Secretary, Department of Family and Community Services and Mayer

FAMILY COURT OF AUSTRALIA

SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES & MAYER

[2017] FamCA 48

FAMILY LAW – CHILD ABDUCTION – Hague Convention –Where the mother was entitled to travel overseas with the child for up to six weeks under final orders made in the United Kingdom – Where the mother alleges the parties came to an agreement for the child to move to Australia – Where the father says there was no such agreement– Where the father believed the application form he signed was to obtain a passport for the child– Where the Court rejects the contention that the child was wrongfully retained in Australia upon the expiration of the six week period – Where the mother gave no notice of the proposed travel as required by the final orders – Where the Court finds the child was wrongfully removed from the United Kingdom – Where the Court consequently finds the Central Authority’s application was not filed within twelve months – Where the Court is of the view no discretion remains under the Regulations to make a return order upon the Court finding a child has become settled.

Family Law (Child Abduction Convention) Regulations 1986 (Cth) regs 14, 16

Hague Convention on Civil Aspects of International Child Abduction 1980

Director-General, Department of Community Services v M and C (1998) FLC 92-829
State Central Authority & Ayob (1997) FLC 92-746
State Central Authority & CR (2005) FLC 93-243

APPLICANT:

Secretary, Department of Family and Community Services

RESPONDENT:

Ms Mayer

FILE NUMBER:

SYC

6479

2016

DATE DELIVERED:

2 February 2017

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Stevenson J

HEARING DATE:

15 December 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Harper

COUNSEL FOR THE RESPONDENT:

Mr Othen

SOLICITOR FOR THE RESPONDENT:

Clinch Long Woodbridge

Orders

The orders made on 14 October 2016 are discharged.
All outstanding applications and responses are dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Secretary, Department of Family and Community Services & Mayer has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 6479 of 2016

Secretary, Department of Family and Community Services

Applicant

And

Ms Mayer

Respondent

REASONS FOR JUDGMENT

The proceedings

These proceedings concern a child, B, who was born in 2014 and is currently aged three years ("the child"). The child's parents are Ms Mayer and Mr C. The father lives at City D in the United Kingdom and the mother and the child resided in the same area until 3 September 2015. On that date, the mother brought the child to Sydney and they have since remained in Australia.
On 6 October 2016 the New South Wales Central Authority, Department of Family and Community Services, acting for the Commonwealth Central Authority ("the Central Authority"), commenced proceedings pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (Cth) ("the Regulations"). The Central Authority sought orders, pursuant to Regulation 14, for the return of the child the child to the United Kingdom. The Central Authority alleged that the child was habitually resident in the United Kingdom prior to his removal to Australia by the mother and that she has wrongfully retained him in this country since approximately 16 October 2015.
The respondent mother contended that the father consented to the child's permanent departure from the United Kingdom to Australia, hence there has been no wrongful removal or retention. The respondent mother contended further that the Central Authority filed its application more than one year after the child's departure from the United Kingdom, thus, subject to Regulation 16(3), Regulation 16(1) does not oblige the Court to make an order for the return of the child. The respondent mother submitted further that, if the application was filed more than one year after the retention, the child is settled in his new environment for the purposes of Regulation 16(2). Consequently, subject to Regulation 16(3), the Court is not obliged to make an order for the return of the child to the United Kingdom.
At the outset of the hearing, counsel for the Central Authority made a submission to the effect that "one of these parents is lying to the Court". The parents gave starkly conflicting evidence on the issue of the father's consent to the child's permanent removal from the United Kingdom by the mother. She maintained that the father gave his verbal consent and signed all documents necessary to remove the child permanently from the United Kingdom to Australia. The father maintained staunchly that he signed a form which he believed to be a consent only to the issue of a passport for the child. He contended strongly that he did not consent to the child's permanent removal from the United Kingdom to Australia.

Background

The mother was born in 1979 in the United Kingdom and is currently 37 years of age. She first visited Australia on a "holiday working visa", arriving on 28 September 2004. She lived and worked in this country until 1 April 2011, when she was obliged to return to the United Kingdom due to the expiry of her visa. The mother applied for permanent Australian resident status in April 2011. She was advised that this application was granted on 18 March 2014.
The mother's brother was granted permanent resident status in February 2003 and has since lived in Australia. The maternal grandmother, Ms E Mayer, was granted a permanent resident visa in April 2013. The maternal grandmother lives with the mother and the child in Sydney.
The father was born in 1987 in the United Kingdom and is presently aged 29 years. He has always lived in the United Kingdom.
In 2013 the parties met via the internet and commenced a relationship, with the mother falling pregnant in mid 2013. The parents did not live together before or after the child's birth in 2014.
According to the father, the mother quickly became obstructive to the child's spending time with him. The father resorted to litigation to ensure that the child spent time with him on a regular basis. In June 2014 the mother made a unilateral decision to change the child's name to F. She deposed that she was unable to change the name on the child's birth certificate but managed to do so by way of a Deed Poll.
In late March 2014 the mother made an application in the Family Court at City D for orders which would permit her to relocate the child's residence to Australia. This application was refused on 11 May 2015.
It appears that the parents consented to various orders in the Family Court at City D on 28 May 2015. These orders read as follows:
The Court orders
10. CHILD ARRANGEMENTS BY CONSENT
• The child shall live with the mother and make the child available to spend time with the father as follows:
a) Week 1 6 hours on Sunday plus 4 hours Wednesday
b) Week 2 8 hours on Sunday plus 4 hours Wednesday
c) Week 3 overnight Saturday 6 pm to Sunday 6pm plus 4 hours Wednesday
d) Week 4 overnight Saturday 6pm to Sunday 6pm plus 4 hours on Wednesday
e) Week 5 Saturday 1 pm to Sunday 6pm plus 4 hours on Wednesday
f) Week 6 Saturday at 9am to Sunday 6pm plus 4 hours on Wednesday
g) Week 7 4 hours on Wednesday
h) Week 8 Fri 6pm to Sunday 6pm plus 4 hours on Wednesday
i) Week 9 4 hours on Wednesday
j) Thereafter (commencing week 10) alternate Friday 6pm to Sunday 6pm plus weekly 4 hours on Wednesday.
k) Commencing Jan 2016 – for up to 4 separate holidays of one week in duration (during school hols when child commences school).
l) If child is in the UK for Christmas from 3pm Christmas Day until 6pm on Boxing Day.
m) If child is in the UK for his birthday for at least 2 hours on the child's birthday.
n) Father's day.
o) Father's birthday.
p) It is a condition of contact that the father is the child's primary carer for the duration of contact.
The time the child spends with the father will be varied as follows[:]
a) The child will spend mother's day and mother's birthday with the mother.
b) In the event that the child's birthday falls on a contact day the child will spend at least 2 hours with his mother of no longer than 6 weeks in duration
c) The mother may remove the child from the jurisdiction for up to 10 weeks each year, with each trip being of no longer than 6 weeks in duration.
o When child becomes of school age and constrained by school holidays this can and is likely to include the majority of the school summer and all the Christmas school holidays.
o Until such time as the child is of school age the mother must ensure that the child is in the UK for each alternate Christmas including Christmas 2015 when she will be in the UK. In the event that the mother is not in the jurisdiction for Christmas the mother must ensure that she is in the UK for the child's birthday.
o The mother will provide as much notice as possible to the father of her intended holidays and in any event for any holidays from September 2015 onwards must provide at least 3 month's notice.
During any period when the child is not intending to see the other parent for more than 5 consecutive days the parent in whose care the child is must ensure that the child is made available for Skype contact with the other parent as (sic) least once every 3 days.
There may be such variations to the above as can [be] agreed between the parties. The parties are advised to agree any variations in writing.
• a contact warning notice will be endorsed by consent that the mother shall make the child available to spend time with the father as set out above.
On 23 June 2015 the mother filed an application for leave to appeal out of time against the dismissal of her relocation application. On 24 July 2015 this application came before the Court of Appeal. The mother was represented by counsel and there was no appearance of or on behalf of the father. The court ordered that the appeal be listed on a date after 1 October 2015 "on notice to the respondent father". On 13 August 2015 the mother withdrew her appeal.
The father maintained that he first became aware of the mother's appeal on 29 July 2015, when he received a copy in the post from the court. The father deposed that he was informed that the mother had withdrawn her appeal by a letter which he received shortly after 29 July 2015.
On 5 August 2015 the mother submitted to the Australian Department of Immigration and Border Protection a form which she represented to be the father's consent to the issue of a visa to enable the child to depart the United Kingdom permanently for Australia. This form read as follows:
Jpeg image redacted for published version
The visa application form was accompanied by a purported certification of the father's driving licence. This document read as follows:

[UK] DRIVING LICENCE

[photo]

1. Mr C
2.

3. … [UK]
4a. …
5. …
7.
[signature]
8. … CRESCENT, [G TOWN, …
9. …

I CERTIFY THAT THIS IS A TRUE COPY
Signature [signature]
Name [Print]: [Mr H]
Date: 5/08/15

Staff Number:

8 6 5 0 1 5 8

The mother was advised by a letter dated 1 September 2015 that a visa had been issued for the child. She booked one-way flights to Australia for herself and the child on 2 September 2015 and departed the United Kingdom on 3 September 2015. They arrived in Sydney on 4 September 2015. The father deposed that he became aware that the mother and the child were in Australia by way of a text message which she sent to him upon their arrival in this country.
On 30 September 2015 the father emailed the Judge who had heard the proceedings in the Family Court at City D. Inter alia the father stated as follows:
Contact did take place until 28th AUGUST when I messaged her saying I was having trouble with my car
and could we swap the contact to the following weekend which she agreed.
On 4th September the following the weekend before I was due to pick the child up I received a text message from the mother stating that she was in Australia and had a job interview.
I had not had any prior notice of this and was very concerned.
I contacted the police at [G Town] and spoke to an officer on the front desk who stated there was nothing he can do.
The father deposed that he believed that the mother wished him to sign a document which was necessary for the issue of a passport for the child. He deposed:
Looking at the visa document that has been produced the signature looks like mine, but none of the other writing is. I am pretty certain the signature has been forged as I remember the document I signed has her signature on the opposite side from where my signature was to go. On the copy of the signed visa form there is only my signature on it. I can assure you I would never knowingly have signed any form giving my consent for the child to be removed from the jurisdiction of the UK.
In relation to the purported certified copy of his driving licence, the father deposed as follows:
I was picking the child up from the Respondent's home address when she asked about signing a document for his passport. In the final court order of the relocation proceedings the mother was given permission to go on holiday periods with the child (to be taken out of the UK). I therefore did not object to a passport. The respondent informed me she needed my identification as both parents’ identification and signatures listed on his birth certificate were required and also to prove the child is a UK citizen and eligible to obtain a UK passport. This sounded plausible. I gave my driving license to her and she told me she would get it photocopied and return it when I dropped the child off home and I could sign the relevant document for the passport. Naively I didn't think anything of this. No discussion about a holiday or a permanent trip to Australia was discussed.
In his oral evidence the father said:
I did provide my licence for what I believed was a passport. No, it was not because of an arrangement made on 2 August 2015.
The father said further in his oral evidence:
I do not accept that this is a certified copy of my licence provided by me to [Ms Mayer]. I do not know who signed it. I gave [Ms Mayer] my licence knowing she would get a copy for a passport application. What I provided my licence for was a passport application – that is the truth. My impression was that both his mother and father's IDs were needed. I don't know who [Mr H] is.
The mother gave the following evidence in relation to the father's purported signature of the consent forms:
26.On 2 August 2015, at the commencement of a scheduled contact visit between [F] and the father, the father attended my home in the UK and said to me words to the following effect:
"I received a formal request from the Judge yesterday that I appear at court on the next occasion."
I did not respond. He then picked up [F] and said to me words to the effect of:
"You never even asked me."
I responded with words to the following effect:
"Asked you what?"
He said:
"If he [F] can go to Australia."
I responded:
"Yes I did. I asked you loads of times."
He then said:
"Well I thought it was because you were trying to stop him from knowing who is [sic] dad is."
I said:
"No I was only suspicious of you because of your previous convictions and because you said you would hurt him if he misbehaved. I only want to give him a better life. Of course I want him to know who his dad is. Why do you think I asked you if you wanted to be on his birth certificate?"
The father was still holding [F]. He looked at [F] and then said to him words to the effect of:
"Should we give you a better life?"
The father then looked at me and said:
"Okay I'll sign whatever you need me to."
I said:
"You need a certified ID you know."
He said:
"Yeah I know. I've already looked into it online. You get the forms ready, I'll get my ID certified and I'll sign the forms when I drop him [F] back home."
27.The father spent overnight time with F for the weekend. Over the weekend while the father had F, I went to the library and printed the relevant form, namely the Consent to Grant an Australia Visa to a Child Under the age of 18 years ("consent visa form").
28.When the father returned with F on 5 August 2015, I handed him the consent visa form. I observed that the father appeared to read the form.
29.We sat down at the kitchen table inside my home. I recall that F was also in the room. I filled out the consent visa form with a pen in front of the father. After I completed the consent visa form, I said to the father:
"I need to see your certified ID."
The father showed me a certified copy of his driver's license as well as his original driver's license. He said:
"I've been running around everywhere trying to get my ID certified. I was going to go to the post office but it took too long."
30.While we were talking in the kitchen I said to the father:
"How is your new baby?"
He responded with words to the effect of:
"It's a pain. It's hard having [F] when they're both crying all night and its [sic] dead expensive with 3 kids you know."
31.The father then signed the consent visa form and provided me with a certified copy of his driver's license so that the consent visa form could be submitted. Annexed hereto and marked with the letter "E" is a copy of the form signed by the father on 5 August 2015.
32.Once the father signed the consent visa form and handed it to me, he said to me:
"I still want him to know that he's got a father."
I said:
"I would never not let him. That's why I asked if you wanted to go on the birth certificate."
He said:
"Are you going to keep in touch?"
I said:
"Well you've got all my contact details and Skype ID."
He then said:
"Can I visit Sydney once a year to see [F]?"
I said:
"My brother and I will help you with paying for flights. If you need somewhere to stay [in Sydney] you are welcome to stay at my place. You can Skype as often as you like. I will send you emails and his school reports. If any of your family want to visit [F], that is fine also. You can also see him when we travel back to the UK."
He said:
"That sounds good."
33.The father then picked [F] up, gave him a kiss on the forehead and then he left.
34.Although the father was still entitled to see [F] for another month after this date (as I would not leave for Australia until 4 September 2015), he cancelled the remaining scheduled contact visits with F.
In his oral evidence the father denied that he said "Okay, I'll sign whatever you need me to". He then added "Not at all, that is not what happened".
In her oral evidence the mother said: "I was upset and very disappointed, not bitter" in relation to the order which refused her application for relocation. She said "I required antidepressants because I was struggling in the United Kingdom. I wanted to come here and share the life my brother had".
In her oral evidence the mother said also:
The father sent me a text and asked me when I was leaving and I sent a message saying 3 September 2015. My text is not in evidence because I no longer have my phone.
The mother said further:
The father first consented on 2 August 2015. Before he had communicated with my text and emails that he consented. I do not have them.
The mother said in her oral evidence:
I did not keep evidence that he agreed because I never thought there was going to be a court case here. I never thought he would lie. He had a newborn child. I do not have evidence. Why would I keep my UK phone from 14 months ago. The father's affidavit is ridiculous.

On 10 August 2015 the mother's United Kingdom counsel, Mr Samuel, emailed the presiding Lord Justice of Appeal, inter alia, in the following terms:
I am very pleased to tell the Court that the parties have reached an agreement which will involve the child living in Australia in due course but spending considerable time in the UK. The parties have put their agreement into writing and signed the relevant forms which will be sent to the Family Court in [City D].
In her oral evidence the mother acknowledged that there was no reference whatsoever in her affidavit to an agreement whereby the child would spend "considerable time in the United Kingdom with the father".
The mother adduced no evidence of any such signed agreement. She contended that there was "just a verbal agreement, nothing official", despite the contents of the email from her counsel to the presiding Lord Justice of Appeal.
The father deposed that he attended the mother's home to collect the child on 28 August 2015 and found the premises empty. It may be that the father attempted to exchange the weekend of 28 August 2015 with the following weekend because of mechanical problems with his car and that he found the mother's home empty in early September 2015. In my view, no significance attaches to these conflicting dates in the father's evidence.
The father deposed that he telephoned the police immediately to report the mother and the child's absence. He deposed further that he contacted the police on numerous subsequent occasions but received no assistance. He maintained that he contacted a Mr I, who had acted as his McKenzie friend in the proceedings at the Family Court at City D. As noted, on 30 September 2015 the father sent an email to the Judge who had presided in those proceedings.
The father deposed that he took advice from a firm of solicitors in September/October 2015 but was advised that they lacked specialist knowledge and could offer him no assistance. The father deposed further that he found a lawyer with the necessary specialist knowledge at a firm known as MSB Solicitors and first consulted with her on 18 December 2015. This solicitor forwarded an application to the International Child Abduction and Contact Unit (ICACU) on the same day.
The father deposed that his solicitor was absent from her office due to a bereavement in May/June 2015. He deposed further that his case was transferred to another solicitor in the firm and that, ultimately, his application was accepted in September 2016. The Form 2 Application was filed by the Australian Central Authority on 6 October 2016.
The father annexed to his sworn statement of 7 December 2016 (Exhibit 2) copies of correspondence between MSB Solicitors and the Official Solicitor as Central Authority for England and Wales. He also annexed communications between the Australian Central Authority and his solicitors over the period 18 December 2015 to 30 August 2016. In an email dated 30 August 2016 an officer of the Australian Central Authority stressed to the father's solicitor "I note the urgency in this matter due to the fact that this case is running out of time for filing within twelve months."
The father contended that he had difficulty in communicating with the mother after she arrived in Australia. He deposed:
I would email the Respondent regularly once she left the UK only to receive a disappointing reply, if any, please refer to JRA13 and JRA 14. Her email address stopped working like she had deleted it or blocked me. I have found 2 confirmation of this in my inbox Please refer to JRA11 and JRA12. I therefore had no postal address, no email and no contact number. I didn't even know she had changed his name.
The maternal grandmother, Ms E Mayer, deposed that she received text messages from the mother on 2 August 2015, 6 August 2015 and 20 August 2015. She annexed copies of these purported text messages to her affidavit of 24 November 2015. She deposed:
17. On 2 August 2015 I received a text message from [Ms Mayer] stating:
"[Mr C] said he'll agree to sign the form when he's over."
18. On 6 August 2015 [Ms Mayer] sent me another text message stating:
"He's just signed everything I just need to get his passport photos and copy of birth cert tomorrow.
…
25. Annexed hereto and marked with the letter “D” is a text message received from [Ms Mayer] on 20 August 2015 stating:
“Oh my God just been told by my case officer that [the child's] permanent residency will be granted in September x".
The maternal grandmother deposed further that she overheard conversations between the mother, her United Kingdom counsel and a case officer in the Australian Department of Immigration and Border Protection on the issue of the relocation of the child to Australia. In my view this hearsay evidence does not assist the mother's case.
The mother made no reference in her affidavit to any text messages sent by her to the maternal grandmother in relation to the father's alleged consent to the child's permanent removal to Australia. She claimed that she was unable to produce this evidence of the father's alleged consent. As noted, she said "Why would I keep my UK phone from 14 months ago?"

Consideration

Regulation 16 provides as follows:
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 years 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 fundament al 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 chid only because a matter mentioned in subregulation (3) is established by a person opposing return.
The Central Authority bears the onus of establishing that there was a wrongful removal or retention of the child the child. Counsel for the respondent mother made a number of concessions in relation to matters prescribed in Regulation 16(1A).
In his Outline of Case document counsel for the mother wrote:
10.Since the father has rights of custody and was, it is conceded, actually exercising them …
In his final submissions, counsel for the mother said:
It would be difficult for the mother to say that the child was not habitually resident in the United Kingdom …
The child the child was born in 2014 and, obviously, is under the age of 16 years. Accordingly, I find that the Central Authority has established the matters set out in Regulation 16(1A).
An issue arose as to whether the application for a return order was made within twelve months of the alleged wrongful removal or retention of the child. The mother removed the child from the United Kingdom on 3 September 2015 and the application was filed on 6 October 2016. Counsel for the Central Authority contended that a wrongful retention of the child in Australia by the mother took place on or about 16 October 2015.
Counsel for the Central Authority contended that the orders of 28 May 2015 gave the mother "an unfettered right to remove the child from the United Kingdom for six weeks without the father's consent and with no requirement of prior notice".
The relevant orders read as follows:
c) the mother may remove [the child] from the jurisdiction for up to 10 weeks each year, with each trip being of no longer than 6 weeks in duration.
o When child becomes of school age and constrained by school holidays this can and is likely to include the majority of the school summer and all the Christmas school holidays.
o Until such time as [the child] is of school age the mother must ensure that [the child] is in the UK for each alternate Christmas including Christmas 2015 when she will be in the UK. In the event that the mother is not in the jurisdiction for Christmas the mother must ensure that she is in the UK for the child's birthday.
o The mother will provide as much notice as possible to the father of her intended holidays and in any event for any holidays from September 2015 onwards must provide at least 3 months' notice.

In his sworn statement of 4 January 2016 the father set out the circumstances in which he first became aware of the child's removal from the United Kingdom and his subsequent actions. He deposed:
5.On 28^th August 2015 I was due to collect [the child] from [Ms Mayer's] house for weekend contact. I received a text message from her informing me that she was in Australia. I was absolutely stunned by the news as clearly I was about to collect [the child] for weekend contact. I went to her house and looked through the window. The house itself was empty and there was no car on the drive or on the road. I reported the matter to the police and they said they would investigate it for me. I informed the police that I had concerns of [the child] being removed from the jurisdiction.
6.The police kept informing me that they would investigate the matter and I made several requests to them to ask if they were able to assist me. Eventually they informed me that they could not assist as it was not a priority. I then obtained a copy of the court order of 11^thMay and instructed solicitors to deal with matter on my behalf as clearly [Ms Mayer] has no intention of returning to [the UK]. The order does allow [Ms Mayer] to take the child to Australia for a period of ten weeks per year, the longest period to be a maximum of six weeks. I had therefore left the matter in abeyance for some time as I had hoped that she would return after the six week period.
It seems to me that the loose wording of the orders of 28 May 2015 creates some interpretation problems. It seems to me that the intention of the orders was to impose an obligation on the mother to provide the father with at least three months’ notice of her proposed removal of the child from the United Kingdom from and after September 2015.
On the available evidence I find that the mother provided no notice to the father of her intention to remove the child from the United Kingdom for any purpose on 3 September 2015. I accept the father's evidence that he first became aware of the mother and the child's arrival in Australia when he received a text message on 4 September 2015. As noted above, the mother stated in her oral evidence that she sent a text message to the father in which she advised him of the date of her proposed departure but did not produce any evidence of such a communication. Notably, the mother was silent in her affidavit as to the existence of any such text message.
I am satisfied, and I find, that the mother removed the child from the United Kingdom in breach of the father's rights of custody on 3 September 2015. She had no intention of taking the child out of the United Kingdom for a holiday period, as permitted by the orders of 28 May 2015. She did not provide the father with three months’ notice of her proposed departure on 3 September 2015 as prescribed by those orders.
Realistically, the only defence available to the mother pursuant to Regulation 16 was the consent or subsequent acquiescence of the father to the child's removal from the United Kingdom. In her affidavit the mother appeared to make an attempt to invoke the defence that a return would place the child at grave risk of being placed in an intolerable situation (Regulation 16(3)(b)). Sensibly, counsel for the mother did not pursue that matter. The mother bears the onus of establishing a defence within the parameters of Regulation 16.
Counsel for the Central Authority submitted that each parent gave unsatisfactory evidence on the issue of the father's consent to a permanent removal of the child from the United Kingdom. I agree with that observation but I consider that the evidence given by the mother was more problematic than that of the father.
She referred to documents and text messages in which the father allegedly consented to the permanent removal of the child from the United Kingdom. She failed, however, to produce a single piece of evidence of any such communications. In my view, the mother offered flimsy and unconvincing reasons for the absence of such evidence.
In these proceedings, the mother attempted to rehash allegations which she had levelled against the father during the United Kingdom litigation. She deposed:
65. I recall the following instances of disturbing behaviour of the father:
(a)Speeding excessively over the speed limit with [F] in the car and in a baby seat;
(b)On one occasion when [F] was returned to my care after he had spent time with the father, I noted that he was wearing a shirt that said ‘I love mummy’ but that there was faeces smeared over the word ‘mummy’;
(c)On many occasions I have noticed bruises on [F’s] body after he is returned to my care;
(d)He has caused damage to my car, (as deposed to at paragraph 65 herein);
(e)I have observed on more than one occasion the father loitering around my UK home late at night, which has caused me to call the police in the UK as I feared for my safety;
(f)The father had pictures of naked enfant girls posing in inappropriate positions on his computer.
The father denied these allegations and annexed to his sworn statement a copy of the judgment of the Family Court at City D. That judgment included the following remarks:
21.… She has levied a raft of different allegations against the father, accusing him, for example, of criminal damage to her vehicle and displaying indecent images on his Facebook account. I listened to her evidence in relation to the alleged criminal damage and was unsurprised that the magistrates did not find the allegation proven. Even taking account of the lower standard of proof applicable in family proceedings the mother’s evidence would not establish that the father was responsible. Her evidence was not that she saw the father key her vehicle but merely gesture towards it. I also considered the facebook images in question and I agree with the CAFCASS officer that they are fairly standard family photographs of children playing in a bubble bath.
22.Equally I did not find her account of the father’s aggression around [the child] a convincing one. Nor did I consider the alleged incident involving the Babygro being stained or smeared with excrement (even if it occurred) merited the malign intent the mother placed upon it. Equally I found the account of the history of the marks to [the child’s] torso a somewhat implausible one which I note in the final analysis was found not to be pressure marks but eczema.
The mother must have been aware of these passages in the judgment of the Family Court at City D when she elected to make another attempt to use these allegations against the father to her advantage.
I accept the evidence of the father that he believed that he signed a document necessary to enable the mother to obtain a passport for the child. It may well be the case that the father was foolish to sign the document without reading its terms carefully. It may also be the case that the father was in a situation of pressure when he signed the document.
I have referred above the mother's evidence of the circumstances in which the father purportedly signed the visa consent form. The father deposed as follows in relation to the circumstances in which he signed the visa consent document in his sworn statement of 7 December 2016:
5.A while later I took the child back to her. I was stood at her front door holding [the child] as I would never enter her home at that stage, the Respondent would never of invited me into her home and I would of refused if she had. Whenever I went to the Respondent's home to collect [the child] I would have my mobile telephone on record to protect myself from any further allegations. On returning I had [the child] in my arms along with a bag containing his clothes and belongings. The respondent opened the door and handed me my driving licence along with the document that she had led me to believe was for the purpose of applying for [the child's] passport. She reiterated it was for his passport and that she needed it signing now. I was juggling bags and wanting to say my goodbyes to [the child]. At that time I noticed that the document that the Respondent handed to me already had her signature on. I handed [the child] over and signed the document, believing this to be for his passport and thought nothing of it.
Obviously, the father opposed the mother's plan to remove the child permanently from the United Kingdom between the time she filed her relocation application in late March 2014 until orders were made by the Family Court at City D on 11 May 2015. The mother would have the Court believe that the father changed his mind and proffered his consent to a permanent removal by 2 August 2015. I do not accept that he did so. The father’s actions from 4 September 2015 are inconsistent with any such a change of mind on his part.

I accept the father's evidence that he approached the police as soon as was practicable after he received the mother's text message on 4 September 2015. Further, I accept his evidence that he took whatever actions he could envisage to secure the child's return to the United Kingdom from that point. I accept that the father has, at all times since 4 September 2015, sought the return of the child to the United Kingdom. I am satisfied that there has been no delay in the filing of the Form 2 Application which could reasonably be attributed to the father.
I am satisfied, and I find, that the mother failed to establish that the father consented to or acquiesced in her removal of the child from the United Kingdom to Australia on 3 September 2015. In my view, it is more probable than not that she engaged in deceitful conduct in order to bring about this removal.
In my view, it is more probable than not that the mother harboured an intention to return to Australia and to take the child with her from the time of his birth. She deposed that she filed the relocation application in the Family Court in City D in late March 2014. At that time, the child was only approximately eight weeks of age. I have referred above to the mother's evidence that she lived in Australia between 2004 and 2011 and that she applied for permanent resident status immediately upon her forced return to the United Kingdom on 1 April 2011.
I thus find that the Form 2 Application was filed by the Central Authority more than one year after the mother’s wrongful removal of the child from the United Kingdom on 3 September 2015. On behalf of the mother it was submitted that she has established that the child is settled in his new environment for the purposes of Regulation 16(2), hence the court is not obliged to make a return order.
The child the child is aged three years and has lived in Sydney for approximately half of his life. He lives with his mother and maternal grandmother, in close proximity to his maternal uncle and cousins. He is involved with a local church group and engages in regular playgroup activities and family events. I am satisfied, and I find, that the child is settled in his new environment for the purposes of Regulation 16(2).
It is uncertain whether there remains a discretion to order a return where a respondent has established that a child is settled in his or her new environment for the purposes of Regulation 16(2). The position was summarised in a 2016 textbook titled “International Movement of Children”, by Lowe, Everall and Nichols, in the following terms:
22.40 The position in Australia is less certain. At first instance both Moss J in Director-General of the Department of Community Services v Apostolakis and Lindenmayer J in Director-General, Department of Families, Youth and Community Care v Thorpe accepted the existence of the discretion but in State Central Authority v CR the opposite view was taken. At the appellate level, in Director-General, Department of Community Services v M and C the Full Court of the Family Court of Australia, without hearing full argument and without purporting to decide the point, stated that it was ‘not necessarily persuaded that Kay J’s view is correct’. In Director-General, Department of Families, Youth and Community Care v Moore, the Full Court noted ‘the very great importance of the question’ but preferred to await a case with full argument and in which the issue squarely arose before reaching a concluded view. In Department of Family and Community Services v Raho Le Poer Trench J relied on reg 15(1) as being a source of discretionary power, which he reiterated later in Attorney-General’s Department v McGaffey but in State Central Authority v Hajjar Bennett J held that in the event that the court finds that the child is settled in Australia, its powers under the regulations are exhausted, and there is no further discretion to order a return, a decision that she later affirmed in 2015 in State Central Authority v Castillo.
(Footnotes omitted)
In State Central Authority & Ayob (1997) FLC 92-746 Kay J stated:
If, however, it is suggested that within the four walls of the Hague Convention there is room for discretion in respect of a child who has met the criteria of being more than one year away from the wrongful retention or removal and now settled in its new environment, then in my view there is no such room. In my view, the Convention and the Regulations have no further application in respect of such a child.
In Director-General, Department of Community Services v M and C (1998) FLC 92-829 the Full Court (Nicholson CJ, Holden and Dassau JJ) said as follows:
95. Before leaving this aspect of the appeal, we think it is necessary to draw attention to the obiter view taken by Kay J in Ayob's case as to whether in a case where one year has elapsed since the child's wrongful removal (or retention) and the filing of an application pursuant to the Hague Convention, a finding under reg 16(1) that a child is settled in a new environment, still leaves a discretion in the court to order the return of a child.
96. At 84,072, his Honour respectfully differed from the approaches of Bracewell J in Re N (Minors) (Abduction) [1991] 1 FLR 413 at 417 and Purchas LJ in Re S (A Minor) (Abduction) [1991] 2 FLR 1 at 25 to the extent that in those cases:
“…within the four walls of the Hague Convention there is room for discretion in respect of a child who has met the criteria of being more than one year away from the wrongful retention or removal and now settled in its new environment…”
Although that set of circumstances was not found to be the case before his Honour, he said that had such facts been the case "that would be the end of the matter under the Hague Convention and under the Regulations". In his Honour's view, the matter would fall to be decided under common law or other statute.
97. While the factual aspects of the children's being "settled" was subject to a good deal of argument in this case, the consequences in respect of discretion under the Regulations was not. We therefore do not propose to deal with that issue which should await full legal argument.
98. We should say however, that we are not necessarily persuaded that Kay J's view is correct.
In State Central Authority & CR (2005) FLC 93-243 Kay J stated:
58. Once the year has passed before the application has been filed and the settled exception is established then, notwithstanding the doubts expressed by the Full Court in Director-General, Department of Families, Youth and Community Care v Moore (1999) FLC 92-841; (1999) 24 Fam LR 475 at para 75 and the decision of the Court of Appeal in Cannon v Cannot [2004] EWCA CIV 1330, I remain firmly of the view that I expressed in State Central Authority v Ayob (1997) FLC 92-746; (1997) 21 Fam LR 567 that the Regulations provide no source of power to enable a court to make a return order.
59. The Court of Appeal in Cannon expressly rejected my logic, finding that a residual power to return could be found within the provisions of Article 18 of the Convention which provides "The provisions of this Chapter do not limit the power of a judicial or administrative authority to order the return of the child at any time."
60. Article 18 has no equivalent provision in the Regulations. Its closest equivalent is Regulation 6 that provides:
These regulations do not affect other powers of, or rights of application to, a court
(1) These Regulations are not intended to prevent a person, an institution or another body that has rights of custody in relation to a child for the purposes of the Convention from applying to a court if the child is removed to, or retained in, Australia in breach of those rights.
(2) These regulations are not to be taken as preventing a court from making an order at any time under Part VII of the Act or under any other law in force in Australia for the return of a child to the country in which he or she habitually resided immediately before his or her removal or retention.
61. This Regulation makes it clear that giving effect to the Convention is intended to supplement other remedies that might be available to order the return of a child and not replace those remedies. If the intention of the Regulations was to permit a discretion to return to exist even though the settled exception was established, then I would expect to find that power somewhere within Regulation 16(5). It is not surprising that it is absent given that the Regulations are seen as giving effect to the preamble and the objects of the Convention namely to secure the prompt return of children wrongfully removed to or retained in any Contracting State. As discussed at length in Ayob, the compromise reached between those who wanted a short time limit and those who wanted an open ended mandatory return was to opt for the settled exception. If it is established that a prompt and summary return under the Convention is no longer seen as appropriate, the "best interests" considerations that accompany the exercise of local jurisdiction should be left to determine where the case should be heard and what orders should be made to provide for the child's welfare in all the circumstances.
I respectfully agree with the views expressed by Kay J as to the existence or otherwise of a discretion in a court to make a return order, notwithstanding that there is a finding that the subject child is settled in his or her new environment. In particular, I respectfully concur with the significance which His Honour attached to the fact that the existence of such a discretion is nowhere to be found in Regulation 16.

Conclusion

For these reasons, I conclude that I should dismiss the application of the Central Authority. I will discharge the orders which were made on 14 October 2016 and dismiss all outstanding applications and responses.

I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 2 February 2017.

Associate: M. Rankin

Date: 2 February 2017

[2017] FamCA 48

2 February 2017

Key Legal Topics

Areas of Law

Administrative Law

Civil Procedure

Legal Concepts

Judicial Review

Procedural Fairness

Appeal

Jurisdiction

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