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

The State Central Authority of South Australia (“SCA”) brought an application on behalf of the father before the Family Court of Australia, as it was formally known seeking for the return of a child who had been wrongfully removed from their habitual residence, pursuant to the provisions of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Convention”).


The father is a citizen and resides in the United Kingdom (“UK”) and the mother is a UK citizen with permanent residency rights in Australia. The parents met in London and were in an intermittent relationship since 2009.  Child “X” the subject of these proceedings was born in 2010 and is a dual citizen of both Australia and the UK. The parties lived in Australia until their first separation in 2012 where the father relocated to the UK and the mother and X remained in Australia. In 2019 the mother returned to the UK with X and her son Y in an attempt reconcile with the father.

After a brief period of cohabitation in May 2020 an argument ensued between the parents which caused the mother to inform the father she intended to return to Australia on a permanent basis. Both parents agreed that the mother would reside in alternate accommodation until her return to Australia, however the father denied he agreed for X to return to Australia. On 16 May 2020, the parents agreed that the father “handed the mother the Australian passports for herself and the two children and assisted with her bags into a taxi,” [at para 30].

Decision by Williams J

The matter came before her Honour Williams J who held that X’s residence in the UK was for an “appreciable period” satisfying the Court that X was a habitual resident of the UK. In reaching this determination her Honour concluded that the SCA readily satisfied the “jurisdictional facts” in that X was wrongfully removed from the UK on 16 May 2020 and the father was exercising his rights of custody under the Convention [at para 80].

Her Honour then turned to whether the Court should exercise its discretion pursuant to reg 16(3) of the Convention which addresses the regulatory exceptions for X to remain in Australia. Although the mother and fathers’ evidence were “remarkably similar” the main disparity was whether the conduct of father in handing the passports amounted to his consent. In addressing the regulatory exceptions, her Honour examined the authorities and citing the Full Court of the Family Court’s judgment of Wenceslas & Director-General Department of Community Services where May and Thackray JJ expressed their views as follows:

“consent can be inferred from conduct; however … the consent
must be real and unequivocal and can only be made out by clear and cogent evidence” (at [264])

The unambiguous evidence before the Court led her Honour to conclude that although the father might not have considered that the mother would return to Australia imminently, the act of him handing over the passports demonstrated that he was unequivocally aware of the mother’s intention to travel and implicitly consented for her to travel to Australia with the children by his conduct. The SCA application was subsequently dismissed, which enabled the child to stay in Australia with the mother,  and at para 109 her Honour stated as follows:

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.

The relevance of this case

This decision highlights that providing consent for a child to travel does not necessarily have to be expressed in writing or orally, it can be inferred by the conduct of a parent. The onus of proof rests with the parent opposing the child’s return. The opposing parent will need to demonstrate on the balance of probabilities that the inference of consent was clear and unequivocal, where the other parent had considered or would have known of a child’s removal or retention at the time it occurred.

By Nicholes Family Lawyers


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