Cessnock City Council v 123 259 932 Pty Ltd

[3]

Department of Communities, Child Safety and Disability Services & Martinez [2017] FamCA 1

Cessnock City Council v 123 259 932 Pty Ltd | Case summary | Zoe

[42]

The Regulations require that applications for return of children, when it is alleged that they have been wrongfully removed/retained from their habitual residence, are dealt with expeditiously and as quickly as proper consideration of each matter permits (reg 15(2)).
In De L v Director General, NSW Department of Community Services (1996) 187 CLR 640, the High Court of Australia cautioned against the need for expedition resulting in insufficient hearing of issues in dispute. Some disputes are appropriate for summary determination and others require cross-examination.
In this case, the mother was cross-examined by counsel for the State Central Authority, and the father was cross-examined by senior counsel for the mother. The Hague Report writer, Ms C was cross examined by both counsel as was the single expert witness, Mr Matthew Maiona a US immigration attorney. Counsel for the State Central authority cross examined the maternal grandparents and Ms D, the mother's treating psychologist. The mother's other witnesses were not required for cross examination.
The State Central Authority asserts the children have been wrongfully retained in Australia, in accordance with regs 16(1) and (1A), on the following basis:
1. the application was made within one year of the children's retention;
2. the children are under the age of 16;
3. the children were habitually resident in the USA as at the date of retention in Australia;
4. the requesting parent, the father, has rights of custody in relation to the children, which he was exercising immediately prior to the children's retention; and
5. the retention of the children was in breach of the father's rights of custody.
The mother accepted the first two requirements of reg 16(1) (reg 16(1)(a) and (b)) are made out but does not concede the children's habitual residence as at the date of retention was the USA or that the retention of the children was in breach of the father's rights of custody.
Reg 16(1)(c) requires the State Central Authority to establish the retention of the children was "wrongful under sub regulation (1A)" which requires all five limbs of the jurisdictional facts (reg 16(1A) ) to be satisfied.
Should the court find that the jurisdictional facts are established, the mother opposed the application for return and relied on two regulatory exceptions to return, namely:

[64]

The requesting father, Mr S was extensively cross examined by senior counsel for the mother.
The father attempted to frame his answers in a manner he thought would advance his case, but which at times were implausible and unrealistic. He attempted to minimise his conduct during cross examination about the holes in the wall and when confronted with the photographs his explanation about using the blade of his hand was unconvincing. His evidence about the income from his business, his personal finances and the employment and housing opportunities for the mother was also framed to suit his narrative and was not believable. He did however, make appropriate concessions about various conversations he had with friends and family members about the move to the USA and the length of anticipated stay. I did not get the impression he was deliberately untruthful, but rather he thought less than a candid picture of events would suffice.
The respondent mother, Ms Warham, was cross-examined by counsel for the State Central Authority. She was responsive and also attempted to frame her evidence to achieve her desired outcome. Much of her evidence was supported by contemporaneous documents, such as text messages and I accept her as generally truthful. However, I do not accept her evidence, for the reasons below, that the agreement between herself and the father to relocate to the USA with the children entitled her to unilaterally relocate the children to Australia, as she did.
Ms D, the mother's psychologist prepared a letter of support for the mother[1] and appeared electronically pursuant to a subpoena and was cross examined by counsel for the State Central Authority. She was a responsive and professional witness. She had treated the mother since July 2024 and at the time she gave evidence in July 2025, she had 17 sessions with the mother. She agreed her opinion was based on what the mother had told her, it was not her role to challenge the mother, and she had provided a letter of support to the mother which she knew would be relied upon to support the children remaining in Australia with the mother. She confirmed the mother's original plan was to return with the children to the USA on 20 August 2025, the mother did not say her mental health would have a negative impact on her capacity to meet the children's needs. She also agreed with counsel the mother had shown resilience and determination, she was resourceful and insightful and had the intellectual capacity to engage with assistance. She was not sure about the mother's capacity to engage with a psychologist in the USA and thought that might be difficult. I accept she was an honest witness.
Mrs L, the maternal grandmother swore affidavits filed on 2 July 2025 and was cross examined by counsel for the State Central Authority. The focus of the cross examination was the phone call between X and her father, which occurred in the home of the maternal grandparents and pertained to the regulatory objection initially raised, but subsequently abandoned by the mother, that the children objected to return. Her evidence in this regard is not particularly relevant, however she was not particularly forthright about matters which she thought would not advance her daughter's case. One example is her professed lack of knowledge about the circumstances surrounding the recording of the conversation by X and inability to recall precisely whether X handed her the phone at the conclusion of the recording. I view her evidence as an attempt to do everything possible to assist her daughter and not particularly objective.
Mr J, the maternal grandfather swore an affidavit filed on 30 April 2025 and was cross examined by counsel for the State Central Authority. The focus of cross examination was similar to that of his wife, the maternal grandmother. He was somewhat combative in his responses and also professed to being unable to recall certain events, such as the mother's attendance at a mediation the day of X's phone call to her father. One example is his professed lack of knowledge about the circumstances surrounding the recording of the conversation by X and inability to recall precisely whether X handed her the phone at the conclusion of the recording, when the maternal grandmother's evidence was that X had handed the phone to him. Unlike his wife, he could not recall X screaming because she had been bitten and said that she was crying because she didn't want to return to the USA. He was obviously attempting to tailor his evidence to suit his daughter's narrative, and I have concerns about whether he was frank and candid.
The mother relied on affidavits of Mr K (her brother), Ms E (maternal aunt), Ms H (family friend), Mr G (family friend) and Dr CC (mother's GP). None of the witnesses were required for cross examination and I accept their evidence as unchallenged.
The parties engaged a single expert witness, Mr Michael Maiona, a US immigration attorney to prepare a report dated 4 June 2025 (Exhibit J-1) about the mother's immigration status. He was a most impressive witness who greatly assisted the court and provided clear and forthright evidence. He was cross examined by both counsel, was highly competent and professional and I accept his evidence.
In this matter, the Hague report was ordered and prepared by Ms C on 24 April 2025. Ms C was cross-examined by both counsel. Both the Hague Report and her oral evidence were considered, insightful, and logical. She presented as a competent professional witness; I accept her opinion and attach significant weight to her evidence. Her evidence is discussed in detail throughout these reasons.

[65]

The father is aged 42 and is a dual US and Australian citizen. He was born in the USA and moved to Australia with his family when he was 13 years old.
The mother is aged 44 years and is an Australian citizen, who was born in Australia.
The parents met in Australia in 2014 and married in U State in 2016. Their daughter X was born in Australia in 2017 and in 2020, their second daughter Y was born in Australia.
In February 2020, the parents discussed the possibility of moving to the USA. In October 2020 the family commenced the immigration process to move to the USA.
During 2021, there were ongoing discussions between the parents, family and friends about the terms on which the family would move to the USA. On 21 June 2021, the father sent a Whats App message to the mother and her family with the comment "rest assured we'll be back at some stage".
In [...] October 2021, the family moved to the USA and initially stayed with the paternal grandparents in V State. In 2022 their son Z was born.
In July 2022, the parents purchase a house in Town W AA State, which the family moved into in August 2022. The maternal grandparents visited the family in August 2022 and assist with the move.
From August 2022, the maternal grandfather, Mr J commenced transferring money to the father's account to assist the financial support of the family.
In April 2023, the father opened a business in Town W whilst the family continued to experience financial stress. In August 2023 the maternal grandparents again visit the family.
In December 2023, the mother obtained some part time administration work but ceased that employment in January 2024.
On 23 January 2024, the father told the mother he was having an affair with an employee of his business.
In January 2024, the mother had major surgery which required recuperation of 6 - 8 weeks, during which she was assisted by the paternal grandmother.
In March 2024, the maternal grandparents offer to pay for the family to travel to Australia. The family continued to experience financial stress and in April 2024 the paternal grandfather transferred a further $20,000 to the father's account.
On 27 June 2024, the parents sign a child travel consent for the children to travel to Australia for a holiday with a return date of 20 August 2024.
On 8 July 2024, the family left the USA and travelled to Australia. On 16 July 2024, the father told the mother he wanted to separate, and according to the mother, he also said the children would be better off in Australia. On that day, the father also told Mr K, the mother's brother, that he was thinking of separating before the family left Australia.
On 18 July 2024, the father returned to the USA and on 19 July 2024 the mother decided to remain in Australia with the children. Thereafter the mother registered with Centrelink and provided a letter to Centrelink to the effect that she intends to live permanently in Australia with the children. She was granted benefits backdated to 17 July 2024. On 26 July 2024, she called her USA based marriage counsellor to advise she would not be returning to the USA.
On 5 August 2024, the mother advised the father she and the children would not be returning to the USA. Thereafter the mother enrolled the children in school and daycare in Australia and advised the school and daycare in the USA that the children would not be returning.
The mother and the children did not return to the USA on the scheduled flights on 20 August 2024.
In September 2024, the mother applied for Australian citizenship for Z and enrolled all three children with Medicare.
In October 2024, the father submitted a Hague application to the USA Central Authority and on 4 March 2025, Hague proceedings were filed in Australia.
The trial commenced on 17 July 2025 and on 18 July 2025 was adjourned to 16 October 2025 before concluding on 17 October 2025.

[67]

Central to the mother's challenge to the jurisdictional facts is the agreement between the mother and the father made before the move to the USA in October 2021 and alternatively, statements and promises by the father. At trial, the mother's case proceeded on the basis the agreement between the parents, which was reached in 2021 prior to their relocation to the USA was as follows:
- The family's move to the USA would not be a permanent relocation and it was a matter of "when not if" they would return to Australia;
- They would return to Australia after staying for what they expected would be at least 5 years, but no more than 10 years;
- The father promised the mother that they would only remain in the USA if they were enjoying life over there, they would check in on each other about how they liked life in the USA and they would make arrangements to move back to Australia earlier than originally planned if they were unhappy at any time; and
- The mother's agreement for them to move was based on the two of them living happily together in the USA as a married couple and family, which was something each of them had promised the other.
The mother submitted, and I accept that the period of 5 years was to enable the girls to obtain USA citizenship and the 10 year period was to ensure the family returned before it would be difficult for X to leave her life and connections in the USA. I also accept the contention that various friends and relatives of the mother witnessed statements by the father to that effect, and the father sent a text message to the mother and maternal family on 21 June 2012 which said rest assured we'll be back at some stage.
The father broadly agreed with the terms of the agreement referred to above.
There is little dispute that whilst in the USA the marriage foundered, with the father admitting to the mother in January 2024 he was having an affair with a 24-year-old employee of his business. It is also not controversial the mother's mental health declined and she had difficulty coping, although she still had primary responsibility for care of the children, which she did to an exemplary standard.
Counsel for the mother contended the agreement further entitled the mother to unilaterally decide that she could live in Australia with the children, if the couple were no longer happy living in the USA, which included if the marriage broke down. According to the mother, when the father told her on 16 July 2024 that he wanted to separate, the basis on which she had agreed to move to and stay in the USA no longer existed. If she and the children had been living in the USA at that time, she would have been entitled to return to Australia and because she and the children were already in Australia, she was entitled to refuse to return to the USA. The father did not agree the agreement included the mother's right to unilaterally decide to return to Australia with the children in the event of separation.
The father was extensively and skilfully cross examined by senior counsel about the terms of the agreement and broadly conceded the agreement was as contended by the mother, except that the agreement encompassed the mother's right to unilaterally return to Australia with the children if the marriage broke down.
Counsel for the State Central Authority submitted the agreement was predicated on what they would do as a family, that is, check in with each other and move as a family and that the agreement reached did not extend to enable unilateral decisions by either parent to relocate the children to Australia, if the parents separated.
Counsel for the State Central Authority cross examined the mother about the terms of the agreement, during which the mother agreed she and the father had not discussed what would happen if they separated, because she had not contemplated a marital separation.
The mother also agreed she and the father did not have any discussion or agreement about one of them moving back to Australia with the children, without the other parent.
It was further submitted the narrative that the mother knew and considered that she was entitled to move with the children to Australia, if she were no longer enjoying life in the USA, did not appear in her first two affidavits and was first raised in her third affidavit filed on 3 July 2025.
Nowhere in her five affidavits filed in the course of the litigation did the mother depose she had previously said to the father, based on the agreement reached in 2021, that she was entitled or had a right to remain in Australia. Consistent with the lack of that evidence is the mother's evidence during cross examination that she unsuccessfully conducted a wordsearch of WhatsApp messages between herself and the father around August 2024, attempting to find reference to the word promise. There was no evidence, that in written communications between them around July and August 2024, either parent referred to the prior agreement as entitling the mother to remain in Australia with the children, nor that the mother had previously informed her family of that asserted entitlement.
Further, Exhibit A-10, which are the notes of the mother's consultation with her nurse practitioner. During cross examination the mother said she asked the nurse practitioner for the records, then gave them to her solicitor and accepted the notes were correct and accurate. The notes demonstrate that as at 21 February 2024, the mother did not believe the father would consent to her taking the children to live in Australia. The notes record that she said, he loves them to bits and most likely won't let them go, which was also causing a lot of stress.
That comment in the notes of the nurse practitioner is entirely inconsistent with the narrative promulgated by the mother during the litigation.
I accept and prefer the submissions of counsel for the State Central Authority for the following reasons:
- It is highly unlikely the mother would not have raised the asserted extent of the agreement in her first two affidavits, had she been aware of it;
- The lack of reference to the asserted entitlement in either party's material;
- The likelihood that the mother would have discussed the asserted entitlement with her family and friends, or at least the maternal grandparents, and they would also have been aware of it; and
- The mother's comments, as recorded by her nurse practitioner, are inconsistent with a long-standing agreement, as asserted by her, because such a statement is contrary to her asserted belief the agreement entitled her to unilaterally move the children to Australia.
I find the agreement as outlined by the mother and referred to above, was in the context of what the family would do if either parent was not enjoying life in the USA and that there was never any specific discussion or promise by the father that, if the marriage broke down, the mother and the children could return to Australia. I find there was no agreement between the parents, prior to moving to the USA in October 2021, stating the mother, or indeed either parent would be entitled to unilaterally relocate the children from the USA to Australia, if they were unhappy living in the USA.
Even if the agreement was as alleged by the mother, which I have found it was not, I have serious concerns about how personal promises made in the context of interpersonal and intimate relationships, as opposed to financial, business or commercial dealings, could or should be construed as creating binding legal relations and obligations attracting equitable principles, such as estoppel. Senior counsel for the mother did not refer to any comparable authority where promises and decisions made in an intimate personal relationship in the context of parenting or Hague proceedings, have been held to create legal relations, or have attracted equitable estoppel.
I now turn to consider the children's habitual residence.

[71]

...

... when considering where a child is habitually resident, attention cannot be confined to the intentions of the parent who in fact has the day-to-day care of the child. It will usually be necessary to consider what each parent intends for the child. When parents are living together, young children will have the same habitual residence as their parents. No less importantly, it may be accepted that the general rule is that neither parent can unilaterally change that place of habitual residence. The assent of the other parent (or a court order) would be necessary. But again, if it becomes necessary to examine the intentions of the parents, the possibility of ambiguity or uncertainty on the part of one or both of them must be acknowledged.

It follows ... that to seek to identify a set list of criteria that bear upon where a child is habitually resident, or to attempt to organise the list of possible matters that might bear upon the question according to some predetermined hierarchy of importance, would deny the simple observation that the question of habitual residence will fall for decision in a very wide range of circumstances. And examination of decided cases in the area does not require the identification of a closed set of criteria, or the attribution of predetermined weighting between them.

...

Moreover, the approach described in [Punter] accords with the general tenor of decisions in the United States of America. It may be observed of those decisions that there is seen to have been a division between the Circuit Courts of Appeals about the relevance of the parents' subjective intentions for the child or children concerned. When it is also observed, however, that the resolution of the competing approaches has been to invite attention to whether presence at a place has a "degree of settled purpose from the child's perspective" (emphasis added), the difference in expression of the relevant considerations may not be great. At all events, a thread common to the leading decisions in the United States remains the need to look at all of the circumstances of the case. And it is that approach, as described in Punter, which should be followed.

[72]

There is a divergence in judicial authority in the United Kingdom and Australia, about whether one parent can unilaterally change the habitual residence of a child, noting the statements in LK at [34].
In In re R (Children) (Reunite International Child Abduction Centre and others intervening) [2015] UKSC 35; [2016] AC 76 ("In re R"), the Supreme Court in the United Kingdom, made clear that there was no "rule" that one parent cannot unilaterally change the habitual residence of the child. The decision also confirmed that habitual residence is a "question of fact" and requires an evaluation of "all relevant circumstances".
Another divergence of approach between the Supreme Court of the United Kingdom and Australian authority, is the length of time ordinarily required to establish habitual residence. In In re R, the Supreme Court of the United Kingdom held that there was no requirement that a child should have been resident in a country for a particular period of time. That position is in contrast to the Australian position, namely, in order to find someone is habitually resident in a place they must generally have lived there for an appreciable period (Zotkiewicz & Commissioner of Police (No.2) [2011] FamCAFC 147; (2011) FLC 93-472 ("Zotkiewicz")).
In Zotkiewicz at [82]-[83], the Full Court of the Family Court stated the task of a judge was twofold:
1. In our view, the observations made by Beaumont and McEleavy sit very comfortably with what the High Court has said most recently in LK. Accordingly, we consider the task of the Judge was twofold. The first was to ascertain whether the parents had a shared intention that the child would live in Poland with a sufficient degree of continuity that their purpose could properly be described as settled. The second was to determine whether the period of time spent in Poland was sufficiently appreciable for it to be said that the underlying reality of the connection between the child and Poland was such as to justify a finding he was habitually resident in that country.
2. In approaching this task, the Judge was obliged to construe the Regulations having regard to the principles and objects of the Convention, recognising "that the appropriate forum for resolving disputes relating to a child's care, welfare and development is ordinarily the child's country of habitual residence".
The relevant date to determine the child's habitual residence is immediately before the child's removal to or retention in Australia (reg 16(1A) (b)), which in this case is a source of disagreement between the parties.
The State Central Authority submits that the date of retention was 19 July 2024, when the mother unilaterally decided she would no longer abide by the terms of travel agreed upon by the parties, that is, they would travel to Australia for a holiday between 8 July 2024 and 20 August 2024. Counsel relied upon the doctrine of repudiatory retention as articulated by the Full Court in Handbury & State Central Authority and Anor [2020] FamCAFC 5; (2020) FLC 93-937 ("Handbury") at [25]:

[74]

Senior counsel for the mother submitted "retention" is the point at which a child is retained in a relevant country contrary to the wishes of the requesting parent (Department of Family and Community Services & Gurner [2017] FamCA 232 at [138] and LK at [10]. On the facts of this case, the court should find the relevant time of retention was when the children failed to return as originally planned on 20 August 2024. After that time, the children remained in Australia contrary to the wishes of the father, who, between 5 and 12 August 2024, advised the mother he did not agree to the children remaining in Australia. Alternatively, the court should find the date of retention of the children was between 5 and 12 August 2024. Senior counsel's submissions were made in the rubric of the argument the court should recognise the father's actions in stating his wishes, were inconsistent with the agreed basis on which the family had moved to the USA.
Senior counsel further submitted the concept of repudiatory retention did not apply literally to the present case, because to do so would ignore the totality of the arrangements between the parents. The temporary trip to Australia was not the only agreed parenting arrangement, and once regard is had to the broader arrangement of the family's temporary move to the USA, including that they would cease living in the USA and return to Australia if at any time they were unhappy, the mother's conduct affirmed the broader arrangement and it is the father's conduct that is repudiatory.
The submissions of senior counsel for the mother are predicated on a finding the original agreement between the parties included an agreement for the mother to return to Australia with the children, without the father, if the parties separated. For the reasons discussed above, I have rejected that proposition and therefore reject the submissions of senior counsel for the wife as to the date of retention, including that repudiatory retention is not relevant to the present dispute.
In this case, the mother's own evidence was that she told the father on 5 August 2024 that she did not intend to return to the USA with the children.[2] As identified in Handbury at [29], words alone may suffice to substantiate a finding of an objectively identifiable act of repudiation, without further action or step if those words are sufficiently unequivocal and that such words would include statements such as "I'm not going to return".
Applying the principle in Handbury, I therefore find the relevant date of retention was 5 August 2024, the date on which the mother unilaterally communicated to the father she and the children would not return to the USA.
The State Central Authority contends the children were habitually resident in the USA at the relevant date and the mother contends they were habitually resident in Australia.
The mother also submits the habitual residence of the children, and the mother became Australia on, or very shortly after, 19 July 2024 and certainly before the date of retention, pursuant to an agreement between her and the father (and alternatively, statements and promises by the father) that was the basis upon which they moved to the USA.[3]
The mother's counsel relies upon the statements in LK at [44] as to the importance of examining the intentions of the persons who are caring for the children, and in this context the mother's intention, as at 19 July 2024, as evidenced by the signed declaration of 23 July 2024, is more than sufficient, as well as the steps she took to implement that decision, to establish a change of habitual residence to Australia.
As to the statement in LK at [34] , it is accepted that the general rule is that neither parent can unilaterally change that place of habitual residence, and _the assent of the other parent (or Court order) would be necessar_y, senior counsel for the mother submitted the assent of the father is established by the broader agreement between them that : (i) the children's habitual residence was only conditionally to be the USA, and was conditional upon the parents remaining happily married and enjoying life in the USA; and (ii) neither parent could prevent the other from returning to live in Australia with the children if they were not happy or enjoying life as a married couple in the USA. The agreement should be construed so the father assented to the change of habitual residence for the purposes of the convention and the Regulations.[4]
Further, the father is prevented by this agreement or alternatively estopped from denying the change in habitual residence. If the court determines the father did not so assent, then senior counsel for the mother submitted the father should be estopped from purporting to deny or withdraw assent or from contesting the mother's ability to change the children's habitual residence, as she did.
Counsel for the State Central Authority submitted, and I accept, there was no dispute that when the family left the USA was on 8 July 2024, the joint settled purpose (intention) of the parents was to travel to Australia for a holiday and the three children and their mother would return to the USA on 20 August 2024, via the return flights which had been booked prior to the family's departure to Australia. During cross examination the mother confirmed she had intended to return to the USA with the children on 20 August 2024, until the father told her he wanted to separate.
As at 19 July 2024, according to the mother, and I accept, her intention was to remain permanently in Australia, and for the children's habitual residence to no longer be the USA, although she did not communicate that to the father until 5 August 2024. The father's intention at all times remained constant, that is, he intended the children to return to the USA. I do not accept that the mother's unilateral intention to change the children's habitual residence as at 19 July 2024, is determinative of the children's habitual residence, rather it is one factor to consider, bearing in mind the limitations referred to in LK at [34], absent assent by the other parent.
As to the children's then connection to Australia, the only steps the mother took to establish a practical connection with Australia between 19 July and 5 August 2024, were to register with Centrelink, call legal aid and call the marriage guidance counsellor in the USA to tell her she would not be returning. I do not consider those actions establish a sufficient connection and nexus to Australia, to even remotely regard the children's connection as sufficient to warrant a conclusion the children were habitually resident in Australia at 19 July 2024 or shortly thereafter.
After 5 August 2024, when she informed the father of her intention to remain in Australia, which I have found to be the date of retention, the mother proceeded to enrol the children in school and childcare, enrol herself to vote, advise the school and childcare in the USA the children were not returning, apply for Australian citizenship for Z and generally take steps in anticipation of her desire to remain in Australia.
Counsel for the State Central Authority submitted that the underlying reality of the children's lived experience was their continued practical connection to the USA, which is supported by the following factors.
- The two older children had lived in the USA since October 2021, almost 3 years prior to their retention in Australia;
- Z was born in the USA in January 2023, had lived there his whole life and was a US citizen;
- X and Y were enrolled in school and preschool in the USA;
- They had friends and community connections in Town W;
- The children had not returned to Australia since the family commenced to live in the USA;
- X and Y both held Green Cards;
- The mother had signed a Child Travel Consent document on 27 June 2024 acknowledging the father's consent to her travelling with the children to Australia on the basis they would return on 20 August 2024;
- The vast majority of the children's clothing and personal items remained in the family home in Town W;
- Their father lived in the USA.[5]
As to the second part of the test referred to in Zotkiewicz, there can be no doubt the period of time spent in the USA, just under three years for the girls and under two years for Z, was sufficiently appreciable for it to be said the underlying reality of the connection between the children and the USA, was such to justify a conclusion the children were habitually resident in the USA. I do not consider the time between 19 July 2024, when the mother formed the intention to remain in Australia and 5 August 2024, which I have found to be the date of retention, a period of few weeks, is of sufficient duration to establish any practical connection between the children and Australia.
As referred to above, senior counsel for the mother submitted the court should find the agreement between the parents made in 2021 prior to their departure for the USA, would enable the mother to unilaterally change the children's habitual residence as at 19 July 2024. That submission is predicated on a finding, which I have declined to make, the agreement included what would happen to the family and which country they would live in, in the event of separation and that the mother was entitled to live in Australia with the children if they were no longer living happily married in the USA.
Those submissions are inconsistent with my findings as to the terms of the agreement between the parents and I have therefore dealt with the issue of the children's habitual residence in accordance with established authority and outside the framework of that purported term of the agreement and the asserted estoppel.
After considering the issue of parental intention, the practical connection of the children to both the USA and Australia, and the duration of that connection, I conclude as at the date of retention the children were habitually resident in the USA.
The State Central Authority has discharged its onus for this jurisdictional fact.

[93]

The mother contends the father consented to the children's retention in Australia. She primarily relies on the father's asserted agreement that the basis on which he and the mother moved to the USA was that she was entitled to return with the children if she was not living in the USA happily married to the father, and the father's attempts to force the return of the children was contrary to that agreement.
Further, it was submitted the father's consent was part of the agreement and could not be unilaterally withdrawn, but only via agreement with the mother and further, his consent could not be unilaterally withdrawn after it has been acted upon, in this case by the mother moving to the USA with the children.
Senior counsel submitted if the court holds the father was at liberty to withdraw his consent, and he purported to do so prior to the date of retention, the court should find he was estopped from withdrawing his consent at any time after the family left Australia, because the consent was integral to the promises he made and agreement reached with the mother about the family return to Australia. That consent was relied upon by the mother and if the father were permitted to withdraw his consent, the mother would suffer detriment, namely she would be exposed to a return order.
Counsel for the State Central Authority correctly observed the mother did not plead the regulatory exception of consent in her Form 2A. The concept first appeared in her third affidavit[6] which was filed two weeks prior to the commencement of the trial and the narrative was developed during the course of the litigation.
I accept the submissions of counsel for the State Central Authority in preference to those of senior counsel for the mother and rely on my findings above as to the agreement between the parties, which was reached in 2021 prior to their relocation to the USA.
I find there was no real and unequivocal consent of the father made out by clear and cogent evidence, that he had consented to the mother and children remaining in Australia in the particular circumstance which arose in July and August of 2024. Because of that finding, there is no necessity to deal with the submissions as to withdrawal of consent and estoppel.
For these reasons, this regulatory exception must fail.

[98]

...

... On its face reg 16(3)(b) presents no difficult question of construction and it is not ambiguous. The burden of proof is plainly imposed on the person who opposes return. What must be established is clearly identified: that there is a grave risk that the return of the child would expose the child to certain types of harm or otherwise place the child in "an intolerable situation". That requires some prediction, based on the evidence, of what may happen if the child is returned. In a case where the person opposing return raises the exception, a court cannot avoid making that prediction by repeating that it is not for the courts of the country to which a child has been removed or retained to inquire into the best interests of the child. The exception requires courts to make the kind of inquiry and prediction that will inevitably involve some consideration of the interests of the child."

Necessarily there will seldom be any certainty about the prediction. It is essential, however, to observe that certainty is not required: what is required is persuasion that there is a risk which warrants the qualitative description "grave". Leaving aside the reference to "intolerable situation", and confining attention to harm, the risk that is relevant is not limited to harm that will actually occur, it extends to a risk that the return would expose the child to harm.

Because what is to be established is a grave risk of exposure to future harm, it may well be true to say that a court will not be persuaded of that without some clear and compelling evidence. The bare assertion, by the person opposing return, of fears for the child may well not be sufficient to persuade the court that there is a real risk of exposure to harm.

These considerations, however, do not warrant a conclusion that reg 16(3)(b) is to be given a "narrow" rather than a "broad" construction. There is, in these circumstances, no evident choice to be made between a "narrow" and "broad" construction of the regulation. If that is what is meant by saying that it is to be given a "narrow construction" it must be rejected. The exception is to be given the meaning its words require.

That is not to say, however, that reg 16(3)(b) will find frequent application. It is well-nigh inevitable that a child, taken from one country to another without the agreement of one parent, will suffer disruption, uncertainty and anxiety. That disruption, uncertainty and anxiety will recur, and may well be magnified, by having to return to the country of habitual residence. Regulation 16(3)(b) and Art 13(b) of the Convention intend to refer to more than this kind of result when they speak of a grave risk to the child of exposure to physical or psychological harm on return.

[109]

In October 2021, the mother obtained an unrestricted permanent residency card, which is valid for ten years and which will expire in October 2031. According to the single expert witness, Mr Maiona, the mother's rights of permanent residency are not reliant on the marital relationship with the father and survives separation and/or divorce.
The mother now asserts those rights, as a Lawful Permanent Resident ("LPR"), have been abandoned by her and there is a strong possibility the mother has already lost those rights.
According to Mr Maiona, the test for whether a person has abandoned their LPR status is whether they have demonstrated an intent to no longer reside in the USA as lawful permanent resident after departing the USA, that is, whether there has been a wilful and intentional abandonment of their LPR status.
The mother contended her following actions, inter alia, support a conclusion she has abandoned her LPR status:
- The declaration she made and signed on 23 July 2024 when she applied for Centrelink benefits in Australia, that she and the father separated on 17 July 2024, he had returned to the USA and intended to live there as his primary residence and she had decided to remain in Australia on a permanent basis with their three children;
- Enrolling to vote in Australia as an Australian citizen;
- Obtaining a job and working part time;
- Termination of child's enrolment in a school in USA and enrolment in an Australian school.
- Claiming Centrelink benefits in Australia.
Mr Maiona's evidence was:
- it's a strong possibility the declaration would lead an immigration judge to consider it constituted a wilful and intentional abandonment of LPR in the USA;
- He agreed that if the mother were to show the declaration to a CBP (Customs and Border Patrol) official at an airport then, there is a very strong possibility that they would form the same view (as an immigration judge); and
- Enrolling to vote in Australia would be another factor.[7]
I accept Mr Maiona's evidence and find there is a strong possibility the mother has lost her LPR rights and that a CBP official would form the same view if the mother tried to re- enter the USA.
In his report, Mr Maiona referred to two possible options for the mother to determine her LPR status prior to an attempted return to the USA, instead of arriving at the airport and requesting admission from a CBP official.
First, the mother could apply for a re-entry permit by filing a Form I -131 with US Citizenship and Immigration Services ("USCIS") and paying the applicable fee. However, during cross examination Mr Maiona said that pathway was out of the question and even more so now, with what you have shown me, I wouldn't go that route".[8]
Secondly, the mother could apply to the US Consulate in Sydney via a Form DS-1117, Application to Determine Returning Resident Status and obtain a visa stamp permitting return to the USA. In order to receive approval, the mother would need to submit evidence of her status, dates of her travel outside the United States, proof of ties to the United States, intention to return and proof the protracted stay was for reasons beyond her control. During Cross examination, senior counsel for the mother took Mr Maiona to the form DS -117 (Exhibit R‑2), which stated three requirements for applicants:
1. You had the status of an alien lawfully admitted for permanent residence at the time of departure from the United States;
2. You departed from the United States with the intention of returning and you have not abandoned this intention; and
3. You are returning to the United States from a temporary visit abroad and, if the stay abroad was protracted, this was caused by reasons beyond your control and for which you are not responsible.
Senior counsel for the mother also put to Mr Maiona other requirements as specified by the form. Mr Maiona agreed with the proposition that if the mother truthfully disclosed her circumstances, including documents she had signed and relied upon with Australian authorities, there was a likelihood they would not approve.[9]
During cross examination, Mr Maiona also confirmed the mother would not be eligible for other classes of non-immigrant visas, all of which were employment based and two of which required tertiary education and employment in a specialty occupation, which did not apply to the mother. The only remaining visa option for the mother was as a tourist under the ESTA visa waiver program which allows Australians to visit the USA for up to 90 days but does not permit multiple consecutive 90-day periods. Attempts to stack multiple 90-day periods would likely lead to refusal of entry.
The third option for the mother was to arrive at the airport in the USA and effectively take her chances with CBP officials. After rigorous cross examination about various scenarios and likely questioning the mother would face from a CBP official, if she attempted to re-enter the USA with her current visa, including the requirement to produce the declaration she made to Centrelink, Mr Maiona was clear the mother should not attempt to re-enter the USA unless her immigration status was certain and determined prior to her arrival at the airport in the USA. Because of the attendant risks, which include being refused entry into the USA or placed in immigration detention the mother, would not want to risk being taken aside by a CBP officer and questioned about abandonment of her LPR status.
According to Mr Maiona, if the mother were placed in immigration detention, the usual procedure is that the person detained would remain at the airport for a couple of hours prior to being placed into the custody of Immigration and Customs enforcement (ICE). He described the process:

[110]

MR KREMER: And if Customs and Border Patrol forms that view, that a person, a lawful permanent resident may have abandoned their permanent resident status, they have a discretion whether or not to place the person into immigration detention. That's correct?

MR MAIONA: They can do that, yes.

MR KREMER: And one factor in the decision or discretion whether to put a person into immigration detention is whether that person may have committed a crime?

MR MAIONA: That certainly is one of them, yes.

MR KREMER: And so, for example, if Customs and Border Patrol form a view that they believe [Ms Warham] may have committed a crime of kidnapping by removing the children from the United States or retaining them outside the United States, then there's a potential risk they may place her into immigration detention?

MR MAIONA: The - that's a tricky question, only because it's not - unless she was charged or arrested or somehow, the process was started - I will say to you, yes, because of the fact that if they - if they form that opinion that she is doing something illegal, they could do that. But if there has nothing been - in other words, if there's no charges pressed, I'm not sure they would.

...

HER HONOUR: Just a Customs and Border Patrol official at the airport potentially has the power to refer somebody for imprisonment?

MR MAIONA: Yes. Well, his - his scenario is that if they were aware of kidnapping charges or kidnapping crime, I believe - if I'm - if I'm misspeaking, let me know. But - and - and I said, yes, if they were aware of a charge, or, or something of that effect, because they do - you know, they will run someone's criminal background or criminal history. And if they're aware of some charge like that, then, certainly, there's a possibility they could put you into detention.

HER HONOUR: Then and there from the airport?

MR MAIONA: Yes. You get - yes. That's - they put you - they will hold you there and then refer you to detention.

HER HONOUR: What do you mean about refer to detention? So somebody --- ? --- They wait for some --- They wait for somebody ---?

MR MAIONA: Yes, they remand you.

HER HONOUR: To come along and pick you up and take you off to immigration detention? How's it actually work in practicalities?

MR MAIONA: In practicality, you probably would be there for - if that occurred, you would be in the airport probably for a couple hours. Immigration and Customs Enforcement is another - so the - I don't want to get too in the weeds on you. But the - the Customs and Border Patrol that will do the admissions, they're one branch of the Department of Homeland Security. And then, Immigration and Customs Enforcement, which is another branch, they would take possession of the person who's coming - we will say - in this particular case, you will say [Ms Warham] was coming into the US. And they would take possession of that person and put them into a local jail that holds folks for immigration purposes. And then, they would be referred to the immigration judge who would make a decision on confinement - whether or not the person should be confined or released.

HER HONOUR: And how long would it take before somebody was actually brought before an immigration judge?

MR MAIONA: I'm going to give you, your Honour, probably just the best guess, because that changes sort of week to week, but I would say anywhere from seven to 10 days.

HER HONOUR: So they could remain locked up between seven and 10 days just because a border control official suspects that they may have committed some form of crime?

MR MAIONA: Well, we were on the on the premise that they there was a charge. So if again - I will say yes to that only because if you are referred to the - if you're referred from the airport to the to the judge, then you are held until such time as the court can schedule a hearing.

HER HONOUR: Okay. And what would happen to children if children were accompanying a parent?

MR MAIONA: Well, I'm going to stick with this case, because I think this one is - this is probably more appropriate. So if - because obviously, there's a lot of different statuses for children. But in this particular case, if the children are viewed as US citizens, then the children would be released to whomever relative that the - I suppose that the mother would suggest take custody of the children.

HER HONOUR: But would they be apprehended with their parent? If that were the case?

MR MAIONA: No, they don't jail - they don't jail US citizens. So the US citizens would - would be released, like I said, into the United States.

HER HONOUR: I know, but there must be a period of time when somebody is apprehended, if this were to occur?

MR MAIONA: Right.

HER HONOUR: We're talking hypothetically, of course?

MR MAIONA: Yes.

HER HONOUR: If a mother was referred by the Border Patrol, and they decide to lock her up, what happens with the children until somebody comes along?

MR MAIONA: Well, again, that's going to...

HER HONOUR: I mean, these children have a parent, but what happens to them in the intervening hours or whatever, until somebody comes to collect them?

MR MAIONA: In most scenarios, you would wait at the airport in the protection of the officers there at the airport until a person came that they could release them to. And a person that was, you know, obviously appointed by the mother to take custody of the children. You're also looking at a scenario where arriving with young children may fall under the factor that they decide not to detain. They might say, we're going to give you - you know, here's the paperwork. We want you to report to the court in two weeks, but we're not going to hold you because you're travelling with children. That's another option as well.

[116]

The mother contends neither parent has the capacity to financially support the children if a return order is made, which would place the children both at grave risk of harm and in an intolerable situation.
The mother relies on the extensive history of financial stress which she says the family endured during their time in the USA, which was partially, but not completely alleviated by the funds advanced by her parents from time to time, the inability of the father, via his business, to earn sufficient income to support the family in the future, her inability to support the family and the likelihood the former family home will be sold, either by the parties or by a mortgagee in possession. In his closing written submissions, at paragraphs 185 - 246, senior counsel for the mother refers to the persistent and long-standing inability of the family to be able to purchase sufficient food, birthday gifts for X and to provide basic necessities such as nappies for the baby. I rely on and accept those paragraphs of the submissions and the particularised examples, which I do not propose to repeat.
The father deposed in his affidavit filed 12 June 2025 that early in the marriage the family finances were tight, the mother's representations regarding the family's extremely dire financial position are exaggerated and that there was always food on the table and clothes for the children.
During cross examination the father was compelled to resile from that position. He agreed that the maternal grandfather had commenced transferring money to the family as early as August 2022 because the family did not have sufficient funds to buy food and household necessities and the mother had complained to him she had to do nappy math to ascertain if there were sufficient funds to buy nappies for the baby. He reluctantly conceded, when presented with contemporaneous documents (the mother's text messages complaining of not being able to buy food for the family), his earlier statement the family had sufficient food, was incorrect and then attempted to qualify that to say there was enough food to feed the children, prior to attempting to retract his evidence. To the contrary the mother's evidence was that on many occasions she would skip meals to ensure the children had more food to eat. I prefer and accept the evidence of the mother to the father about their financial position in the USA, because of my general observations of both witnesses and because of the contemporaneous documents which support the mother's evidence, including exhibits R-6, R-8 and R-9.
The father also conceded there were occasions they were unable to afford petrol and that petrol was a necessity, particularly because the family home was about 6 km away from the nearest shops, which was too far to walk with young children.
I find that prior to returning to Australia in July 2024, the business did not provide sufficient income to provide food and necessities for the family, even with the financial assistance of the maternal grandparents.
As to the father's future capacity to support the children if they returned to the USA, the father produced some financial documents pertaining to his business[13] and his personal financial position, although he did not produce up to date financial statements for the business or its bank account statements. The business was set up by the father and other paternal relatives in 2022 and opened in April 2023 and provides the father with his income.
Exhibit R-15 demonstrates the business made losses in 2023 and 2023 and a modest profit of $2,299 in 2024. In 2025 the business sustained a loss in the first quarter, despite the father's evidence that the business performed better in the winter months, January to March. In 2025, the financial performance of the business was worse than 2024. The financial statements for 2025 did not include payroll tax expenses for the first quarter and the father agreed in cross examination that liability, based on the payroll tax liability for previous financial years, was likely to be substantial, and if included in the financial statements, would demonstrate that the business was in a worse financial position than he had disclosed to the court.
Prior to the trial in July 2025, the father did not produce financial documents for the business for the period after 7 May 2025 and had no explanation for not producing up to date financial statements. He agreed with senior counsel for the mother the court did not have an accurate picture of the business's current financial position.
The father's evidence was the business had its own bank account. The statements for the bank accounts were not produced to the court and senior counsel submitted the court should "presume the strongest" against the father and conclude that withheld information would be materially averse to him (Cessnock City Council v 123 259 932 Pty Ltd [2024] HCA 17; (2024) 418 ALR 304 at [130]). I accept that submission and so find.
Relying on the father's own evidence produced to the court about the business's financial position, I find that the father would not earn sufficient income from the business to support the children if they returned to the USA, irrespective of whether they live with him, both parents or the mother. That finding is buttressed by the father's inability to meet the mortgage payments of the former family home, which is dealt with below.
Turning now to the arrears of mortgage payments refer able to the BB Street property, the former family home.

[117]

As at the date of the father's cross examination on 17 and 18 July 2025, the mortgage was in arrears by two payments.[14] The missed payments were for June and July 2025 as demonstrated by P Company and bank statements. The father did not make payments in March or April 2025, made two payments in May 2025 and a final payment in June 2025, which was referable to the payment due on 1 May 2025.
Exhibit R-4 is a foreclosure notice from P Company (the mortgagee) stating that the mortgage payments due 1 June 2025 and 1 July 2025 had not been paid, and together with fees and charges, the amount owing was $9,340. The foreclosure notice threatens to sell the property.
Thereafter the father suggested to the mother the house should be sold and also sought assistance from a government scheme, Federal Department of Housing and Urban Development ("HUD").
In September 2025, P Company sent the father documents to enable a second mortgage to be secured against the BB Street property. The amount of the advance is $18,925, which would enable payment of the amount of $9,340 owing as at July, together with the payments due for August and September 2025 ($3,588 for each month) and fees of around $ 2,409.
Senior counsel for the mother submitted the court should find the mortgage will likely be foreclosed or will have to be sold with no equity available for the parties, in accordance with the text sent by the father which is annexed to his affidavit. I accept that submission because it would seem nigh on impossible either party will be in a position to pay the mortgage payments. Clearly borrowing more money via a second mortgage, to pay the interest on a first mortgage, is a slippery financial slope and is unsustainable in the long term. I find the house will likely be sold either by the mortgagee or the parties, if it hasn't already occurred, there will not be any substantial equity for distribution between the parents and the property will not be available for either parent or the children to live in.
Turning now to the father's future income.

[118]

At the date of the hearing when the father was being cross examined, he paid himself $1,794 per week from the business.[15] He agreed if the wage was paid in full he would earn per annum $93,288 before tax and $73,047 after deduction of both federal and state tax. After deduction of mortgage payments of $3,588 per month, his available income would be around $29,988 per annum for all other living expense. Presumably if the BB Street property were sold, the father would have to pay rent for accommodation, which would on his own evidence be equivalent to, if not greater than the mortgage payments. I refer to rental costs in the Town W area below in my discussion of the mother's ability to support the family in the USA.
Assuming an equivalent cost of rent, the father's disposable income to support himself and the children would be around $2,499 per month or $577 per week. The father agreed that would not be sufficient income to enable him to support the children at the BB Street property, and I extrapolate, at any other suitable accommodation. He also agreed it would require two incomes at least to support a family of five at the BB Street property.
The father produced to the court personal bank statements, which he described as a most recent copy of his bank statements. The statements ended as at 13 February 2025. The father agreed during cross examination to obtain a true picture of his financial position he would need to produce current bank statements. During the trial he produced statements for the period mid‑March to mid-April 2025 and mid-April to mid-May 2025. The statement concluding in March 2025 demonstrated the father's closing balance was $364 as at 17 March 2025 and the statement concluding in April 2025 demonstrated the father had a balance of $451 as at 16 April 2025. The father had no proper explanation why he had failed to properly disclose his up-to-date financial position.
Senior counsel submitted, because of the father's failure to produce his recent bank statements, the court should conclude those documents would demonstrate a materially poorer financial position, which was consistent with the father's failure to make mortgage payments since June 2025, and the necessity to obtain a second mortgage to pay the outstanding interest on the first mortgage. I accept that submission, particularly relying on the contemporaneous documents pertaining to the arrears of the first mortgage and the necessity to obtain a second mortgage.
Relying on the above evidence, I find the father would be unable to financially support the children, including provision of proper accommodation, food, clothing and other household necessities, if a return order were made.
I now turn to the mother's potential income in the USA.

[119]

In her affidavit of 3 July 2025, the mother deposed to her capacity to earn income if she returned to the USA. Her evidence included her lack of education and formal qualifications, her previous attempts to secure employment in the Town W area where she eventually obtained part time administration work for $20 per hour. In his written submissions, senior counsel for the mother referred to the mother's search for job listings in Town W in June /July 2025 where there were only a few options with a pay rate of between $18 - $25 per hour, the expenses she would incur if employed including petrol and parking and Z's childcare and after school care for the girls.
Senior counsel for the mother submitted, based on the mother's enquiries about employment, she would likely earn between $720 and $1000 per week before tax depending on her hourly rate of pay. If tax were calculated on both potential incomes, the mother would earn $624 per week if she were paid $18 per hour and $847 per week if she earned $25 per hour.
The mother's expenses for childcare, depending on the length of the children's stay, would be between $785 and $875 per week. She would not be able to earn sufficiently to pay for daycare, even if she earned $25 per hour, let alone pay for housing, food, clothes, utilities and other essentials.
As to the cost of rentals in the Town W area, supposedly to enable the children to attend their former schools, according to the mother, there are few suitable rentals under $4,000 per month and none under $2,400 per month. The father attempted to identify a cheaper rental at $1500 per month,[16] but it was readily apparent that property was not a long-term rental prospect and was only available for winter rental between September 2025 to June 2026. In any event the property was highly unsuitable for young children.[17]
The father's proposal for return was for the mother and the children to temporarily stay in the BB Street property for three months whilst he would stay with his brother. Thereafter presumably the mother and the children would have to find rental accommodation. He did not propose any long-term financial assistance to support the children and given his financial situation, he could not possibly have honoured any commitment to did so.
The mother was cross examined about the assistance the father could provide to care for the children to alleviate the childcare costs, but the father did not advance any realistic proposals about how he would care for the children whilst working at the business, nor did it seem to feature that the mother would not have to return the children to the Town W area.
The mother gave evidence about her eligibility for welfare payments in the USA. According to her, she is ineligible because she has not lived in the USA for at least five years and worked for at least 10 years. Her evidence was consistent with Mr Maiona's evidence, specifically the statements from some welfare programmes attached to his affidavit.
The father gave evidence about a possible welfare programme available to the mother from February 2025, consisting of payments of $440 per month for each eligible child under the age of 13. However, the document annexed to the father's affidavit refers to an annual tax credit of $440, which would only apply if the mother were working.
After considering the evidence of both parents, I find that neither parent is able to adequately support the children and adequately provide basic necessities for them, if they returned to the USA. The father's proposal for the mother and the children to move into the BB Street property is probably now irrelevant and, in any event, would not have provided any sustainable long-term assistance to house the children. If returned to the USA, the children would face housing uncertainty and instability, limited capacity of either parent to be able to adequately provide for food and household necessities, uncertainty about what school they would attend, possible separation from any prior friends or community or indeed what area of the USA they would live in. As mentioned during the trial, even if a return order is made, the mother is under no compulsion to return to the Town W area or any area within any reasonable proximity to the father. I find that such a situation would be intolerable for the children.
I now turn to the effect on the children of separation from their mother.

[122]

In the report Ms C queried whether the mother is adequately prioritising her needs over those of the children[18] and observed that the children may also be adversely impacted by being separated from their extended maternal family, given the buffer these caregivers appear to provide the children.[19]
At paragraph 34, Ms C opined the children are likely to worry about their mother's wellbeing and reaction, if the court made orders contrary to her position.
During cross examination by counsel for the State Central Authority, Ms C was not confident the children would cope if they were ordered to return at the expiration of 28 days and the mother would be absent from their lives for a further 2 or 3 months, presumably whilst attempting to reinstate her LPR status. As to any mitigation strategies, Ms C had not undertaken a parenting assessment of the father to ascertain if he was highly attuned to the children and empathetic. She suggested that counselling could sometimes assist. In my view the reality of the father being able to access counselling for the children in the USA, particularly because of his parlous financial situation, would be remote.
During cross examination by senior counsel for the mother, Ms C said if the children returned without the mother, ideally the father would initially need to be present 24/7 for the children, except during school and daycare, for a period of time which would be for at least a few weeks and possibly more. After hearing the recording of X and the father Ms C thought the father was not well equipped to contain X's high level of distress and did not demonstrate that skill to the degree she would have liked. Ms C agreed that if a similar situation arose in the USA and if X's emotions were unable to be contained, it would cause her a great deal of distress and potentially would affect her ability to emotionally develop. Ms C agreed if the children were returned to the USA without their mother, it would be devastating. As far as Z is concerned, separation from his mother would be damaging to him and his emotional development and destructive developmentally.
I accept Ms C's evidence about the effect of separation of the children from their mother, which was not effectively challenged. The potential impact on the children of separation from their mother on their emotional and psychological wellbeing is also self‑evident. I find the separation form their mother would be devasting, destructive and intolerable for the children.
I now turn to the mother's mental health.

[124]

Turning now to the mother's allegations of family violence.
The mother submits the father has engaged in violent behaviour in the presence of the mother and the children. She primarily relied on incidents when the father punched holes in the wall of the bathroom and bedroom and further alleged he had often punched a wooden pillar or post in the kitchen when he was angry or talking or arguing with the mother.
The father's version of events about the holes in the bathroom wall was inconsistent with the photographs of the damage[20] and his attempt to explain the manner in which he hit the wall, i.e. with the blade of his hand as opposed to punching the wall, was unconvincing, as was his insistence that he had hit the wall on two occasions, when the photographs demonstrated three indentations in the wall.
The father admitted he had damaged the bedroom wall when the mother and all three children were present but denied punching the wall. During cross examination the father agreed he had punched the pillar a couple of times but did not agree with the mother's estimate of four or five occasions.
I accept the father behaved as alleged by the mother and the father attempted to minimise his actions and the effect on his family.
However, as submitted by counsel for the State Central Authority and I accept, there was no suggestion by the mother the father should not be around the children or involved in their lives. Despite the holes in the bathroom walls and the father's aggressive behaviour, the mother wanted the father to remain involved in the children's lives and there was no suggestion she had taken any steps to involve authorities after the incidents.
Further, Exhibit R-15 is a copy of the mother's substantive parenting application to this court, which was stayed under Article 16 of the convention. In that application the mother seeks orders the children spend unsupervised time with the father each alternate weekend and half of school holidays. As submitted by counsel for the State Central Authority and I agree, the mother, as a committed and protective parent would not have proposed such orders, if she had concerns about the father's family violence affecting the time he should spend with them. I therefore conclude the father's conduct, which was clearly sub optimal and reprehensible, does not establish the children would be at grave risk of harm from family violence, if a return order were made.
There is authority (Re C (A Minor) (Abduction) [1989] 1 FLR 403 at 410) which supports the proposition a parent who is unwilling to return with a child to the state of habitual residence, in the event a return order is made, should not be able to rely on that circumstances which they themselves have created.
However, there may be instances where the circumstances of the child's return would expose the child to a grave risk or place them in an intolerable situation, including because of the prospect of separation from their primary carer as a result of incarceration (see: State Central Authority v Papastavrou [2008] FamCA 1120; Secretary, Department of Communities and Justice & Caladine (No 2) [2022] FedCFamC1F 51).
Senior counsel for the mother distinguished the facts of this case from that authority. He effectively submitted the factual matrix of this case was not a deliberate and advantageous refusal by a primary carer to return with the child, but rather analogous to decisions where parents have been unable to return because of migration issues or the threat of incarceration. In this case, I accept and find that the mother's refusal to return to USA arises from immigration uncertainty including the real possibility that the mother may be detained and held by CBP and /or ICE and the inability of either parent to financially support the children and provide basic necessities of life for them, rather than a capricious refusal on the part of the mother. I find that the mother has established a reasonable and acceptable reason for her refusal to return to the USA and the mother's inability to return is not a factor that can be ameliorated by any action on the part of the authorities or courts of the requesting country, as contemplated by Gsponer v Director-General of Community Services, Victoria [1988] FamCA 21; (1989) FLC 92-001 ("Gsponer").
In conclusion, the evidence relied upon by the mother, individually and cumulatively, in relation to her immigration status, the financial inability of the parents to meet the basic needs of the children and the effect on the children of separation from their mother in circumstances where I have found her reasons for not returning to the USA are cogent and reasonable, enables me to make findings there is a grave risk of harm, a risk the children will be exposed to that harm (DP at [42]) and the level of any predicted risk to the children either physically or psychologically, has reached a degree of seriousness it can be categorised as grave, and to find the situation upon their return would be intolerable. There is clear and compelling evidence to that effect and the situation confronting the children upon return would be significantly more than the inevitable disruption, uncertainty and anxiety that would face returning children who had been retained in another country (DP at [45]). The mother has satisfied me that if the children were returned to the USA the risk to them would be "intolerable ... extreme and compelling" (per Kirby J in DP at [132]), the risk psychological harm is substantial or weighty as was held in Gsponer and the degree of psychological harm would be substantial to a level comparable to an intolerable situation as was held in Director General of the Department of Family and Community Services & Davis (1990) FLC 92- 182 and Gsponer. I so find.
Because I have found the mother has satisfied the Court, to the requisite standard, a regulatory exception has been established, I now turn to consider the exercise of the discretion.

[128]

In this matter, if a return order were made, the forum which would determine the children's future in the substantive proceedings is the USA. There is no evidence about whether the mother would be able to access the USA substantive proceedings electronically or whether she would be required to travel personally to the USA. If the latter were the case, the mother may well encounter difficulties entering the country if the only viable visa available to her was a 90-day tourist visa. It is not known if the court in the USA would proceed to determine the substantive proceedings in her absence. There was no evidence of the basis on which the parenting proceedings would be determined, particularly if a return order is made, and whether any adverse inference or consequences would flow to the mother because the children had been returned by court order and not voluntarily. Australia is a jurisdiction where the best interests of the child and the children's welfare are paramount in proceedings.
There was no expert evidence about the suitability of the USA to determine the child's future nor the likely outcome of any substantive proceedings between the parents in USA. However, as the mother has always been the child's primary carer, it may be orders are made to reflect historical care of the child, despite the father's apparent willingness to assume primary care of the child.
It is not known what impact the mother's removal of the children from USA will have on the substantive proceedings. If the proceedings were determined in Australia, then the father is entitled to seek orders that the children return to the USA. The mother would be entitled to seek orders the children live with her in Australia and to spend time with the father, both electronically and in person. The father would be able to participate electronically in such an application in Australia even if he were unable to travel to the country, as he participated electronically in these current proceedings and speaks English.
The consequence of exercising discretion in favour of the mother is that the children would remain with their mother in Australia, where they have lived in proximity to the maternal family since the removal of the children from the USA in July 2024, until further order of the Court in substantive parenting proceedings.
As referred to in these reasons, the situation which would await the absconding parent and the children if a return order were made, is entirely uncertain. I have grave doubts the father has the requisite parental capacity to care for the children without the mother, nor appropriate time because of his commitments to work extended hours at his business and most concerning, the financial capacity to provide for food, accommodation and other basic household necessities for the children.
As to the situation facing the mother, if she did return to the USA, it is highly probable she would not be able to remain in the country for longer than 90 days. She has no housing or employment prospects in the USA and even if she did secure employment, her income would most likely be insufficient to provide for basic needs for the children, as discussed above.
If a return order were made, there is very real possibility the children will be separated from their mother and removed from her primary care. That would have a significant and immediate detrimental impact on the emotional and psychological well-being and functioning of the children.
In terms of the extent to which the purpose and underlying philosophy of the Hague Convention would be at risk of frustration if a return order is not made, there was no evidence or indeed any submissions by either counsel. However, in this case an exception to return, as provided by the regulations, has been satisfied.
For the reasons set out herein, I propose to exercise my discretion not to return the children to the USA and will make the relevant orders dismissing the application.

At a glance

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Judgment (142 paragraphs)

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Legislation Cited (3)

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