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Children – Hague Abduction Convention – father found to have consented to mother’s wrongful overseas removal of child

In Commissioner of Police for State Central Authority of South Australia & Garnett [2021] FamCA 86 (3 March 2021) Williams J heard an application by the Central Authority of South Australia for the return of a 10-year-old child to the United Kingdom pursuant to the Family Law (Child Abduction Convention) Regulations 1986.

The mother had removed the child from the UK but said that when the father found her packing suitcases, she informed him she wished to return to Australia, whereupon the father handed the mother the Australian passports for herself and the child and assisted her with her bags into a taxi. The mother and the child travelled to Australia that day.

Williams J found that X was habitually resident in the UK and that the father was exercising rights of custody at the time of removal ([80]).

After citing Wenceslas & Director-General, Department of Community Services [2007] FamCA 398 Williams J said (from [87]):

“ …Consent has to arise before the act of removal or retention (…)

[104] The father’s own evidence suggests … that he was acutely aware that the mother intended to leave the UK with X … and that notwithstanding the mother’s repeated intention of travelling to Australia with X, he handed her the passports which would enable her to do so … I do not accept that handing over passports … does not amount to consent for X to leave the country…

[105] …It is not a situation where the father was advised by the mother for the first time in the heat of the moment … that the mother wished to end the relationship and return to Australia.

[106] The father’s … own evidence supports the contention that he knew implicitly and unambiguously that the mother intended to fly with the children and that is why she required the passports. (…)

[109] I am satisfied that the conduct of the father, in handing the child’s passport to the mother, when he knew she intended to travel to Australia with the child, is clear and cogent evidence of the father’s real and unequivocal consent to X departing the UK and travelling to Australia.”

Williams J exercised her discretion not to return X to the UK and dismissed the application of the State Central Authority.

Craig Nicol is the editor of The Family Law Book and Keleigh Robinson is the co-editor. Both are Accredited Specialists in family law (Queensland and Victoria, respectively). The Family Law Book is a one-volume loose-leaf and online family law service (thefamilylawbook.com.au).

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