Commissioner of Police for State Central Authority of South Australia & Garnett [2021] FamCA 86

Background

The father in this case was a British citizen, who resides in England. The mother was a British citizen with permanent residency rights in Australia. The child, who was born in South Australia in 2010, was a dual citizen of the United Kingdom and Australia.

The father and mother met in London in 2009. The mother subsequently moved to Australia and the father joined her in Australia shortly prior to the child’s birth. The parties married in 2011 and they lived together in Australia during the marriage. There were a number of separations and temporary reconciliations. After the parties separated in June 2014, the father returned to the United Kingdom, where he has remained.

In an attempt to rekindle the marriage, the mother travelled to the United Kingdom with the child in July 2019. The parties resumed living together. The child was enrolled in a local primary school, attended extra-curricular activities, and was registered with the local general practitioner.

Following an argument between the father and mother on 15 May 2020, the mother informed the father that she intended to return to Australia permanently with the child. The next morning, the father awoke to find the mother packing her suitcase. The mother asked the father to give her the child’s passport. After some initial reluctance, the father gave the child’s passport to the mother. He later helped the child and the mother put their luggage into a taxi.

While the father’s evidence was that he understood the mother and child were going to stay in a nearby hotel and there would be further opportunity for the parties to discuss matters prior to a final decision being made, the mother and child travelled directly to the airport and caught a flight back to Australia on 16 May 2020.

Jurisdictional facts

Having found that the child was habitually resident in the UK at the time of her removal and that the father was exercising his custody rights at the relevant time, the court was satisfied that the jurisdictional facts had been established by the State Central Authority (SCA) acting on behalf of the father, and that the child had been wrongfully removed from the UK.

Exceptions to return

The Family Law (Child Abduction Convention) Regulations 1986 (Regulations), which enshrine Australia’s obligations under the Convention on the Civil Aspects of International Child Abduction (generally referred to as the Hague Convention), provide for limited circumstances or exceptions where the court may exercise its discretion not to return a child to his or her place of habitual residence notwithstanding that the jurisdictional facts have been established.

Relevant to this case, an exception applies where the party opposing return is able to establish that the other party consented to the child being removed to Australia.

The mother and father gave remarkably similar evidence regarding the circumstances of the child’s removal from the UK on 16 May 2020. Where they disagreed was whether those facts, and in particular the father handing the child’s passport to the mother, amounted to the father having consented to the child’s removal.

The court held that there was no requirement for consent to be expressly provided orally or in writing. Clear and unequivocal consent can be inferred from conduct alone.

While the father did not explicitly say to the mother that he consented to the permanent departure of the child, the court nonetheless observed that, “The father must have been abundantly aware of the implications of handing over [the child’s] passport to the mother.” The court held that the father’s own evidence supported the contention that he knew implicitly and unambiguously that the mother required the child’s passport because she intended to fly with the child, having regard to her prior statements to this effect.

Having found that an exception existed under the Regulations, the court’s discretion whether to make the order for the child to be returned to the UK was enlivened. The court declined to make the return order sought by the SCA on behalf of the father.

Takeaway

The court’s decision in Garnett underscores the importance of parents exercising caution when considering proposed travel arrangements and seeking clarification of the reason for any request made for provision of a child’s passport or other important travel documents. The court can readily infer consent from the actions of a parent without the need for consent to have been expressly provided orally or in writing.

Commissioner of Police for State Central Authority of South Australia & Garnett [2021] FamCA 86