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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 (4)
  • Cameron McKenzie Interesting. There was no mention of child's best interests, which was the determining factor in Bondelmonte.

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    • Rose Flast The facts of this case, if you would read the digest, is not similar to that of Bondelmonte. :) I noticed that you are well versed with best interests. Let me invite you to read more case digests on our website www.flast.com.au. :)

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      • Cameron McKenzie Similarly Bondelmonte involved the intention not to return from overseas. Watts J decided that the views of the child thus their best interests s60CC(3)(a) were the parmount consideration irrespective of the contrivance of the father. This is similar to best interests reasoning in A v A. In Bomdelmonte I seem to remember that assurances were given upon departure that the father would return the children. From the article the matter above treated the issue more as a matter of contract law and repudiation. Hence I found it interesting. If the contract based approach above was more common, then seeking return from unilateral relocations would be almost automatic if a parent made any promise to return. I will investigate more if repudiation features more strongly in unilateral relocation matters.

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        • Rose Flast Thank you for sharing the case. In this case though, repudiatory retention was the central issue. As we all know, courts do resolve cases based on what the parties ask them to resolve. And best interest of the child was not raised by either party in the case. :)

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