Department of Communities and Justice & Leoni [2020] FamCA 411 (24 June 2020)

[2020] FamCA 411

FAMILY LAW - CHILD ABDUCTION - Hague Convention - where the child was wrongfully retained in Australia by the mother - repudiatory retention - habitual residence - where the mother argued that the habitual residence of the child was Australia at the relevant time - habitual residence found to be Italy at the relevant time - where Court satisfied that all jurisdictional facts were proven - where consent or acquiescence alleged - where Court determined there was no consent or acquiescence - where hearing took place during COVID-19 pandemic - child ordered to be returned to Italy.

Family Law (Child Abduction Convention) Regulations 1986 (Cth) regs 14(1)(a), 16(1), 16(1A), 16(3)(a)(ii)

Family Law Act 1975 (Cth) s 111B

Agee and Agee [2000] FamCA 1251; (2000) FLC 93-055

Comar & Comar (2020) FLC 93-958

Commonwealth Central Authority & Cotter [2016] FamCA 209

Director-General, Department of Communities (Child Safety Services) & Rolfston [2010] FamCAFC 149

De L v Director-General, NSW Dept of Community (1996) 187 CLR 640

Department of Health and Community Service v Casse (1995) FLC 92-629

Feder v Evans-Feder [1995] USCA3 892; (1995) 63 F. 3d 217

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

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

Police Commissioner of South Australia v Temple [1993] FamCA 146; (1993) FLC 92-365

Punter v Secretary for Justice [2006] NZCA 533; [2007] 1 NZLR 40

Re B (A Child) (Habitual Residence: Inherent Jurisdiction) [2016] UKSC 4

Re B (Minors) (Abduction) (No 2) [1993] 1 FLR 993

Re D (Abduction: Acquiescence) [1999] 1 FLR 36

Re F (A Minor) (Child Abduction) [1992] 1 FLR 548

Re H (Minors) [1997] UKHL 12; [1998] AC 72

Re M (Abduction) (Consent: Acquiescence) [1999] 1 FLR 171

Re P (GE) (An Infant) [1965] Ch 568

SCA & Te Mata [2016] FamCA 85

Secretary, Department of Family and Community Services & Padwa [2016] FamCAFC 57; (2016) FLC 93-701

State Central Authority & Camden [2012] FamCAFC 45; (2012) FLC 93-501

State Central Authority & Handbury [2019] FamCA 668

State Central Authority & Macnevin [2019] FamCA 961

Tarritt & Director-General, Department of Community Services [2008] FamCAFC 34

W v W (Child Abduction: Acquiescence) [1993] 2 FLR 211

Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492

Wenceslas and Director-General, Department of Community Services [2007] FamCA 398; (2007) FLC 93-321

Zenel v Haddow [1993] S.L.T. 975

Zotkiewicz & Commissioner of Police (No. 2) [2011] FamCAFC 147; (2011) FLC 93-472

(1) Orders 8 to 10 of the orders made 31 January 2020 be vacated

(2) The Application of the Applicant filed on the 23 January 2020 be granted, and the child Miss X, born ... 2014 ("the child") be returned to Italy pursuant to Regulation 16 (1) of the Family Law (Child Abduction Convention) Regulation 1986, Italy being the child's state of habitual residence.

(3) The Applicant and the Respondent, Ms Leoni born ... 1986 ("the mother"), make such arrangements as are necessary to ensure the return of the child to Italy.

(4) IT IS REQUESTED THAT the Australian Federal Police forthwith remove the names of the child, and the mother, from the Family Law Watch List otherwise known as the Airport Watch List.

(5) The Applicant provide a sealed copy of these orders to the Australian Federal Police.

(6) The passports of the Miss X, born ... 2014, and Ms Leoni born ... 1986, currently held at the Sydney Registry of the Family Court of Australia, be returned to the Respondent Mother for the purpose of carrying out these orders.

(7) The Respondent Mother, pays the costs for the return of the child including airfares and any other necessary travel expenses to Italy and in the event that the Respondent Mother returns to Italy in the company of the said child, the Respondent pays the costs of her own airfare.

(8) The parties have liberty to relist the matter on 72 hours' notice regarding implementation of these orders.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Department of Communities and Justice & Leoni has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court's Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

Secretary, Department of Communities and Justice

1. On 28 October 2018, Ms Leoni ("the mother") travelled with Miss X, born on ... 2014 (herein referred to as "the child" or "X"), from Italy to Australia. The child's father, Mr Leoni ("the father"), did not travel with them.
2. The mother and the child came to Australia on a tourist visa which expired on 25 January 2019. Both the mother and the child had a return flight to Italy booked to leave Australia on 24 January 2019, reaching Italy on 25 January 2019. However, on 23 January 2019 the mother cancelled those return flights. The mother and the child have remained in Australia to the present. On 15 July 2019, the father attended the Consulate General Consulate of Italy to report the mother's wrongful retention of the child in Australia.
3. On 23 January 2020, the Secretary of the Department of Communities and Justice as the Central Authority ("the Department") filed an application pursuant to subregulation 14(1)(a) of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) ("the Regulations"), seeking orders inter alia that the child be placed on the airport watchlist, that the child's passport be retained, and for the return of the child to Italy.
4. On 31 January 2020, the Court made orders for the child to be placed on the airport watchlist and on 25 February 2020, the mother and the child's passport was given to the Court and since that date has been held in the Registry.
5. The hearing of the Department's application took place electronically by Microsoft Teams on 14 and 15 May 2020. At the hearing, both the mother and the father were cross-examined. The father was assisted by an Italian interpreter.

1. The Regulations were promulgated pursuant to s 111B(1) of the Family Law Act 1975 (Cth), which provides that the regulations may make such provision as is necessary or is convenient to enable the performance of the obligations of Australia under the Convention of the Civil Aspects of International Child Abduction signed at The Hague on 25 October 1980 ("the Hague Convention").
2. Both Australia and Italy are Hague Convention Counties, and the Hague Convention is in force between those two countries.
3. There was no dispute that the relevant subregulations of the Regulations for the purpose of this judgment are subregulations 16(1), 16(1A) and 16(3)(a)(ii). Subregulation 16(1), if made out by the Department, would mandate the Court to make an order to return the child to Italy. It reads as follows:

(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.

1. The Department carries the onus of establishing relevantly here that the child's retention in Australia was wrongful. Subregulation 16(1A) of the Regulations provides that a child's removal or retention is wrongful if:

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

(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.

1. The mother agreed that all the requirements of subregulation 16(1A) are fulfilled, except 16(1A)(b), asserting that as of 28 October 2018, both she and the child ceased to be habitually resident in Italy, and became habitually resident in Australia upon arrival on 30 October 2019.
2. The mother further argued that if the factual conclusion was that the child remained habitually resident in Italy at the date of retention, she argued that Court should exercise its discretion under subregulation 16(3). In particular, the mother relied upon subregulation 16(3)(a)(ii) which relevantly says:

(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:

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

1. As noted the Department filed its application on 23 January 2020, contending the date of wrongful retention was 25 January 2019. This falls inside the one year period specified in subregulation 16(2). The mother made no argument that the Department's application was filed outside the one year period.
2. The Department bears the onus of establishing jurisdiction, including habitual residence in Italy at the relevant time. The mother accepted she bears the onus of proof concerning consent or acquiescence.

1. The father was born on ... 1985 in Italy and is an Italian citizen. The mother was born on ... 1986 in Country B and is a dual citizen of both Italy and Country B.
2. The mother and father had met when they were quite young at the C School in City D when they were in the fifth grade. The father agreed that his education was partly taught in English at this school.
3. The father is well educated, having acquired a degree in Applied Science and a PhD from an Italian university, in 2010 and 2016, respectively. However, it should be noted that as a result of a cerebral haemorrhage; a neurological condition which occurred in 2007, the father's binocular vision and hearing are impaired.
4. On ... 2011, the mother and father married in City E, Country B. However, they remained living in City D, Italy, for the duration of their marriage.
5. The child was born in Italy on ... 2014, and up until her removal to Australia, she lived with both her parents in City D, Italy in a residence owned by the paternal grandmother. The child is a dual citizen of Italy and Country B, but not Australia. She attended kindergarten in Italy from approximately 3 years of age. Although the child was enrolled in summer school in the F Region of Region G in July and August 2018 (Exhibit "A", page 57), she had not commenced any formal schooling in Italy before coming to Australia.
6. It is important to note that the paternal family own and operate two businesses in Region G. It had been the practice of the parents to work in the businesses during the European summer peak tourist period of June, July and August each year.
7. While there did not seem to be a dispute that the parties are now separated, the evolution of the breakdown of their marriage is disputed. As will become apparent, this dispute forms an important element of the case.
8. The maternal grandmother and mother's sister live in Australia.
9. There was no evidence or suggestion that the child enjoyed anything other than a warm and loving relationship with each parent, and the father's family in Italy, who have been closely involved in the child's life until she came to Australia.
10. The existence of the COVID-19 pandemic is notorious. However, there is no evidence of any factors which suggest risk to the welfare of the child in either Italy or Australia, apart from the ordinary vagaries of life. There is no evidence or argument that the child would be put at grave risk if she returned to Italy.

1. It was the tenor of the mother's argument that findings about consent or acquiescence would also determine the question of habitual residence. This seems to invert the correct approach. The facts relevant to consent and acquiescence may also be relevant to a determination of habitual residence of the child at the date of retention. But since it is a jurisdictional fact, habitual residence must be established before defences such as consent or acquiescence are raised for consideration: Director-General, Department of Communities (Child Safety Services) & Rolfston [2010] FamCAFC 149 at [55], [56].
2. The expression "habitual residence" is not defined in the Regulations but has received much judicial comment. There was no dispute that the High Court decision in LK v Director-General, Department of Community Services [2009] HCA 9; (2009) 237 CLR 582 ("LK"), authoritatively states the applicable law: see e.g. State Central Authority & Camden [2012] FamCAFC 45; (2012) FLC 93-501. I derive the following from the decision in LK:

1. Habitual residence is a question of pure fact which permits consideration of a wide variety of circumstances bearing upon where a person resides and whether their residence is habitual; the search must be for where a person resides and whether residence at that place can be described as habitual (at [21], [23]); 2. 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 (at [23]). However, unlike the concept of domicile, which gives intention decisive importance, 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 (at [24], [28]).

1. The term "habitual residence" is used to identify the required connection between a person and a particular municipal system of law; it thus amounts to a rejection of other possible connecting factors such as domicile or nationality (at [24]);

1. 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. A person may have no 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 (at [25]); 2. When considering the habitual residence of a child it is important to consider the habitual residence of the person caring for the child, and the younger the child is, the less sensible it is to consider the child's habitual residence as distinct from the habitual residence of their carer (at [27]).
2. The High Court in LK also set out three important considerations about the role of intention in determining habitual residence, as follows:

1. First, individuals do not always act with a clearly formed and singular view of what it is intended (or hoped) that the future will hold. Their intentions may be ambiguous (at [29]); 2. Secondly, because a person's intentions may be ambiguous, in asking whether a person has abandoned residence in a place it is necessary to recognise the possibility that the person may not have formed a singular and irrevocable intention not to return, yet properly be described as no longer habitually resident in that place. Absence of a final decision positively rejecting the possibility of returning to a country in the foreseeable future is not necessarily inconsistent with ceasing to reside there habitually (at [33]).

1. Thirdly, 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 (at [34]).
2. There is no closed set of criteria or any predetermined weighting between them to establish habitual residence (LK at [35]). The factual inquiry is broad and the search is for a connection between the child and a particular state, as well as the "settled purpose" of the parents, ascertained by reference to their intentions, although such a "settled purpose" or settled intention does not necessarily involve an intention to live at a place permanently or indefinitely (LK at [37], [38]).
3. At [40] in LK the High Court quoted with approval the following statement of Waite J in Re B (Minors) (Abduction) (No 2) [1993] 1 FLR 993 at 995:

Habitual residence is a term referring, when it is applied in the context of married parents living together, to their abode in a particular place or country which they have adopted voluntarily and for settled purposes as part of the regular order of their life for the time being, whether of short or of long duration.

All that the law requires for a 'settled purpose' is that the parents' shared intentions in living where they do should have a sufficient degree of continuity about them to be properly described as settled.

...it is sufficient to observe that in Punter v Secretary for Justice [2006] NZCA 533; [2007] 1 NZLR 40 at [88] [the plurality held] that the inquiry into habitual residence is "a broad factual inquiry". The plurality went on to say in Punter:

... Such an inquiry should take into account all relevant factors, including settled purpose, the actual and intended length of stay in a state, the purpose of the stay, the strength of ties to the state and to any other state (both in the past and currently), the degree of assimilation into the state, including living and schooling arrangements, and cultural, social and economic integration. In this catalogue, SK v KP held that settled purpose (and with young children the settled purpose of the parents) is important but not necessarily decisive. It should not in itself override what McGrath J called, at para [22], the underlying reality of the connection between the child and the particular state...

As the plurality rightly said, the search is for the connection between the child and the particular state. That being the nature of the search the plurality's references to settled purpose are to be read as directing attention to the intentions of the parents. But as explained earlier in these reasons, the relevant criterion is a shared intention that the children live in a particular place with a sufficient degree of continuity to be properly described as settled...

1. The decision in LK has been explained and applied by the Full Court in Zotkiewicz & Commissioner of Police (No. 2) [2011] FamCAFC 147; (2011) FLC 93-472; 46 Fam LR 335 ("Zotkiewicz"). In that case the mother relocated to Poland in good faith. The father did so with equivocal intentions about continuing the marriage. He terminated the relationship in Poland, and prevented the mother from leaving Poland with the child. The Full Court commented as follows at [72] to [79]:

[72]. The reference by the High Court... to a "shared intention" gives rise to the question of how the law deals with cases where the intentions of one parent may be described as "settled", but the other parent has different intentions that cannot be so described. This we perceive is more difficult where the parents are living together. In an article often cited, Clive E.M., 'The Concept of Habitual Residence', [1997] The Juridical Review 137, Dr Clive concluded, (at 145), that in cases where both parents have an equal right to fix the child's place of residence, and there appears to be a "genuine difference" in their respective intentions, "then the conclusion must be that there is no settled purpose or intention".

[73]. At the very least, as the High Court said in LK at 596 [34], the "possibility of ambiguity or uncertainty on the part of one or both [parents] must be acknowledged" (our emphasis added).

[74]. We also do not discern from anything said in LK that there has been any departure in Australia from the proposition that in order to find someone is habitually resident in a place they must generally have lived there for an "appreciable period".

[75]. What amounts to an "appreciable period" will differ from case to case, and in our view must be dependent to some extent on the intentions of the parents. Thus, in [one] case ... the appellate court declined to interfere with a finding that a family had acquired a fresh habitual residence only one month after arrival in a new country. However, Butler-Sloss LJ, in delivering the principal judgment of the English Court of Appeal, was at pains to say (our emphasis added), "The judge was entitled to make the finding that the family did intend to emigrate from the UK and settle in Australia. With that settled intention, a month can be, as I believe it to be in this case, an appreciable period of time:" Re F (A Minor) (Child Abduction) [1992] 1 FLR 548 at 555 ("Re F").

[76]. There are, of course, cases where the acknowledged ambiguity or uncertainty in the intentions of one or both of the parents will become irrelevant because they have been pushed into the background by "the brute force of geography and duration" (Clive, supra at 140). Thus, in Zenel v Haddow [1993] S.L.T. 975, a child was found to be habitually resident in Australia after 15 months, notwithstanding assertions there was no settled intention on the part of the parents to remain in Australia. In that case Lord Marnoch said at 979:

It seems to me that, while intention is undoubtedly a very important consideration, there must come a stage when the objective facts point unequivocally to a person's ordinary or habitual residence being in a particular place.

[77]. On the other hand, as Dr Clive recognised (at 142), "the most difficult cases on habitual residence are usually those where the question is whether there has been a recent change in habitual residence". We agree with him that in those cases, "the element of adequate duration is absent or doubtful and it is necessary to have regard to such factors as purpose and intention". We recognise that in examining factors such as "purpose" and "intention" there may be cases in which it could be said that habitual residence has been acquired immediately (for examples, see Re M (Minors) [1993] 1 FLR 495 at 503 ("Re M (Minors)"); however, we also consider such cases would have to be seen as the exception, even allowing for the fact that there may be policy reasons against finding that a child does not have a place of habitual residence (as to which see LK at 594 [26], but see also at 595 [32]).

[78]. We also accept that merely because the purpose of an international relocation may be to allow parents to work on their relationship does not mean their purpose in relocating cannot be regarded as "settled". Re B is an example of one such case. Similarly, the fact one party may be reluctant to agree to a move to a new jurisdiction; has misgivings about the state of the marital relationship; and has taken advice about a divorce before departing, does not mean they will not acquire a place of habitual residence in the new jurisdiction (see Feder v Evans-Feder [1995] USCA3 892; (1995) 63 F. 3d 217).

[79]. On the other hand, the High Court held in LK (at 595 [29]) that the mother could not be said to have either a settled intention to reside permanently in Israel or a settled intention to reside permanently in Australia in circumstances where she had left Israel and come to Australia with the children "on the understanding that if the marriage was reconciled she would return, but if it was not, she would not return". The High Court went on to say (at 595 [32]), "Because the possibility of reconciliation and return was not excluded when the mother left Israel, it may be said that her intentions, when she left were to that extent ambiguous".

1. The decision of the Full Court in Zotkiewicz makes clear that in determining what is an "appreciable period" in a given case, the Court is guided by the factual question of the parties intentions as well as the relevant time period, a focus which can lead to the period being, exceptionally, almost instantaneous or, more usually, something longer. As the Full Court later held in Secretary, Department of Family and Community Services & Padwa [2016] FamCAFC 57; (2016) FLC 93-701 at 81,314 ("Padwa"), the period of time that a child has spent in a country is not determinative of whether the child had become habitually resident in that country. In the earlier decision of Wenceslas and Director-General, Department of Community Services (2007) FLC 93-321; (2007) 37 Fam LR 271; [2007] FamCA 398 ("Wenceslas") the Full Court had confirmed that in some circumstances habitual residence could be lost or abandoned in a single day.
2. It is important to bear in mind that in Padwa the Full Court also laid emphasis on the child's perspective, so that, in this case, the broad factual inquiry in determining habitual residence is directed to the question whether, immediately prior to the date of retention, the child's presence in Australia had a degree of settled purpose from the child's perspective and in all the circumstances of the case, to result in the conclusion that the child was habitually resident in Australia: at [38], [42].
3. An allegation of unilateral change of residence by the mother is an important element of the dispute in this case. A standard reference such as CCH Australia, , Volume I, at [18.271] expresses the view that the Convention could not operate where one parent would be able unilaterally to change the habitual residence of a child, "". So it follows that "". I note that it has been pointed out in this Court that courts in England and Wales have adopted the European position that there is no rule that one parent cannot by unilateral action alter the habitual residence of the child: at to [127]; at (""). The learned authors of N. Lowe and M. Nicholls, (2nd, Lexis Nexis, 2016) discuss the position in England and Australia and their text demonstrates that the law as applied in the Supreme Court of United Kingdom differs from the law in Australia as articulated by the High Court in (see [2.43] and [2.57]). As far as I am aware, the acceptance by the High Court in of a general rule that neither parent can unilaterally change a child's place of habitual residence remains the applicable law in Australia, and I am bound to follow .

1. On 5 November 2018, about a week after the mother had reached Australia, the father sent a message via WhatsApp to the mother in the following terms (Exhibit "1", page 260):

First of all, I thought I could have fun without you, instead only know I understand a thing...I can't life [sic] without you at all. Every girl as [sic] your face, every children resambles [sic] X.

I hope we will continue our story all together. I love you deeply. I really know that I did [sic] several mistakes among our relationship. But I really want a change to restart all over. Don't worry, I am smiling, not crying at all. I never cried. Only at the airport, but I was gustified [sic]. Distance brings or or to brake heart [sic] or stronger loves...This brings me to a stronger love.

1. On 6 November 2018 the father clearly wanted to travel to Australia, expressing his love for the mother and child, and saying "I want to come to you...at January or april" and "It can't finish like this" and "I will always regret this" while the mother stated "YOU need a new life...I NEED a break" (Exhibit "1", page 79).
2. When read together, the messages of 5 and 6 November 2018 can be interpreted as acknowledging the parties by then were estranged, and there was a parting of ways, suggested for example by such statements as "I thought I could have fun without you", "But I really want a chance to restart all over" and "It can't finish like this". But it is not clear they bespeak final separation and relocation to Australia. The mother pointed out that the reference to "January or april" clearly showed that the father anticipated the mother may be in Australia until April 2019, that is beyond 25 January 2019 and the expiry of her tourist visa. These inferences are consistent with the version of the mother that the parties had agreed the marriage was over, and she would move to Australia for longer than 3 months, perhaps to pursue further study.
3. But against this, at this point, there could have been no clarity or certainty about the mother remaining in Australia for more than 3 months. She had no visa to do so. According to the mother, no course for further study had been identified by her or enrolled in. The father was clearly not reconciled to a break-up of the relationship or the family unit: "I can't live without you at all...I hope we will continue our story all together". His comment "Don't worry, I am smiling not crying at all. I never cried. Only at the airport, but I was gustified [sic.]. Distance brings or to brake heart [sic] or stronger loves" also shows no genuine acceptance by the father. There is no response from the mother, in which she disputes the father cried at the airport. I accept this happened. Such emotional words and conduct, the father's clear unhappiness at the absence of the mother and child, after only a week, and his desire for them to continue to be together, are not consistent with the mother's evidence that the father was "fully supportive" of her trip to Australia, or her statement that the father "".

1. There was a further exchange of messages between the parties between 11 and 13 November 2018 (Exhibit "1", pages 80 to 87).
2. On 11 November 2018 the father wanted a chance to restore the relationship with the mother "without my family". The mother was not receptive, saying "I don't" and it was not only his family, but "It is also you" and "I don't want you and you: please please please..." The exchange continued (Exhibit "1", page 85):

Mother: what happened to the guy who said: your happiness os [sic] more important, I love you, so I'll let you go??!!

1. In these messages the father suggested he would come to Australia, and get a house for the mother, him and the child to live as a family unit, without pressure from his family. The mother thought the father had agreed to let her go because he had said "your happiness os [sic] more important". Although the father says "like I am doing", he does not appear to be letting go, because he is also suggesting a return to life together as a family unit. The mother was exasperated by his suggestion of getting a house ("God [P]!") ("P" being the shortened form of the father's first name). However, in her Affidavit (Exhibit "1", page 19, paragraph 167) she agreed the parties had discussed the father moving to Australia, although they did not agree on "the resumption of our marriage". The mother submitted that by using the word "there" as set out above at [45], the father was referring to Australia. The Department submitted that it was not clear if by "there" the father was referring to Australia or Region G or some other place. However, the important point is that even if by "there" the father was referring to Australia, he was doing so in the context of envisaging a future in which the parties would remain intact as a family unit. He is not acknowledging the child will integrate into school in Australia without him living there as well.
2. In her Affidavit (Exhibit "1", page 20, paragraph 173) the mother comments on this exchange of messages saying it was "clear" the father was not "serious about demanding our return". I do not agree. What is clear is that the parties held very different views about their future direction. As at 11 November 2018 the mother stated she did not want the father but she was present in Australia on a tourist visa only, which expired on 25 January 2019. The father was talking about coming to Australia to revive the relationship. He had no occasion to demand return at this point in time, being only about two weeks since the mother had left Italy with the child, since he could still reasonably expect the mother to return to Italy by 25 January 2019.

1. There were further text messages (Exhibit "2"), dated between 27 and 30 November 2018. In the messages exchanged on 27 November 2018 the father indicated he wanted to come to Australia, but only if "I have a chance from your heart". He said "The day before your trip you said to love me still. No [sic] you are a friend. OK. But I will come if I have a chance from your heart." The mother responded saying "I did not love you for a very long [P]", "we both know it, we just didn't want to admit...and now that I am away, I feel better, I sleep better, My mind is better". The father said he was depressed. The mother also asserted the father was trying "to wiggle your way into my life again which I do not want" and stated "...divorce is inevitable. You are the father of my daughter...and that is it...this will be all it will be to me...So for X...stop pretending...Accept that it is over...forever." She asked the father to think it over.
2. The father also sent an email on 27 November 2018 (Exhibit "A", page 89). In the email the father says:

you must come to City D just as we agreed before your departure for Australia. Everything you are asking me now does not allow me to respond as we must first define in agreement everything that will be appropriate to adopt in X's main interest.

Your personal and sudden decision to divorce leaves me in disbelief and upset and, therefore, I think it is essential to talk about it close to our home in City D

This email cannot be understood as anything other than a clear request for the mother to return to Italy, specifically City D, and engage in discussion about the child's interests, among other things. It also refers to an agreement before the mother left Italy that she would return to City D.

1. In the messages exchanged on 28 November 2018 the father asked for "the last chance" because "I think I deserve it". The mother responds that her lawyer would contact the father soon, and complained "I have to do even this, all by myself". Importantly, the mother then says:

The papers will arrive soon...and soon we will come back from holiday...and settle this at court...I wanted to stay friends...you just said no...I have to come...stay in a business or something for days...and you will have to pay

The mother also expressed the hope that "we can finish this decently...continue our own lives in peace". The father responded in Italian "venite in Italia e parliamo" which was translated to:"Come to Italy and let's talk" to which the mother responded "Okay...I will be happy to end this any way possible as long as it ends".

1. The father then gave a longer response in Italian. There was no translation given of this response. However, it appears to be an Italian version of the email sent on 27 November 2018, set out above at [49].
2. In her response to the WhatsApp message, which in effect responds to the email as well, the mother accused the father of obtaining assistance on how to draft his messages which the father denied. She also refers to the email. The mother continued "But we did say we would meet in Country H...and that I would come back to extend our holiday...let's talk the truth now." The mother however does not deny that before leaving Italy she had agreed to return. Nor does she deny her decision to divorce was unilateral or reject the idea of a return to Italy. At this point she was referring to her time in Australia as a holiday.
3. On 30 November 2018, the father then messaged the mother saying "I only want that you know that are always valid the two ways. [sic.] They are valid because I think firmly that we can return together again. I am romantic and "stupid". When asked by the mother about the "two ways" the father responded:

1. I will come, give student visa, return to [Region G], you will come for a month at July or August. Remained married. IT WAS YOUR PLAN AT AUGUST/SEPTEMBER

2. I will move in Australia [sic]. Can devorce me [sic]. But you will be my girlfriend with fedelety [sic]. No other men. Maybe I will go to help the business.

1. The exchange of messages as detailed above between 5 to 6 November 2018, 11 to 13 November 2018 and 27 to 30 November 2018, together with the email of 27 November 2018, are not easy to understand fully. They speak to changing and evolving states of mind in both parties. However, I am satisfied, when taken together with the Affidavit evidence of the parties, they lead to the following factual conclusions:

1. At the point in time on 28 October 2018 when the mother left for Australia with the child, the evidence is consistent with the mother wishing to visit her family in Australia, to get some distance from the father, while feeling some ambivalence about ending the marriage, even if that was in her contemplation. I am unable to accept the father's evidence that the parties had "no couples trouble" when the mother left Italy on 28 October 2018. I find that they did. However, this does not necessarily require the further conclusion that he accepted then that the marriage was at an end. 2. The messages and email exchanged on 27 November 2018 satisfy me that the mother had drifted apart from the father before leaving Italy but did not want to admit it, but by that date the mother was clear in her mind that she wanted a divorce which she said was "inevitable". However, this state of clarity was most likely achieved while in Australia after she had left Italy, not before, eg, she said "My mind is better" (above at [48]) once she was in Australia. It is likely the mother told the father before she left Italy that she still felt love for him, but once in Australia, she began describing the father as "a friend" only.

1. For his part the father was unable to accept the relationship was over, and wanted it to continue, after 28 October 2018. The father found the mother's decision to divorce him "sudden" and he wanted her to return to Italy. It is more likely than not that, despite a likely separation as at 28 October 2018, the mother made request for a divorce at some point after 28 October and prior to 27 November 2018 and it came as shock to the husband, even if this means he was a victim of his own self-deception.

1. The mother's travel to Australia in October 2018 was agreed to by the father because it was after the peak tourist season in Region G, and neither parent was needed to work in the business. The mother disputes this, and claims the timing was coincidental. I do not accept this. Although it was part of the mother's case that travel to Australia was connected to further study, I am satisfied that this proposal was connected to the mother's work in the businesses in Region G. In the English version of his complaint made on 15 July 2019 (Exhibit "A", page 62) he stated the mother had desired to visit her mother and sister in Australia and "for convincing me [the mother] told me she get [sic] informed about studying a Merchandising course which would let succeed [sic] in the career". This appears to mean the father thought the mother had suggested as part of the reason to go the Australia was to explore a merchandising course and this was understood in the context of her working at the paternal family's business. In her own evidence the mother stated the father's family was not informed of the reasons for her travel to Australia. If the mother had travelled during peak tourist season in Region G, it is more likely than not that the father's family would have raised objections, and the mother sought to avoid this by travelling in October 2018. 2. Prior to the mother leaving Italy on 28 October 2018 the mutual understanding and agreement was that the mother would be returning to Italy on 25 January 2019. 3. As at 30 November 2018 the mother's stay in Australia was understood by both parties primarily as a holiday, not some permanent or long-term relocation. 4. Once the mother had expressed a desire for divorce she represented to the father, and he understood, that she would still return to Italy with the child for the purpose of completing the process of divorce, and I infer the custody of the child, through the Italian legal system. The father specifically asked the mother to return to City D to talk about their marriage and consider the interests of the child; 5. There had been some discussion of the possibility of the parents and child meeting in Country H, after which the mother might extend her holiday in Australia, but plans changed.
2. I am also satisfied that by 30 November 2018 the parties must have discussed the possibility of the mother, while in Australia on the tourist visa, exploring enrolment in a course of study in Australia.

1. As noted above, it did not seem disputed by the father that the mother by April 2018 had begun expressing a desire to go to Australia to visit her mother and sister, and possibly enrol in a business course to obtain a better qualification. The mother maintained this dual purpose was agreed by 17 October 2018 when the tickets for her travel to Australia were purchased by the husband, or at the latest by 28 October 2018 when she left Italy with the child. 2. The husband maintained in his oral evidence that he understood the mother was travelling to visit her mother and sister, but nothing had been agreed about her undertaking a course. He maintained that although the subject had been discussed, it was inconclusive and nothing concrete was planned.

1. I am satisfied further study by the mother in Australia had been discussed prior to her departure from Italy, as a reason to visit Australia, but nothing was agreed or certain. This must be so because it is clear from the mother's oral evidence that she did not choose any further course of study until 10 January 2019 (see [65] below). I do not view the email sent by the father to the mother on 16 May 2019 as inconsistent with this conclusion. In that email the father states "Then, on 30 October 2018, my wife and daughter went to Sydney, Australia, to study." This email was written well after the events to which it refers, and after the mother had actually enrolled in courses of study. To put it another way, the email describes what had taken place, not necessarily the prior intentions or agreement of the parties. It was also prepared for the purposes of a draft separation agreement which was never signed.

1. As found in [55.(f)] above, as at 28 November 2018 the mother was still referring to her stay in Australia as a holiday, and referred to a return to Italy to end the marriage through the Italian Courts. However by 30 November 2018 the father expressly acknowledged the possibility of him coming to Australia to "give student visa", but on the basis the parties remained married, he would return to Region G and for the mother to come to Region G in July or August 2019. From this I infer the mother, at some point between 28 and 30 November 2018, asked the father to support her getting a student visa for study in Australia and he was prepared to do so if the parties remained married. 2. It can be seen that as at 30 November 2018, both parties expected the mother to return to Italy to end the marriage through the Italian court system, or to return to Italy by the summer tourist season in June, July or August 2019, or both.
2. Up to 30 November 2018 in my view the evidence does not disclose any relevant mutual intention or settled purpose between the parents. Their subject states of mind showed a degree of ambiguity or uncertainty on the part of both. There was a genuine difference between them. The mother put emphasis on the end of the parties' marriage, as a fact which supported her version of the agreed intention of the parties for her to leave Italy and make a new a life in Australia. However, while I accept the marriage was in trouble by 28 October 2018, I cannot conclude the parties shared the same understanding that it was simply at an end. I accept this was probably the mother's state of mind by 28 November 2018 and she was intending to move on by living in Australia. But the mother gave evidence that separation was agreed by the time she left Italy and it was a mutual understanding that "continuation of the marriage was not an option". I do not accept this. I am not satisfied the evidence establishes the father was of the same mind and that a mutual understanding existed before the mother left Italy, or in the period up to 30 November 2018. The father was not reconciled to the end of the marriage. The evidence discloses a level of equivocation on his part and he continued to express a desire to remain in a relationship with the mother as at 30 November 2018. I am satisfied that the father wanted and expected the mother to return to Italy by the summer months with the child to discuss the marriage, the interests of the child, and deal with the end of the marriage, if unavoidable through the Italian legal system. If it was the mother's actual subjective intention not to do so, I am satisfied she allowed the father to continue to think she would return to Italy.

1. The father travelled to Australia on 5 January 2019, and returned to Italy on 15 January 2019. The purpose of this visit and the father's actions during the visit are of significance, because they ultimately resulted in the mother obtaining a student visa, which was granted on 10 May 2019, and allowed her to remain in Australia until 27 August 2021.
2. There was no dispute that the father stayed with the mother and the child at the house of the maternal grandmother. The mother contends that they slept in separate rooms.
3. The father gave evidence that he travelled to Australia because he was concerned about the mother's intentions. He said that during this stay the mother assured him she would be back to Italy as soon as possible. He expected her to return to Italy for the summer months to work in the family business (Exhibit "A", pages 129, 130). In her evidence the mother says nothing specific about the reasons for the father's trip to Sydney on 5 January 2019. The way her evidence reads, she represents the father's trip to Australia as simply a step to provide her with a student visa, as part of the agreed settled purpose for her to move to Australia with the child in October 2018 (Exhibit "1", pages 10 to 11, paragraphs 69 to 75). I have found there was no such settled purpose or mutual intention when the mother and child left Italy, nor even as at 30 November 2018. The evidence was also clear that the father had a strong desire to seek to remain married or in a relationship with the mother, although her attitude towards the father had cooled considerably. I consider that the father travelled to Sydney in January 2019, driven by a lovelorn state of mind, to see the mother and child, to confirm her intentions to return to Italy and to attempt to find a way back into her affections.
4. There is no dispute the parties attended at the premises of J Agency in Suburb K, Sydney on 10 January 2019. The purpose, at least in part, was to execute documents to enable the mother to undertake two diploma courses in Australia which she had chosen. Together both courses would not be completed until August 2021. In her oral evidence the mother said she chose these course on 10 January 2019, not beforehand. The father executed a Form 1229 Consent to Grant an Australian visa to a child under the age of 18 years (Exhibit "1", page 49). This form was necessary for the mother to apply for a student visa to remain in Australia with the child to complete her diploma studies. None of the documents signed on this occasion, apart from the Form 1229, was in evidence before me.

72. On 5 January 2019 Mr Leoni travelled to Australia to see X and me. He stayed with my family although we did not share a room.

73. On 10 January 2019 Mr Leoni and I went to the J Agency offices to sign the documents for me to take up the position offered and for Mr Leoni to sign the consent to X's visa.

74. Annexed to this affidavit and marked with the letters [Ms Leoni-03] is an email from Ms L dated 11 March 2020 confirming that the documents were signed in her presence and that she gave both of us, all the necessary information about the courses including the duration.

75. Mr Leoni returned to Italy on 15 January 2019.

1. The mother further argued that the father could not have believed after 10 January 2019 that the mother was still going to return to Italy by 25 January 2019.
2. In written answers to questions about the visa from the Department the father stated he never intended to authorise the mother to have custody for the child in Australia or "to transfer the child to Australia". He believed he was signing documentation to allow the child to stay legally in Australia and the mother told him that if he did not sign the documents the child might be held in Australia and could not return to Italy (Exhibit "A", page 130).
3. He gave further evidence about the visa signing as follows (Exhibit "A", page 174):

On that occasion, I tried everything to bring my wife back on track. Upon her promise of an imminent return to Italy with X, I accepted to sign the application to obtain a Visa Student permit for X. Mrs Leoni told me that this permit was necessary to regularize the temporary stay of the minor in Australia, therefore until the date of 25.1.2019. I asked several time my wife [sic] about the contents of the document, and she told me that if I did not sign the document, a serious prejudice for X could have occurred, with the consequence that the child could no longer return to Italy. Faced with this perspective, trusting the words of my wife and not having the tools to be able to fully discern the content of the act written in English that was submitted to me, I signed the VISA form in the circumstances already described. However, I did not red any date on the VISA document about the length of its duration. Indeed, the Document Form 1229 (Annex 3) DOES NOT CONTAIN ANY INDICATION ABOUT THE LENGTH OR ITS DURATION. The only date there contained is that of the significance of the document, which is 10th January 2019. There are no other information and I did not understand this point otherwise I would have never signed the document.

1. The father further stated that "I did not understand that the VISA document I signed was supposed to extend the permanence of my child in Australia so long". (Exhibit "A", page 179). He pointed out the Form 1229 did not specify the duration of the proposed visa or any date of expiry. He referred to his poor understanding of English. In his oral evidence, when it was put to him that he was "well aware that the mother intended to stay in Australia and she would study" he responded saying "I was feeling very depressed I said many things that didn't have meaning and I was unwell." He essentially contends that he did not understand what he was signing, his grasp of English was poor and the mother had assured him that the student visa would have only allowed her to stay in Australia for about 6 months.
2. The mother argued that the father's evidence about 10 January 2019 could not be accepted. She argued his English was quite sufficient to understand what took place at J Agency. For example, there was evidence the father had once given an academic paper at a conference in English. In answer the father gave details of his limited English language proficiency (Exhibit "A", page 171).
3. The mother also relied on Affidavit evidence from Ms L, who is employed by J Agency, and was present on 10 January 2019. In her Affidavit at paragraphs 7 to 9 Ms L deposed as follows:

[7] I recall that we gave Ms Leoni and Mr Leoni all of the information about the courses which Ms Leoni was taking on and that we discussed the courses.

[8] I am confident that we discussed the duration of the courses Ms Leoni had chosen and it seemed to me that Mr Leoni was not having any difficulty following the conversation, even though the conversation was being conducted in English.

[9] I also showed Ms Leoni and Mr Leoni the printed material which set out the details of the courses Ms Leoni had chosen.

1. The evidence of Ms L was not strongly challenged. However, as can be seen from the quoted sections above at [73], it was expressed at a level of generality and in the form of conclusions or opinions, which diminishes its weight. Her answers in cross-examination did not give much further detail. Taken at face value, the evidence of the mother and Ms L supports the mother's argument that the father knew the duration of the mother's proposed courses would cause her to remain in Australia until 27 August 2021, understood the child would stay with the mother in Australia until then, and agreed to this happening. In other words the father consented to the child remaining in Australia, well past 25 January 2019, until at least the end of August 2021.
2. Several points should be made here. The first is that even if it be found that the father consented to the mother and child remaining in Australia, the mother does not contend this thereby created a mutual intention or settled purpose as at January 2019 for the mother and child to relocate to Australia and change the child's habitual residence. This would be inconsistent with her case of a settled purpose by the time she left Italy and the possibility can be put to one side. The second is that, although consent is part of the mother's defence under subregulation 16(3)(a)(ii), of itself it does not, even if found as a fact, preclude a finding that the child's retention in Australia is wrongful within subregulation 16(1). The child's retention in Australia may still be relevantly wrongful within the Regulations in the face of assumed consent by the father, if the child's habitual residence continued to be Italy as at the date of retention (see N. Lowe and M. Nicholls, International Movement of Children (2nd, Lexis Nexis, 2016) at [19.124]).
3. The important factual question then is whether there was any consent by the father in January 2019, and if so, what he consented to. The answer to this question seems to depend largely on what the father understood on 10 January 2019. I accept the father's level of English was generally good enough to converse informally, and, as previously stated, he completed part of his education in English. The text messages between 5 and 30 November 2018 demonstrate this, although intending no disrespect, they do not demonstrate a strong command of English grammar. The evidentiary material provided by the father to the Department shows a reasonably good command of English, although errors permeate the text.

1. The events between January and July 2019 should also be discussed here. While they are relevant to the mother's defences of consent or acquiescence, they also bear upon the question of habitual residence.
2. On 20 April 2019 the father sent a message saying that "I hope after the divorce you will still love me and what will I do I will come in [sic] Aussie by myself" (Exhibit "1", page 90). I note there is a message exchange between 1 and 5 June 2019 where the mother asked the father for help in preparing a CV, and wanted the dates she worked at the family business. The father was supportive and assisted the mother at this point.
3. By late June 2019 the father seems to have come to terms with the reality of the end of his marriage. The mother says the father engaged lawyers to act on behalf of both mother and father to reach a consensual agreement. The father did not dispute this. But both parents seem to have given instructions, although the mother perceived the lawyers were favouring the father (Exhibit "1", pages 150 to 154).
4. By email dated 19 June 2019 (Exhibit "1", page 97), the Italian lawyers sent a draft to the parties (Exhibit "1", pages 116 - 120), which contained draft recitals and provisions to the effect that the mother had moved to Australia for study reasons and resided there, the child would live in Australia with the mother, who would make the day-to-day decisions concerning child; both parents jointly would make the long-term decisions for the child and the child would have time with her father for 4 months each year, with the details to be agreed between the parents. The mother asked for some amendments. There was no consensus about payment of expenses for the child. The mother wanted the father to pay 70% of the expenses of the child's travel to Italy while the father contended the costs should be borne equally (Exhibit "1", page 93).
5. In a further email dated 21 June 2019 to the mother (Exhibit "1", page 93) the Italian lawyers indicated the father would not consent to bear 70% of the costs "since the choice to live in Australia was yours, and the fact that [the father] was not opposed to this decision...". The mother pointed to this as supporting her contention the father had accepted her abandonment of Italy as habitual residence. The father disavowed this statement in the Italian lawyers' email was a true reflection of his understanding. He said in oral evidence that he terminated the lawyer's engagement.

1. On 10 July 2019 the father messaged the mother as follows: "seeing that on two occasions you have already said that you would come back to Italy and you haven't. Therefore, I emphasize what I've already said to you and I confirm to you that I will be in Sidney [sic] on 13/7 to get X. So I ask you once more to indicate to me a convenient time for the little one". To which the mother responded "Before you leave I have to advise you that X is ill and will not be able to come to Italy with you. Above all school starts next 23 July and we have to prepare all the things necessary for her to go to the school itself. If you really want to come we'll be happy about it but you'll have to stay here in Sydney with X for the entire period you'll be in Australia because now, I repeat, it's impossible for her to come to Italy" (Exhibit "1", pages 179 - 180).
2. The mother's response shows a clear refusal to let the child go to Italy. This was further demonstrated when the father flew to Sydney with the paternal grandmother shortly thereafter. The father contends that the purpose of this travel was to visit the child and return with her to Italy. They only intended to stay in Sydney for 5 days and the father gave evidence that he had notified the mother of this intention. It was during this trip that the father went to M Street, Suburb O, NSW on 14 July 2019 to spend time with the child. There was no dispute that the mother deliberately absented herself so the father could not see the child. She agreed in her oral evidence that she should not have done so, and regretted it. Her explanation was that she feared the father would take the child to Italy. It was during this trip that the father attended the Consulate General of Italy in Sydney to seek assistance and commenced the steps which culminated in the present application pursuant to the Hague Convention.
3. The paternal grandmother and the father returned to Italy on 18 July 2019, and on 22 July 2019 the father made a police complaint in City D about the retention of the child in Australia (Exhibit "A", page 150).
4. The father contends that he only became aware on 17 September 2019 that the mother's visa allowed her and the child to remain in Australia until August 2021. On 19 September 2019, the father completed an application for the return of the child with the Italian Ministry of Foreign Affairs and International Cooperation.

1. Overall, despite the assertions of the mother to the contrary, I have concluded that the father was uncertain and ambiguous in his state of mind between October 2018 and July 2019. The evidence supports the conclusion that neither party fully understood the other. When the mother left for Australia, the father interpreted her emotional condition as "a temporary crisis" (Exhibit "A", page 173). He understood the mother and child would be in Australia for three months at that stage. Even if the father was prepared to co-operate in purchasing tickets for the mother's travel to Australia, with the child, I do not accept he gave unqualified agreement at that time for the mother to relocate to Australia with the child to engage in further study or start a new life. The father's agreement in January 2019 was circumscribed by his understanding that the mother would return to Italy with the child in June 2019 for the tourist season in Region G. The father did not let go of a romantic attachment to the mother, or a hope for reconciliation, until about June 2019, when there was put in train a process to produce a separation agreement, with the help of lawyers. Until about May 2019, the father made clear that he wanted to reconcile with the mother and remain in the child's life. I am not satisfied he ever let go of a desire to parent the child or shared an intention with the mother for her to abandon Italy as her habitual residence with the child. The mother was not interested in a continuing relationship. I am satisfied the parties intended at all times up to July 2019 that their marital breakdown and question of the child's custody would be dealt with under the Italian legal system, and the father, until July 2019, understood the mother would return to Italy partly for the purpose of enabling this to happen. I am satisfied that although the father made a number of inconsistent decisions between 28 October 2018 and July 2019, he probably made those decisions because he thought he may curry favour with the mother, and create an emotional opening to persuade her to return to Italy or resume a relationship with him. As the applicant submitted, he was acting in "desperation". His variable decision making demonstrates an ambiguous state of mind and a different state of mind to that of mother.
2. This is a case of alleged wrongful retention. It is well established that wrongful retention is something that occurs at a specific point in time: Lowe and Nicholls, ., [19.114]. Otherwise the one year period in subregulation 16(2) cannot be calculated.

1. repudiatory retention is possible in law; 2. the 1980 Convention does not apply if, by the time of the alleged repudiatory retention, the child has acquired habitual residence in the state in which the request for return is made. If a child becomes habitually resident in the destination state before the repudiatory retention, the destination state has primary jurisdiction to take measures including parenting orders (at [34]);

1. the 12 month time limit under subregulation 16(2)) for seeking a mandatory return, without consideration of whether the child is settled in the new environment, runs from the point that the repudiatory retention occurs (at [46] - [48]);

1. repudiatory retention occurs when a retaining parent forms a subjective intention not to return the child to the state of habitual residence at the expiration of the period which was agreed between the parents as the date upon which the child would be returned; 2. repudiatory 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 specified in Article 12; 3. an objectively identifiable act of repudiation is required, but it need not be communicated to the left behind parent nor does an exact date need to be identifiable. A privately formed decision would not, without more, constitute a repudiatory retention; 4. a repudiatory retention can occur and pass without the left behind parent being aware. This is because the 12 month period (under the equivalent of our subregulation 16(2)) is not a limitation period operating between parents but a provision in the child's interest of a point at which those negotiating the 1980 Convention recognised that mandatory summary return ought not be available without express consideration of the degree to which the particular child had settled in the requested state (at [50] - [51]).
2. The discussion above at [54] to [61] showed, despite her contentions to the contrary, it is not clear that the mother had formed a subjective intention not to return the child to Italy at the point of departure on 28 October 2018, although she may have loosely entertained the idea. However, by the time she cancelled the return air tickets on 23 January 2019, although there was agreement with the father to stay in Australia until June 2019, I am satisfied that by 23 January 2019 the mother had no intention of allowing the child to return to Italy at all. As a consequence the mother and child did not arrive back in Italy on 25 January 2019. The act of cancelling the return flights, coupled with the consequential failure to arrive back in Italy on 25 January 2019, was "an objectively identifiable act of repudiation", understood in light of the mother's subjective intention not to return to Italy which was formed sometime from about November 2018 and perfected when she and the child did not return to Italy by 25 January 2019 .The mother's refusal to let the father see the child in July 2019 is consistent with this conclusion. The mother, under Australian law, cannot effect a unilateral relocation. I find the date of retention to be 25 January 2019, as the Department contends.

1. the deeper the child's integration in the old state, the less fast is their achievement of the requisite degree of integration in the new state; 2. the greater the amount of adult pre-planning of the move, including pre-arrangements for the child's day-to-day life in the new state, the faster their achievement of that requisite degree of integration;

1. were all the central members of the child's life in the old state to have moved with them, the faster the child's achievement of integration and, conversely, were any of them to have remained behind and thus to present for the child a continuing link with the old state, probably the less fast the child's achievement of integration is.
2. My discussion of the evidence above at [40] to [43] satisfies me that there was no mutual pre-planning by the parents for a move to Australia, or even by the mother for pre-arrangements for the child's day-to-day life in Australia at the point of departure from Italy. I have found that the mutual understanding was only that the mother and child were travelling to Australia for a three month holiday.
3. By 25 January 2019 the child had only been present in Australia for some three months. This is not an "appreciable period" when the differing and equivocal intentions of the parents are considered: Zotkiewicz at [75]. As I have found, there remained a genuine difference between the parents. This militates against a conclusion that from the child's perspective, her position in Australia was settled. There is no evidence of what or how many belongings the mother and child brought to Australia. There is no suggestion, for example, that the mother organised for a large container of goods and chattels to be shipped to Australia to start a new life. The mother has not provided evidence of the extent to which, as at the date of retention, the child had assimilated into life in Australia, to assist the Court to determine the "underlying reality of the connection between the child and [Australia]". I am unable to conclude the child had developed such a real and active connection to Australia by 25 January 2019 that it had become her habitual residence. I am not satisfied the child integrated into the municipal law of Australia to an extent which would support a conclusion her habitual residence in Italy has been lost.
4. By contrast, the evidence shows the child had a real and active connection with Italy before she left. The child remains a citizen of Italy. Until coming to Australia she had lived all her life in Italy. The child's extended paternal family were closely involved in her life before she left. None of her Italian family moved with her to Australia. The father gave evidence of a WhatsApp chat thread in which the child's Italian relatives participated. It shows a strong connection between those relatives and the child continuing until August 2019 (Exhibit "A", pages 218 - 223) when the contact was ceased. I am unable to conclude the child as at 25 January 2019 lost "" with Italy. I consider it likely that her connection with Italy at that date remained stronger than a connection to Australia.

1. The Full Court made clear in Wenceslas at [246] the defences of "consent" and "acquiescence" are quite distinct saying subregulation 16(3) makes clear that mere "acquiescence" in the removal or retention of the child would not enliven the discretion of the Court to refuse to order the return of the child. The Full Court, at [246], followed the statement of Wall J in Re M (Abduction) (Consent: Acquiescence) [1999] 1 FLR 171 at 173, "[c]onsent ...has to arise before the act of removal or retention: acquiescence can only arise after such an act".
2. The mother submits that as a result of the father's consent for the removal of the child to Australia in October 2018, both "the mother and the child abandoned their habitual residence". I do not accept this argument. The discussion above at [24] to [116] makes clear in my view there no consent by the father to the mother removing the child to Australia as part of an abandonment of Italy as habitual residence or a permanent relocation. I am also not satisfied the mother had decided to abandon Italy when she left for Australia on 28 October 2018. In my view the mother's thinking evolved and altered after she left Italy and the father's subjective state of mind remained equivocal and changeable.
3. More importantly as at 25 January 2019, the date of wrongful retention, there was no clear and unequivocal consent from the father to the child's retention in Australia beyond June 2019, or on a permanent basis. The facts as found above support the conclusion that the mother induced the father to believe she would return to Italy by the summer tourist season in Region G, and the child would return to Italy at that time, and he gave his consent on that basis. However, I have also found that the mother had by 25 January 2019 decided not to return to Italy, something she did not communicate immediately to the father. Consent is not established.
4. The question of acquiescence is more difficult. In Wenceslas, at [252] to [255], the Full Court adopted as correct, the approach that acquiescence may be passive, by conduct, as well as active by words. It may be inferred from a course of conduct by the party now seeking to rely upon the Convention or the Regulations, without any words expressed to the other party.

[54] Absence of court action does not necessarily amount to acquiescence, however, a delay, particularly unexplained delay in taking action has been found to be an indication of acquiescence. Lord Justice Butler-Sloss in Re F (A Minor) (Child Abduction) [1992] 1 FLR 548, CA concluded that "acquiescence is a combination of a sufficient period of time coupled with inactivity by the parent without the child, to demonstrate an implied acceptance of the changed position". In an earlier case, Master of the Rolls, Lord Denning in Re P (GE) (An Infant) [1965] Ch 568 said:[7] Quite generally, I do not think a child's ordinary residence can be changed by one parent without the consent of the other. It will not be changed until the parent who is left at home, childless, acquiesces in the change, or delays so long in bringing proceedings that he or she must be taken to acquiesce. Six months' delay would, I should have thought, go far to show acquiescence. Even 3 months might in some circumstances. But not less."

[55] Delay in taking action is further supported in W v W (Child Abduction: Acquiescence) [1993] 2 FLR 211 ("W & W"), where Waite J held that a father's inactivity for some 10 months after learning of his wife's decision not to return amounted to acquiescence. Acquiescence due to inaction was also found in Re D (Abduction: Acquiescence) [1999] 1 FLR 36 where a mother took no legal advice for almost a year and was only prompted to do so when she learnt that the father had been imprisoned.

1. The mother submitted the father did not complain to the Italian Police and the Italian Central Authority until September 2019. But against this, the father attended the Consulate General of Italy in Sydney seeking assistance on 15 July 2019 almost immediately after the mother had withheld the child from the father in Sydney. He then made a complaint to the Italian police on 22 July 2019, shortly after returning to Italy. Once the mother had made clear she would neither return to Italy in June or July 2019 nor let the father see the child in Sydney in mid July 2019, the father was not inactive at all. Rather he acted promptly in my view, to set in motion the processes to seek return of the child.
2. Taking account of the conduct, and contemporaneous words and actions of the father more than his assertions in evidence, I am satisfied that he at no point clearly, totally and unequivocally showed by words or conduct that he acquiesced to the mother retaining the child in Australia on a permanent basis, or beyond about June 2019.
3. Therefore the discretion in subregulation 16(3) is not enlivened.
4. If it had been enlivened I would not have exercised it in favour of the mother. In De L v Director-General, NSW Dept of Community (1996) 187 CLR 640 at 661 the Court, quoting Dixon J in Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 505 held that "the discretion is unconfined, except in so far as the subject matter and the scope and purpose of the [Regulations] enable it to be said that a particular consideration is extraneous". The child's welfare would be a matter properly taken into account when exercising that discretion. In Agee and Agee [2000] FamCA 1251; (2000) FLC 93-055 the Full Court held that the underlying purpose and intent of the Convention must be afforded significant weight as should "specific consideration of the welfare of the particular child" (at [64]). This position was confirmed in Tarritt & Director-General, Department of Community Services

1. It is clear the requirements of subregulation 16(1) were made out, and the mother was unable to establish consent or acquiescence under subregulation 16(3). Accordingly, I will make the orders sought by the applicant.

I certify that the preceding one-hundred and thirty six (136) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Harper delivered on 24 June 2020