions thereafter;
(e)sometime after the second directions hearing in the Family Court, on a date that she could not recall, she had changed solicitors;
(f)she had also spoken to another lawyer, a Ms V to obtain help with seeking custody of the child.
I do not accept the veracity of the mother’s attempted retraction of her evidence, and I am satisfied, on the basis of the mother’s evidence during cross-examination, which is referred to in the previous paragraph, that she had a subjective intention not to comply with any agreement for the child’s stay in Australia to be for a limited period, and in particular the agreement of 2 May 2020.
Senior Counsel for the mother, in his final submissions, raised the issue of whether an application to a court in itself can constitute an objective manifestation of repudiation of an agreement, or whether it could be categorised as a wish or aspiration, until the results of the application are apparent.
I do not accept that submission in this case. It is difficult to contemplate a more blatant objective manifestation than issuing parenting proceedings in a court, seeking orders for a child to remain in a country, in the context of the text messages and discussions about the limited period of her agreed stay in Australia. The father could not be under any misapprehension that the issue of proceedings was the mother conveying to him that she would not abide by the agreement that the child would remain in Australia for a limited period.
I am therefore satisfied that the mother’s intention was manifested by objective evidence, namely the issue of proceedings in the Family Court in Sydney seeking orders that the child remaining in Australia and that she have sole parental responsibility for her education and place of residence I find that the mother repudiated the agreement for the child to remain in Australia for a limited period.
In accordance with the statements in Handbury at [50], once the mother repudiated the agreement for the child to remain for a limited period, the presence/retention of the child in Australia was no longer on the terms which the parents had originally agreed. The mother’s unilateral decision not to abide by the terms of the prior agreement for a limited stay, in other words, her repudiation, is a breach of the father’s rights of custody, being his right to determine the place of residence of the child, as specifically stated in regulation 4(2).
I find that as at 19 May 2020, the latter of the dates asserted as the date of wrongful retention of the child, the child was present in Australia in breach of the father’s rights of custody and that the retention occurred no later than 19 May 2020.
Conclusion as to wrongful retention
Consequential upon finding that the child was habitually resident in Brazil immediately prior to her retention in Australia, which occurred no later than 19 May 2020 and that her retention was in breach of the father’s rights of custody, I am satisfied that all the requirements of reg 16(1A) have been satisfied. I find her retention which occurred no later than 19 May 2020, was wrongful.
REGULATORY EXCEPTIONS TO RETURN
Having determined that the child was habitually resident in Brazil on both of the alternative retention dates, and that the child’s presence in Australia on 19 May 2020, 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 and acquiescence (reg 16(3)(a)(ii)).
Consent and acquiescence - reg 16(3)(a)(ii)
Relevant legal principles consent and acquiescence

Whilst I accept Dr H’s views in medical terms, the test for me to apply is not a comparison of respective risks or the justification for exposure to a risk. I am mandated to return the child to Brazil, unless I am satisfied, amongst other defences, that doing so would expose her to a grave risk of physical or psychological harm or otherwise place her in an intolerable situation.
There is obviously a degree of risk in returning a child to a country where COVID-19 is more rampant than in this country, but in conclusion, for the reasons referred to in the preceding paragraphs, I find that neither the child nor the mother, as her primary carer, are at grave risk of exposure to physical or psychological harm arising from international travel and/or the COVID-19 pandemic, either individually or collectively. This ground of exception to return must fail.
Intolerable situation
I will secondly consider the matters which the mother asserts collectively give rise to an intolerable situation.
Potential for the mother to be arrested upon or following a return to Brazil
In her trial affidavit, at paragraph 118 the mother asserts that if she is required to return to Brazil she could be faced with criminal sanctions and put in jail. The basis for her belief is apparently the extrajudicial notice sent to her on 28 May 2020 and the action filed by the father in the First Family Court of Brazil.
The mother has filed an affidavit by a Brazilian lawyer, Mr C where he addresses whether, under Brazilian law, it is a criminal offence to remove or retain a child overseas without the consent of the other parent.
At paragraphs 1 and 3 of his report, which is annexure 3 to his affidavit, he states as follows:
in the case of restitution of the minor…, if the minor has not suffered mistreatment or deprivation, the judge may not apply a penalty;
… Since the child in the present case used to live, de facto, with the mother, it could as well be understood that the mother had the de facto custody, agreed by the father so therefore, the application of such penal infraction could be disputed;
in the event of the mother being arrested, it is hard to determine how long she would remain in custody since it might be a short period of time or not at all. During the pandemic, for example, arrests are being avoided, because of the risk of contamination, therefore house arrest are being adopted in various cases.
There was no evidence in this case that the father, or anyone else intended to make a complaint to the Brazilian authorities in relation to the child’s presence in Australia, although it is the evidence of Mr C, that the public penal procedure is unrelated to the will of the father and can be prosecuted by a state prosecutor.
In cross-examination, the mother conceded that the father providing an undertaking not to pursue criminal proceedings in the Brazilian courts would provide her with some comfort.
On the mother’s own evidence, it seems unlikely that the mother would be subjected to any significant penalty, in the unlikely event that criminal proceedings were issued against her. I find this factor does not place the child in an intolerable situation.
The incidence of crime, including violent crime, in Brazil
At paragraph 116 of her trial affidavit, the mother makes general assertions about increasing crime rates and the incidence of shootings and robberies. She also asserts such crimes were being committed closer to where she lived with the child and her father, and because the child has lived in Australia she may become complacent if required to return to Brazil which may put her own safety at risk.
As submitted by Counsel for the State Central Authority, apart from the child telling the family consultant about an incident, when her mother had a wristwatch stolen from her arm while her arm was resting on the car window, there was no other corroborative evidence of the child having experienced similar situations in Brazil.
The mother’s sister Ms D, in her affidavit refers to having witnessed a number of shootings and muggings in her neighbourhood, Suburb W over the preceding 12 years.
In my view, it is unusual that the mother asserts the crime rate in Brazil would be a factor which would amount to either an intolerable situation or exposure to grave risk, in circumstances where she lived there for most of her life with her daughter, and where her family still lives. There was no suggestion by her sister that she would live anywhere other than in her current neighbourhood in Brazil. The mother did not adduce evidence that she motivated to leave Brazil to come to Australia because of the crime rate. She was not so fearful of crime in Brazil and its impact on the child, when she left the child in Brazil in the care of her father between August 2018 and April 2019.
I find this factor does not place the child in an intolerable situation.
Educational opportunities for the child in Brazil
At paragraphs 110-112 of her trial affidavit, the mother deposes to problems with the father’s payment of the child’s outstanding school fees, at the school she previously attended in Brazil.
Counsel for the State Central Authority cross-examined the mother about this issue and her not signing the authority to enable the father to pay the outstanding fees. In response to the proposition, whether she knew the father would pay the arrears, she responded no, and that she did not believe he would do so.
The mother also deposes to the difference in education between a public and a private school, with private education being superior to the public system in Brazil.
If the father paid the outstanding school fees, then the mother clearly would not have any concerns about the child’s education in Brazil. However, I do not consider that the child attending a public school in Brazil could constitute an intolerable situation which would justify her remaining in Australia and I find accordingly.
Lack of healthcare that would be available to the child in Brazil (the parents being unable to afford health insurance)
At paragraphs 113 and 114 of her trial affidavit, the mother refers to occasions in Brazil when the father failed to make payments of the child’s health insurance and attendance at a hospital emergency department, when doctors declined to treat the child because of no current health insurance.
The mother was cross-examined by Counsel for the State Central Authority about this issue. She agreed that:
(a)the document annexed to the Form 2 Application, at page 98 was a statement from the health insurance company confirming that the child was a member of the father’s health insurance and as at 6 July 2020 that insurance was paid;
(b)the document at page 100 of the Application, which was also a document from the health insurance company, stated that payments for the child’s health insurance had been made for August, October, November and December 2019;
(c)page 19 of the document, which is annexure B to the affidavit of Ms O filed 22 January 2021, stated that the child was noted as a dependent on the health insurance and that it was paid as at 19 January 2021.
It is clear from the documents referred to in the previous paragraph and the mother’s concessions during cross-examination that the child had and has valid health insurance in Brazil at the relevant times. I find this factor does not place the child in an intolerable situation.
The lack of employment opportunities for the mother in Brazil and consequential difficulties of providing adequate financial support for the child
At paragraph 126 of her trial affidavit, the mother deposed that while living in Brazil she was financially dependent on her father and that she and the child lived in her father’s house in Suburb U in City K.
Her evidence is that she would receive less income in a comparable job in Brazil which could impact on her capacity to provide for her daughter in the future. At paragraph 115 of her trial affidavit, she deposes to being unable to afford rent for an apartment in a quiet and safe neighbourhood and would likely need to live in a low income residential unit in City K, which tend to be inhabited by persons who are not well educated and there are often teenagers using and dealing in drugs.
The mother was cross-examined by Counsel for the State Central Authority about this evidence. She responded as follows:
(a)she conceded she was now better qualified than when she left Brazil;
(b)she would do her best to find employment in Brazil if ordered to return the child;
(c)she would have the support of her husband to the extent that he would be able;
(d)she agreed her husband was currently employed in Canberra, and had an excellent relationship with his employer and had received three salary increases since May 2020;
(e)she and the child had lived with her father in Suburb U for 8 ½ years;
(f)in response to the proposition that neighbourhood was amongst the safest of upper-class neighbourhoods in City K, she said that it was hard to be safe in City K but on a comparative basis it was;
(g)there were no squatter camps in that area, although they were close;
(h)it was correct to describe the neighbourhood as having gardens, shopping malls and large mansions and that it was not lower middle-class;
(i)in response to the proposition that was not correct that if she lived in City K she would have to live in “multifamily apartment” in lower class areas, she said her family did not have an obligation to support her;
(j)she agreed she had never lived in such circumstances;
(k)she didn’t know if her father and sister, Ms D would ensure it didn’t happen;
(l)she didn’t know whether she and the child would end up living with her father again;
(m)her sister Ms D lived in an neighbourhood which was upper-class although she did not know that the area had the most expensive price of residential real estate in Latin America and would not be surprised that would be so.
As a result of the mother’s evidence during cross examination, I have every confidence that if a return order were made, then the child and the mother would most likely return to live with the maternal grandfather, and that would be in an affluent and relatively safe neighbourhood, and there is very little prospect that the mother and the child would be living in multifamily apartments, as she has claimed would be a possibility. I am also confident that the mother would be able to support herself and the child, particularly with the assistance of the maternal family and her new husband. I find accordingly and that this factor does not place the child in an intolerable situation.
Having considered each of the factors the mother puts forward as resulting in an intolerable situation for the child and herself, in the event a return order is made, I find that none of the factors individually, or all or some of the factors collectively, would constitute an intolerable situation for the mother or child. I do not accept the mother’s evidence of the doom and gloom which would face her if she returned to City K. On the basis of my findings, I consider that it is highly likely that the mother would resume her former life with her family in City K, particularly so in the context of her family members having advanced to her in excess of $90,000 to enable her to meet her legal fees in this proceeding. It is inherently unbelievable that having extended such financial generosity, they would be prepared to see the mother and the child accommodated in a multifamily apartment in a less affluent area of City K or for their health, safety and the child’s education being compromised.
The exception of intolerable situation fails.
I will now consider the child’s objection to being returned.
The child’s Objection to return - reg 16(3)(c)(i)–(iii)
In relation to this exception, the mother relies on the report of the family consultant, Ms J, dated 23 December 2020. In that report, Ms J concluded that the child’s views should be afforded “considerable weight”, and that her objections to being returned to Brazil are more than a “mere expression of a preference or ordinary wish”. The mother did not adduce any other significant evidence about the child’s objection to return other than paragraph 120 of her affidavit of 8 January 2021. That evidence was that on several occasions since moving to Australia she has asked the child how she feels about living in Australia and whether she would like to return to Brazil. In response to those questions the child has said to her mother, “I don’t want to go back to Brazil”, “I love our lives here in Australia, I do miss family and I do want to visit them but I don’t do not want to live there anymore”, “I love my school it’s so much better than my schools in Brazil”, “can we speak English at home too”, “I really want to stay in Australia” and “I hate the thought of possibly having to go back to live in Brazil”.
Counsel for the State Central Authority cross-examined the mother about her influence on the child and her opinions as reported to Ms J. The mother’s evidence is referred to at paragraph 75 hereof.
Counsel for the Independent Children’s Lawyer cross-examined both the mother and Ms J about the child’s ostensible objections to living in Brazil.
The mother’s evidence was as follows:
(a)she agreed that the child had very strongly objected to living with her father in Brazil and wanted to live with her mother;
(b)she agreed that the child’s primary concern was the parent with whom she lives and that the main focus of her objection was to ensure that she lived with her mother;
(c)she did not think that it was accurate to say that the child wanted to live wherever her mother was living;
(d)she agreed that the child thought she could cope living in Brazil, as long as it was with her mother.
Ms J’s evidence was as follows:
(a)the child’s views were consistent and mature because she was able to articulate why she wanted to stay in Australia;
(b)detailed nuanced reasons are a sign of maturity;
(c)her views came from lived experience in both Australia and Brazil;
(d)her views are also influenced by the views of her mother and that was very normal for a child of her age;
(e)a child being influenced could happen very easily, for example, during discussions of safety, and that was to be expected in any parent/child relationship;
(f)her strongest views were that she did not want to live with her father and wanted to remain living with her mother;
(g)living with her mother was her main priority;
(h)she could cope living in Brazil provided she was in her mother’s care and that the child had expressed a wish not to live primarily with her father because he was irresponsible, he had he had been intoxicated while she was in his care and that it was unsafe for her;
(i)in terms of what she had said about coping in Brazil if she lived with her mother, the child said she would be safe in her mother’s care and that was her top priority;
(j)the best outcome for the child would be to remain living with her mother in Australia.
Counsel for the State Central Authority submitted that it is apparent from the mother’s evidence that the child’s statements were expressed in response to prompting by her mother, were not spontaneous and go no further than generally expressing a preference to live in Australia, rather than Brazil and to live with her mother.
In determining whether the child’s objections to being returned to Brazil meet the requirements of reg 16(3)(c)(i)–(iii), it was submitted that the mother has gone to great lengths to put before the court significant evidence, which she believes will persuade the court not to return the child to Brazil in regard to other aspects of her case, but the evidence pertaining to objections to returning to Brazil is very limited and not compelling.
It was also submitted that in determining what weight should be attached to the child’s statements in the report to the family consultant, that the court should have regard to the following facts and circumstances emerging from the report:
(a)the child has been in the sole care of her mother for the last 1 ½ years and has been subject to her influence, both direct and indirect;
(b)it is evident from the mother’s material that she has focused strongly on COVID-19, crime and educational opportunities, or lack thereof, in Brazil, and these issues are reflected in what the child has said to the family consultant as her reasons for not wanting to return to Brazil. There is a strong likelihood that the child was communicating to the family consultant the views which have been expressed by the mother;
(c)the likelihood of the child reflecting her mother’s views is illustrated by her use of the words “really irresponsible” when referring to her father not sending money and her comments that the news in Brazil is full of reports of shootings and that many people are dying of COVID-19. The source of those comments is almost certainly what she has been told by her mother and her husband;
(d)clearly the child’s views about the standard of public schools and the cost of private schools in Brazil are the views of her mother;
(e)the child’s primary concern is that she does not want to live with her father, rather than being returned to Brazil, and that she wanted to live in Australia because she missed her mother, are very different sentiments to an objection to living in Brazil;
(f)the child’s primary objection is to returning to live with her father in Brazil which is an objection to be dealt with by a court determining her parenting arrangements as opposed to an objection to return to a child’s country of habitual residence;
(g)the child’s statement that she wished to remain living in Australia, seems primarily due to her belief that she would have better educational opportunities in Australia, does not amount to an objection to return, but rather an expression of a preference or aspiration on her behalf;
(h)the family consultant states that the child perceives that she could cope with a return to Brazil, if she were to remain in the primary care of her mother and it seems a primary issue for the child is therefore the parent with whom she primarily lives. That issue is for determination in a court dealing with her parenting arrangements, rather than an expression of an objection to return.
I agree with and adopt the submissions of Counsel for the State Central Authority referred to in the previous paragraphs.
I place little weight on the child’s statements to the family consultant about the positive nature of her experience in Australia as opposed to her negative experiences in Brazil. I have no doubt that such sentiments have been influenced significantly by her mother and would be beyond the contemplation of a 10-year-old. The mother’s evidence during cross-examination about these matters was inherently implausible.
Furthermore the factual situations of Tarritt & Director-General, Department of Community Services [2008] FamCAFC 34 and In Re F (Hague Convention: Child’s Objections) [2006] FamCA 685 demonstrate the sufficient gravity or seriousness required to establish what is contemplated by the relevant regulations.
In Tarritt, the child who objected to a return order, told the family consultant that she was very “stressed” at the prospect of return and this included throwing chairs around, getting stomach-aches, feeling like she wanted to kill herself, feeling wanting to be dead, crying a lot and that if she lived with her father she was “ shutting down”. The family consultant noted that the child seemed almost desperate about not returning to the USA.
In In Re F, a return order was made nearly 3 years after the child was brought to Australia and after the return orders the child refused to board a plane to the USA on two occasions, despite the use of some force by the Australian Federal Police and several counselling sessions.

The child’s objections in this case fall far short of such gravity or seriousness and to the contrary, demonstrate her engaging in discussions with her mother and the family consultant in a polite and courteous manner rather than demonstrative of extreme or emotionally dysregulated behaviour, as was the case in both the authorities cited.
I find that the child’s comments to her mother and the family consultant have been directly or indirectly influenced by her mother and that the primary focus of her “objections” is to express a preference to remain living with her mother as her primary carer and not to live primarily in her father’s care in Brazil, rather than objecting to return to Brazil. Her comments cannot possibly be construed as demonstrating a strength of feeling beyond the expression of a preference or of ordinary wishes and do not satisfy the regulatory requirements. This ground of exception to return fails.
I will now consider whether the child’s return would not be permitted because of the principles related to human rights and fundamental freedoms.
The child’s return would not be permitted by the fundamental principles of Australia relating to the protection of human rights and fundamental freedoms reg 16(3)(d)
Senior Counsel for the mother submitted that requiring the child to return to Brazil would be a breach of her human rights in an impermissible manner.
Firstly, there is currently in place in Australia a suspension of the right to freedom of movement, namely the right to leave the country and that such limitation is imposed on the grounds of public health. If an order were made for the child to return to Brazil, she would not be afforded such protection, which applies to the general population. It is not clear whether denying that protection to the child, on the basis that there is an obligation in another treaty, would be a permissible exercise of discrimination.
Secondly, the child has rights as a child, including the right to health in Article 24 of the 1989 United Nations Convention on the Rights of the Child (UNCROC). State parties recognise the right of the child to enjoyment of the highest attainable standard of health and facilities for the treatment of illness and rehabilitation of health. The evidence from Brazil does not support the proposition that adequate steps could be taken to protect the child’s healthcare, even if she could access private health care.
Thirdly, the child has a right to education as stated in Article 28 of UNCROC, and according to the evidence of Dr H, most public schools in Brazil have been closed since the initial COVID-19 surge.
An English authority was cited in support of those submissions. There were no submissions made about the application of an international convention in Australia, in circumstances where the convention has not been incorporated by enforcing domestic legislation.
In McCall, the court said that reg 16(3)(d) requires not simply that the return of the child would be incompatible, even manifestly incompatible, with human rights and fundamental freedoms, but these rights and freedoms simply do not permit the child’s return at all. The Full Court noted that the provision in the regulations was intended to apply to “rare occasion that the return of the child would utterly shock the conscience of the court or offend all notions of due process”.
In Director-General, Department of Families, Youth and Community Care & Bennett [2000] FamCA 253 the, Full Court quoted McCall with approval.
It is difficult to contemplate that the circumstances of the child’s return to Brazil, in accordance with Australia’s obligations to an international convention, would utterly shock the conscience of the court or offend all notions of due process and I find accordingly. This defence must necessarily fail.
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 do however need to consider whether there is a discretion to delay return, if return orders are to be made.
Senior Counsel for the mother submitted that if I found that there was a grave risk to the child or that a return order would otherwise place her in an intolerable situation, arising from COVID-19, and the other matters collectively referred to in these reasons, in exercising my discretion not to order a return, the court cannot order a deferred return to ameliorate the risk.
In relation to delay of a return order if no exception to return has been established, the mother’s Case Outline refers to Director-General, Department of Communities, Child Safety and Disability Services & Pelt [2012] FamCA 343 and in particular to the comments made at [58].
The facts of that case involved two children from New Zealand who had been brought to Australia by their mother, with the agreement of the father following the Christchurch earthquake in June 2011. The agreement between the parties was that the children travelled from New Zealand in July 2011 and were to return to New Zealand by January 2012. The mother reneged on that agreement and retained the children in Australia.
The eventual dispute between the parties was whether the children should be returned to New Zealand forthwith or whether, as submitted by the mother, the return should be delayed for a couple of months, to enable the children to complete their schooling.
This case has arisen in unprecedented times in the midst of a global pandemic. There were no such overarching worldwide factors in Pelt. The agreement between the parents, which I have found was repudiated by the mother, provided for the child to return to Brazil in July 2020. Thereafter, the father was highly conscious of assessing the progress of the pandemic, prior to making a definitive decision about the child’s return. I consider that a short delay to enable the mother to obtain a vaccination prior to her return to Brazil, if she intends to accompany the child, is entirely appropriate and is analogous to imposing limited conditions to return.
I will make orders accordingly.

I certify that the preceding two hundred and seventy (270) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Williams.
Associate:
Dated: 17 March 2021

File number(s):	CAC 2536 of 2020
Judgment of:	WILLIAMS J
Date of judgment:	17 March 2021
Catchwords:	FAMILY LAW – CHILD ABDUCTION – HAGUE CONVENTION – Child brought to Australia from Brazil – Consideration of whether the child was habitually resident in Brazil immediately before the alleged retention date – Amendment of alleged date of retention to alternative retention dates – Was the child’s presence in Australia on the alleged retention date in breach of the requesting father’s rights of custody – Consideration of repudiatory retention in the context of the mother issuing proceedings in the Family Court in Australia – Held jurisdictional facts established – Regulatory exceptions to return raised by mother, firstly reg 16(3)(a)(ii) consent and/or acquiescence – Consideration of the impact of the father’s proceedings in the first family Court of Brazil – Held no consent or acquiescence, 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 respondent adduced expert medical evidence about the COVID-19 pandemic – Consideration of limited comparable case law – Held grave risk not established, thirdly, reg 16(3)(c)(i)-(ii) child’s objection to return – Held exception to return fails, fourthly, reg 16(3)(d) return would not be permitted by the fundamental principles of Australia relating to human rights and fundamental freedoms – Held this ground not established – Order made for return of the child to Brazil – Mother provided with the opportunity to obtain a COVID-19 vaccine prior to return to Brazil – 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, rr. 4(2), 14, 15, 16, 26, 29(4) Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children United Nations Convention on the Rights of the Child
Cases cited:	C v G (Child Protection (Poland): grave risk defence) [2020] IEHC 217 C v G [2020] IECA 233 Central Authority & Wageman and Anor [2012] FamCAFC 176 De L v Director General, NSW Department of Community Services (1996) 187 CLR 640 Director-General, Department of Communities, Child Safety and Disability Services & Pelt [2012] FamCA 343 Director-General, Department of Families, Youth and Community Care & Bennett [2000] FamCA 253 DP v Commonwealth Central Authority: JLM v Director – General, NSW Department of Community Services (2001) FLC 93-081 Friedrich v. Friedrich, 78 F.3d 1060 (6th Cir. 1996) Handbury & State Central Authority and Anor [2020] FamCAFC 5 HZ & State Central Authority [2006] FamCA 466 In re C and another (Children) (International Centre for Family Law, Policy and Practice intervening) [2019] AC 1 In Re F (Hague Convention: Child’s Objections) [2006] FamCA 685 In re R (Children) (Reunite International Child Abduction Centre and others intervening) [2016] AC 76 In the matter of C (Children) [2018] UKSC 8 IN v DK, N (a child) [2020] EWFC 35 KR v HH [2020] EWHC 834 (Fam) LK v Director-General, Department of Community Services (2009) 237 CLR 582 McCall & McCall; State Central Authority (Applicant); Attorney-General (Intervener) (1995) FLC 92-551 Police Commissioner of South Australia & Agustina (No. 2) [2020] FamCA 1100 Police Commissioner of South Australia v Temple (1993) FLC 92-365 Re A & Anor (minors) (abduction: acquiescence) [1992] 1 All ER 92 Re C (Abduction: Grave Risk of Psychological Harm) [1999] 1 FLR 1145 Re E.(Children) (Abduction: Custody Appeal) [2011] UKSC 27 Re H (Abduction: Habitual Residence: Consent) [2000] 2 FLR 294 Re H (Minors) [1997] AC 72 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 & Handbury [2019] FamCA 668 State Central Authority & Metin [2020] FamCA 535 State Central Authority & Sigouris [2007] FamCA 250 Tarritt & Director-General, Department of Community Services [2008] FamCAFC 34 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:	270
Date of hearing:	27-29 January 2021
Place:	Melbourne
Counsel for the Applicant:	Mr Tockar
Solicitor for the Applicant:	DCJ Legal, Department of Communities and Justice
Counsel for the Respondent:	Mr Nicholls QC
Solicitor for the Respondent:	Nicholes Family Lawyers
Counsel for the Independent Children's Lawyer:	Mr Howard
Solicitor for the Independent Children's Lawyer:	Legal Aid ACT

ORDER MADE BY:	WILLIAMS J
DATE OF ORDER:	17 MARCH 2021