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COURT FOUND MOTHER’S LACK OF INTENT TO RETURN TO UK A REPUDIATORY RETENTION AND BREACH OF FATHER’S RIGHTS OF CUSTODY.

Handbury & State Central Authority and Anor [2020] FamCAFC 5 (21 January 2020)

Ms. Handbury appeals against the order of the Family Court Judge, granting the application of the State Central Authority (First Respondent) for an order that the child is returned to the United Kingdom (UK).

Facts:

Ms. Handbury (Mother and Appellant) and Mr. Handbury (Father and Second Respondent) married in Australia but lived in the UK. Their only child was born in the UK and is a dual British and Australian citizen. In 2016, Ms. Handbury was verbally offered a relocation package to Australia with a joint venture partner of her employer. Mr. Handbury’s understanding was that the placement was a temporary role of two years, after which the family would return to the UK. Months after they arrived in Australia in 2017, the parties had disagreements about the intended duration of their stay in Australia. After that, Ms. Handbury did not intend to return to the UK based on evidence. They separate yet remained living under one roof. In 2019, Mr. Handbury moved to another accommodation and commenced the shared care of the child.

At the request of Mr. Handbury, the SCA filed an application in the Family Court for the return of the child according to the Family Law (Child Abduction Convention) Regulations 1986, which give effect to Australia’s obligation as a signatory to the Hague Convention on the Civil Aspects of International Child Abduction 1980. Respondents alleged that parties agreed to travel to Australia with the child and remain there for two years only. Also, they alleged that the child had been wrongfully retained away from her state of habitual residence, which is the UK. Finally, they claimed that the retention was “repudiatory retention.” In her response, Ms. Handbury alleged that the move to Australia would be for two or three years, and they would decide in the future whether to remain in Australia or return to the UK; that the child had become and remained habitually resident in Australia; and that Mr. Handbury consented to the child remaining in Australia. The trial judge granted SCA’s application.

Issue:

  • Did Ms. Handbury’s unwillingness to return to the UK constitute repudiatory retention?
  • Did the trial judge err in concluding that any retention of the child in Australia was in breach of the Mr. Handbury’s rights of custody, therefore, a wrongful retention under the Regulations?

Held:

  • In re C (Children)(International Centre for Family Law, Policy and Practice intervening) [2018] UKSC 8; [2019] AC 1 (“Re C”), a UK Supreme Court case, it was held that 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.
  • The trial judge considered Ms. Handbury’s comments to the effect that she did not wish to return to the UK and that they had serious intimacy issues, and disclosure that she felt a spark for a colleague as circumstances that led Mr. Handbury to believe that Ms. Handbury would not abide to their agreement to return to the UK after two years.  The Court agreed with the trial judge that Ms. Handbury’s words and intentions were clear and unequivocal unilateral repudiation of the parties’ prior agreement for a temporary stay in Australia.

  • The Court considered that a repudiation of the agreement is a breach of Mr. Handbury’s rights of custody. In summary of the applicable legal principle under the same case (per Lord Hughes JSC), the repudiation of an agreement for a temporary stay is a repudiation of the rights of custody of the left-behind parent. When Mr. Handbury agreed to live in Australia temporarily, he was exercising his rights of custody by permitting such moves on terms. When Ms. Handbury repudiated the agreement to remain in Australia for two years, the retention of the child in Australia was no longer on the terms, which the parties had agreed initially. Her unilateral decision not to abide by the terms of the agreement is a breach of Mr. Handbury’s rights of custody, specifically the right to determine the place of residence of the child. Hence, the trial court was correct when it found that there was indeed a breach of rights of custody.


Finding that there are no merits on the grounds for appeal, the Court dismissed the appeal. In this case, it was apparent through her comments to Mr. Handbury, to her child, and her friend that she did not want to go back to the UK. It is tantamount to breach of the parties’ agreement that they will stay temporarily in Australia for two years. Hence, it was a clear act of repudiatory retention. As a result, it breached Mr. Handbury’s rights of custody.

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Comments (9)
  • Dimitri Stamatakis I am in a similar situation and despite calling for help from the British consulate several times, am being told there is nothing I can do as both my kids have now lived here for more than half their life. My first call was after two years of the alleged years we were here for a trial period. It's been 4 red now and my wife and I are separated. Who do I speak to, as i desparately want to return to uk with our children to their birth place where they are citizens and have family. We have none here and i was /am primary carer of them.

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    • Rose Flast Thank you for sharing your case. It must not be very easy. But if it helps, you might want to share and discuss it with others with the same experience or even with legal professionals or those with legal experience who can provide legal information, without giving legal advice. You don't have to go through your legal concerns alone. :)

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      • Dimitri Stamatakis Rose Flast both my lawyer and the British consulate refuse to accept any law has been broken. I cannot afford to privately fight this. I am told is too complex and have never found anyone in my situation, until I read this development. It reads like the last three years of my life.... and future it seems. I have a 'life sentence in NSW' for simply trusting someone's words and motives. I've been told directly it was planned all along.

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        • Dimitri Stamatakis Every other lawyer I speak to just goes crossed eyed at the story. I need to speak to this legal team.

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          • Rose Flast Dimitri Stamatakis Dimitri, what I would suggest first of all is that you join FLAST as a basic member where you can get support and training.

            That way as case digests and issues that are relevant to your matter come out of the Family Court you can keep on top of it.

            As you have already experienced, even the experts don't know everything, let alone you trying to handle this on your own.

            Come join us here at FLAST where you can also communicate Anonymously so your questions are not linked to your real identity.

            https://flast.com.au

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