Bellanger & Wemble (No 7) [2025] FedCFamC2F 1075 | Case summary

Bellanger & Wemble (No 7) [2025] FedCFamC2F 1075 | Case summary | Zoe

[30]

When the matter was called on the morning of Wednesday 16 July 2025, I delivered the orders set out at the start of these reasons, handed out a paper copy of those orders to the parties and then read out those orders (in interpretable chunks) and the orders were there and then interpreted to the Grandmother. I then turned to deliver oral reasons for the orders made and commenced to deliver oral reasons. Due to the length of the reasons and the time taken to deliver the oral reasons and have each passage interpreted, the oral reasons had not been concluded by 3.50 pm. on that day. The interpreter retained by the court then advised that he was unable to attend beyond 4.00 pm. In those circumstances, and the orders having been delivered, I advised the parties that the remainder of the reasons would be delivered with the settled transcript of the oral reasons: that is there would be one set of reasons delivered as soon as practical when the transcript was available.
On 16 July 2025 I advised that a transcript of the oral reasons would be taken, and when that transcript was available, that transcript would be what is known as "settled", and will have added to it passages of evidence, passages of legislation, and passages of precedent authorities that, for convenience, have been referred to but not recited orally. This was because of the length of time to have every word of the reasons read out and interpreted to the second respondent, Ms Paige, would take too long. I advised those matters would be added to the settled written reasons and that those settled written reasons would also have grammar corrected, any repetition deleted, and any passages of reasons or evidence omitted because of the pressure of time or inadvertence would be included but that the substance would remain the same.
These are the settled reasons referred to above. Footnotes, headings, some observations, passages of legislation and precedent cases referred to but omitted by the pressure of time or inadvertence have been added to the oral reasons. Some topics and observations have been reordered to make the reasons easier to read.

[31]

The matter of Bellanger and Wemble and Paige and the Independent Children's Lawyer came before me over 11 days of a final hearing of a contravention application made by the applicant Mother, Ms Bellanger, born in 1991 ('the Mother'). The Mother alleges that the Father of the children, Mr Wemble, born in 1986 ('the Father), contravened the final parenting orders made 16 August 2021 in this court ('the Final Orders') by removing the children of the Father and the Mother, X then aged 10 ('X'), and Y, then aged just 8 ('Y'), from the Mother's care on or about early 2022 in Country D, and retaining them there, outside of the Mother's care, since that day.
The Mother alleges that the Father's mother, Ms Paige ('the Grandmother'), contravened the Final Orders when she aided and abetted the Father in the removal of X and Y ('the children') from her care and the retention of the children in Country D, out of her care since that date.
In addition, the Mother alleges that, save for speaking to the children on one occasion organised by the Australian High Commission in City F, she has not seen or spoken to the children since early 2022, and has not been provided by the Father or the Grandmother with any information or consultation about long-term decisions about the children's health or education or the country they would reside in, since that removal. In substance, she alleges that the contravention of the final orders is particularly grievous because of the serious illness, substantial loss of weight, and interference with their education that has befallen the children while in Country D since their removal from the Mother's care.
I have decided, and advised the parties, that I would decide what, if any, of the counts of the contravention application are proven, and if any were proven, whether they were proven on the balance of probabilities or beyond reasonable doubt, and if any are proven, give the parties an opportunity address me as to what penalty would be imposed. It is self-evident that the contraventions alleged, and the penalties sought, are most serious.

[32]

On 23 January 2024 on the application of the Mother, an ex parte order was made restraining the Grandmother form leaving the Commonwealth of Australia and what is also known as a "Watchlist Order". The return of the ex parte application was on 2 February 2024.[4]
On the return of the application the Grandmother was represented by a legal aid duty lawyer who made it clear that the Grandmother opposed the injunction and the Watchlist Order and sought an adjournment of the restraining order application to permit the Grandmother to file material in opposition. The matter was adjourned to 3 May 2024.
During the period of the adjournment, the Grandmother retained solicitors (who I understand acted pro bono) and filed two affidavits dealing with the substance of what she said her involvement in the controversial events were.
On the return of the matter, after the filing of the affidavits, the Grandmother was represented by solicitor and counsel and I heard submissions as to the continuance of the injunction restraining the Grandmother from leaving the Commonwealth of Australia. I ordered the injunction to continue pending my decision and otherwise reserved my decision and reasons.
I delivered my reasons on 20 August 2024 and extended the injunction of restraining the Grandmother from leaving the Commonwealth of Australia on an interim basis and fixed the final hearing of an application for an adjournment on 11 November 2024.
In the meantime on 3 September 2024, the Mother filed the contravention application against the Father and the Grandmother.
Shortly prior to 7 November 2024, the solicitor retained by the Grandmother advised the parties and the Court that he could no longer continue to act,[5] consequently the matter was listed for mention on 7 November 2024 and the solicitor previously acting for the Grandmother confirmed that he would not continue to act beyond that day.[6] The Father did not appear on that day. It was apparent that the Grandmother would thereafter be unrepresented and this circumstance required a consideration of section 102NA of the Family Law Act 1975 (Cth) ('the Act'). After hearing submissions, I declared that pursuant to section 102NA(1)(a), (b) and (c)(iv) of the Act that section 102NA(2) of the Act to applied to any future cross-examination in these proceedings and that the Grandmother and the Mother were prohibited from personally cross-examining one another in these proceedings. A declaration to the same effect as between the Father and the Mother was also made. The administrators of the Commonwealth Family Violence and Cross Examination of Parties Scheme ('the Scheme') were asked to provide assistance to the Grandmother and the Father in the circumstances of them being prohibited from cross examining each other and the trial listed for 11 November 2024 and the Final Hearing was vacated and adjourned to 28 April 2025.[7] The orders and reasons of those decisions are contained in Bellanger & Wemble (No 4).[8]
On 28 April 2025 in the course of taking the Grandmother to procedure and her rights in accordance with Re F: Litigant in Person Guidelines (2001) FLC 93 072 ("Re F:"), I reminded the parties of the injunction proceedings as follows:

[35]

I will now turn to a brief background and firstly attempt to deal with matters that emerged as common ground, or at least as undisputed, between the parties that participated in the hearing.
The parents, the children, and the Grandmother are of Country D ethnicity. The parents and the Grandmother were all born in or near what is now Country D ('Country D'). The Mother was born in 1991, and she is now 33 years of age. The Father was born in 1986, and he is now 38 years of age. The Grandmother was born in 1967 and is now 57 years of age. The Grandmother is a widow and has four now adult children. She lives in an inner Melbourne suburb with her youngest daughter, Ms P, now age 27 ('Ms P'). Ms P was a witness on affidavit in the Grandmother's case and was cross-examined over several days.
The parents married in Country D in 2010. They lived together in Country E for a short period in 2011. They married again in a church ceremony in Country E in 2011. The parents emigrated to Australia, the Father in early 2011 and the Mother in early 2012. The Father completed post-graduate studies both in Australia after emigration. He studied for both degrees in Melbourne. Hence, it can be seen that when X was about five months old, he commenced to live in Australia with his parents in 2012. Y was born in 2013 in Australia. Until travelling to Country D for a holiday in December of 2021 - and, I infer, intended to be during the Victorian long summer school holidays - the children had lived all their lives, save for the first (about) five months of X's life, in the suburbs of Melbourne, or at least greater Melbourne, and had attended the one school in the nearby city of Suburb Z.
Prior to separation, for a short time, the Grandmother had cared for the children while one or other of the parents worked or studied. For a time, the Mother and the Father lived in the same dwelling, or home, as the Grandmother. The parents separated, or ended their marriage relationship, (but were not then divorced) in 2014. The separation was acrimonious. And from separation, or soon thereafter, the Mother and the children had little or no contact with the Father or those of his family that remained in Country D or in Melbourne.
Soon after separation in 2014, the Father left Australia and has lived in Country D since. At that time, the children were very little and of tender age. Since then, the Father has returned to Australia only once, in 2017, when following a motor vehicle accident, he sought the care of the Australian medical system. It is not disputed that from when the Father left Australia and commenced living in Country D in 2014, until the Mother took the children to Country D in December 2021, the Father had not spent any face to face, or in person, time with the children.

[61]

I was satisfied that the Grandmother understood what she was alleged to have done, and that what she was alleged to have done was, by aiding and abetting, a contravention of the final orders. At all material times the Grandmother denied doing anything that amounted to a contravention of any of the Court orders.
At interim proceedings before me and the recovery order application, the Grandmother was at first represented by the Duty Lawyer, Ms Videon, when an adjournment of the proceedings was sought and obtained by the Grandmother. From 11 March 2024 until 28 March 2025[10] the Grandmother was represented by a private firm of solicitors acting pro bono. On 20 August 2024 the Grandmother was represented by those same solicitors acting pro bono. Those pro bono solicitors ceased to act after they had been unable to retain counsel to act pro bono on the final hearing of the Mother's Contravention Application. After those solicitors ceased to act an order pursuant to section 102NA of the Act, and made in reliance on section 102NA(1)(c)(iv), also known as the discretionary ground, was made on 7 November 2024[11] that prohibited the Mother and the Grandmother and the Father from personally cross examining each other.[12] At that time (7 November 2024) to facilitate the parties representation, I vacated the final hearing listed on and refixed the final hearing for hearing on 5 May 2025.[13]
As discussed in Bellanger & Wemble (No 4) [2024] FedCFamC2F1606, a declaration was made that section 102NA(2) applied and that the Grandmother and the Mother were prohibited from personally cross- examining each other. The Grandmother duly applied for representation under the section 102NA scheme. That scheme appointed solicitors to act for her on the final hearing but that firm then declined to act. Those administering the section 102NA scheme then appointed another firm of solicitors to act for her but those solicitors also declined to act for the Grandmother. I then discharged the section 102NA order prohibiting the Grandmother from cross-examining the Mother[14] and the final hearing proceeded.

[106]

(1) The orders of December 2019, made when the Mother visited Country D for divorce proceedings that recited the children were to live with the Mother; and

(2) The final consent orders of this court made on 16 August 2021 that said the children were to live with the Mother; and

(3) The orders made, in early 2022, in Country D, were, I infer to the effect that the children live with the Mother. I so infer from the Mother's assertion, not disputed, that on that day the Court ordered the children to return her; and

(4) I am satisfied that the Mother's unequivocal and settled intention was to reside in Australia where she had resided since 2012, where she had accommodation and employment and that she intended to reside there with the children; and

(5) The Mother and children were and are Australian citizens; and

(6) In this case, it is not disputed that the Mother took the children to Country D for a holiday. That is, temporarily for a visit; and

(7) The children have been enrolled all their school lives at the local school in Suburb Z and, I infer, remained at that local school at the time the Mother took them to Country D; and

(8) The modern essential accoutrement[31] or thing of any child in the Western world, a laptop belonging to the eldest child, did not remain with the children in Country D, after early 2022; and

(9) Whilst the children had some understanding of the Local language, their first language was the most common language of the city of Suburb Z: English;[32] and

(10) I do not accept the assertion, and the case of the Grandmother, that the children were voluntarily and permanently handed over by her family, in early 2022 at a religious ceremony;[33] and

(11) The actual words of the religious ceremony when looked at do not specify or suggest that the children were to live permanently in Country D with the Father, and not see or have any contact with the Mother; and

(12) In the circumstances where I do not accept the assertion that the Mother agreed for the children to live in Country D with the Father, and I accept the Mother's evidence of the children being forcefully removed from her, the evidence is overwhelming that at all material times, and until today, the Mother continued to hold the intention that the children would continue to live in the Commonwealth of Australia as they had done all their lives, save for about five months or so in the case of X, when he was a baby. And that is so notwithstanding the substantial time the Father has retained the children in Country D.

[121]

(1) The circumstances in which a person may be taken to have had, for the purposes of this Division, a reasonable excuse for contravening an order under this Act affecting children include, but are not limited to, the circumstances set out in subsections (2), (4), (5), (6) and (7).

(2) A person (the respondent) is taken to have had a reasonable excuse for contravening an order under this Act affecting children if:

(a) the respondent contravened the order because, or substantially because, he or she did not, at the time of the contravention, understand the obligations imposed by the order on the person who was bound by it; and

(b) the court is satisfied that the respondent ought to be excused in respect of the contravention.

(3) If a court decides that a person had a reasonable excuse for contravening an order under this Act for the reason referred to in paragraph (2)(a), it is the duty of the court to explain to the person, in language likely to be readily understood by the person, the obligations imposed on him or her by the order and the consequences that may follow if he or she again contravenes the order.

(4) A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to live with in a way that resulted in the child not living with a person in whose favour the order was made if:

(a) the respondent believed on reasonable grounds that the actions constituting the contravention were necessary to protect the health or safety of a person (including the respondent or the child); and

(b) the period during which, because of the contravention, the child did not live with the person in whose favour the order was made was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).

(5) A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to spend time with in a way that resulted in a person and a child not spending time together as provided for in the order if:

(a) the respondent believed on reasonable grounds that not allowing the child and the person to spend time together was necessary to protect the health or safety of a person (including the respondent or the child); and

(b) the period during which, because of the contravention, the child and the person did not spend time together was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).

(6) A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to communicate with in a way that resulted in a person and a child not having the communication provided for under the order if:

(a) the respondent believed on reasonable grounds that not allowing the child and the person to communicate together was necessary to protect the health or safety of a person (including the respondent or the child); and

(b) the period during which, because of the contravention, the child and the person did not communicate was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).

(7) A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to which section 65P applies by acting contrary to section 65P if:

(a) the respondent believed on reasonable grounds that the action constituting the contravention was necessary to protect the health or safety of a person (including the respondent or the child); and

(b) the period during which, because of that action, a person in whose favour the order was made was hindered in or prevented from discharging responsibilities under the order was not for longer than was necessary to protect the health or safety of the person referred to in paragraph (a).

[143]

...

Section 70NAF - Standard of proof

Section 70NAF replaces section 70NEA in the existing Act. It provides clarification of the standard of proof to be applied by the court in considering enforcement applications. The current test provided by section 140 of the Evidence Act 1995 is the civil standard of proof, the balance of probabilities, with the court to take account of the gravity of matters. Section 70NAF aims to assist practitioners and self-represented litigants by clarifying the circumstances in which the court will apply a different standard of proof.

New subsection 70NAF(1) specifies that the court should generally apply the civil standard of proof, the balance of probabilities, in considering matters in proceedings under Division 13A of Part VII of the Act. This is subject to subsection 70NAF(3), which provides that a stricter standard applies to orders being considered under the more serious contravention applications that may incur a criminal penalty under provisions in Subdivision F.

New subsection 70NAF(2) clarifies that the court should also apply the civil standard when determining whether a person had a reasonable excuse for having contravened an order affecting a child under this Act. This approach should mean that it is easier for many less serious contraventions to be dealt with by the court as they will not need to be treated as a quasi-criminal proceeding.

New subsection 70NAF(3) provides that a stricter standard of proof, requiring the court to be satisfied beyond reasonable doubt, applies to matters to which Subdivision F applies when a court is considering a criminal consequence for the contravention of an order (for example, imposing a bond, a fine, or a sentence of imprisonment). This is appropriate given the consequences for the individual of orders that impose criminal sanctions.

...

Subdivision F - Contravention without reasonable excuse (more serious contravention)

...

Subsection 70NFA(1) sets out that Subdivision F applies if a person has committed a contravention of a primary order (defined in the dictionary in section 4 of the Act) with no reasonable excuse and the contravention is of a more serious nature. Section 70NAE explains what constitutes a reasonable excuse for contravening an order. The note to subsection 70NFA(1) refers the reader to section 70NAF, which sets out the applicable standard of proof in determining matters under Division 13A.

Subsections 70NFA(2) and (3) clarify when a contravention is of a more serious nature such that Subdivision F applies. Under subsection 70NFA(2), this will be the case even if no court has previously imposed a sanction, taken action, or adjourned proceedings under paragraph 70NEB(1)(c) in respect of a contravention by the person, yet the court is satisfied that the person has behaved in a way that showed a serious disregard of his or her obligations under the primary order. Thus a person who only commits one contravention can be immediately dealt with under this Subdivision if they show serious disregard for their obligations. What amounts to a serious disregard will depend on the circumstances of the case but, by way of example, could include the removal of a child to another place despite orders of the court or harassment despite repeated warnings and the terms of the parenting order. In such cases, the court will deal with the matter under Subdivision F, which requires the court to consider imposing more serious penalties ranging from community service orders to fines and imprisonment.

...

Where Subdivision F applies and there is a more serious contravention, the court has the powers set out in section 70NFB. These powers expand on those in the existing Act in order to strengthen the existing enforcement regime.

...

Where the court does not make an order for costs under paragraph 70NFB(2)(g), the court must make at least one other order under subsection 70NFB(2) that the court considers to be the most appropriate. This ensures that the court must impose some kind of sanction to more serious contraventions.

...

Section 70NFG provides for sentences of imprisonment that may be imposed by the court under paragraph 70NFB(2)(e)...

...

(emphasis added)

[181]

MR COMBES: What you told before, you didn't mention that the second respondent grabbed your oldest son and put him on a motorcycle?

THE MOTHER: She did not grab. The son did.

...

[Ms Paige]'s son, the father, grabbed one of my kids.

MR COMBES: And what happened to your other son?

THE MOTHER: The accomplice, or one of their relatives, they had two motorbikes. One he - the father grabbed my younger ones.

...

And the second accomplice, or the relatives, grabbed my older son. And she[58] was just giving words.

MR COMBES: So when you say [X] was then grabbed there and then by the second accomplice, he was put on a motorbike and they rode off, so - - -

...

--- so the second respondent was not involved in the actual putting your oldest son onto a motorcycle?

THE MOTHER: I believe, your Honour, she cannot ride a motorbike. Her work was giving instructions and she was just walking on her foot. So she did not grab one of my kids.

MR COMBES: It was - how many people were there?

THE MOTHER: Roughly more than 30 people.

MR COMBES: And was it a lot of shouting and screaming?

THE MOTHER: Yes.

MR COMBES: And are you sure that it was the second respondent that was shouting and screaming for your children to be taken away? Or could it have been some other woman?

THE MOTHER: They came for the intention of taking the kids. And she[59] was giving instruction.

MR COMBES: You personally heard her giving instructions?

THE MOTHER: Yes.

MR COMBES: I think it's important - it's hard to remember but when you say you're giving instructions, can you recall the actual words that were said?

THE MOTHER: It - they echoed in my head. I can say them in [Local language] and translate them.

MR COMBES: Yes, please?

THE MOTHER: This girl of [Mr R], the daughter of [Mr R], has destroyed my house. And all my properties. And ..... meaning our wealth or bride wealth have been - I don't know how to put it directly in English, but he can understand properly...

[At this point the Mother spoke in [Local language] and the interpreter then interpreted as follows]

THE INTERPRETER: That my wealth had just been poured into the river so just lost into the river, literally...

[At this point the Mother continued to speak in [Local language] but spoke in "chunks" or parts of sentences and paused while the interpreter translated to the Grandmother and then continued to speak in [Local language]]

HIS HONOUR: Thank you, Mr Interpreter [my acknowledgement of the interpreter interpreting the Mother's [Local language] sentence/s to English to the court]

[At this point the interpreter continued to interpret the next chunk or part of the Mother's evidence to the Grandmother while the Mother paused]

THE MOTHER: ..and we have the opportunity - [at this point the Mother spoke apparently in [Local language] and then returned to English, effectively interpreting the [Local language] to English]- meaning we have the opportunity to grab these kids away from her so that they can no longer be in her care. To use enemies.

[182]

It is also important to note that although giving evidence (mainly) in English, the Mother, I infer, having heard my repeated exhortations to counsel to speak in "chunks" to facilitate immediate and accurate interpretation to the Grandmother, at times spoke in "chunks", pausing between "chunks" to assist interpretation. The Mother appeared alert to the need for the Grandmother to have the evidence interpreted to her and the volume and manner of her speech appeared to me to be respectful of the Grandmother. Speaking in chunks to enable interpretation was consistent with, and gave me the impression, within the rhythm of the final hearing, of the Mother being careful to, and wanting, the Grandmother to understand her evidence and have the opportunity to come to grips with it. This appeared to be with plain speaking and without exaggeration and without glossing over or avoiding the point of a question or proposition, and being open to having her account questioned and contradicted while in the witness box.
I found the oral evidence given by the Mother in response to counsel's, and the Grandmother's, questioning to be compelling.[60] The inconsistencies between affidavits or details of significant events were explained and the overall account of what happened became clearer and ultimately clear. The evidence was compelling because of the manner in which the Mother gave the evidence, her demeanour and the extent to which surrounding circumstances supported her account as well as the apparent logic of events.
The Grandmother's rebuttal of the Mother's case was that the events of December 2021 and early 2022 never happened and the children had been handed over voluntarily in or around the religious ceremony. I don't accept that evidence or account or justification and the apparent implausibility of the Mother voluntary handing over the children and the apparent logic of events also informs my assessment of the reliability of the Mother's evidence.
In closing submissions, counsel for the ICL recounted those variations:[61]

[198]

I take those apparent or potential inconsistencies into account. I also take into account the added difficulty of a person recounting apparently very traumatic events, in a language other than a first language and the move from oral account to writing and then testing back in oral evidence.
I carefully observed the Mother in the witness box. Her evidence has the disadvantage of not being tested by a lawyer for a party in a strongly adversarial position and being personally cross-examined by a person who was alleged to have committed family violence against her. I take that into account.
Her evidence was tested by counsel for the ICL, to an extent by the Grandmother and also by questions from me.
The Mother's demeanour was of a witness giving a genuine account of what she had seen, what she had heard, what she felt and what she believed. Her evidence was not histrionic. Her demeanour was not defensive or evasive. She appeared open to responsively answer whatever question was put to or was to her. She presented as suffering real grief and trauma from what had said had happened to her but in an unexaggerated or undemonstrative manner. Her demeanour was consistent with that of a person who had experienced what she said she had. Her account was not implausible.
I took into account the inherent implausibility of a scenario whereby the Mother, after raising the children by herself from 2014 in Australia as a recent migrant from a non-English speaking background would, during a holiday with the children to visit her elderly father, voluntarily hand over, or be a party to handing over, the children permanently to the parent who had not been involved in their life for them to live in a self-evidently third world country.
I took into account whether, as a result of herself being arrested and imprisoned on or about early 2022 and the children then removed from her and then, after the early 2022 court hearing where the children were returned to her, her father being imprisoned about the bride wealth and likely pressure and/or coercion and control upon her that would mean she had not agreed to the "hand over" but had been coerced to acquiesce to relieve the pressure on her father. If that were so, while it would not mean she had "voluntarily" handed over the children, rather had been coerced to do so. But it would mean the events of early 2025 as alleged did not occur as she alleged.
I found the evidence of the Mother, after taking account of apparent inconsistencies between affidavits and the consulate email, as reliable and credible. After observing her demeanour in oral evidence, and considering all the circumstances including the detail of the religious ceremony (recited below) and the inherent implausibility of the allegation the Mother voluntarily handed the children over to the Father on a permanent basis, I found her account of events, as not only reliable but compelling.

[200]

The care that the Grandmother took in regard to the content of those affidavits was apparent when, before adopting those affidavits as true and correct, she asserted that she did not rely on part of paragraph 6 of the affidavit of 30 April 2024. I also took into account the difficulty of a party who cannot read, write, speak or comprehend the English language being a party to adversarial proceedings in a language she does not understand and being proceedings substantially in writing. I also took into account the practical difficulty of participating through an interpreter. I took into account that the Grandmother in those circumstances was also not a lawyer and represented herself. The proceedings are difficult for the Grandmother apart from the seriousness of them.
This was after the Mother had been cross-examined, given evidence in re-examination, and in response to questions by me, and after the Grandmother had been asked what her response to the allegations was. I asked the Grandmother if she wished to rely on her affidavits sworn in the interim and injunction proceedings and she advised she did. But before proceeding further she pointed out that there was one part of one affidavit she wanted "to remove and had highlighted and that everything else will remain the same way as I had said it before. I will not change any other thing." She pointed out that, "that sentence that is that: I have never been employed - - since arriving in Australia, and have been on Centrelink benefit, residing at the [Suburb G] housing commission since 2010." That passage was marked as not relied upon.
Save for that matter, the Grandmother adopted each of those affidavits, and each had been recently interpreted to her by an interpreter at the time she swore that those affidavits were true and correct in her evidence-in-chief, on 1 May 2025, shortly before the court adjourned for lunch.
I was satisfied that the Grandmother had taken some care in getting her affidavits to correctly set out the matters as she asserted them, and to ensure that what was asserted was correct and in accordance with her oath to tell the truth and the whole truth. The affidavit of 8 April 2024 included:
1. I believe [Ms Bellanger] added me to this case in Australia in retaliation for her father's arrest. She stated that adding me will get my son to respond. In the email to the Australian Embassy, she stated that "I prefer his mother to be answerable to this because he might choose to ignore any contact made to him by any law enforcement". She claimed that I can allocate the children, [Ms Bellanger] knows where my son and children are. My son is not hiding, the children were handed to him through the decision made by [Ms Bellanger] and her family members. It is clear in the email[70], where she claimed she "was tricked by customary police and law orders to only give the kids to him for few weeks and he might return them to me since the environment was not conducive for children he might compromised they situations and returned the kids to better environments because they kids might not get to adapt to the harsh and unpredictable weather they were exposed too. I Knew he wouldn't do that's, but no one knew him better than i do, kids were also excited to see their dad for the first time after almost 8 years. So, I gave it a chance but that's how they kids ended up at his care till now."[71] This is the truth, there was no abduction of children. If she wants to go back on the decision she made with her family, she does not have to lie and make false allegations against me and my children.
There was no account, mention or hint in her affidavits that the Grandmother had spoken to her son;

[204]

THE INTERPRETER: this court, by the time when the kids were taken, I was outside. I was in [City O]. Then he called me that the kids were returned back home. Then I asked him about the children, who brought the kids. Then he told me that it was the father and the brother and uncle. Then I ask, "how about your mother?" Then he says the mother didn't come. So then I told him that if the mother hasn't come, then they should not be given. Sorry. Okay. I do not get ..... either you should accept or you should have not accepted. So that he should not - yes. That he should have not accepted them to be left there. Then you say that, yes, I should have accepted them. Then I told him, yes, he should have not accepted it. As the father was arrested, then he should have just let the kids and the father to all just go. And he said, "the kids are mine." Then he told me that yes, there is - it would have not happened like that because the kids are mine. And also, she doesn't allow me to talk to my children. Then I told him that he should have just let them go. And it will be possible later when they are able to be mature enough to know things, and they will be able to talk to you. So that is - he told me like, yes, it will not happen because if the kids have been brought here and they are with me here, then I should not just let them. And even with you, if I have just ..... if I have been asked to go now, will you be able to let me just go? And I told him that if ..... is there, then he should have just let them just go with him because they will later know much about you. Then you say, I will not accept - you know, I will not accept that. And at the moment, the person that had actually took the children. And now I have just been the one now that is being held accountable, and the person that had taken the children with his partner, no one is dealing with them. And because he is the one refusing to give back the children, and his wife is the one that is saying that I'm the one refusing to let the kids be allowed. And if they are not listening to me, all of them, then I will just remain as quiet as I am. So and then I just thought, like, it would have been good for me just to come over to the authority and just listen to the authority, but those that have - actually have the power to hold the kids are now being allowed just to be free. But I, myself, that person who has not done anything, I'm now being the one being held accountable. So - and as both of them - the father and the mother have not actually listened, but I, myself, have just given myself just to come to the authority and come to let myself be ..... by they - by the authority.

[211]

Not only did the Grandmother not mention in either of two affidavits covering the controversial events that she told the Father he should have left the children with the Mother. But paragraph 18 of the Grandmother affidavit (recited above) is to the opposite effect of her assertion that, because of her experience as a Mother, she had told the Father that he should not retain the children on or about the day of their religious ceremony. I do not accept the evidence that she did speak to the Father as she alleged in her unresponsive answer to the question asked, and I am satisfied beyond reasonable doubt that no such conversation occurred.[75]
The Grandmother's demeanour during this oral evidence, apart from being an unresponsive answer to the question asked, had the air of being rehearsed, and being rehearsed over the adjournment.
The oral evidence and demeanour of the Grandmother lacked verisimilitude[76] and my impression was that she was defensive and often attempted to deflect the question asked of her rather than engage in the question or point of the question. Her oral evidence frequently attempted to rely on the broad defence to the effect of, "it's between two adults and nothing to do with me". Her evidence also relied upon the broad defence of, to the effect, "I'm a woman and so cannot speak or have any influence in cultural matters in [Country D]".
I accept Dr DD's evidence of the patriarchal bias of Local society, including that on "rare occasions" women may have a role in community decisions and consultations. Notwithstanding that patriarchal bias or operation of traditional Local culture, I am satisfied the Grandmother, with the Father's agreement and encouragement did involve herself in the December 2021 meeting and the events of early 2022. I am satisfied that the Grandmother is and was what can be described as, "a force to be reckoned with".
Ultimately I found the grandmother's evidence to be unreliable and I do not accept her evidence that she was not involved in December 2021 meeting and not in City B in early 2022.

[215]

MR MONOAH: Do you have your phone with you?---

[MS P WEMBLE]: Yes, I have my phone.

MR MONOAH: Can you open it?---

[MS P WEMBLE]: Yes.

MR MONOAH: Can you open the WhatsApp messages. Can you open [Mr Wemble]'s number?---

[MS P WEMBLE]: Yes, I have open it.

MR MONOAH: Hang on. Don't touch. Can... [my Associate] approach so that I can have a look. Just don't - - -?---

[MS P WEMBLE]: Yes.

MR MONOAH: - - - touch the screen. If you don't mind, [my Associate], approaching. Your Honour, is it okay if I examine the phone?

HIS HONOUR: Well, first, do you have any objection to Mr Monoah looking at your telephone?---

[MS P WEMBLE]: No.

HIS HONOUR: Thank you.

MR MONOAH: It shows here you had contact with him on 18 June?[78]-

[MS P WEMBLE]: --Yes.

MR MONOAH: This year?---

[MS P WEMBLE]: But not regarding - - -

MR MONOAH: Is this year?---

[MS P WEMBLE] - - - the children.

MR MONOAH: Well, I'm coming. You call him. You say:

[MS P WEMBLE]: I was asleep by that time.

MR MONOAH: That was Monday 23 June?[79]--

[MS P WEMBLE]: Yes.

MR MONOAH: On Sunday, you had a contact with him:

Who is the [man] pouring the water?[80]

Asking him a question?---

[MS P WEMBLE]: Yes, I was asking him who - who was pouring the water.

MR MONOAH: On Monday, which was yesterday of this week - - -?-

[MS P WEMBLE]: --Yes.

MR MONOAH: Today is Friday?[81]---

[MS P WEMBLE]: I always text him. I don't talk by - by the phone.

HIS HONOUR: Hang on. Just - I'm just trying to take notes, so - to hear what you're saying?

On Sunday - that was Sunday the 22nd.[82]

MR MONOAH: 22nd.

HIS HONOUR: Yes.

MR MONOAH: You send him a video, which is the ... [ceremony] video?---

[MS P WEMBLE]: Same video, yes.

MR MONOAH: And you ask him:

Who is the (person or elder) pouring the water?

[MS P WEMBLE]: --Yes.

MR MONOAH: On Monday, he answered shortly at 4.41 am?---

[MS P WEMBLE]: Yes.

MR MONOAH: You said "okay" at 7.29 am. You answered back?

[MS P WEMBLE]: Yes.

MR MONOAH: Today, he call you at 7.50 am?---

[MS P WEMBLE]: Yes, I didn't answer.

MR MONOAH: Yes. But he called you?---

MS P WEMBLE: And no answer either.

MR MONOAH: Yes. Then you call back at 7.56 am?---

MS P WEMBLE: And no answer.

MR MONOAH: Six minutes later. He did not answer. Probably went back to bed?---

MS P WEMBLE: He - no, he was talking with my mum.

(emphasis added)

[235]

In re-examination the Grandmother advised she wanted to provide to the Court recordings, sent to her by the Mother, that she said showed the Mother threatening her. Notwithstanding the recordings did not arise in cross-examination, I permitted her to tender those recordings and played them in court. They are mostly in the Local language and there are three of them and they are quiet lengthy.
I interrupted each recording from time to time, to enable the interpreter to interpret the substance of the translations rather than attempt verbatim translations. After each translation, after enquiry form me, the Grandmother said she accepted the interpreters' "substance of" translation. The Mother took no issue with the translation or that she had made and sent the recordings. The court was greatly assisted by the skill and diligence of Mr GG (the interpreter) in this task as well as interpreting the Grandmother's oral evidence.
Having listened carefully to the recordings,[83] I am satisfied that the Mother did not threaten the Grandmother as alleged including in her references to her statement that after the Grandmother's passing, the children[84] would not visit her grave. I found the recordings to be, in the circumstances, restrained. The Mother, in a tone of some anguish and grief, was complaining to the Father and the Grandmother about what they had done by depriving her of the children and imploring the Father and the Grandmother to remedy the situation.
However, the recordings were relevant for what else they demonstrated. Firstly that the Grandmother was not constrained or inhibited from pursuing her defence to the Contravention application as she saw fit. Secondly, the Grandmother's presentation of the recordings as contrary to the Mother's case and as relevant to her defence of the allegations and her demeanour while they were played to the court, given the Mother's anguished tone and the context displayed a lack of empathy for the circumstances of the Mother.
Further the Grandmother did not demonstrate in affidavit or oral evidence any empathy for the position of the children, even on the state of affairs as she alleged them to be, of living in a "third world" or "developing country" and not in the country of their citizenship and childhood, that is in Australia as she herself, notwithstanding her Local culture, chooses to live. The Grandmother did not demonstrate in affidavit or oral evidence any empathy, or understanding, of the fact that the Mother has seen or spent any time with the children since early 2022.

[236]

It became apparent during interim and directions hearings in 2024 that the parties disagreed about what the traditional culture and law of Country D provided about the provision of bridewealth[85] and the return of bridewealth or part of it upon divorce and whether the children should live with the Mother or Father upon divorce. In this circumstance, the Court requested the assistance of Dr DD ("Dr DD") to provide expert evidence about these matters. Dr DD holds many qualifications. Dr DD asserted that he had expertise[86] that would qualify him as an expert in the legislature and customary law of Country D in the region of City B. That was customary law in general, with expertise and experience in Local customary law in which City B is part of the wider Local ethnic group.
Dr DD prepared a report which was tendered in evidence as 'C4' and he was available for cross-examination. Dr DD attended the hearing electronically and was cross-examined by the solicitor advocate for the Mother, counsel for the ICL and the Grandmother.
The breadth and depth and variation from place to place of what can be loosely described as "[Local] culture and traditions" is such that Dr DD's report must be read and taken into account together with his evidence in cross-examination. From the evidence given in cross-examination of Dr DD it is apparent that the people of City B are covered by local customary law specific to that place. Further, the community is one of 64 ethnic groups in Country D and is further divided into sections and clans. It is also apparent that Local customary law and tradition varies from place to place and while broad concepts are shared throughout the Local ethnic group, there are variations in law and in practice as to different aspects of those broad concepts. Dr DD did not purport to have a detailed knowledge of every aspect of every variation of the broad Local culture from place to place and his evidence must be understood in that context.
Dr DD was asked to explain "dowry" on marriage in the City B region and his explanation in his report included the following:

[247]

MR MONOAH: Let me ask the question again. Do you agree that there is no customary court that will return all the dowry wealth without subtracting [payment]

[DR DD]: That is what I stated earlier

...

MR MONOAH: All right. In marriage, among the [Local] people, it involves many families, not just one. It involves the father, mother, uncles, both maternal and paternal. On the groom's side, contributing equal number of cows allocated to each to the girl's family. Do you agree with that?

[DR DD]: Yes, I do.

...

MR MONOAH: Let's say, for the purpose of an example, if I were the groom, and I want to marry, my maternal uncle will contribute 10 cows to the bride's maternal uncles in that number. Do you agree with that?---

[DR DD]: Yes, depends on the section of the [Local] that

...

MR MONOAH: If the marriage fails, my maternal family that contributed, say, five cows to the bride's maternal uncles will go and recover that number of cows through the maternal side of the bride. Do you agree with that?

[DR DD]: That is my understanding...

...

MR MONOAH: The bridewealth has been returned to the groom, does it also mean that he can take the children along with the bridewealth as well without paying at all?---

...

[DR DD]: And - and that is no - it has never occurred that you will take the [bride]wealth and take the children. That never happens.

...

MR MONOAH: Looking, [Dr DD], at marriage as an institution among the [Local] people, is it possible for a groom to make certain decisions alone without involving his family members, whether immediate or extended?---

[DR DD]: Well, in some cases, they can make a decision, but that decision will be brought down by the family

...

MR MONOAH: And it is very rare for anybody to take those decisions on their own without family involvement because they will be isolated and disowned, and it will be a public knowledge?---

[DR DD]: Yes...

...

MR MONOAH: And I agree, the decision is made because he's the father of the family, and he can not take things in his own hand and claim that he's acting alone. It has always to be in unison with family members?---

[DR DD]: That's my understanding.

...

MR MONOAH: Can a bride be detained to be responsible to return the bridewealth, or does that fall to the father, mother, maternal uncles, paternal uncles and elder brothers that are responsible to return it?---

[DR DD]: My understanding is that wealth is paid to the family, and in the matter of reclaiming the - the - the - the wealth back, it is reclaimed from the person who actually took it, not the - the couples, yes.

MR MONOAH: So your answer to the court is that the bride cannot be arrested to recover a bride from her?---

[DR DD]: That's my understanding, because she's not the one who had the - [retain] the wealth.

...

MR MONOAH: And the customary court [as in this case where] also decides that the children will reside with the mother until they are 18 years of age. Is it possible to then agitate holding children as a ransom for the recovery of the bridewealth when the customary court has made the decision that the children will reside with the mother? Is it [legally] possible to agitate that?

...

DR DD: ...I haven't came across any - any evidence that the children will be held ransom for the bridewealth, but I do know if the bride - if the bridewealth is not returned, that person who is responsible for the wealth will be answerable and may be arrested.

...

[252]

It was not controversial that the Grandmother is a widow and without the support of male members of her generation of family or her late husband's family of her generation. In that sense, I accept, she was an elder of, and commanded respect within her culture.
I accept Dr DD's evidence and observations and particularly with the qualifications and subtle qualifications of his evidence as provided in cross-examination. In substance, notwithstanding the primary patriarchal nature of Local culture in the area of City B, what I take from Dr DD's evidence overall is that in Local culture, the Father did not have the right in traditional or legislative law to unilaterally seize the children from the Mother notwithstanding the cultural bias towards patriarchy or the authority of men. That patriarchy is overlayed with the heavy obligation of custom and practice of extensive consultation and discussion between the families of the Mother and of the Father before any change of living arrangements is put into place and requires the consensus of both sides of the family. Further to advance a contention as to where the children would live, the Father requires the approval and agreement of his family to put any proposition at all. Dr DD's evidence as qualified in cross-examination is that unilateralism or any unilateral right of an individual is not part of the Local culture in regard to a child's residence upon divorce.
Hence, if it were a reasonable excuse for a parent, or a person supporting or assisting that parent (an aider and abettor) to act contrary to a parenting order on the basis of the prevailing culture or traditional law of the place of that act was, that is not what happened in this case. The Father has purported to act in accordance with the local culture and traditional law when he removed the children from the Mother's care and the substance of the Grandmother's case is to support that proposition. I do not accept that the Father acted in accordance with Local culture and traditional law, rather a distortion of it by attempting to add a gloss of a Father having a unilateral right to seize children following divorce notwithstanding the opposition or at least lack of consent from the meeting of the families in December 2021.
Further, the clear events of the meeting between families in December 2021, discussed later in these reasons, supports this finding. The Father sought and pressed for (and was supported by the Grandmother) the approval and authority of the families to remove the children from the Mother's care. He did not get it.
Further, the evidence of Dr DD of a very rare case of a woman having a role in such matters and her circumstances of widowhood and the clear assertiveness of the Father's personality and the clear assertiveness of the Grandmother's personality as alleged by the Mother, and as I observed in oral evidence, corroborates rather than contradicts the Mother's account of the meeting of December 2021 and the Grandmother's role in it.

[263]

When the Mother issued proceedings in 2021, fundamentally seeking orders facilitating Australian passports for the children but also seeking orders that confirmed the existing arrangements, she sought the orders for sole parental responsibility as to long-term decisions and that the children live with her.
The context to those previous proceedings is a conundrum. It is not disputed that prior to the issue of the proceedings, in 2021, the Mother had contacted the Father[91] and requested that he execute the documents necessary for her to obtain Australian passports for the children. In those proceedings,[92] the Mother sought (and had advised the Father beforehand) that she required the passport for the children because it was her intention to visit her aged and frail of health father, who lived in Country D. It is not disputed that although he had lived in Country D since soon after separation in 2014 and the children had always lived with the Mother in Australia, the Father retained solicitors and counsel and opposed the Mother's application.
In those circumstances, the Father instructed the solicitors engaged by him to oppose the Mother's application for passports for the children. He alleged that there was a flight risk. That is, that the Mother may not return the children from Country D when she visited her father with the children.
As recited earlier it is now apparent that some AUD $16,000 to $17,000 from the limited and meagre financial resources of the Father, the Grandmother and Ms P, as well as the other adult siblings of the Father, were collected and applied to that enterprise. Unsurprisingly, when the matter was listed for hearing (that is, when push came to shove about the further hearing before me) concessions were quickly made and the Final Orders were made.[93] I am satisfied that those orders as made were provided to the Father and that those orders as made were known and discussed within the Grandmother's household of herself and her daughter, Ms P.

[265]

It is not disputed that Ms P Wemble, being literate and reasonably fluent in English (she lives and works in Australia), assisted the Father by communication with him for the purpose of communicating with his lawyers in those 2021 proceedings. Further, Ms P Wemble organised and provided the payment to the lawyers. Ms P Wemble lived with the Grandmother and I am satisfied that those proceedings and the outcome, that is the Final Orders, were a matter of common knowledge and discussion as between the Grandmother, Ms P Wemble and the Father.
Not only was the Grandmother and Ms P Wemble aware of the Final Orders but either the outcome or the evidence perceived to obtain them was deeply distressing to Ms P Wemble. An elder of the Local community in Melbourne ('the Melbourne Elder') had provided a letter of support, what lawyers might call a 'character reference', to the Mother and she had annexed this letter to her affidavit in support of her 2021 application.
The Father's other sister ('Ms KK'), that is the one then to be married in Country D where she lives, after the Final Orders were made, wrote a long message[94] to the Melbourne Elder strongly complaining of his writing the character reference without considering the Father's families side of the story. This process including the outcome of the litigation was claimed to have so distressed Ms P Wemble that she required treatment for a decline in her mental health. It was undisputed that soon after the Final Orders, Ms P Wemble was treated for a decline of her mental health as an inpatient in a hospital in Melbourne. Ms P Wemble had organised, and contributed to, the payment of the substantial legal fees to resist the Mother's application.
The Mother's application that the children live with her and that she have sole responsibility for the long term decisions about the children merely confirmed the status quo in place since 2014 while the Father lived overseas. In addition she sought passports for the children so they could travel to the country of the parents cultural and ethnic origin, for an ordinary everyday visit to family: in the country where the Father lived and had lived since 2014. The Final Orders were made by consent and merely confirmed the status quo and provided for passports and included the concession to the Father of him having equal shared parental responsibility for long term decisions about the children. The evidence does not explain just what was the cause of distress, or why that distress arose, but demonstrates a feeling, whether rational or not, of antipathy to the Mother in the household of the Grandmother, and I infer the Grandmother was aware of that antipathy and shared in it. Why scarce financial resources were applied to opposing everyday orders that confirmed a years long status quo is not clear. Ms P Wemble said in oral evidence she understood that the application needed to be opposed, and hence funded from limited financial resources including hers, because of the application for sole parental responsibility for long term decisions about the children. I make no finding about what Ms P Wemble did or did not understand.
But in the circumstances the application of scarce resources and the opposition to the Mother's application and the distress the consent orders, at least, contributed, to makes no sense. But those circumstances further demonstrate long standing antipathy to the Mother and alignment of the Father's family with him. I infer, from the circumstances of Ms P Wemble and the Grandmother being the one household and the nature of their relationship, that the Grandmother was both aware of and shared in the antipathy to the Mother at that time.

[276]

...

[In] December 2021, the first respondent called a family meeting. He attended with his relatives and my relatives also gathered to listen to him at that meeting. In that meeting, the first respondent said that he wanted to be handed over the children under the [Local] customary laws. This was in [City N] in [Country D].

All the relatives on both sides responded by saying that the children were too young to be handed to him. The relatives on both sides expressed to the first respondent that the children cannot live in [Country D] because the environment was hostile for them.

The first respondent was also told that there were court orders [in early] 2019 in [Country D] stating that the children should leave with the mother until they turn 18. He was also told that there were court orders in Australia dated 16 August 2021 that the mother should live with the children.

The first respondent then made a request to telephone the second respondent at that meeting [in] December 2021 whilst we were in [City N], [Country D]. The second respondent was contacted by phone. The second respondent was then put on a phone loud-speaker. The second respondent was then briefed by all the family on both sides and told that the children cannot be removed.

The second respondent got upset and clearly stated that the children must be removed from me. 24. She stated that it was a customary practice and therefore they must be given to the first respondent to raise them. The second respondent was told that the children were too young, and the court orders now allow the children to live with the mother.

The second respondent insisted that the children must be removed from me. Soon after this and when the parties could not agree with the second respondent's opinion, the first respondent stormed out of the family meeting and walked out. He never returned inside. He never came back to the meeting.

Shortly after, the first respondent went to [City N] after he got concrete information that I was going to proceed to [City B] to visit my family and relatives.

At this meeting, we all thought the second respondent was talking somewhere in [Country D] around [City N]. I did not know that she was still in Australia. This is why I mistook in my earlier affidavit that she was in [City N], [Country D]. At the time, I thought she was in [City N] or giving instructions to her son at that [...] December 2021 meeting in [City N] instructing her son to contravene the court orders in Australia.

[279]

I accept the Mother's evidence about this event and am satisfied beyond reasonable doubt that it occurred as she alleges: that is, the extended family of both families had met in what was described as a customary or traditional meeting and the Father's desire to have the children live with him was not supported by the meeting and the Grandmother addressed the meeting in support of the Father's demand.
At this meeting of the respective families, the mother alleges, and I accept,[98] that the Father agitated for the community of the collective families of himself and the mother to hand over the children to his care, and to hand over the children to his care on a permanent basis, and to live thereafter with him in Country D. The mother alleges, and I accept, that the collective meeting of the two families did not agree with, and disputed the Father's request, and I infer, did not see that request in all the circumstances, including the Local culture,[99] as reasonable or a good idea.
The mother alleges, and I accept, that the Grandmother was called, or called, the Father during that meeting, and in the circumstances of it being apparent that those in the meeting were not in agreeance with the Father's request to have the children live with him, he had the Grandmother address that meeting and speak to that meeting and attempt to persuade those present to have the children placed with the Father.
It is important to note that at the time of that meeting, the Grandmother and Ms P Wemble remained in Australia. They had, in the previous year, booked and arranged for tickets to travel by air to Country D.
In the Mother's earlier affidavits, it is clear that she asserted, and I infer was under the impression, that at the time of that phone call, the Grandmother was in Country D. As the Grandmother's affidavit and the exhibits to it (passport, travel schemes and business records relating to flights) demonstrate, the Grandmother was in Australia, not in Country D on the day of the meeting.
After the Mother had been provided with those documents, she changed her evidence and explained the misapprehension that she said she was under. For the reasons stated later, I accept the Mother's evidence about the December meeting, and I'm satisfied of that beyond a reasonable doubt.

[304]

The children were returned to the care of the Mother on or soon after in early 2022. But the following day, or soon thereafter, the Father commenced further proceedings in the Courts of Country D relating to the return of what is sometimes described as a dowry but is more accurately described as bridewealth. Dr DD's report and evidence in cross-examination illuminates this practice.
It is undisputed that when the parents were married, in accordance with the Local custom of provision of bridewealth, that a number of cows, being a practical measure of wealth in Country D, were provided by the Father's family to the Mother's family as part of the marriage arrangements back in about 2011.
The Father's approach demonstrated by the evidence, and I am not satisfied entirely consistent with Country D or Local culture and traditional methods of dealing with such matters, was that he personally, as opposed to his family, was entitled to the return of the cows that had been provided by his family to the Mother's family back at the time of the parties' marriage, now many, many years ago.
It is unnecessary that I decide the precise particulars of Local culture relating to bridewealth, and the return of it following divorce, and the many qualifications that relate to circumstances in the meantime that would determine the number of cows to be returned or not and the variations from sub group to sub group and place to place.
But the Mother alleges that the Father's intention was to use or leverage the issue of the return of bridewealth was to pressure and manipulate the Mother's family to hand the children over to the Father.
So, on or about early 2022, that is soon after the orders early 2022, the Father commenced proceedings against the Mother's father that had the effect of having him arrested and imprisoned.
I accept the Mother's evidence that, as a result of his good standing in the community, his imprisonment was not as harsh as what might otherwise be imagined. He was imprisoned in the local police station and permitted to go about his business during the day, which included attempts to recover or deliver cows to the Father or his family because of the bridewealth dispute.
Further, I accept the Mother's evidence that the Mother's father was not kept in the cell or the jail cell but permitted overnight to sleep in the more civilised areas of the police station because of his standing in the community. But it is clear and not disputed that the Mother's father was detained in those circumstances for some considerable period. I am satisfied, and satisfied beyond reasonable doubt, that this was an attempt by the Father to coerce or manipulate or intimidate the Mother and/or her family to give the children to him and leave them in Country D.
By the time this arrest was effected the Grandmother and Ms P were in Country D and at least up to early 2022 had stayed with the Father with he had the children with him in early 2022.
I acknowledge that the 2019 orders (see Appendix 6) included reference to dowry but clearly being a reference to what Dr DD describes as 'bridewealth'. But there is no other evidence of any agitation of that issue until, very soon after the children are ordered to be returned to the Mother, the Father commenced the bridewealth proceedings and had the Mother's father arrested. I am satisfied the Father's intention to have the Mother's father arrested and detained over the bridewealth, whatever other motivations he may have had, included his intention to coerce and intimidate the Mother to hand over the children at that time. I so infer from all of the circumstances including:

[307]

There is a significant ceremony that occurred in early 2022 and for the purpose of these reasons, that ceremony will be referred to as the Religious Ceremony.[101]
The Grandmother had annexed to her affidavit,[102] a screenshot of a video that showed a ceremony involving the two boys.
The Mother asserted that this screenshot related to a ceremony whereby the Mother and her family had handed over the children to the permanent care of the Father. Implicit in that allegation of handing over was the concept that the Mother had voluntarily handed over the children to the Father, to live there permanently in Country D, and regardless of where she lived.
As the evidence unfolded over the hearing, rather than merely the screenshot, a recording (visual and with sound) of some 2 minutes and 19 seconds was able to be played to the court and exhibited in evidence.[103] It was not disputed and apparent from that recording that the children were present and the subject of the ceremony. Neither the Grandmother or the Mother are shown as being present in the recording but it is clear enough that the Father is present and likely doing the recording.
It was common ground that the Mother's father was present at this ceremony, but that a major part of the ceremony was conducted by a traditional chief from the Mother's side of the family. The Mother's father could be observed blessing, or anointing or splashing, the children's feet with water as they stood against a wall in front of a considerable crowd.
It was the Mother's case and was not disputed that this ceremony was taken in her absence and that she was not present. She asserted that she did not consent to any handing over of the children on that or any other day or in the Religious Ceremony.
The Grandmother's case, and deposed to in her affidavit, was that although she was not present, she was aware that it was in this ceremony that the Mother and her family had voluntarily handed over the children to the permanent care of the Father.
When the video was exhibited in evidence and played before the court, it was apparent that the whole of the ceremony was in the Local language. This language from the video could be readily understood by the Mother, the Mother's solicitor, the Grandmother, and the interpreter assisting her in the proceedings but not me or counsel for the ICL.
The video showed a man described as a traditional chief blessing or moving a chicken or a cock near to the children whilst chanting or praying what appeared to be a traditional ceremony. It is important to note the circumstances that the Mother's father had only recently been released from prison.
In the circumstances of the legal dispute about the return of the bridewealth and there being an ongoing demand that the children be handed over to the Father, it might be thought to have combined to coerce and control and manipulate the Mother and her father to acquiesce in the handing over of the children to the Father. Or be thought that those circumstances combined so that her will was overborne by the imprisonment of her father who she just travelled thousands of kilometres to visit.
It was not part of the Mother's case that she had acquiesced in, or by failing to object, facilitated such a coerced or intimidated handover of the children to the Father's care. No party to these proceedings alleges that is what occurred. Further, if that is what occurred then it would throw real doubt on the Mother's account of what occurred two days later. But I return to the evidence of the Religious ceremony.
It is the Mother's case and her evidence that it is customary in the Local culture, where there has been significant discord, upheaval and unhappiness that an attempt is made to soothe that upset and unhappiness and her father having recently been imprisoned, she says that her father's involvement in a ceremony would be thought to be beneficial to him, the children and the community. I infer, so that all concerned could move on. That is the Mother's explanation of her father's participation in the Religious Ceremony.
In any event, after the video was shown to the court on a subsequent day, a transcript of that ceremony as shown in the video was made available to the court. This had been interpreted by an interpreter organised by the Mother's solicitor. That document was provided to the Grandmother and, I am satisfied, she had the opportunity to have the translation interpreted to her. What purports to be an accurate transcript of what was said during that ceremony became exhibit C6, 2 July 2025. That interpretation of the ceremony was, thereafter, agreed and not disputed by the parties appearing before me.
It is important to note that the Grandmother relies on this ceremony to demonstrate what she says is the falsity of the Mother's account of what is said to have occurred two days later, as well as demonstrating that the children were voluntarily handed over to the Father's permanent care. I also put to one side for the moment the clear implausibility that the Mother, after caring for the children all of their lives would voluntarily and uncoerced, agree to hand over the children to the permanent care of the Father so that they could live in Country D whilst, I infer, she would live in Australia, or be unable to live in Australia because of the circumstance of her children living in Country D.

[310]

There is an important circumstance that bears on my determination about the nature of that ceremony. In the context of the passage recited above, it is not disputed that from when the children last came into the care of the Father, whether that was on or related to the Religious ceremony, on or about early 2022, or the alleged forceful removal of the children two days later, on or about early 2022, that thereafter, until this day, the children have remained in the care of the Father, and not the care of the Mother, and that they have not "moved freely" between the Mother's area or place of her family and the Father's area or place of his family. Rather, the opposite has occurred. Rather than move freely between those two families and environments, a member of one of those families has retained the children to the exclusion of the other parent and other family. That is the very opposite of the words of the ceremony.
The Mother's case insisted that the word in English interpreted as "entrusted" was the word "[...]" in Local. That is, it is said, to temporarily hold on trust for another as compared to a word that would mean to give or to provide permanently. The evidence discussed above, the transcript, the absence of the Mother, the then recent trouble of the arrest and the detention of the Mother's father assists me in determining that that ceremony, whatever the meaning or chronological sense of the words "entrusted" and "thon", did not provide for the children to be permanently living with the Father. From that ceremony or soon thereafter, once the children were with him, the Father acted entirely contrary to the words, "so that they can stay peacefully and move freely between" the place of the father's family and place of the Mother's family so that "[Mr Wemble], the father, and [Ms Bellenger], the mother, can be healthy together with our daughter's children".[112]
Further, the circumstance that the Mother lived in Australia, and had done so for many years was, I infer, well known. The Mother living in Australia would mean the words of the ceremony of "can be healthy together with our daughter's children" would make no sense if this was a permanent handing over of the children to live with the Father in Country D.
I want to make it clear that I do not accept that the Religious ceremony of early 2025 was where the Mother handed over the children to the Father to permanently live with him. Further, I am not satisfied that at any material time, the Grandmother misunderstood the situation and incorrectly believed that was what had occurred. Were she to have done so that might have provided or at least indicated a reasonable excuse as contemplated by section 70NAE of the Act. I am satisfied and satisfied beyond reasonable doubt that the Father and the Grandmother have put forward the ceremony to falsely represent that ceremony as a voluntary and permanent handing over.
The evidence does not describe how the children came to be in the company of both the Mother's father and the Father at the religious ceremony or where the children were situated exactly, thereafter. But I infer from the events of early 2022, as I have found them to be, that at some point after the religious ceremony and prior to the events of early 2022 that the children were in the care of the Mother.
I refer to the circumstances of the Mother caring for and raising the children, largely alone in Australia, the Father and his family's absence from their lives for most of those lives, their pending education in Australia, the relative material poverty and uncertainty of nearby conflict in Country D, the Mother's clear intention to work and live in Australia and her success in providing for and advancing the interest of herself and the children in Australia. In those circumstances, at first brush, it is implausible that the Mother would voluntarily hand over the children to the Father to live with him in Country D. I take into account the implausibility of the allegation that the children were "handed over", and handed over voluntarily, by the Mother on or about early 2022 and/or the day of the religious ceremony.
In any event, if I am wrong about the meaning of the ceremony, then the overwhelming inference to be drawn from the circumstances described above would be that;

[312]

The next event, or controversial event, is early 2022.
The Mother alleges that she, members of her family and the children were situated at or near a courthouse in City B, but not inside the courthouse, when the Father, the Grandmother, associates and supporters of the Father forcibly removed the children from her care. The Mother recites the events within her affidavit of 19 August 2024 at [11-15] as follows:
1. [In early] 2022, I was standing with my two children. I did not suspect anything at all that the children were going to be forcefully taken away from me. The children had been placed in my care [in early] 2022 by the local courts in [City B], [C State], [Country D]. We were all worried for my ailing elderly father. We had to attend to provide the emotional support.
2. The First Respondent incited several of his relatives. We were overwhelmed by their numbers in[113] court. I was standing with my two children outside the [City B] local court. The first respondent grabbed [Y] and put him on a motorbike. [Y] was crying. The first respondent rode off with [Y] on his motorbike. There were several people. I was blocked when I attempted to reach to grab [Y]. I was slapped so hard in my face by one of his accomplices. I lost my balance and fell. [X] was then grabbed there and then by the second accomplice. He was put on a motorbike, and they rode off.
3. The violence was extreme and overwhelming. I have never witnessed such organised violence my whole life and the number of people who overwhelmed us. My children were afraid and overwhelmed as well. This was some violence they have never ever seen.
4. My older brother almost intervened. My father yelled at my older brother and a few relatives at court not to retaliate. He said that if we retaliate, there may be a bloodshed, and it was not necessary.
5. The authorities also said they were going to intervene and bring back the children. To our surprise, the local authorities were bribed and allowed the first respondent to escape. He remained in hiding and on the run. The last we knew is that he now says he is in [X] heard of this village.
In determining whether I am satisfied of the Mother's account of the events of early 2022 I also take into account the document dated on its face early 2022 and discussed below.
The Mother's evidence and oral evidence described the Grandmother being present and joining in the event and urging those present to remove the children. I accept the Mother's account of those events and I am satisfied of them beyond reasonable doubt.
The Mother's oral evidence and her demeanour during that evidence was not only credible but after having been carefully observed, was compelling. Further the other circumstances, undisputed events and the apparent logic of events combine with the Mother's demeanour in oral evidence to support and command the finding of acceptance and persuasion of the Mother's account of the removal of the children in early 2022. Those circumstances include:
- The intention of the Father and the Grandmother demonstrated at the December 2021 meeting; and
- The Grandmother's knowledge of the early 2022 warrant and the resultant arrest of the Mother and placement of the children with the Father and the Grandmother's close involvement in that placement demonstrated by her staying with the Father and the children at that time, combined with the absence of any evidence of disapproval of the removal of the children from the Mother, from which I infer there was no disapproval; and
- The Grandmother's knowledge of the Father's attempt to coerce the Mother into handing over the children by the arrest and detention of her father over the bride wealth, combined with the absence of any evidence of disapproval of the removal of the children from the Mother, from which I infer there was no disapproval; and
- The absence of evidence of any empathy by the Grandmother for the Mother when the children are removed from on her on her arrest, from which I infer there was no empathy for the Mother at that time; and
- In all the circumstances of the care of the children to that point, the implausibility of the account that the children had been voluntarily handed over by the Mother; and
- The continued, albeit limited, financial support provided to the Father by the Grandmother and Ms P to this day to support the Father and the children and the inference I draw from that of the Grandmother's continued support of the Father including support of his retention of the children in Country D.

[337]

It was apparent during the hearing, as this evidence was explored during the cross-examination of counsel for the Independent Children's Lawyer, that the Mother was sitting in the court and, as to some aspects, enduring hearing the first time how sick her son had been, and I was able to observe her demeanour during that inevitably traumatic event in the courtroom.
The other matter apparent from the nature of the WhatsApp communication between the Father and Ms P Wemble (and I am satisfied of the substance, but not necessarily the detail was known to the Grandmother) was the complete absence of any expressed, or implied, sentiment of empathy for the circumstance of the Mother, of having been separated from her children for so long. Further, I was able to observe in the courtroom the lack of any apparent empathy for the Mother when the Mother learnt of the extent of severe illness of her children (and in particular X) during cross-examination involving Ms P Wemble's text messages.
The circumstance of that apparent lack of empathy for the situation of the Mother, notwithstanding the significant antipathy between the parties in the years past, is one more circumstance from which I draw support for the proposition that the Father, aided and abetted by the Grandmother, did remove the children from the Mother's care in early 2022, and thereafter held them without any communication or information to the Mother whatsoever even at a time of extreme sickness of one of the children. I am satisfied that the substance of communication between the Father, Ms P Wemble and the Grandmother was such that the Grandmother was aware of the developments of the illness of the children and the severe illness of X and chose not to inform the Mother.
That circumstance of the failure to communicate herself with the Mother, or to urge the Father to communicate with the Mother sheds light on, and informs me to the intention of the Father and the Grandmother in regard to the removal of the children in early 2022.
Without that evidence, it is difficult to understand how the events as alleged by the Mother could have actually occurred and whether, in fact, they did. But the manner in which the Father, the Grandmother, and Ms P Wemble have dealt with the Mother following those events assists me, and informs me in determining what occurred at the relevant time.

[343]

The Mother alleged in Count 2 that without reasonable excuse, the Grandmother aided and abetted the forceful removal of the children X and Y by the Father who thereafter refused the children any time with, or to live with, the Mother in breach of order 3 (the "live with" order) of the Final Orders. This was alleged to have occurred in early 2022 outside the City B local courts in Country D. I am satisfied and satisfied beyond reasonable doubt that the Father having contravened the order as alleged in Count 1 has committed the principle offence.
I am satisfied beyond reasonable that the Grandmother knew of the existence of the Final Orders and knew of the Father's intention to remove the children from the care of the Mother, contrary to the Final Orders and intended to, and did by her presence and actions in 2022, support and encourage the Father in his removal of the children at that time and his continued retention of the children since then.
I refer to and adopt and repeat my earlier observations and findings in these reasons in regard to the Grandmother's involvement in the events of the December 2021 meeting, her participation in the retention of the children after the execution of the warrant of arrest of the Mother on or about early 2022 and her involvement in the events early 2022.
I am satisfied and satisfied beyond reasonable doubt that the Grandmother knew of the Father's intention to remove the children from the Mother's care and intended to assist and encourage the Father and did so assist and encourage him, by her presence and involvement in the December 2021 meeting (over the phone) and the early 2022 removal of the children from the Mother's care. I repeat that I accept the Mother's evidence of the events of December 2021 and early 2022.
I refer to and repeat my observations about the nature of the religious ceremony do not accept the Grandmother's contention and I am not satisfied the Grandmother had a reasonable excuse for so aiding and abetting the contravention of the Final Orders. Further I am satisfied, and satisfied beyond reasonable doubt, that the Grandmother did not have a reasonable excuse for aiding and abetting the Father's contravention of the Final Orders.
In those circumstances I am satisfied and satisfied beyond reasonable doubt that the Grandmother aided and abetted the Father in his removal of the children from the Mother's care in 2022 in Country D in contravention of the Final Orders.

[344]

The Mother alleges that the Father and the Grandmother without reasonable excuse, refused the children to spend time with or live with the Mother and so contravened order 2 (Mother to make day to day decisions for the children) of the Final Orders in early 2022. There is some inelegance to the drafting of this count but the substance is clear enough, that is the events of the arrest of the Mother in early 2022 and the removal of the children from her care is alleged to be contrary to the Final Orders. This count purports to rely on [26] of the Grandmother's affidavit of 8 April 2024.
That paragraph asserts as follows:
1. Instead of coming back after her family visit to attend the court hearing, her brother [Mr LL] escaped with the boys to [City N] around [early 2022]which resulted in her being jailed and the local court imposed a condition was that she bring back the boys to [City B] for the court hearing before she could be released from custody. [Ms Bellenger] then brought the children back to [City B] and she was released from custody. She was released and a new court date was arranged, and the children remained in her care. [Ms Bellenger] missed the second court date. She was nowhere to be seen and the court ordered police to arrest her on an arrest warrant and was placed on watchlist nationwide. The police caught up with her with the children in [City N]. As a result of her evading police and missing a court date, the court decided to hand over the boys to my son [in early] 2022 pending another court date... My daughter and I arrived in [City B] [in early] 2022. This was the first time me and my daughter met the boys when they were handed over to my son by the police [in early 2022] while awaiting court date.
Those events were not in issue.
In fact the children were detained from early 2022 and released to the Mother's care in early 2022. Clearly the Mother had no role in the day to day decisions of the children during that time.
I am satisfied and satisfied on the balance of probabilities, that is I have a comfortable satisfaction within section 140 of the Evidence Act, that knowing of the Final Orders, on 3 January 2022, the Father accessed and used the processes of the Courts and police of Country D so as to obtain a warrant for the arrest of the Mother with the intent and purpose of removing the children from the Mother's care and that as a result of the application made by the Father, the children were removed from the Mother's care in early 2022 and placed in his care as he intended. This was contrary to [2] and [3] of the Final Orders and the Father knew that.
The result of this was that the Mother had no role in the Mother's day to day decisions of the children's welfare. I am satisfied of those events beyond reasonable doubt.
However, notwithstanding that, because of the involvement of the police of Country D in these events it is possible that the Father's intention to so retain the children was in some way influenced by that police involvement, so as in his mind to justify or excuse his behaviour notwithstanding that he had sought that involvement. In that circumstance, I am not satisfied that possibility has been excluded in this case and hence am not satisfied beyond reasonable doubt of all of the essential elements of that Count, including his intention, beyond reasonable doubt. In the end, I have a comfortable satisfaction that the events described above occurred and occurred as the Father intended, hence I am satisfied of those events and the Father's contravention of those orders on the balance of probabilities.
As to the Grandmother and Count 3, I refer to and adopt and repeat my observations and findings regarding Grandmother's involvement in December 2021 meeting (over the phone), her presence and involvement in the early 2022 retention of the children and the early 2022 removal of the children from the Mother's care. I am satisfied on the balance of probabilities that the Grandmother acted together with the Father in the retention of the children out of the Mother's care for the period of early 2022 and did so without reasonable excuse and in joining with the Father in refusing to allow the children to spend time with the Mother over this period.
Further I am not satisfied beyond reasonable doubt that the possibility that the Grandmother felt entitled to support the Father as she did, because of the local police involvement in the events of early 2022 has been excluded.

[346]

The applicable "old" Division 13A cast the penalties under two different regimes. Firstly, subdivision E that deals with "less serious contraventions" without reasonable excuse and that subdivision does not apply if the person who contravened the parenting order has behaved in a way that showed a serious disregard for his or her obligations under the parenting order[125] whether the person had or had not been previously dealt with for a contravention.
Secondly, subdivision F deals with "more serious contraventions" without reasonable excuse. Subdivision F applies[126] if a person contravenes a parenting order and the contravener does not prove he or she had a reasonable excuse and whether or not a sanction or adjournment has previously been imposed on the contravener the court is satisfied the contravener has behaved in a way that showed a serious disregard of his or her obligations under the parenting order. Subdivision F does not apply if the court is satisfied that it is more appropriate for the contravention to be dealt with under subdivision E for less serious contraventions without reasonable excuse.
In this case the Mother asserts that the contraventions alleged are "more serious". I am satisfied that the contravention that has been proven beyond reasonable doubt and the contravention proven on the balance of probability (against the Father only) were without reasonable excuse and are "more serious". That is she alleges that the Father, and the Grandmother aiding and abetting his actions, have acted in a way that has showed a serious disregard of their obligations under the Final Orders.
The Father's obligations are to comply with the Final Orders. That obligation did not cease merely because the children were visiting Country D with their Mother. I am satisfied beyond reasonable doubt that the Grandmother was aware of the Final Orders. Her obligations arose by operation of the Final Orders and sections 70NAD, 65M, 65N and 65P of the Act (as those provisions were then extant). The Mother's case included that the order that children "live with" her, necessarily meant they would spend time with her in the course of living with her. The Grandmother's obligations included not to remove the children from the care of the Mother or to interfere with the exercise or performance of any of the powers, duties or responsibilities that the Mother had under the orders. Her obligation was not to interfere with the children living with or spending time with the Mother. The Grandmother's obligations included not to hinder the Mother making decisions about matters of parental authority. I am satisfied and satisfied beyond reasonable doubt that the Father, and the Grandmother in aiding and abetting him, showed a serious disregard for his and her obligations under the Final Orders.
I am so satisfied, in the case of the Father and the Grandmother, because of;

Bellanger & Wemble (No 7) [2025] FedCFamC2F 1075 (16 July 2025)

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