Kurata & Commissioner, Western Australia Police  FedCFamC1A 57 (19 November 2021)
The mother who came to Australia with her two children to visit friends and family decided to stay here contrary to what was agreed, the father filed a return application which was granted and the mother ordered to return to the United Kingdom with the Children, she as filed an appeal from those orders requiring two children to return to the United Kingdom pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (Cth). The Court, in deciding whether to grant the appeal, assessed the submissions on wrongful retention and grave risk of harm.
The parents met in 2002 and subsequently married in Western Australia in 2005. In 2007 the parties relocated to the United Kingdom in the course of the father’s employment. Child A was born in the United Kingdom in 2009. In 2012 the mother travelled to Australia with Child A for a job opportunity. The father remained working in the United Kingdom.
Child B was born in State A in November 2012. In January 2013 and following a visit to the mother’s family, the parents and the children returned to the United Kingdom. The parents separated in November 2015 following an au pair complaining of inappropriate conduct by the father. The father left the former family home in Area A.
Following separation the children lived with the mother and spent regular time with the father. The parents and children regularly travelled together as a family after separation including to Country A in October 2016 and December 2018, and to Country C in July 2017. In July 2019 the mother relocated with the children to the suburb of Area B in County A and the father remained living in Area A. With the mother’s consent, the father began spending increased time with the children at the mother’s home in County A due to the father's unemployment.
In June 2020 the father consented to the mother and the children travelling to Australia for the purpose of visiting their maternal grandparents, he claims, on the basis that the children would return to the United Kingdom prior to the commencement of school on 1 September 2020. The mother’s contention, which was not accepted by the primary judge, was that her agreement to return the children for the start of school on 1 September 2020 was conditional upon the state of the pandemic in the United Kingdom.
On 17 June 2020 the mother and the children arrived in City D, Western Australia and, in accordance with Australian government health regulations, entered a 14 day hotel quarantine. The parents agreed to enrol the children in school in Australia and on 20 July 2020 the children commenced their schooling at School D. In mid-August 2020 the mother informed the father she would be returning with the children to the United Kingdom by the end of August 2020. At or around the end of August 2020 the father secured employment in the United Kingdom.
On 3 November 2020 the father completed his request to the International Child Abduction & Contact Unit, Office of the Official Solicitor in the United Kingdom for the return of the children to the United Kingdom pursuant to the 1980 Convention. On 3 December 2020 the applicant SCA filed its Form 2 Application Initiating Proceedings. On 10 December 2020 orders were made ex parte restraining the mother from removing the children from the Commonwealth of Australia, placing the children on an Airport Watch List and requiring the mother to surrender their passports. On 18 June 2021 the primary judge made the order for return and on 30 June 2021 the mother lodged her Notice of Appeal against the Order.
Whether or not the appeal filed by the mother should be allowed.
Family Law Act 1975 (Cth) ss 93A, 94 - has an effect that the appellate court shall have regard to the evidence given in the proceedings before the primary judge out of which the appeal arises; has power to draw inferences of fact; and, in its discretion, may receive further evidence on questions of fact.
Fox v Percy (2003) 214 CLR 118;  HCA 22 -
provides that within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge’s reasons.
Handbury v State Central Authority (2020) FLC 93-937;  FamCAFC 5 -
provides that subjective intention on the part of the person retaining the child is relevant only in cases of repudiatory retention.
House & The King (1936) 55 CLR 499;  HCA 40 -
held that if the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.
In re C (Children) (International Centre for Family Law, Policy and Practice intervening)  AC 1;  UKSC 8 -
Lord Hughes referred to the word “sanction”, to describe an exercise of custody rights that results in the lawful removal or retention of a child in another country.
In re R (Children) (Reunite International Child Abduction Centre intervening)  AC 76;  UKSC 35 -
stated that there is no rule that one parent cannot unilaterally change the habitual residence of the child.
LK v Director General, Department of Community Services (2009) 237 CLR 582;  HCA 9 -
authoritatively settled the law in Australia relating to habitual residence for the purposes of the 1980 Convention.
Secretary, Department of Communities and Justice & Paredes  FamCA 128 -
supported the proposition that the test is not for the court to apply a comparison of risk.
TB v JB (Abduction: Grave Risk of Harm)  2 FLR 515;  EWCA Civ 337 -
applied a list of factors to be considered on the exercise of the discretion to refuse return.
Warren v Coombes (1979) 142 CLR 531;  HCA 9 -
provides that in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge.
The appellant mother concedes that the children are under 16 years old, the father has rights of custody pursuant to the laws of the United Kingdom and that he was actually exercising the rights of custody or would have exercised those rights had the children not been retained. However, the mother does not concede the date of alleged wrongful retention (Ground 1) ; that the children remained habitually resident in the United Kingdom after 17 December 2020 (Ground 2); and that her retention of the children in Australia was in breach of the father’s rights of custody (Ground 3). The mother alleges (but the father denies) that he agreed that the children could remain in Australia until 17 December 2020 or until the effects of the pandemic subside.
The Applicant’s case is that the Respondent wrongfully retained the children on or around 1 September 2020. At the time the children left the United Kingdom, the Court was satisfied by the communications between the parents that they agreed for the children to travel to Australia, for a temporary stay only. Further, they agreed the children would return to the United Kingdom, in time for the commencement of the school year. It was reasonably open to the primary judge to find that the father's conduct was consistent with his requirement that the children be returned to the United Kingdom as promptly as practicable.
At that stage, the father had only two options to secure the return of the children – namely, to persuade the appellant to return the children voluntarily; or to await the outcome of Hague Convention proceedings, which would take considerably longer. The primary judge analysed the evidence carefully and came to the conclusion that the father was attempting to get the mother to commit to return the children voluntarily at a specific time. Senior counsel for the mother specified that the grave risk of harm arises from making and implementing the return order because of the psychological effects on both children. The mother bears the onus of proving that there are inadequate support services for Child A in the United Kingdom.
The Court is satisfied that the trial judge’s finding that the mother had not discharged that onus was a conclusion which was open to the trial judge. Evidence falls short of establishing that the degree of psychological harm could be characterised as substantial, weighty and comparable to an intolerable situation.
Ground 1 fails, as there was ample evidence to support the primary judge’s conclusion that Ms Kurata wrongfully retained the children in Australia on 1 September 2020. The primary judge’s finding that the children habitually resided in the United Kingdom prior to their wrongful retention in Australia was patently correct, and hence Ground 2 fails. The finding of acquiescence which Ground 3 contends ought to have been made by the primary judge, was not open on the evidence, and hence no error by the primary judge is established. There is no substance to the contention advanced under Ground 4 that the return of the children to the United Kingdom would expose them to a grave risk of harm, or place them in an intolerable situation. The Notice of Appeal is dismissed.