De L v Director General, NSW Department of Community Services

DP v. Commonwealth Central Authority; JLM v. Director-General, NSW Department of Community Services (2001) 206 CLR 401; [2001] HCA 39

Gsponer v Director General, Department of Community Service (Victoria) [1988] FamCA 21; [1989] 94 FLR 164

Handbury & State Central Authority and Anor [2020] FamCAFC 5

HZ & State Central Authority (2006) FLC 93-264; [2006] FamCA 466

In re R (Children) (Reunite International Child Abduction Centre and others intervening) [2015] UKSC 35; [2016] AC 76

In the matter of C (Children) [2018] UKSC 8

LK v Director-General, Department of Community Services [2009] HCA 9; (2009) 237 CLR 582

Re C (A Minor) (Abduction) [1989] 1 FLR 403 at 410

Re C (Abduction: Grave Risk of Psychological Harm) [1999] 1 FLR (UK) 1145

Re H. (Abduction: Habitual Residence: Consent) [2000] 2 FLR 294

Re K (Abduction): Consent [1997] 2 FLR 212

State Central Authority & Handbury [2019] FamCA 668

T v JB (Abduction: grave risk of harm) [2001] 2 FLR 515

Wenceslas & Director-General, Department of Community Services [2007] FamCA 398

Zotkiewicz & Commissioner of Police (No.2) [2011] FamCAFC 147

19 - 20 June, 29 August, 8 October, 7 November 2025

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

SECRETARY, DEPARTMENT OF FAMILIES, FAIRNESS AND HOUSING

1. The Form 2 Application filed by State Central Authority on 29 January 2025 is dismissed.
2. The Registrar of the Federal Circuit and Family Court of Australia release to the respondent mother or her nominee all current passports relating to the child and the respondent.
3. All previous orders are discharged.

1. The Australian Federal Police remove the names of the respondent mother, Ms Bean born in 1986 and the child, X born in 2023 from the Watch List at all points of international arrivals and departures in Australia.

Note: The form of the order is subject to the entry in the Court's records.

Note: This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. This is an application by the State Central Authority Secretary, Department of Families, Fairness and Housing ("the State Central Authority") filed on 29 January 2025 seeking the return to Estonia of the child X born in 2023 ("[X]") pursuant to the provisions of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) ("the Regulations").
2. The respondent is the child's mother. The requesting parent, who lives in Estonia, is his father.
3. The relevant regulations are made pursuant to s 111B of the Family Law Act 1975 (Cth) ("the Act"), to make such provision as is necessary or convenient to enable the performance of the obligations of Australia under the Convention on the Civil Aspects of International Child Abduction, which is generally referred to as the Hague Convention.
4. The Convention provides a framework for the prompt return of children, where it is alleged there has been a wrongful removal/retention of a child from their country of habitual residence. Both Australia and Estonia are signatories to the Hague Convention.
5. Upon establishment of the pre-requisites to a return order, the jurisdictional facts, as prescribed by reg 16(1A) of the Regulations, there are limited circumstances or exceptions to return which may be relevant in response to an application to return the child to his country of habitual residence. Those regulatory exceptions must be read in the context of the fundamental obligation to return the child.
6. If the court is satisfied on the requisite standard of proof one or more of the regulatory exceptions to return are made out, then the court has a discretion to return the child. The matters relevant to the exercise of that discretion include some consideration of the best interests of the child: HZ & State Central Authority [2006] FamCA 466; (2006) FLC 93-264.
7. The Regulations provide as follows:

Reg 16 Obligation to make a return order

(1) If:

(a) an application for a return order for a child is made; and

(b) the application (or, if regulation 28 applies, the original application within the meaning of that regulation) is filed within one year after the child's removal or retention; and

(c) the responsible Central Authority or Article 3 applicant satisfies the court that the child's removal or retention was wrongful under subregulation (1A);

the court must, subject to subregulation (3), make the order.

(1A) For subregulation (1), a child's removal to, or retention in, Australia is wrongful if:

(a) the child was under 16; and

(b) the child habitually resided in a convention country immediately before the child's removal to, or retention in, Australia; and

(c) the person, institution or other body seeking the child's return had rights of custody in relation to the child under the law of the country in which the child habitually resided immediately before the child's removal to, or retention in, Australia; and

(d) the child's removal to, or retention in, Australia is in breach of those rights of custody; and

(e) at the time of the child's removal or retention, the person, institution or other body:

(i) was actually exercising the rights of custody (either jointly or alone); or

(ii) would have exercised those rights if the child had not been removed or retained.

(2) If:

(a) an application for a return order for a child is made; and

(b) the application is filed more than one year after the day on which the child was first removed to, or retained in, Australia; and

(c) the court is satisfied that the person opposing the return has not established that the child has settled in his or her new environment;

the court must, subject to subregulation (3), make the order.

(3) A court may refuse to make an order under subregulation (1) or (2) if a person opposing return establishes that:

(a) the person, institution or other body seeking the child's return:

(i) was not actually exercising rights of custody when the child was removed to, or first retained in, Australia and those rights would not have been exercised if the child had not been so removed or retained; or

(ii) had consented or subsequently acquiesced in the child being removed to, or retained in, Australia; or

(b) there is a grave risk that the return of the child under the Convention would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation; or

(c) each of the following applies:

(i) the child objects to being returned;

(iii) the child has attained an age, and a degree of maturity, at which it is appropriate to take account of his or her views; or

(d) the return of the child would not be permitted by the fundamental principles of Australia relating to the protection of human rights and fundamental freedoms.

Note 1: In considering whether the matter mentioned in paragraph (3)(b) is established:

(a) the court may have regard to any risk that the return of the child under the Convention would result in the child being subject to, or exposed to, family violence; and

(b) the court may have regard to the extent to which the child could be protected from any such risk if the child was returned under the Convention; and

(c) the court may have regard to the matters mentioned in paragraphs (a) and (b) of this note regardless of whether the court is satisfied that family violence has occurred, will occur or is likely to occur.

Note 2: For the definition of family violence, see section 4AB of the Act.

(4) For the purposes of subregulation (3), the court must take into account any information relating to the social background of the child that is provided by the Central Authority or other competent authority of the country in which the child habitually resided immediately before his or her removal or retention.

(5) The court is not precluded from making a return order for the child only because a matter mentioned in subregulation (3) is established by a person opposing return.

(6) If:

(a) the court is considering whether to refuse to make an order under subregulation (1) or (2) on the basis of the matter mentioned in paragraph (3)(b); and

(b) a party to the proceedings, or an independent children's lawyer who represents the interests of the child in the proceedings, raises in the proceedings any condition that could, for the purpose of reducing a risk mentioned in paragraph (3)(b), be included under paragraph 15(1)(c):

(i) in a return order for the child; or

(ii) in any other order that the court proposes to make under paragraph 15(1)(b) in relation to a return order;

the court must consider whether it would be appropriate to include the condition.

(7) In considering whether to refuse to make an order under subregulation (1) or (2) on the basis of the matter mentioned in paragraph (3)(b), the court may have regard to any other measures that would be reasonably likely to reduce the risk mentioned in paragraph (3)(b).

(8) Subregulations (6) and (7) do not limit the matters to which the court may have regard in considering whether to refuse to make an order under subregulation (1) or (2) on the basis of the matter mentioned in paragraph (3)(b).

1. The Regulations require that applications for return of children, when it is alleged 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)).
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 counsel for the mother. The mother's psychologist, Ms C was also cross examined by counsel for the State Central Authority. Ms Q, an Estonian immigration lawyer was cross examined by the mother's counsel.
3. The State Central Authority asserts the child has 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 child's retention;
   2. the child is under the age of 16;
   3. the child was habitually resident in Estonia as at the date of retention in Australia;
   4. the requesting parent, the father, has rights of custody in relation to the child, which he was exercising immediately prior to the child's retention; and
   5. the retention of the child was in breach of the father's rights of custody.
4. The mother conceded the jurisdictional facts, apart from the habitual residence of the child. She contended as at the date of the retention, the child was habitually resident in Australia.
5. Should the court find the jurisdictional facts are established, the mother opposed the application for return and relies on two regulatory exceptions to return, namely:
   1. The father subsequently acquiesced to the child being removed to Australia (reg 16(3)(a)(ii)); and
   2. there is a grave risk returning the child to Estonia would expose him to physical or psychological harm or otherwise place him in an intolerable situation (reg 16(3)(b)).
6. If the court is satisfied the mother has successfully proven one or more of the regulatory exceptions, the State Central Authority seeks the court exercise its discretion to return the children. In this instance, the mother seeks the court's discretion be exercised to permit the children to remain in Australia.

1. The requisite standard of proof, as required by s 140 of the Evidence Act 1995 (Cth), is the balance of probabilities.
2. The State Central Authority bears the onus of proof of the jurisdictional facts which establish the retention was wrongful (DP v. Commonwealth Central Authority; JLM v. Director‑General, NSW Department of Community Services (2001) 206 CLR 401).
3. The mother bears the onus of proof to establish the regulatory exceptions to return.

Evidence and documents relied upon by the parties

1. The State Central Authority relied upon the following documents:
   1. Form 2A Application filed 29 January 2025;
   2. Affidavit of Ms E filed 29 January 2025, annexing the requesting father's affidavit of 15 January 2025;
   3. Affidavit of the requesting father filed 10 June 2025;
   4. Affidavit of Ms Q, Estonian Lawyer filed 10 June 2025;
   5. Written Case Outline filed 16 June 2025; and
   6. Documents tendered by counsel during the hearing.
2. The respondent relied upon the following documents:
   1. Form 2A and affidavit of mother filed 15 April 2025;
   2. Affidavit of the mother filed 19 May 2025;
   3. Affidavit of the mother's treating psychologist, Ms C filed 5 June 2025;
   4. Affidavit of Dr F (paediatrician) filed 19 May 2025;
   5. Affidavit of Mr G (mother's relative) filed 19 May 2025;
   6. Regulation 26 Hague Report of Ms H dated 20 May 2025;
   7. Written Case Outline filed 16 June 2025; and
   8. Documents tendered by counsel during the hearing.
3. Counsel for the State Central Authority tendered documents during the trial as follows:

Exhibit MSB 49: Itinerary of return flights for 7 February 2024 return.

Note of a facetime call on 6 May 2024 between mother and father.

An email to the mother dated 2 February 2025 about police call outs in Estonia.

Email from Australian embassy Country J with reference to Australian Mental Health Support services dated 16 September 2022.

Text messages between pregnancy counsellor/midwife and mother.

Email from Ms K to mother at time surrounding birth of X.

Text messages between mother and Ms K Midwife at time surrounding birth of X.

Text messages between mother and Ms L child protection specialist.

1. Counsel for the respondent tendered documents during the trial as follows:

Hospital records of the mother at time surrounding birth of X.

Pages 17, 18 and 19 of the Respondent's Trial Bundle.

Recording referred to in Respondent's Affidavit of 17 June 2025 at Para 14 (A and B).

Text message from father to respondent at time surrounding birth of X.

Exhibit MSB10 of the Respondents Trial Affidavit: three photos of damage to the respondents cabinet.

Incident on 9 February 2022, referred to at paragraph 4 to 7 of the respondent's affidavit of 17 June 2025.

Recordings of incident of 3 August 2023, referred to in the Respondent's trial affidavit of 17 June 2025 at paragraph 10.

Exhibit MSB21: to the Respondents trial affidavit; Text messages between the father and respondent referred to in the Mother's Trial Affidavit at paragraph 99.

Exhibit MSB24: messages between father and mother in November 2022 referred to at paragraph 102 of the respondent's trial affidavit.

Exhibit MSB13: text messages between the parties on 9 July 2023.

Exhibit MSB-51: email to Australian Defence Force dated January 2024.

Exhibit MSB-52: Email from father to respondent 8 February 2024.

Exhibit MSB-53: Text Messages between father and respondent in February 2024.

Exhibit MSB63: Attempts by father to communicate with respondent between May 2024 and May 2025.

English translation of email dated 30 September 2025 from the Estonian Police and Border Guard Board revoking mother's temporary resident permit.

Exhibits in respondent's list of additional tenders:1 to 19.

1. Regulation 26 enables the court to direct a Family Consultant to report to the court on such matters that are relevant to the proceedings as the court considers to be appropriate and such a report may be received in evidence in any proceedings. In this matter, a regulation 26 Hague Report ("the Hague Report") was ordered to address:

(a) What (if any) objections the child has to returning to Estonia; and

(b) The impact on the child of separation from the respondent and his attachment to her.

1. The requesting father, Mr M was cross examined by counsel for the mother.
2. The Estonian Immigration lawyer, Ms Q, was cross-examined by counsel for the mother.
3. The respondent mother, Ms Bean, was cross-examined by counsel for the State Central Authority.
4. Ms C is the mother's treating psychologist. She prepared a report dated 29 May 2025 about her treatment of the mother. She was cross examined by counsel for the State Central Authority.
5. Dr F was not required for cross examination, and neither was Mr G and their evidence is therefore unchallenged.
6. The Hague Report was prepared by Ms H, Court Child Expert, on 20 May 2025. She was not required for cross examination. The Hague Report was considered, insightful, and logical. I accept her opinion and attach significant weight to her evidence.

1. The requesting father was born in Estonia, continues to live there and is an Estonian citizen. He is 30 years old. The mother was born in Australia and is an Australian citizen, who is 39 years old.
2. In October 2020, after the breakdown of her marriage, the mother travelled to Estonia to explore a job opportunity in Estonia. She deposes, at that time, she intended to return to Australia but was unable to do so because of COVID restrictions and thereafter decided to stay in Estonia. She was living in an apartment rented from her employers and commenced employment in November 2020 on a visa. She also acquired a temporary residence permit.
3. In July 2021, she met the father and by October 2021 their friendship developed into a romantic relationship, although they did not live together.
4. In July 2021, the mother leased her own apartment, where she remained until July 2022. From 20 July 2022 until 1 October 2022, the mother and father lived together in the father's apartment for a period of around 10 weeks. The mother moved out and leased her own apartment, where she lived until she departed for Australia on 23 December 2023.
5. In 2022, the mother discovered she was pregnant with the child. The mother contends the father's emotional state was florid and in August and September 2022 the father forwarded text messages to her expressing suicidal ideation. The threatening text messages from the father continued after she established her own apartment and continued until March 2023.
6. In 2023, the mother was admitted to hospital to be induced, and X was born.
7. The mother contends that a few days after X was born, the hospital social worker told her the father had been yelling at X to shut up and she relies on Exhibit R-1 and A-13 in support of her contention. The mother was discharged from hospital a day later.
8. From early 2023, until mid-May 2023 the father stayed with the mother in her apartment to assist with X's care. In April 2023, a child welfare worker conducted a home visit at the mother's apartment, and a further visit was made in early May 2023.[1]
9. On 15 May 2023, the parents attended a psychologist appointment with X, when the mother asserts the father became angry when questioned about the contents of maternity hospital records.[2]
10. In August 2023, the mother applied for Australian citizenship for X, which was granted on in October 2023.
11. In December 2023, the father signed a statement to provide his consent for X to travel to Australia[3] and the mother and X departed Estonia on 23 December 2023 to travel to Australia.
12. The mother and X arrived in Australia on 25 December 2023, and the father joined them between mid-January 2024 and late January 2024. The father agreed to the mother and X remaining in Australia until 6 March 2024.
13. In December 2023, the mother transferred her driver's licence from Queensland to New South Wales.
14. On 24 January 2024, the mother applied for an Australian passport for X which was issued in February 2024.
15. In July 2024, the mother resigned from her job in Estonia, in February 2024 she registered X for Medicare benefits and in February 2024 she applied for Centrelink benefits. The mother also engaged with a social worker at N Family Services in January and February 2024.
16. On 6 May 2024, after a Facetime call with the mother, the father realised the mother and child would not be returning to Estonia.
17. On 29 January 2025, the State Central Authority filed a Form 2 Application seeking X's return to Estonia.
18. The trial commenced on 19 June 2025 and after two hearing days, the trial was adjourned part heard to 8 October 2025 and again to 7 November 2025 when it concluded.

1. I now turn to consider the child's habitual residence.

1. The question of whether a person is habitually resident in a particular country is a question of fact, not an artificial legal construct, and requires an evaluation of all relevant circumstances.
2. The law in relation to habitual residence in Australia is well settled. The seminal authority is the High Court decision of LK v Director-General, Department of Community Services [2009] HCA 9; (2009) 237 CLR 582 ("LK") in which French CJ, Gummow, Hayne, Heydon and Kiefel JJ said:
   1. ... First, application of the expression "habitual residence" permits consideration of a wide variety of circumstances that bear upon where a person is said to reside and whether that residence is to be described as habitual. Secondly, the past and present intentions of the person under consideration will often bear upon the significance that is to be attached to particular circumstances like the duration of a person's connections with a particular place of residence.

...

1. ... it may be accepted that "[h]abitual residence, consistent with the purpose of its use, identifies the centre of a person's personal and family life as disclosed by the facts of the individual's activities". Accordingly, it is unlikely, although it is not necessary to exclude the possibility, that a person will be found to be habitually resident in more than one place at the one time. But even if place of habitual residence is necessarily singular, that does not entail that a person must always be so connected with one place that it is to be identified as that person's place of habitual residence. So, for example, a person may abandon a place as the place of that person's habitual residence without at once becoming habitually resident in some other place; a person may lead such a nomadic life as not to have a place of habitual residence.

...

1. When speaking of the habitual residence of a child it will usually be very important to examine where the person or persons who are caring for the child live - where those persons have their habitual residence. The younger the child, the less sensible it is to speak of the place of habitual residence of the child as distinct from the place of habitual residence of the person or persons upon whom the child is immediately dependent for care and housing. But if, as the writings about the Abduction Convention and like instruments repeatedly urge, the question of habitual residence of a child is one of fact, it is important not to elevate the observation that a child looks to others for care and housing to some principle of law like the (former) law of dependent domicile of a married woman.
2. ... examination of a person's intentions will usually be relevant to a consideration of where that person habitually resides. Sometimes, intention will be very important in answering that question. The example of a person who leaves a jurisdiction intending not to return is one such case. But unlike domicile, considerations relevant to deciding where a person is habitually resident are not necessarily confined to physical presence and intention, and intention is not to be given controlling weight.

...

1. ... 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.

2. 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.

...

1. 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.

1. 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].
2. 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 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".
3. 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 there was no requirement 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 ("Zotkiewicz").
4. 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".
5. 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.
6. The State Central Authority submits the date of retention was 6 March 2024 and the respondent contends the date was 6 May 2024. Both parties agree the mother and child's holiday to Australia was initially planned to take place between 23 December 2023 and 6 February 2024.
7. Thereafter, the mother sought the father's consent to defer their return to Estonia for an additional month, so that the mother could have medical treatment.
8. According to the father in his affidavit :

On 29 January 2023 [sic], [Ms Bean] told me that she had to defer her and [X's] return to Estonia for 1 month so that she could undergo [...] surgery in Australia. [Ms Bean] did not tell me the exact date that she intended to undergo dental surgery., but I agreed for her and [X] to stay an extra month in Australia, that is until 6 March 2024. I did not consent to [X] remaining in Australia after 6 March 2024.[4]

1. The State Central Authority contends 6 March 2024 is the date of retention, because that was the date the mother repudiated the prior agreement between the parents, that she would return to Estonia on 6 March 2024. The State Central Authority relies on the principles of repudiatory retention, as stated by the Full Court in Handbury & State Central Authority and Anor [2020] FamCAFC 5 at [47] - [48]
2. The mother relies on the father's own evidence as to the date of retention. In his affidavit the father states:

It is now apparent to me that it wasn't until 6 May 2024, after my last Facetime call with [Ms Bean], that I realised [Ms Bean] would not be returning [X] to Estonia.[5]

1. Neither counsel raised the possibility the exact date of retention may not need to be identified.
2. In In the matter of C (Children) [2018] UKSC 8 ("In the matter of C") at paragraph 51(v) Lord Hughes (with whom Lady Hale and Lord Carnwath agreed) said:

There is no occasion to revisit the decision of the House of Lords in In re H; In re S (para 28 above) that wrongful retention must be an identifiable event and cannot be regarded as a continuing process because of the need to count forward the 12-month period stipulated in article 12. That does not mean that the exact date has to be identifiable. It may be possible to say no more than that wrongful retention had clearly occurred not later than (say) the end of a particular month...It may of course be permissible for the left-behind parent to plead his case in the alternative, but that is a different thing.

1. I am of the view that the statement of Lord Hughes in In the matter of C clearly contemplates the situation where there may not be one specific date of retention and alternate dates may be proposed as the date of retention, albeit cast as a "no later than" date.
2. Further, in Central Authority & Wageman and Anor [2012] FamCAFC 176, the Full Court of the Family Court said at [95]:

In our view, the Regulations required his Honour to enquire whether at the date of hearing before him there had been a wrongful retention of the children in Australia and that the wrongful retention occurred before the application for orders was filed. If it transpired that the evidence did not support a finding of wrongful retention on the date alleged in the application, but nonetheless establishes wrongful retention prior to the hearing, the application may still be competent. Other than as to being satisfied that the application was brought within one year of the alleged wrongful retention, the focus of his Honour's consideration on whether the retention occurred on 30 March 2012 or at one minute past midnight on 31 March 2012 was, in our view, misdirected

1. In the particular facts of this case, I am cognisant the mother seeks a later date of retention, in order to support her contention the child's habitual residence, as at the date of retention, was Australia. In the particular circumstances of this case, I find that the date of retention of the child in Australia was no later than 6 May 2024.
2. The State Central Authority contends the child was habitually resident in Estonia at the relevant date and the mother contends he was habitually resident in Australia.
3. Counsel for the State Central Authority relied on the following facts and circumstances to establish the child's habitual residence was Estonia at the relevant date.
4. In August or October 2021, the parents commenced a romantic relationship, they cohabited between July 2022 and 1 October 2022 and for a period following X's birth, even though the mother deposes the father did not "permanently" move in as he maintained a separate residence.
5. The mother leased a fully furnished apartment in City O, independently of the father.
6. In 2023, X was born in City O, and he is a dual citizen of Estonia and Australia. He lived in Estonia with his mother, and for a short period, with both parents, until his arrival in Australia on 25 December 2023 for a holiday in Australia. At that time X was several months old. The father joined the family in Australia between mid-January 2024 and late January 2024.
7. Before his retention in Australia, X had medical practitioners in Estonia, including a general practitioner, two specialists and an allied health professional. He was settled in Estonia and had relationships with his extended paternal family, including his paternal grandmother, with whom he holidayed.
8. Whilst living in City O, the mother applied to three kindergartens which were along her bus route to work. The child was enrolled in a nursery in Estonia and was due to commence on 1 September 2024.
9. From early to mid-2023, the mother was on maternity leave and received financial maternity benefits from the Estonian Government.
10. Counsel for the State Central Authority submitted the child was settled in his life in Estonia and was immersed and integrated into the community to the extent possible for a child of such a young age. The child's connections to Estonia were sufficiently strong.
11. Counsel for the mother submitted the child was habitually resident in Australia as at the date of retention, which she contended was 6 May 2024. Counsel for the mother relied on the following to establish the child's practical connection to and immersion in life in Australia.
12. She submitted that prior to her departure from Estonia, the mother took a number of steps to establish her and X's connection to Australia. These included applying for citizenship for X, applying for an Australian passport for the child, registering him with Medicare and obtaining a drivers licence for herself.
13. I do not accept that the steps taken by the mother in Australia are necessarily indicative of a practical connection to Australia, in the context of a child who has an entitlement to citizenship of another country, by virtue of descent, and to which it is intended to travel. It would be desirable, practical and prudent to formalise such a child's citizenship and to obtain a passport from the other state without necessarily intending to reside in that country. Likewise, if holiday travel were proposed, registration for Medicare and the parent obtaining a driver's licence would be advantageous.
14. Additional factors relied upon by the mother to establish X's practical connection with Australia are that she arranged for X to receive vaccinations in accordance with the Australian Immunisation Register, she joined local library and playgroups with X, both moved to live with X's maternal great grandmother in Region P of New South Wales, she arranged for X to have regular paediatric reviews with Dr F, a paediatrician, and the mother engaged in treatment with a psychologist, Ms C. It was contended that all of the above factors are consistent with the conclusion that by the time of the retention, no later than 6 May 2024, the mother and X's lives were firmly established in Australia and not Estonia.
15. As to parental intention, it is clear the father's intention remains and has always been that the child be habitually resident in Estonia. From his perspective the trip to Australia was for a holiday and prior to their departure from Estonia, the mother and child had return tickets providing for their return to Estonia on 8 February 2024.
16. The circumstances of the mother's intention are more ambiguous. I accept the mother was resident in Estonia from the time of her arrival in October 2022 and thereafter was immersed in life in Estonia having secured accommodation and employment, even though she only spoke the language at a rudimentary level. The only evidence to suggest an ambiguity in intention and that she did not then consider Estonia to be her home or that she intended on remaining there for a limited time only, is the steps she took to connect the child with Australia, including citizenship, obtaining a passport and enrolling X in Medicare. All of those steps are equally consistent with anticipation of holiday travel, as observed above, as opposed to living in Australia. I also accept her original intention in December 2023 was for herself and the child to travel to Australia for a holiday, as evidenced by the return flight tickets, which provided for return to Estonia on 8 February 2024.
17. Subsequent to her arrival in Australia, the mother's intention clearly changed, although I am not able to determine with any certainty, when that precisely occurred. Clearly in her communications with the father, between late January and 8 May 2024, after he left Australia and returned to Estonia, the mother's intentions became more mercurial and uncertain. However, by 6 May 2024, according to the father, after a Facetime call with the mother, her intention to remain in Australia was apparent to him. I accept as from at least 6 May 2024 and probably as early as 6 March 2024, when the mother failed to return in accordance with the agreed extension of time for the child and her to remain in Australia, the mother's intention was to remain in Australia, although she did not communicate that to the father.
18. As to the second part of the test, namely, to determine whether the period of time spent in Estonia was sufficiently appreciable for it to be said the underlying reality of the connection between the child and Estonia was such to justify a finding he was habitually resident in Estonia. The child was resident in Estonia for several months, after his birth, which is more than the six months referred to in Zotkiewicz at [80] - [81]. His family and living circumstances are referred to above. As at 6 March 2024, the child had been in Australia for two and a half months and as at 6 May 2024, for four and a half months, both of which fall short of the period in Zotkiewicz.
19. As to the first part of the twofold test, I accept it was the intention of both parents to live in Estonia and make their life there, until the mother's arrival in Australia. Thereafter, the father's intention as to the child's habitual residence in Estonia did not deviate and I accept his consent for the child to travel to Australia was for the purposes of a holiday. The mother's intention, sometime after her arrival in Australia with the child, was somewhat ambiguous, but by, at the latest May 2024, was to live in Australia.
20. On balancing the child's connection to Estonia, I consider the child's connection to his family life and the practical circumstances of his integration in Estonia, to the extent possible for such a young child, be such that there was a sufficient degree of connection to life in Estonia. In making this consideration, I have considered his lived experiences of that country, and taking into account my findings as to parental intention, I find the child was habitually resident in Estonia as at 6 May 2024. In reaching that conclusion, I have also had regard to the length of time of the child was present in each of Estonia and Australia, including the four-and-a-half-month period in Australia.
21. For the reasons above, I find the child was habitually resident in Estonia at the relevant date and that all jurisdictional facts have therefore been satisfied and the retention of the child on no later than 6 May 2024 was wrongful.

1. I now turn to the regulatory exceptions relied upon by the mother.

Acquiescence to the child being retained in Australia (reg 16(3)(a)(ii))

1. The relevant legal principles are set out below, noting the principles of consent equally apply to acquiescence.
2. In Re H. (Abduction: Habitual Residence: Consent) [2000] 2 FLR 294, Holman J stated:

On the facts of a particular case, a court may consider that evidence of consent needs to be cogent before it can overcome the degree of improbability of consent having been given on those particular facts. But in the end there is only one question, namely has consent been established? And only one standard, namely the balance of probabilities.

1. In State Central Authority & Handbury [2019] FamCA 668 ("Handbury"), at [240] Bennett J said:

The evidence of consent or acquiescence may be by words or inferred by conduct however, the consent (and it is submitted the same applies to acquiescence) must be real and unequivocal and can only be made out by clear and cogent evidence...

1. Whether or not a wronged parent has consented to the removal or retention of a child depends upon their actual state of mind, which is a question of fact to be determined in all the circumstances of the case and where the burden of proof falls on the "abducting parent": Handbury per Bennett J at [242], adopting Lord Browne-Wilkinson in Re H (Minors) [1997] UKHL 12; [1998] AC 72 at [90].
2. In Wenceslas & Director-General, Department of Community Services [2007] FamCA 398 ("Wenceslas"), the Full Court of the Family Court at [257]-[263] reviewed the United Kingdom authorities as to whether or not consent can be inferred from conduct. At [262], the Court referred to the statements of Hale J as she then was, in Re K (Abduction): Consent [1997] 2 FLR 212. At 217-8, Her Honour said:

It is obvious that consent must be real. It must be positive and it must be unequivocal. But that is a separate issue from the nature of the evidence required to establish it. There will be circumstances in which the court can be satisfied that such consent has been given, even though it has not been given in writing. It stands to reason, however, that most people who wish to retain or remove the child would be well advised to get written consent before they do so to place the matter beyond argument. There may also be circumstances in which it can be inferred from conduct.

1. At [264] of Wenceslas, May and Thackeray JJ said as follows:

It seems to us that the views expressed by Hale J allow for the vagaries often associated with the way in which parents communicate in matters relating to the children. As presently advised...we are of the view that consent can be can inferred from conduct; however, we are also the view that the consent must be real and unequivocal and can only be made out by clear and cogent evidence.

1. The mother contends the father acquiesced to the child's retention in Australia. She primarily relies on discussions between herself and the father which occurred in January 2024 when the father was visiting Australia and subsequent text messages.
2. The mother deposes to conversations with the father during which they explored the father moving out to Australia and X having a better life in Australia. She also relies on a telephone call made by the father to the Australian Defence Force recruitment centre and an email forwarded by the centre to the father on 25 January 2024.[6]
3. Further, she deposes that during a phone conversation in February 2024, the father said to her you start preparing for our life in Australia and provided her with an email on 8 February 2024 setting out his experience in military for the purposes of providing information to the Australian Defence Force.[7]
4. The mother also relies on text messages where the mother asked the father what time should we be working toward of when you can start here? October? (sic) and the father's reply, November.[8]
5. Counsel for the mother submitted the father's attempts to explain away the text messages during cross examination should not be accepted and the court should find that he was prepared to say anything to advance his case. He initially said the text messages were from the mother, but when taken to the sequence of the messages, had to retract that comment.
6. Whilst I accept the father's evidence in this regard should be treated with caution, I do not accept the evidence relied upon by the mother is clear and cogent and demonstrates real and positive consent that is unequivocal. The evidence certainly demonstrates there were ongoing discussions between the parents at that time about the possibility of moving to Australia and possible employment options for the father, but does not prove to the requisite standard, that he acquiesced to the retention of the child in Australia.
7. For these reasons, this regulatory exception must fail.

Grave risk of physical or psychological harm or placing the child in an intolerable situation (reg 16(3)(b))

1. The mother relies on the following to establish a grave risk of harm or an intolerable situation:

(a) The history of family violence perpetrated by:

(i) The father towards the mother; and

(ii) The father towards the child.

(b) The significant impact on the child if he were to return to Estonia:

(i) Without his mother; and

(ii) With his mother

1. The relevant legal principles are set out below.
2. The leading authority in Australia pertaining to this regulatory exception is DP v. Commonwealth Central Authority; JLM v. Director-General, NSW Department of Community Services (2001) 206 CLR 401 ("DP") Gaudron, Gummow and Hayne JJ stated [39]:
   1. ... Of course it must be recalled that the onus of proof lies on the party opposing return. It will be for that party to demonstrate a grave risk of exposure to harm. Many factors may be relevant to that inquiry...

...

1. ... 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."
2. 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.
3. 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.
4. 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.
5. 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.

(c) In DP at paragraph [130], Kirby J in a dissenting judgment stated:

... Inevitably...the application of the exception provided for in reg 16(3)(b) will be rare both by virtue of the language in which that exception is expressed and so as not to undermine the achievement of the overall object of the law...It should not therefore be surprising that they (the exceptions) have only been invoked successfully in comparatively rare instances.

(d) Further at paragraph [132], Kirby J considered the language used in reg 16(3)(b) and said:

The adoption of the word "grave" to qualify "risk" plainly contemplates that in some cases, an order of return will be made although there is a real, even significant (but not "grave") risk of the kinds of harm contemplated. Similarly, the use of the word "otherwise" in reg 16(3)(b) indicates that the types of "physical or psychological harm" referred to must also be such as to place the child concerned in an "intolerable situation". Therefore, the language in question, as well as its appearance in a provision enumerating limited exceptions to the general rule, make it clear beyond argument that orders of return will be made to uphold the principal object of the law in circumstances where, were the matter simply a custody dispute (however described), in all likelihood, on the evidence provided, the child's current arrangements would not be altered. Only a circumstance where the party resisting the order can establish, in the context presented by the ordinary rule of return, that that result would expose the child to a grave risk that was "intolerable ... extreme and compelling", will invite the application of the exception.

(Citations omitted).

(e) In Re C (Abduction: Grave Risk of Psychological Harm) [1999] 1 FLR (UK) 1145 at 1154, the Court of Appeal stated that:

...There is, therefore, an established line of authority that the court should require clear and compelling evidence of the grave risk of harm or other intolerability which may be measured as substantial, not trivial, and of a severity which is much more than is inherent in the inevitable disruption, uncertainty and anxiety which follows an unwelcome return to the jurisdiction of the court of habitual residence"

1. I now turn to consider each of the risk factors identified by the mother.

1. The mother alleges that the father has consistently perpetrated family violence against her, at times in the presence of the child and also against the child.
2. The mother contends the father was volatile and frequently emotionally dysregulated. She alleges that he was:

(i) Physically violent towards her;

(ii) verbally abused her;

(iii) threatened and intimidated her;

(iv) denigrated and humiliated her

(v) stalked her;

(vi) caused damage to property;

(vii) made repeated threats of suicide, including holding a gun to his own head.[9]

1. The mother relies on specific incidents as referred to below.
2. On 9 February 2022, the mother alleges she and the father argued at his home. She contends the father loaded his gun during the argument and he damaged the mothers cabinet, door and wall as he left her apartment. She relies upon Exhibit R-9, which was a recording of the incident. Subsequent to hearing the recording the father conceded he had loaded his gun, contrary to the evidence in his affidavit.
3. The mother's counsel submitted the father's evidence about the incident was misleading because he initially denied loading a gun,[10] but after hearing the recording, he attempted to blame his lawyers for the statement in his affidavit. He failed to correct the evidence during his evidence in chief, which would have been an appropriate opportunity for him to do so. The noise at the end of the recording is consistent with the mother's evidence that the father damaged her cabinet when he left her apartment. I accept the mother's version of events because it is consistent with the recording and because of the father's concession, and I so find.
4. On 12 July 2022, the mother alleges the father threw a rifle scope at the mother which hit her. The father said "if you're going to call the police, I'm going to sue you. You're a foreigner here and you have no rights. I will always win against you no matter what. You're nothing and you can't get away from me".[11] After that exchange, the father threatened to shoot himself, took his gun and pointed it at his own head and also at the mothers. In his affidavit the father denied saying those words to the mother but subsequently admitted to doing so in cross examination and said he was sorry after the inconsistency in his evidence was pointed out by counsel for the mother. When counsel for the mother put to the father his evidence was inconsistent, he attempted to retract and step back from his admission.
5. Counsel for the mother submitted the mother's version of his challenging, threatening and intimidating conduct should be accepted because he had given inconsistent versions of the incident and the mother was not challenged about the fact the father had pointed the gun at his head and then pointed it at her head. I accept the incident occurred in accordance with the mother's version of this event.
6. On 16 November 2022, the father threatened to the mother if you proceed with the termination (of the child), I will kick you out of the apartment and you're never going to see the dog (mother's dog) again. The mother relies on Exhibit A-12. Thereafter the father became angry and intimidating at an appointment to discuss potential termination of her pregnancy and the mother contacted the Australian embassy in Country J for assistance. I accept the mother's version of events because she did not proceed to terminate the pregnancy and the father's intimidation may well have been a contributing factor and I so find.
7. In 2023, the mother contends the hospital social worker, Ms K, told her the father had been yelling at X, and had told the child to shut up. X was a few days old at the time of the incident. The mother relies upon the hospital records at Exhibit R-1 and Exhibit A-13. I accept the mother's version of events because it is consistent with the documentary records of the hospital where X was born.
8. The mother alleges the father broke the door of the cabinet at the mother's apartment in April 2023 after a fight. Cross examination did not explore this allegation; however, I am inclined to accept the mother's version of events for reasons discussed in my assessment of the credibility of each witness.
9. On 11 May 2023, the mother alleges the father, whilst staying in her apartment to assist the mother with the baby, became angry and screamed at X to shut up, when the child woke during the night. Thereafter, the father took the child for a drive in the middle of the night, against the mother's wishes. The mother fell asleep whilst the father and X were out and woke up to find the father and his colleague attempting to dismantle her front door to gain entry to her apartment. The father denied the mother's allegations and said he had called his friend to see if there were any solutions to obtain access to the mother's apartment.
10. Counsel for the mother submitted the mother's version of events should be accepted because the father's evidence was it was the usual work practice in Estonia, in such a situation. I accept that submission.
11. On 23 July 2023, an incident occurred at a hotel, during which the mother alleges the father pushed her into a desk while she was breastfeeding X and blocked her from leaving their room. The mother's brother-in-law, Mr G, swore an affidavit in the proceedings deposing to events of 23 July 2023, which verified something occurred on that day. He was not required for cross examination and his evidence is therefore unchallenged. I thus accept the mother's version of events.
12. On 3 August 2023, the father and mother was returning from Country J to City O when an argument between them occurred. The parents were arguing about whether to keep the car doors open as the mother was breastfeeding X in a car park, with the father insisting the door should be closed and the mother insisting the door should be open. According to the mother, the father closed the car door on her foot, injuring her toe and the father said to X during the incident "I'm sorry [X] that your mom is such a bitch".[12] The mother also alleges the father locked her in the car which caused her to panic. The mother relies on Exhibit R-8 which is a recording of the incident.
13. The father's evidence was that he caught the mother's toe and apologised to her,[13] although there is no apology on the recording. That evidence is inconsistent with his evidence during cross examination, when he said the mother deliberately squashed her toe. The father also conceded that he had called the mother a fucking bitch. I accept the mother's evidence about the event because it is consistent with the recording and the father's evidence was inconsistent and at times disingenuous, including his statement that he didn't know the meaning of scold.
14. According to the mother, on 4 November 2023, the father screamed at X's face, whilst X was in his cot. Subsequently, the father said to the mother "if he's gonna scream at the top of his lungs, then so am I. He's gonna find out the hard way it's not nice". The mother relies on Exhibit R-3, which is a recording between the paternal grandmother, the father and the mother after the event, as to the father's behaviour. I accept the mother's version of this event, particularly because of the recording, which corroborates her version of events.
15. Additionally, the mother contends there were multiple occasions when the father threatened to self-harm, and he did so deliberately to emotionally manipulate her. Some of these incidents are in text messages as follows:

(i) 22 August 2022 "Don't worry, I will end myself soon";

(ii) 25 August 2022 "I'm just going to hang myself somewhere, I'm feeling so dumb, so worthless, so pointless";

(iii) 7 September 2022 "I really should shoot myself";

(iv) 10 October 2022 "I would like to die and not be found;

(v) 8 January 2023 "I should terminate myself then no other people will get hurt and there will be one person less to ruin someone's life";

(vi) 23 January 2023 "I really wish to die";

(vii) 5 March 2023 "it just feels easier to end myself";

(viii) 15 March 2023 open quiet maybe I should go for ever Do you understand now why I feel suicidal from time to time because I feel no one wants me around".

1. The mothers unchallenged evidence was the effect of the father's threats on her was to cause her to feel sorry for him and scared, so she remained in the relationship.
2. Counsel for the mother submitted the father demonstrated very little insight about the impact of his behaviour on the mother and X and accepted very little responsibility about his threatening and unacceptable behaviour. Further, she submitted the father would not admit that his comment to the mother's former husband in a text message namely calling her a cunt, was disrespectful and degrading. Rather, the father was dismissive about his conduct of sending offensive text messages to a man he did not know. The text message is Exhibit R-19.4.
3. The State Central Authority relies upon the presumption that in convention matters, a co‑signatory has the capacity to adequately protect the child upon their return unless shown otherwise, as explained in Gsponer v Director General, Department of Community Service (Victoria) [1988] FamCA 21; [1989] 94 FLR 164 ("Gsponer") at [178].
4. In this case the mother submits and I accept, the father's connection with Estonian authorities, the incident of 11 May 2023 and the very real threat of the father made on 12 July 2022, that as a foreigner she had no rights and he would always win, have, from her perspective, undermined the mother's capacity to effectively rely upon and trust the efficacy of protective services in Estonia.

The significant impact on the child if he were to return to Estonia

1. The mother's position during the trial was that she would not return to Estonia with the child and contends if X were to be returned to Estonia, with or without her, the child would be exposed to a grave risk, psychological harm and an intolerable situation.
2. If X were returned to Estonia, without his mother, he would likely be placed in the care of his father, his paternal grandmother or state care. If he were placed with his father, he would be exposed to further family violence and emotional dysregulation and whatever his placement, he would be separated from his mother, who has been his primary carer all of his life. I also have concerns about the father's ability to care for the child on a daily basis, because of his employment commitments, which included military deployment for a few months.
3. The Hague report of Ms H identifies the impact on X of separation from his primary carer. At paragraph 15 of her report, Ms H identified her observations of the child with and without his mother supports the hypothesis that X identifies his mother as a person who provides him security and containment, lending support to concerns about how he would cope were he not to have access to such a figure in his life.
4. Further, Ms H opined a separation for X from his mother, would likely be challenging for him, particularly noting that X is reported to have been solely cared for by his mother for what is now over a year.[14] Ms H acknowledged the limitation of her opinion because she had not assessed the foundations of the child's relationship with his father or whether the child may have experienced trauma. Notwithstanding that limitation, she further opined that if X had no sense of his relationship to his father, which would be expected after such a prolonged absence, then, if X were to go into his father's care, there would be concerns about how he would cope with such a sudden and significant change in his life.[15]
5. Ms H was not required for cross examination by either party and I accept her evidence as unchallenged.
6. If the mother returns to Estonia with X, she asserts her mental health would be compromised to such an extent that she would herself face severe difficulties in providing properly for the child's needs because she is fearful for her own physical and emotional safety. That also would be an intolerable situation for the child.
7. The mother relies upon T v JB (Abduction: grave risk of harm) [2001] 2 FLR 515, where it was stated at 44:

It is important to remember that the risks in question are those faced by the children, not the parent. But those risks may be quite different depending upon whether they are returning to the home country where the primary carer is the left behind parent or whether they are returning to a home country where their primary carer will herself face severe difficulties in providing properly for their needs. Primary carers who have fled from abuse and maltreatment should not be expected to go back to it, if this will have a seriously detrimental effect upon the children. We are now more conscious of the effects of such treatment, not only on the immediate victims but also on the children who witness it.

1. In this regard, the mother relies upon the evidence of her psychologist, Ms C. Ms C swore an affidavit, which was filed in the proceedings. She was cross examined by counsel for the State Central Authority.
2. In her report, Ms C referred to the mother's symptoms and prognosis, which was favourable because the requisite conditions are met in Australia. Those include safety, security and predictability in the mother's living environment. Those factors are provided by her family and network in Australia and that is the reason why the mother is currently doing well. The risk to the mother's mental health and the consequential impact on her parental capacity, is a return to Estonia.
3. Ms C opined the anticipated impacts on the mother's mental health of a return to Estonia include reversal of therapeutic gains, a risk to the mothers psychological wellbeing and physical safety, exacerbation of PTSD symptoms, particularly because Estonia is an environment she associates with trauma and perceives herself to be unsafe living there, severe anxiety and panic responses, which are likely to escalate in response to perceived threats, loss of psychological and physical safety and perceptions of powerlessness and helplessness, feeling isolated and unsupported, a lack of trust in accessing services in Estonia and a fear of being re-victimised or stigmatised.[16] Ms C was not challenged about these opinions.
4. Counsel for the State Central Authority submitted the mother's psychological vulnerabilities and distress could be ameliorated by treatment in Estonia, although there was no evidence of appropriate available services. The mother's past experiences in Estonia included a refusal to treat her in English and the therapist requiring the father to interpret.
5. During cross examination, Ms C's evidence was that for psychological supports in Estonia to be effective and beneficial for the mother, she would need to trust the therapist and available service, which the mother does not have.
6. Relying on the credible evidence of Ms C, I am unable to find that if the mother returned to Estonia she could access appropriate psychological support and there would therefore be an associated risk of a significant decompensation in her psychological functioning, which in turn would impact on her parental capacity.
7. Although the mother acknowledges authority (Re C (A Minor) (Abduction) [1989] 1 FLR 403 at 410), which support 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 circumstances which they themselves have created, her counsel distinguished the facts of this case from that authority. Counsel submitted the factual matrix of this case and the evidence of the Estonian immigration lawyer, put this matter squarely in the category of authority where a primary carer is unable to return by circumstances not of her own doing. I accept that proposition because of the following evidence of the Estonian lawyer,
8. Ms Q is an Estonian lawyer with proficiency in immigration law. She swore an affidavit on 2 June 2025 about relevant Estonian immigration law. She was cross-examined by counsel for the mother.
9. Under the applicable Estonian law, an Australian citizen is entitled to enter Estonia without a visa for a stay of up to 90 days in a 180-day period. An Australian citizen who wishes to stay longer in Estonia would need to obtain a temporary residence permit based on a specific legal purpose. The mother previously held a temporary residence permit, which was revoked as of 30 September 2025, as per Exhibit R-18.
10. During cross examination by counsel for the mother, Ms Q said to qualify for a temporary residence permit the mother would need to establish both employment in Estonia and an intention to permanently settle in that country. The employment would need to be a job that either an EU or Estonian citizen could not fill. In this case the mother speaks only perfunctory Estonian and there is no evidence she would be able to find employment of the required type.
11. As to permanently settling in Estonia, the mother would have to demonstrate she had adapted well to life in Estonia, which she would not be able to do because she has no connections or network in Estonia, cannot speak the language and would not be able to satisfy the authorities she had adapted to life there, was happy or wanted to live in Estonia. The revocation of her former temporary residence permit would also be relevant to the assessment.
12. I accept from the expert evidence there is no evidence which would enable a conclusion other than the mother would not be entitled to remain for a period longer than 90 days, even if she did accompany X to Estonia and I so find.
13. It is inevitable that a child taken from or retained in one country to another without the agreement of one parent will suffer disruption, uncertainty and anxiety and that disruption, uncertainty and anxiety will recur, and may well be magnified, by having to return to the country of habitual residence. However, as articulated by Gaudron, Gummow and Hayne JJ in in DP at [45], reg 16(3)(b) is intended to refer to more than that kind of result when it speaks to grave risk to the child of exposure to physical or psychological harm or intolerable situation on return.
14. In this case it is common ground the mother has been X's primary carer and attachment figure all his life and that he has not seen his father since May 2024, when he was just over one year old. He is now two years old. Irrespective of whether the father would be a competent parent, or likely expose him once again to family violence, as I have found has historically been the case, the father would likely be a complete stranger to X.
15. The impact of separation from his mother on the child's emotional and psychological wellbeing has been articulated by the Hague report writer and is also self-evident. He would not be at a stage of cognitive or emotional development to understand any explanation why he would be separated from his mother and usual environment and placed in the primary care of his father, paternal grandmother or in state care, particularly when there are no firm proposals or arrangements in place to ensure any time between the child and his mother.
16. If a return order were made, the situation facing X upon return would indeed be bleak. Either his mother would not return, and he would be placed in the care of an adult who would be relatively now unknown to him, and in the case of the father, an adult who has directly perpetrated family violence directed to the child and to his mother in the child's presence.
17. Based on the father's past conduct and his own mental health challenges, referred to above, I have no confidence the father would have sufficient parental capacity or insight to be able to care adequately for the child or be able to refrain from once again perpetrating family violence. There was no evidence the paternal grandmother would be a suitable or indeed a willing carer for the child and the evidence about situation on return that would confront the child is deficient and entirely unsatisfactory to the extent I am able to conclude it would place the child in an intolerable situation and place him at a grave risk of possibly physical, but most certainly emotional and psychological harm.
18. In conclusion, the evidence relied upon by the mother, individually and cumulatively, enables me to make findings there is a grave risk of harm, a risk the child will be exposed to that harm (DP at [42]) and the level of any predicted risk to X either physically or psychologically, has reached a degree of seriousness that it can be categorised as grave, and to find the situation upon his return would be intolerable. There is clear and compelling evidence to that effect. The mother has satisfied me that if X were returned to Estonia the risk to him would be "intolerable ... extreme and compelling" (per Kirby J in DP at [ 132 ]), the risk of physical or 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.
19. 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.

1. At paragraph 29 of HZ & State Central Authority [2006] FamCA 466, the Full Court of this Court referred to the factors relevant to the exercise of discretion to refuse return as follows:

... In TB v JB (formerly JH) [2000] EWCA Civ 337 Laws and Arden LJJ, Hale J dissenting, upheld an appeal from a decision of Singer J and ordered the return of children aged 14, 13 and 10½ to New Zealand in circumstances where the mother had brought the children to England seeking to escape from what she said was an abusive relationship with her second husband. It was clear that the eldest child did not wish to return to New Zealand. Hale LJ accepted and applied a list of factors suggested by Waite J (as he then was) in W v W (Child Abduction: Acquiescence) [1993] 2 FLR 211 and later adopted by him in the Court of Appeal in H v H (Abduction: Acquiescence) [1996] 2 FLR 570 at 574 which were:

(a) the comparative suitability of the forum to determine the child's future in the substantive proceedings;

(b) the likely outcome (in whichever forum) of the substantive proceedings;

(c) the consequences of the acquiescence;

(d) the situation which would await the absconding parent and the child if compelled to return;

(e) the anticipated emotional effect upon the child of an immediate return (a factor which is to be treated as significant but not paramount); and

(f) the extent to which the purpose and underlying philosophy of the Hague Convention would be at risk of frustration if a return order were to be refused."

1. In this matter, if a return order were made, the forum which would determine the child's future in the substantive proceedings is Estonia. There is no evidence about whether the mother would be able to access the Estonian substantive proceedings electronically, or whether suitably qualified interpreters would be available to her. In contrast, both parents speak English and are able to electronically access proceedings in Australia. Australia is a jurisdiction where the best interests of the child and the children's welfare are paramount in proceedings.
2. There was no expert evidence about the suitability of Estonia to determine the child's future nor the likely outcome of any substantive proceedings between the parents in Estonia. 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.
3. It is not known what impact the mother's removal of the child from Estonia will have on the substantive proceedings. If the proceedings were determined in Australia, then the father is entitled to seek orders the child return to Estonia. The mother would be entitled to seek orders the child 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 to a high level of proficiency.
4. The consequence of exercising discretion in favour of the mother is that the child would remain with his mother in Australia, where they have lived in proximity to the maternal family since the removal of the child from Estonia in December 2023, until further order of the Court in substantive parenting proceedings.
5. As referred to in these reasons, the situation which would await the absconding parent and the child if a return order were made, is entirely uncertain. I have grave doubts the father has the requisite parental capacity to care for such a young and vulnerable child, nor any empathy to enable him to do so. There is also no evidence the child would in fact be placed in the care of the father, as opposed to placement by child protective services.
6. As to the situation facing the mother, if she did return to Estonia, she would not be able to remain in the country for longer than 90 days. She does not speak the language, has no housing or employment and there was no evidence she would be able to navigate or participate in the Estonianlegal system, if the father instituted parenting proceedings.
7. The very real possibility of the child's separation from his mother and removal from her primary care would have a significant and immediate detrimental impact on the emotional and psychological well-being and functioning of the child.
8. 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.
9. For the reasons set out herein, I propose to exercise my discretion not to return the child to Estonia and will make the relevant orders dismissing the application.

I certify that the preceding one hundred and fifty-eight (158) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Williams.

[4] Affidavit of the Mr M affirmed 15 January 2025, paragraph 13

[5] Affidavit of Mr M affirmed 15 January 2025, paragraph 14

[6] Affidavit of Ms Bean filed 19 May 2025, paragraph 187 and 188. Exhibit R-12.

[9] Case Outline of the Respondent filed 16 June 2025, paragraph 17

[10] Affidavit of Mr M affirmed 15 January 2025, paragraph 50.2

[11] Affidavit of Ms Bean filed 19 May 2025, paragraph 44

[12] Affidavit of Ms Bean filed 19 May 2025, paragraph 73

[13] Affidavit of Mr M affirmed on 10 June 2025, paragraph 77

[14] Hague Report dated 20 May 2025, paragraph 16

[15] Hague Report dated 20 May 2025, paragraph 16

[16] Affidavit of Ms C dated 5 June 2025, paragraph 12