By Amanda Humphreys, Special Counsel

Repudiatory retention in international child abduction cases

The Full Court of the Family Court approved the principle of law applying to the repudiatory retention of a child in Australia as identified by the trial judge, Justice Bennett.

Justice Bennett, relying on the decision of the UK Supreme Court, In the matter of C (Children) [2018] UKSC 8 (“Re C”) articulated the principle as follows:

“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 parties as the date upon which the child would be returned.”

Her Honour did not accept the submission that, in addition to subjective intention, there must be active steps taken to change the child’s habitual residence before there can be an objectively identifiable act of repudiation. This was endorsed by the Full Court, which dismissed the mother’s appeal.

In this case, the parties (the mother an Australian citizen by birth who had acquired UK citizenship; the father a UK citizen with permanent residency in Australia), began living together in the UK in 2005, married in Australia in 2006 and had one child born in the UK in 2013 (a dual Australian and British citizen).

In late 2016, the mother was offered a relocation package to Australia with her employer. The father gave evidence he understood the placement was temporary, for a fixed period of two years, and the family would then return to the UK. The mother’s evidence was the family intended to be in Australia for two to three years, on an open-ended basis with no fixed return date. The family moved to Australia in October 2017, rented a home, enrolled their child in school and the father obtained employment.

On 14 and 16 February 2018, there was a series of conversations between the parties, the precise details of which were in dispute. The mother acknowledged she raised with the father concerns about intimacy in their relationship and advised him she had a “spark” with a work colleague. The court accepted the father’s evidence the mother also told him she did not wish to return to the UK, finding support in a text message he sent to a friend of the mother the same day. In September 2018, the parties began living separately and apart under the one roof. In January 2019, the father moved to alternate accommodation and the parties shared the care of their child.

On 15 February 2019, the State Central Authority filed an application in the Family Court of Australia on behalf of the father, seeking the child’s return to the UK pursuant to the Hague Convention on the Civil Aspects of International Child Abduction 1980.

The Full Court agreed with the trial judge and found the conversations between the parties and the mother’s statements constituted a clearly objectively identifiable act of unilateral repudiation of the prior agreement for a temporary stay in Australia.

The Full Court found it axiomatic that a repudiation by a parent of an agreement for a temporary stay is a breach of the rights of custody of the other parent, notwithstanding they were an intact family and continued to live together with the child. The Full Court referred again to Re C, and the explanation of Lord Hughes JSC [at 43] that “rights of custody include the right to be party to any arrangement as to which country the child is to live in”.

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