SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Case no: 2026-034707
In the matter between:
THE AD HOC CENTRAL AUTHORITY
FOR THE REPUBLIC OF SOUTH AFRICA
(AS DELEGATED ITO S277 OF ACT 38 OF
2005)
First Applicant
L[...] G[...] M[...]
Second Applicant
and
L[...] C[...] C[...] Respondent
Coram: JUSTICE J CLOETE
Heard: 14 MAY 2026, supplementary note delivered on 1 JUNE 2026
Delivered: 10 JUNE 2026
Summary: Retention of minor child in South Africa in breach of agreement –
proper approach to reception and evaluation of evidence in disputes under the
Hague Convention on the Civil Aspects of International Child Abduction -
whether respondent’s defences under art 13(a) and (b) established - conditions
of return order
ORDER
1. The minor child, H[...] M[...] M[...] (born on 6 June 2021), shall be returned
to Australia, subject to the terms of this order, in accordance with Article 12
of the Hague Convention on the Civil Aspects of International Child
Abduction, read with Chapter 17 of the Children’s Act 38 of 2005.
2. The second applicant is granted leave and authorisation, insofar as may be
necessary, to remove the minor child from the Republic of South Africa
(RSA) and accompany him back to Australia, being the minor child’s
country of habitual residence immediately prior to his wrongful retention in
RSA by the respondent on 23 April 2025.
3. The second applicant shall not remove the minor child in accordance with
paragraph 2 above prior to Monday 13 July 2026, in order for the minor
child to be prepared for his return in a sensitive and responsible manner by
the respondent.
4. In the event of the respondent electing to accompany the minor child to
Australia, the second applicant shall fund the cost of the respondent’s
economy flight (in addition to the economy flights in respect of paragraph 2
above) and the following further conditions shall apply:
4.1 The second applicant shall fund the cost of a return economy flight
for an adult of the respondent’s choice to accompany her to
Australia;
4.2 The second applicant shall procure rental accommodation for the
respondent of a nature similar to that of the residence of the second
applicant in Australia, and shall bear the cost of such
accommodation in full for a period of 6 (six) months, subject to the
court in Australia extending this period or varying the terms
hereof;
4.3 The second applicant shall be solely responsible for the
maintenance of the minor child, including but not limited to his
education and related expenses and a cash contribution of $400 per
month to the respondent until such time as the issue of the minor
child’s maintenance is determined by the court in Australia;
4.4 The second applicant shall be solely responsible for the costs of the
mother’s mental health care with a professional(s) of her choice to
the extent that it is not covered by the benefits offered by the
Australian government, unless the court in Australia orders
otherwise;
4.5 The second applicant shall, to the extent necessary, ensure that the
respondent is provided with a reliable motor vehicle for her use for
a period of 6 (six) months, subject to the court in Australia
extending this period or varying the terms hereof;
4.6 Within 7 (seven) days of the respondent’s return the second
applicant shall refer the care and contact arrangements for the
period that the minor child remains in Australia to the Family
Court for mediation and/or determination, unless the second
applicant and the respondent agree otherwise; and
4.7 The second applicant shall not institute any civil or criminal
proceedings, or support any civil or criminal proceedings that
might be instituted against the mother by the Australian authorities,
arising from her wrongful retention of the minor child in South
Africa.
5. A copy of this order shall forthwith be transmitted by the first applicant to
the Australian Central Authority, accompanied by a written request for its
assistance in order to ensure that the terms hereof are complied with.
6. There is no order as to costs.
JUDGMENT
Cloete J:
Introduction
[1] This is an opposed application brought in terms of the Hague Convention
on the Civil Aspects of International Child Abduction (Convention) 1. The
first applicant is the Ad Hoc Central Authority for the Republic of South
Africa ( AHCA) delegated as such under s 277 of the Children’s Act 38
of 2005 (Children’s Act). 2 The second applicant (the father) and the
respondent (the mother) are the biological parents of a minor child, a son
H, who was born in Australia on 6 June 2021.
[2] The minor child was legally represented at the hearing by Ms Bartman in
accordance with s 279 of the Children’s Act . I express my gratitude to
1 Incorporated as Schedule 2 to the Children’s Act 38 of 2005 by virtue of Chapter 17 thereof.
2 fn 1 above.
her for the assistance given. Since the AHCA and the father made
common cause in the relief sought, I will refer to them collectively as ‘the
father’ unless otherwise indicated. I will also where appropriate refer to
the father and the mother as ‘the parties’.
[3] More particularly, the application is brought in terms of art 12 of the
Convention which in relevant part reads as follows:
“Where a child has been wrongfully…retained in terms of Article 3 and, at the date of
the commencement of the proceedings before the judicial …authority of the
Contracting State where the child is , a period of less than one year has elapsed from
the date of the wrongful…retention , the authority concerned shall order the return of
the child forthwith.”
[4] Article 3 of the Convention provides (again in relevant part) as follows:
“The … retention of a child is to be considered wrongful where -
(a) it is in breach of rights of custody…under the law of the State in which the child
was habitually resident immediately before the …retention; and
(b) at the time of …retention those rights were actually exercised.”
[5] It is common cause , or at least not seriously disputed, that (a) the
mother’s retention of H in South Africa was in breach of the father’s
rights of custody in Australia; (b) H was habitually resident in Australia
immediately before the retention ; and (c) at the time of the retention the
father was actually exercising his rights of custody.
[6] The father (who would otherwise bear the onus to establish this) has
accordingly met the jurisdictional requirements of art 3 . The mother has
raised two defences in her answering affidavit, as follows:
“11. I state that the applicant (the father) consented, ex post facto, to H not returning
to Australia and to him residing permanently, with me in SA. He provided such
consent on 24 April 2025 and on a number of occasions thereafter. This is set out
below. Accordingly, and as of 24 April 2025 , H has been habitually resident in SA.
This is the first leg on which I found my opposition to the application.
12. In the event that it is found that the applicant did not consent to H not returning to
Australia and to him residing permanently, with me in SA, then the second leg on
which I found my opposition is that I have a defence in terms of Article 13(b) of the
Convention which I similarly detail more fully below.”
[7] The mother thus raise s ex post f acto consent under art 13(a) as her
primary defence, and one under art 13(b) as her alternative defence . The
father maintains that both lack merit. It is common cause that the mother
bears the onus of proving the defences raised by her. The relevant
portion of art 13 is as follows:
“Notwithstanding the provisions of the preceding Article ( i.e. art 12) , the judicial
…authority of the requested State is not bound to order the return of the child if the
person…which opposes its return establishes that –
(a) the person…had consented or subsequently acquiesced in the …retention;
or
(b) there is a grave risk that his or her return would expose the child to
physical or psychological harm or otherwise place the child in an
intolerable situation…”
Approach to the evidence on the disputed issues
[8] Prior to the Constitutional Court decision in Koch3 the approach of our
courts was as set out by the Supreme Court of Appeal in Penello4, namely
that in Convention cases the so -called Plascon-Evans rule5 applied,
meaning that where disputes of fact arise in application (motion)
proceedings, a final order may only be granted if the facts alleged in the
respondent’s affidavit , together with those alleged in the applicant’s
affidavit that have been admitted by the respondent, justify such an order.
3 Ad Hoc Central Authority v Koch NO 2024 (3) SA 249 (CC), delivered on 27 November 2023.
4 Penello v Penello ( Chief Family Advocate as Amicus Curiae) 2004 (3) SA 117 (SCA).
4 Penello v Penello ( Chief Family Advocate as Amicus Curiae) 2004 (3) SA 117 (SCA).
5 Plascon-Evans Paints Ltd v Van Riebeeck Paints ( Pty) Ltd 1984 (3) SA 623 (A).
The only exception is where the respondent’s allegations are so far -
fetched or improbable that they fall to be rejected on the papers as they
stand.
[9] In Koch this approach was rejected, and a different one was held to apply.
In the minority judgment Van Zyl AJ stated:
“[72] I am unable to agree with this approach to evidence in Convention proceedings.
Convention proceedings are designed to provide a speedy reso lution of disputes over
abducted children. As proclaimed in Article 1, the aim of the Convention is to secure
the prompt return of children removed from their country of habitual residence, and to
restore the status quo ante (the si tuation that prevailed before [the abduction]) so that
the custody and other issues that underlie the removal of a child can be decided by the
courts of that country. Article 11 further expressly directs the relevant authorities to
act expeditiously…
[73] The nature of the proceedings under the Convention, and the manner in which
the court hearing the matter decides to receive and assess the evidence placed before
it, must inevitably be dictated by the aforementioned objectives of the Convention and
the legislation that incorporates it into our domestic law. Proceedings under the
Convention are clearly designed with the object of providing an expeditious outcome.
The compulsory procedure for initiating proceedings is by way of an application to
the High Court. It is not open to SA’s Central Authority. to choose the procedural
form of the proceedings under the Convention, Also, neither the Childre n’s Act no r
the Regulations6 are prescriptive as to how the court should receive evidence…
[76] In addition to the prompt response required by the Convention and the
Regulations, the AHCA , as the applicant in proceedings under the Convention in this
country, is likely to find itself at an evidential disadvantage, since the person from
whom the child was taken will be resident in another country, often on a different
whom the child was taken will be resident in another country, often on a different
continent. These considerations militate against strict rules on the adducing of
evidence. The body of evidence placed before the court in proceedings under the
Convention may accordingly consist of a hotchpotch of different types of material.
6 Regulations relating to Children’s Courts and International Child Abduction, GN R250 GG 33067, 31
March 2010.
This is not conducive to a determination of factual disputes by applying the Plascon-
Evans rule.
[77] On the contrary, Article 13 itself makes the application of the Plascon-Evans
principle inimical to a determination of a defence raised in terms thereof. The use of
the word “shall” in the Article obliges the court tasked with making such a
determination, to “take into account the information relating to the social background
of the child provided by the Central Authority, or other competent authority of the
child’s habitual residence ”. Such evidence is bound to be factual in nature, and the
obligation placed on the court to take it into account in making a decision is
inconsistent with the process of fact selection that is inherent to the Plascon-Evans
rule.
[78] There are two further considerations that militate against applying ordinary
motion principle s to Convention proceedings . The first is that, as a general rule,
competing factual versions on affidavit cannot, in ordinary motion proceedings ,
properly be determined on a consideration of the probabilities. The second is that,
otherwise than with applications under the Uniform Rules, it is not open to an
applicant in Convention proceedings to choose the procedural form of the
proceedings. B y applying Plascon-Evans, the applicant , that is, the AHCA and by
extension the person from whose custody the child has been taken, will accordingly
find themselves at “peril” not by reason of their own choice…”
[10] In the majority judgment in Koch, penned by Majiedt J, this was
emphatically confirmed:
“[217] The first judgment correctly enumerates the flaws in the judgment of the
Supreme Court of Appeal ( i.e in the same case). To recap they are:
(a) First, that Court erred in its approach to the correct application of Article
13(b) by applying the principles in Plascon-Evans to its evaluation of the
evidence. In doing so, the Court impermissibly decided the matter solely
evidence. In doing so, the Court impermissibly decided the matter solely
on the evidence adduced by the aunt (who had retained the child after the
mother had passed away). It completely disregarded the evidence of the
applicant on crucial matters…”
[11] The majority also crisply summed up what is to be avoided by courts in
Convention proceedings:
“[218] … the Supreme Court of Appeal appears to have erred in its conflation of the
two inquiries of what was referred to in Sonderup as the long term interests of the
child, including determination of custody matters, and the short -term interests of the
child, which concern jurisdictional matters. That Court seems to me to have conflated
the assessment of the short-term jurisdictional question of which court is better placed
to deliberate on issues of care, custody and guardianship and the longer term question
that concerns an assessment of the best custodial arrangement for the child … What is
required is a determination of whether the A rticle 13(b) defence holds good in the
face of an Article 12 mandatory return…”
[12] The reference to art 13(b) in the passage s I have just quoted was to the
specific defence raised in Koch. But this does not d etract from the
broader underlying principle of the correct approach to the determination
of evidence on disputed issues in Convention proceedings, as is clear
from both the minority and the majority judgments.
Common cause facts relevant to this application
[13] The father was born in Australia in 1985, and it has always been his
country of residence. The mother was born in South Africa in 1997. The
parties met in 2018 while travelling in Vietnam. Thereafter they returned
to their respective home countries, but remained in regular contact ,
meeting up again for a holiday together in Thailand , again during 2018.
It was at that point that they discussed the possibility of the mother
travelling to Melbourne, Australia where the father resides.
[14] The parties entered into a committed relationship in November 2018.
After the mother travelled to Vietnam in December 2018/January 2019
she entered Australia on a three -month holiday visa . Upon expiry
thereof, she applied for and was granted a student visa , and later,
permanent residency status by way of a permanent partner visa due to her
relationship with the father. She continued to live in Australia until the
events in 2025 which ultimately gave rise to this application.
[15] As previously stated, H was born in Austra lia on 6 June 2021. With the
father’s consent, the mother travelled with H to Cape Town, South Africa
where her parents reside from 11 November 2021 until 18 January 2022 .
On 23 June 2022, the maternal grandmother travelled to Australia and
stayed with the parties for approximately 11 weeks . On 8 September
2022, with the father’s consent, the mother and H accompanied her to
South Africa. In November 2022, the father joined them here , whereafter
the parties and H returned to Australia on 11 December 2022. The
mother and H also travelled to South Africa and stayed with her parents
from 4 March 2023 until 5 April 2023.
[16] The parties separated in October 2023 . They implemented what appears
to be an informal, amicable shared care arrangement for H , although
exactly how it was implemented is the subject of some dispute. For
present purposes, nothing turns on this. On 30 November 2023 , and
again with the father’s consent, the mother travelled to South Africa with
H and returned to Austra lia on 1 January 2024. Thereafter the shared
care arrangement continued until the mother returned to the former
common home with H in June /July 2024. H attended a day care facility
four days a week from 2023 until the end of 2024. He was enrolled at the
end of 2024 to attend this facility five days a week from April 2025 until
the end of that year.
[17] In late December 2024, the mother’s parents travelled to Melbour ne for a
visit. According to the father , it was during their stay that the parties
decided that they would not be reconciling and that the mother would
again move from the former common home. According to the mother, it
was already apparent a month after she had returned to the former
common home that the parties’ relationship could not be saved , and the
only reason she stayed was because she could not afford suitable
alternative accommodation.
[18] In January 2025, the mother and her parents proposed that she return to
South Africa with H for three months . The father gave written consent
for this travel for the period 22 January 2025 to 22 April 2025. The
mother confirmed in her answering affidavit that it was her intention to
return to Australia as agreed. The mother and H travelled to South Africa
on 22 January 2025. On 21 March 2025, the maternal gran dparents
informed the father on a Teams call that the mother did not intend to
return to Australia with H as agreed, as it would not be good for her
mental health. The mother has a history of anxiety and depression. I deal
more fully with this when evaluating her a rt 13(b) defence later in this
judgment.
[19] During the same call the maternal grandparents informed the father that
H’s three-month visa could be extended without his consent and that he
should come to South Africa to discuss the long -term arrangements for
H’s care as well as his living arrangements. The father responded that his
consent was for three months only and that he needed time to process this
sudden news. He states that he was shocked and said very little else
during that call.
Defence of ex post facto consent under art 13(a)
[20] There were a number of communications between the parties following
the announcement of 21 March 2025. I will endeavour to summarise
those which are directly relevant to the mother’s pleaded defence of ex
post facto consent. It is necessary to deal with certain communications
prior to 24 April 2025 (when she maintains the father first furnished that
consent) because it contextualises the consent upon which she relies.
[21] On 22 March 2025, the father sent the mother a message in which he
stated that he was extremely anxious and felt blindsided. While
acknowledging that the situation was complicated and challenging for
them both, he made it clear that he would like them to stick to the three -
month agreement. He continued: “I want you to be assured that I will do
everything possible for you to feel comfortable when you return and to
keep in mind that this is a temporary thing whilst we both work together
and find a common ground and solution that is right for H”.
[22] The mother responded that she understood, but that she wanted the father
to travel to South Africa for this purpose. Significantly, and despite the
father’s reference to ‘this is a temporary thing’ the mother did not attempt
to persuade the court that this was some sort of consent on the part of the
father for her to remain in South Africa with H in the long term.
[23] The father was not prepared to travel to South Africa. On 9 April 2025
he informed the mother that he was expecting H to return to Australia on
22 April 2025, and that “further extension for H to remain abroad is non -
negotiable. Temporary accommodation is available for you until a more
suitable solution can be found ”. The mother’s response was to ask what
the proposed temporary accommodation would entail. The father did not
reply.
[24] On 16 or 17 April 2025 the mother sent a message to the father, which
essentially dealt with why she wished to remain in South Africa in the
long term, while suggesting a counsellor or therapist to assist the parties
in working out how to move forward. The father replied that while he
remained open to this option, he was not prepared to agree to H
remaining in South Africa beyond 22 April 2025 . He also stated that “I
have received advice that H needs to be home as per the agreement. If
not, the next step is to allow AUS /SA authorities to intervene. I hope it
doesn’t have to come to this as it would make future travel more
difficult…”.
[25] During a telephone call on 24 April 2025 , which the mother recorded
without the father’s knowledge, he repeated that H remained in South
Africa without his consent. When he asked the mother if she had booked
flights for their return, she repeated that he should travel to South Africa
instead to work things out. He again refused to travel to South Africa,
and told her that if she did not make arrangements for H’s return in the
next few days , he would ‘file for abduction’. Their discussion became
heated. Eventually he said the following:
“Because I do not need to go over there (i.e. South Africa). If you had the decency to
have a conversation with me the last three months, you can understand that I am not
trying (for you ) to come back here inevitably. You can come back like two months . I
need to see H, he needs to come home. I need to spend time with him and he can go
back with you. I cannot leave Australia yet… [a]nd it should be on my terms for me to
move to another country as well…[n]ot because you want to go home. I am not asking
you to stay here. I need to see H. I am not going there …[y]ou have got all your stuff
here as well, that needs to go . If you are not going to stay in Australia you need to do
it. Need to come back.”
[26] The mother’s response in that telephone call was that she would speak to
the maternal grandmother about ‘getting that done’ and would thereafter
revert. When pushed to commit to a timeframe the mother asked for ‘a
little bit of time’ and stated “nothing is booked right now so I cannot tell
you but I will let you know as soon as possible ”. The father did not
you but I will let you know as soon as possible ”. The father did not
accept this and said “Look, you cannot go over there and not come back.
You have taken H away from me” to which the mother replied “Okay”.
[27] The father’s version of this call is that he sought to persuade the mother
to return with H to Australia so that an agreement could be reached on the
long term arrangements for H through mediation and, failing agreement,
pending the outcome of an application by the mother to the court in
Australia for permission to remove H permanently to South Africa.
[28] On 26 April 2025, the mother’s attorney addressed a letter to the father.
The pertinent part of that letter is as follows:
“3. We understand that our client has conveyed to you that she is finding it incredibly
difficult to cope with life in Australia which in turn has a negative impact on H. She
has also made you aware that there is a significant difference in her wellbeing and her
parenting while in South Africa and with the strong support system here. She is very
concerned about what would happen if she were forced to return to Australia,
particularly the impact on H.
4. We are instructed that when this was conveyed to you by our client your initial
response was to nevertheless insist that she return with H to Australia.
5. We are instructed however that during a telephone conversation …yesterday you
indicated that you wanted her to return H to Australia for two months in order for you
to have contact with him whereafter you would allow H and our client to return to
South Africa.”
[29] I will accept that the conversation referred to was mistakenly stated to
have occurred on 25 April and not 24 April 2025. It would seem that the
mother did not inform her attorney of the full contents of the conversation
relied upon, and nor did she disclose to her attorney what the father had
conveyed to her earlier on 22 March 2025 , which had been conditional in
similar vein. Be that as it may, the father responded two days later on
28 April 2025 in the following manner:
“Thank you for your correspondence.
As you are aware, H and (the mother) travelled to South Africa in January of this year
for an agreed duration of three months. This time has now lapsed and H has
overstayed the consent of the travel agreement . H needs to return to Australia as soon
as possible, this is non-negotiable.
Appropriate accommodation for H and 50/50 care should be adhered to as this has
proven to be a successful arrangement in the past . If (the mother) does not wish to
reside in the common home I will make the necessary arrangements.
Upon the return of H and (the mother) mediation can be arranged in Australia to
resolve and agree to a long term solution. If a solution cannot be agreed within the 2
month period of return, I will consider (the mother) to return to South Africa for a
short duration until an agreement has been made.
Please acknowledge and respond within 7 days, after this time I will proceed to file an
application to the Hague Convention.”
[30] The mother’s attorney did not respond. On 15 May 2025 the mother sent
the father a message in which she wrote, amongst other things, that
“[y]ou mentioned us going back to Aus for a month and then H and I
returning to Cape Town. What did you have in mind with this? How
would that work? ” It will immediately be apparent that on the mother’s
own version in this message , she was under no illusion that on 24 April
2025 the father had not consented, nor had he acquiesced, to H remaining
permanently in South Africa with her. This is not explained in her
affidavit.
[31] The parties spoke again on 1 8 May 2025. Again, the mother recorded
their conversation without the father’s knowledge. The mother expressed
her fear that if she travelled to Australia, the father would not allow her to
leave again with H. She even asked him to put something in writing that
he consented to their return to this country. This too is inconsistent with
her reliance in these proceedings on the father having furnished his ex
post facto consent (or acquies cence) on 24 April 2025 for H to remain
permanently in South Africa.
[32] During the same conversation the father repeated that the mother had
breached their three month agreement . When the mother expressed her
fear referred to above, the father told her in no uncertain terms that “the
proper process is (for) you (to) file for a relocation for H. That is the
proper process if you want to go through that. Instead of doing what (you)
have done, which is not right.”
[33] The mother re sponded that H was much better in South Africa , but that
the father did not understand th is. He replied: “[i]f that is the case …then
we discuss and talk about (it). But you have taken him away. You have
not come back. And that is not right. You cannot just walk away, you
need to come back. He is my child . And I did not agree for this. I agreed
for you to go over there for a holiday . So you have got two options – you
come back for a month. We work s…t out or I file for abduction and then
you really would not be going anywhere . Because as soon as they bring
him back, I am only doing what is right. But I have given you plenty of
time.”
[34] The mother’s version of the communications of 15 and 18 May 2025 is
that the father, having “previously consented to H residing permanently
in South Africa ”, was refusing to commit to a definite unconditional
return here if she travelled with H to Australia for a brief period . It was
this refusal, she maintains, that made her fearful that he would block their
return to this country.
[35] While it is correct that during the conversation of 18 May 2025 the father
also said that “I did not say I would not let you leave ( Australia)” if she
returned there with H, on her own version she had doubts about the
veracity of this ‘assurance’ . This cannot, in my view, translate into ex
post facto consent or acquiescence. It was by its very nature conditional ;
and that condition was never fulfilled because the mother subsequently
failed to return to Australia with H at all.
[36] During a further telephone conversation on 22 May 2025 (again recorded
by the mother without the father’s knowledge) the same theme about a
definite commitment to a return to South Africa continued. The mother
herself stated: “[w]hat do you, okay what do you need? Tell me what you
need in writing and I am happy to look at that … I really honestly am.
Then we can move forward. We can sort out the mediation , we can start
planning that. We can book something so that the time we get there , there
is something booked ”. If the mother truly believed that the father had
unconditionally consented or acquiesced to H’s permanent relocation to
South Africa, what is unanswered by her is why she was nonetheless still
willing to attend mediation , which on neither party’s version was limited
to aspects other than H’s long term country of residence.
[37] The mother’s averment that it was only when she did not agree to return
to Australia on the father’s terms that he threatened an application under
the Convention , fails to withstand scrutiny. Already on 16 or 17 April
2025, the father told her that unless H returned to Australia on the
scheduled date of 22 April 2025 , he might have to act on advice received
to invoke the assistance of the Australian/South African authorities. On
24 April 2025 he made it clear, before suggesting a brief return for the
stated purpose of resolving H’s long term care arrangements, that if H
was not returned in the next few days, he would “file for abduction”. And
was not returned in the next few days, he would “file for abduction”. And
again, on 28 April 2025, he informed her attorney that failing a response
to the same proposal within seven days, he would bring an application
under the Convention.
[38] In the same conversation of 22 May 2025, the father yet again repeated
that what was not negotiable was a return to Australia , whether in the
short or long term. The following exchange ensued:
“Father: ‘ I am telling you legally what you are doing now is illegal. I did not
consent for you to stay and overstay . But i f anybody is doing any wrong it is you,
right now’.
Mother: I disagree but let us just leave it at that.
Father; How do you disagree ? How do you disagree with that ?
Mother: Because I know this is the best place for …[intervenes]
Father: You actually have no leg to stand on right now.
Mother: I know this is the best place for H, for having support (for) me mentally
…[intervenes]
Father: Regardless of that, there was no consent given …[intervenes]
Mother: For me I do not base …[intervenes]
Father: To stay in South Africa…[intervenes]
Mother: Okay. Anyway, send me, please send me, what I want from you is what your
plan, what in your mind what you want best. Say it is we come back for a month, after
that month, while we there let us get the parenting plan put in order. Let us work that
out together and then moving forward we can come back to South Africa after that
month in Australia and then we continue with, and honestly I am not trying to take H
away from you, I want to, I want to make it so H has you in his life…”
[39] What is clear from this exchange is that, contrary to what the mother now
asserts, even she understood that the return to Australia was not for a
brief, unconditional visit. Moreover, if the father had consented ex post
facto or a cquiesced to H remaining permanently in South Africa , it is
difficult to understand why she had not simply reminded him of this
instead. The fact that she rather advanced a different reason for wishing
to remain here speaks volumes. This is fortified by the following
exchange later in that conversation:
“Father: And at the moment you, you have taken him away from his father , without
consent. So regardless of what we might bring…[intervenes]
Mother: Because I do not feel safe and comfortable coming back to Australia. I do
not, I do not want to be in Australia.”
[40] I accept that the father did go on to offer , again in the same exchange,
that H could spend time alone in Australia with him if the mother did not
want to travel there , and that he could thereafter bring him back to the
mother if she wished . I also accept that the father said that he would not
take H away from the mother. But this is not the point. It is rather
whether, as pleaded by the mother, the father expressly consented or
acquiesced, on 24 April 2025, and on more than one occasion thereafter,
to H’s permanent retention by the mother in South Africa.
[41] The waters do become muddied however when regard is had to the
father’s email to the mother later on the same day (22 May 2025). In that
email the father reiterated that H needed to return to Australia “as soon as
possible due to his travel consent having lapsed for more than 30 days ”.
He went on to say that he was open to an agreement regarding H’s return
to South Africa thereafter and proposed conditions in respect of contact
and the like following such return.
[42] According to the father, his intention with this email was to secure the
mother’s return to Australia where they could then negotiate the long
term arrangements for H. He did this to reassure the mother in writing, as
she had previously wanted, since without such an assurance he was afraid
that she would refuse to return. At the time it was sent, it was his
understanding that the contents constituted informal and preliminary
negotiations only. The mother denies this to be the case and maintains
that the father’s explanation is implausible.
[43] I believe that the answer to this lies in the following. On 26 May 2025 ,
after the mother asked for time to consider the proposal, the father told
her in a message that she was at liberty to do so, but that H had to r eturn
to Australia, and she needed to provide him with “a date and his return ”.
The father also stated that :
“You are not in a position (to) keep H there until something has been agreed to.
I don’t think you quite understand or see this as a concern but keeping a child
overseas without parental consent is illegal. I have given you more than enough
opportunities to do the right thing.
I want to see my son.
I will be filing abduction on the 28th of May.”
[44] On 27 May 2025, the mother’s attorney s wrote to the father . It was
contended therein that the father had not responded to their letter of
26 April 2025 (which was incorrect). It was also contended that what
was ‘clear’ from the subsequent direct communications between the
parties, was that it had been agreed that H would reside with the mother
in South Africa in the long term since it was in his ‘best interests’ to do
so. Other aspects pertained to what should happen as a result of that so -
called agreement.
[45] The father’s Australian attorney responded to this l etter on 30 May 2025 .
It was made clear therein that the father had not consented to the mother
relocating to South Africa with H, or retaining him permanently here, and
that she was required to approach the Australian court for permission to
do so, if this remained her intention should the family dispute resolution
process following her return to that country fail. Demand was made for
the mother to return H to Australia by no later than 19 June 2025 , and it
was placed on record that the father would take action under the
Convention if needs be. On 13 June 2025 , in a reply from her attorneys,
the mother persisted with her stance that an agreement had been reached.
[46] H was still not returned to Australia, and the father contacted the
Australian Central Authority (ACA) to commence steps for a return
application under the Convention. The ACA referred him to the
International Social Service Australia (ISS) who gave provided him with
advice. He commenced with the drafting of his application. The
application was submitted to the ACA on 18 August 2025. The
application was approved by the ACA and forwarded to the AHCA,
which was authorised to proceed with it on 3 November 2025. A meeting
was held on 18 December 2025 in an attempt to settle the matter. This
was unsuccessful, as a consequence of which a timetable for the exchange
of papers was agreed upon for th e current application, which was
launched on 16 February 2026.
[47] There are a plethora of domestic and international judgments which deal
with the meaning of consent under the Convention . For present purposes
it is only necessary to refer to the Supreme Court of Appeal decision in
KG v GB.7 which sets out the established South African legal position:
“[38] …The consent or acquiescence referred to in art 13 (a) involves an informed
consent to or acquiescence in the breach of the wronged party’s rights…
[39] As was pointed out by Hale J in Re K (Abduction: Consent), ‘the issue of consent
is a very important matter [that] … “needs to be proved on a balance of probabilities ,
but the evidence in support of it needs to be clear and cogent [because] … (i)f the
court is left uncertain , then the ‘defence’ under art 13 (a) fails” [and] it is
[furthermore] obvious that consent must be real…positive and …unequivocal’…”
7 KG v GB 2012 (4) SA 136 ( SCA).
[48] Applied to the facts in the present matter, I am unable to find that the
father’s so-called consent falls into any of the aforementioned categories .
It was not real, positive and unequivocal, and this court is thus left, at best
for the mother, uncertain. Not only that, but as set out earlier, on the
mother’s own version she was at all material times uncertain as well. The
interpretation which the mother sought to place on the father’s
communications, and equally importantly her own , in these proceedings,
fails to pass muster.
[49] Turning now to the related defence of acquiescence, which is possibly the
more accurate defence, given that consent, for purposes of the
Convention, implies something in advance of a retention. This was dealt
with, again by the Supreme Court of Appeal, in Smith8 as follows:
“[18] In several decisions of the Court of Appeal in England a distinction
was drawn between active and passive acquiescence. In the case of the former the
uncommunicated subjective intention of the wronged parent was normally regarded as
irrelevant while in the latter the subjective intention was regarded as relevant. This
distinction was rejected by the House of Lords in Re H and others (minors)
(abduction : acquiescence) [1997] 2 All ER 225 (HL). Lord Browne -Wilkinson
considered that art 13 looked to the subjective state of mind of the wronged parent
and that accordingly the true inquiry was simply whether he had in fact consented to
the continued presence of the children in the jurisdiction to which they had been
removed or had been retained. At 235 e the learned law lord said:
“In my judgment, therefore, in the ordinary case the court has to determine whether in
all the circumstances of the case the wronged parent has, in fact, gone along with the
wrongful abduction. Acquiescence is a question of the actual subjective intention of
the wronged parent, not of the outside world’s perception of his intentions.”
And continued (at 235 g):
And continued (at 235 g):
“In the process of this fact -finding operation, the judge, as a matter of ordinary
judicial common sense, is likely to attach more weight to the express words or
conduct of the wronged parent than to his subsequent evidence as to his state of mind.
8 Smith v Smith 2001 (3) SA 845 (SCA) paras 18 and 19.
In reaching conclusions of fact, judges always, and rightly, pay more attention to
outward conduct than to possibly self -serving evidence of undisclosed intentions. But
in so doing the judge is finding the actual facts. He can infer the actual subjective
intention from the outward and visible acts of the wronged parent. That is quite a
different matter from imputing to the wronged parent an intention which he did not, in
fact, possess.”
I respectfully agree. Indeed, I can see no justification for importing into art 13 ( a) a
rule of thumb distinction which is not to be found in the words used.
[19] To the above approach, Lord Browne -Wilkinson added one
qualification; that is the case where although the judge is satisfied that the wronged
parent did not, in fact, acquiesce his outward conduct was such as to lead the
abducting parent to believe that the wronged parent was not going to insist on the
summary return of the child. This was because (at 236 f) -
“[n]o developed system of justice would permit the wronged parent in such
circumstances to go back on the stance which he has, to the knowledge of the other
parent, unequivocally adopted: to do so would be unjust.””
[50] On the facts of the present case, and for the same reasons in respect of
the mother’s defence of ex post facto consent, it would indeed be a stretch
to find that the outward manifestation of the father’s subjective intention
was such as to reasonably caus e the mother to believe that he had
acquiesced in H’s permanent retention by her in South Africa.
[51] It follows that the mother’s art 13(a) defence must fail.
Defence of grave risk under art 13(b)
[52] The mother contends that H would be placed at grave risk of
psychological harm, and/or placed in an intolerable situation , should a
return be ordered. Although she would return with H, as his ‘primary
carer’ she will not be able to function mentally and emotionally if she is
‘forced to again reside’ in Australia , and this, she avers, will have a
severe and deleterious impact on H as she will not be able to parent him
effectively.
[53] As succinctly set out in the majority judgment in Koch9, this court is not
called upon in Convention proceedings to determine issues such as
residence in the long term . This is something which is the exclusive
purview of the Australian courts. All I am required to determine is
whether the art 13(b) defence ‘holds good in the face of an Article 12
mandatory return’.
[54] The mother seems to have misconstrued t he true nature of the enquiry.
For example, in her affidavit she states:
“56. In the event of me having to live with H in Australia, I would have to find full-
time employment there to be able to support myself and would of course have limited
annual leave during which to travel home to SA. In addition, as H gets older and
attends school, he will only be able to travel to SA during school holidays and when I
am on leave. Accordingly, I will not be able to travel home to SA on a regular basis
for support and care before having to return to Australia again.”
[55] The mother states that for the past seven years, but particularly for the
past almost five years since H was born, her mental and psychological
well- being have been marked by severe anxiety and bouts of depression .
During certain of those bouts, she has been suicidal. The only reason that
she managed to parent H responsibly and provide him with love and care,
despite her state of mind, was because she was able to spend regular
periods of time in South Africa and enjoy the support of her family and/or
have her mother with her in Australia.
9 At para 218.
[56] Further, she states that she is “quite literally terrified ” at the thought of
having to live in Australia again. Medication, she says, is not sufficient
to manage her anxiety and depression. She also needs to live in a
supportive environment and in a country where she is able to generate an
income with which to support her self and contribute to H’s support, and
to have a reasonable standard of living. She states further that H deserves
to be parented by a physically and mentally healthy mother, something
which she has not been able to achieve in Australia.
[57] The mother also relies on a report (albeit not confirmed under oath) dated
6 May 202 5 by a consultant psychiatrist based in Melbourne, who for
sake of privacy I will refer to as Dr M. He states that the mother was first
referred to him for assessment by her general practitioner in August 2020.
She reported a history of Obsessive-Compulsive Disorder (OCD)
diagnosed in South Africa from quite a young age , with multiple
symptoms including checking behaviours, catastrophising thoughts, as
well as repetitive and ritualistic behaviours and intrusive and ego -
dystonic thoughts, which worsened after moving to Australia and being
disconnected f rom her family, as well as some difficulties around
financial autonomy and a reportedly uns upportive relationship with the
father.
[58] Dr M also diagnosed the mother with OCD of moderate to severe
intensity and a specific phobia around flying. She was treated with
appropriate medication and advised to continue therapy with a clinical
psychologist. She was subsequently monitored over the following few
months. After H’s birth in 2021 , the mother travelled to South Africa
with her mother for a short period as she felt ‘unsupported’. She
continued with her medication and was “stable in her symptoms albeit
with some residual anxiety”. Dr M next saw the mother in the beginning
of 2024, where she re-presented with a new referral. At that stage she
was stable and managing reasonably well, and continuing to take her
medication, although she felt forced to remain in Australia despite the
break-up with the father.
[59] He next saw the mother in November 2024 where she re -presented with
significant distress. She reported that she had been financially unable to
function due to the lack of support, and had returned to the father in order
to care for H. She was miserable, said she had no life in Australia, and
wanted to return to South Africa. Her relationship with the father was
causing increased anxiety and distress. She also reported recurrent panic
attacks despite her current treatment. Dr M changed her medication
regime and “she settled on this over the following month with improved
mood and no further pa nic attacks”. Her dose was gradually increased at
that stage, and she was functioning better and holding down a job.
[60] Dr M last saw the mother on 21 January 2025, when she consulted him
along with the maternal grandmother. She was “much better in terms of
mood and anxiety ” and told him about the three month return visit to
South Africa. He recommended this, i.e. that “she spend a bit of time
with her family in South Africa as she was getting some support from
them and that this would assist her mental health”.
[61] Dr M’s report was addressed to the mother’s attorneys. He continued:
“In regards to your specific queries about her return to Australia:
9.1 Do you believe that a return to Australia would have a negative effect on (her)
mental health?
If she was to return to Australia in the same circumstances as before without adequate
social support, and continuing the dysfunctional relationship (with the fathe r) I
believe it would have a negative impact in terms of unsettling underlying mood and
anxiety difficulties, reducing her ability to look after her own needs , and a worsening
of her mental health over time.
9.2 If so, what do you believe the potential impact for mental health would be if
she was forced to return?
As I said previously, it would potentially cause her mental health to deteriorate as a
result of lack of support and lack of stability, and increasing distress leading to poor
self-care, increasing symptomatology and lack of response to current treatment.
9.3 In your opinion would (the mother) being forced to return to Australia
negatively impact on her anxieties?
I’ve already answered this in the previous question as I feel it would negatively affect
her social support.
In regards to questions 9.4 and 9.5 (these questions do not appear from the report but
appear to relate to her capacity to parent if a return was or dered) I’m unable to
comment about this as this is not my area of specialty. Generally I would say that a
reduction or deterioration in mental health would affect the ability of anybody to
function appropriately in any role.
As such, there may be some difficulties in her parenting, however I can’t comment
further than that.
Overall, I would summarise that she requires a significant amount of p sychosocial
support given a long history of mental illness and general distress.
I think it would be ideal if there is an arrangement in terms of her being able to spend
time in Australia as well as return back to South Africa to be with her family from
time to time if needed, if such an agreement could be arranged.
However, at this point in time, her returning here without a prospect of returning back
to South Africa would probably not be in her best interest as far as her mental health
treatment and stability are concerned.”
[62] The report of Dr M i s the only, reasonably ‘current’ professional
independent report before this court, although I accept that it is now more
than a year old. I would have expected the mother to provide, at least, an
up to date report from a suitable professional in South Africa. I would
also have expected her to disclose fully whether she is still taking
medication and if she is receiving therapy for her mental health issues.
However, none of this was disclosed by her, which puts this court in an
invidious position.
[63] Apart from the mother’s own subjective version, supported by the
maternal grandmother who also deposed to an affidavit, one is thus left
with the professional opinion of Dr M. Importantly, not even he goes so
far as to say that the mother will be rendered non -functional if she returns
to Australia (with H) for a relatively short period while the relocation or
other process plays out in the Australian court. Similarly, and
understandably, given this is not his stated field of expertise, Dr M cannot
give a professional opinion on how a relatively short return to Australia
would impact so negatively on the mother that it would place H at grave
risk of psychological harm or otherwise put him in an intolerable
situation.
[64] I emphasise that I do not minimise the importance of the mother’s anxiety
and related mental health issues. They are indeed relevant and
concerning. But they need to be weighed into the mix along with all other
relevant factors. These include the professional opinion of Dr M , the fact
that the mother managed to hold down employment in Australia at a time
when her anxiet y levels were debilitating , and the absence of any
indication (other than what follows) of her inability to be a loving, caring
mother to H.
[65] The mother relies on two communications from the father as support for
her version that she cannot cope without the support of her family, in
particular her own mother. The first is during their conversation on
22 May 2025, when the father said to her that “I actually don’t want you
to be here with H because I feel like something might happen to him. I
don’t trust that you’re responsible enough to look after him yourself –
you are drinking over there – I know you are – and luckily for you - you
have your parents to look after him when you are going out but if you
were here I would be worrying too much”. The second is the email sent
later the same day when the father allegedly told the mother that: “I
understand the well -being of H is the motive, the most important thing I
believe is that he is in safe hands with your family”.
[66] However, it is clear from the first communication that day that the father
was concerned, not about the mother’s ability to care for H due to her
mental health issues, but because of her bouts of drinking alcohol. The
mother admits that she has on occasion consumed too much alcohol.
However, she states, she has neither historically misused alcohol nor does
she currently do so or indeed any other such substance. She avers that
she has always been a very responsible mother to H even when she has
battled with her anxiety and depression.
[67] The second communication has been misquoted by the mother. What the
father wrote was that “I understand the we ll-being of H is the most
important thing. I believe he is in safe hands with your family, however
removing H from his father should not have been overlooked and
disregarded in such a way ”. This cannot, in my view, translate into what
the mother contends is an acknowledgment by the father of a grave risk
should H be ordered to return to Australia. I accept however that the
father shared the maternal grandmother’s concern that the mother “was
father shared the maternal grandmother’s concern that the mother “was
not doing well and needed family support and medical care ” during the
maternal grandparents’ visit in late 2024/early 2025, when their
relationship was in serious difficulty, but it is undisputed that it was for
this reason that he agreed only to a three month visit to South Africa , and
not to a permanent return to this country.
[68] In Koch the minority judgment stated:
“[62] The approach that Article 13(b) does not require elaboration beyond its terms
must be endorsed. It is implied in the plain meaning of the words used in Article 13(b)
that it sets a high threshold, and any other approach will be inconsistent with the
language used and the objectives of the Convention. The level of the risk must be of a
serious nature , and the words “otherwise place the child in an intolerable position ”
throw considerable light not only on the degree of seriousness of the risk of the harm,
but also the harm itself , that the Convention has in mind. The word “otherwise” is
indicative of a conclusion that the physical and emotional harm contemplated is harm
to the degree that also amounts to an intolerable situation.
[63] The risk of harm that will meet the threshold in Article 13(b) will inevitably be
determined by the facts of any particular case. As a general proposition, it may be said
that the risk of harm must be of a severity which is more than is inherent in the
inevitable disruption, uncertainty and anxiety which follows on an unwelcome return
to the jurisdiction of the child’s home country . It is important to make the observation
that Article 13(b) does not require there to be certainty that harm will occur. What is
required is persuasion by applying the legal standard of proof that there is a risk
which warrants the qualitative description of a “grave risk” that the return will
“expose” the child to harm. Whether the risk reaches that threshold must inevitably be
determined on the facts of the case and by the nature of the projected harm….
[65] The answer to the concerns which underlie the notion that the exceptions must be
[65] The answer to the concerns which underlie the notion that the exceptions must be
given a restrictive interpretation must rather be found, as envisaged in Sonderup10, in
a balanced approach to the determination made in Article 13(b), and the correct
application of the Convention . This requires the court to approach the enquiry in a
manner that will give effect to the meaning of the language in the Article, the
objectives of the Convention, the limited nature of the assessment the court is required
10 Sonderup v Tondelli 2001 (1) SA 1171 (CC).
to make with regard to what the short-term best interests of a particular child are, the
location of the burden of proof, and the summary nature of the proceedings.
[66] An integral part of the scope of the enquiry the court is required to conduct, in
determining whether there is a grave risk of harm or an intolerable situation as
contemplated in Article 13(b) , is the presence or absence of ameliorative measures to
ensure the child’s safety upon return to their home country. Simply put, if the child
can be sufficiently protected from grave harm when returned, then the child does not
in fact face a “grave risk” of serious harm as contemplated by Article 13(b). This is
consistent with the underlying premise of the Convention that the judicial and social
authorities of the home country are in a position to provide the necessary protection
and support in dealing with any eventuality that may arise from the return of the
child.”
[69] The majority judgment in Koch also summarised the following important
principles11 :
“…(d) the words “physical or psychological harm” are not qualified but do gain
colour from the alternative “or otherwise” placed “in an intolerable situation”.
“Intolerable” is a strong word but, when applied to a child, must mean “a situation
which this particular child in these particular circumstances should not be expected to
tolerate”.
(e ) Article 13(b) looks to the future … [w]here the risk is serious enough , the court
will be concerned not only with the child’s immediate future because the need for
protection may persist.
(f) Where the defence under Article 13(b) is said to be based on the anxieties of a
respondent mother about a return with the child, which are not based on objective risk
to her but are nevertheless of such intensity to be likely, in the event of a return to
destabilise her parenting of a child to a point where the child’s situation would
become intolerable, in principle, such anxieties can found the defence under Article
13(b).”
13(b).”
11 Koch at para 158.
[70] Having regard to these principles, viewed against the factual context set
out in some detail above, and subject to the safeguards which I shall
incorporate in the order that follows, I am compelled to find that t he
mother has failed to discharge the onus in respect of her alternative art
13(b) defence. The report of her own former treating psychiatrist, Dr M,
is not sufficiently compelling. There is no current independent
professional evidence to enable me to conclude that her anxiety is of such
intensity that, if H is ordered to return to Australia (which on the
undisputed facts will involve her simultaneous return) this would place H
at grave risk or otherwise put him in an intolerable situation. Moreover,
history has shown on the mother’s own version that, despite her mental
health issues and other social challenges in Australia, she was a caring,
loving and responsible parent to H.
[71] I accept that this will be devastating to the mother who expresses terror
at the thought of returning, but viewed in proper context, it is terror at the
prospect of having to remain in Australia indefinitely and to parent H
there in the long term , as supported by the opinion of Dr M. As I have
been at pains to point out, this is one of the issues that is for the
Australian court to determine in the relocation application which the
mother shall have to bring in that country. There is simply insufficient
evidence before me to refuse a return under the Convention on this basis.
[72] It follows that the art 13(b) defence must also fail.
The submissions of H’s legal representative
[73] In her report, Ms Bartman correctly submitted that, given H’s age, her
role was more akin to that of a curator ad litem . I deal with the most
pertinent aspects of her helpful report, as follows. H was brought to her
chambers on 7 May 2026 by his mother and maternal grandmother. He
separated very easily from them. He was content for his mother to leave
the room, and to remain with Ms Bartman on his own and speak to her, a
stranger, for almost 40 minutes while playing with his toys.
[74] H is not aware of the current proceedings . He told her that he was going
to see his dad on Tuesday (12 May 2026) and was excited about this. He
expressed that he liked his home here and did not want to return to
Australia but rather stay with ‘granny’. He wanted his dad to also live in
‘Africa’ with him because he loves him and would like to see him every
day.
[75] H appears to be content with his current living circumstances . However,
Ms Bartman is of the view that he would be equally content to return to
Australia if his mother told him they would be doing so. Although he has
expressed a preference to stay in South Africa, as Ms Bartman correctly
points out, children live in the moment and given his age and how long he
has now been away from Australia, it would be unlikely for him to
express a wish to move from a home in which he is settled and lives with
people he loves. There was nothing conveyed to Ms Bartman by H which
would caus e her to positively say that a return to Australia would, or
would not, be detrimental to him.
[76] What can be taken from Ms Bartma n’s report is that H is a robust,
confident child whose parents, to their credit, have kept him from the
conflict between the m, and who has maintained a close and loving
relationship with his father despite the geographical distance between
them by way of face time contact facilitated by the mother. This
indicates positives rather than negatives for a successful return, even if in
the short term.
Undertakings and safeguards
[77] In his affidavit filed with the ACA, the father provided the following
information. Since their separation, he ha d paid the mother $400 per
month as child support. This amount was calculated based on their
shared care arrangement and took into account his full payment of the
childcare expenses during that period. His taxable income for the 2022 -
2023 financial year was $162 447 while the mother’s was $10 000.
Based on this assessment, the annual child support calculation for the
period in question was payment to the mother of $9636.
[78] Under what he referred to as the ‘ financial agreement’ following their
earlier separation, the mother also received a total of $80 000 from him
between 24 October 2023 and 18 April 2024. These payments included
rent, ‘rental bond’ and various additional a mounts requested by her. The
father also covered private health insurance for the three of them at a cost
of $328.89 per month.
[79] The father also stated that the mother has struggled with her mental health
for many years, including prior to H’s birth. He outlined the efforts made
to assist her in getting support . Despite their separation, he is willing to
support her in in managing her mental health should she return to
Australia, recognising that her wellbeing is closely linked to H’s stability
and development. For example, he is able to facilitate flexible care
arrangements to allow her time to attend appointments and focus on her
health needs.
[80] In the same affidavit the father stated that on her return to Australia , the
mother would have access to a comprehensive range of mental health
services through both the public and private health systems. She would be
eligible to obtain a Mental Health Treatment Plan from a general
practitioner, enabling her to receive Medicare -subsidised sessions with a
psychologist or other allied health professional. Psychiatric consultations
are also subsidised under Medicare (which is the Australian public health
care system) and public community mental health services offer support,
assessment, treatment and case management at no cost. Annexed to his
affidavit was a copy of the Australian Government’s Better Access
Resource Initiative in support thereof.
[81] In the same affidavit the father gave the following undertakings should
the court order H’s return, namely that:
“77.1 He will not commence nor support any proceedings in Australia, whether
civil or criminal, which could result in the imprisonment or punishment of the mother
in respect of any matters arising out of her wrongful retention of H in South Africa ;
77.2 He will make the necessary arrangements to cover the cost of H’s return, if
necessary, which he understands may include covering any c osts associated with an
accompanying adult . He is also willing and able to travel to South Africa to collect H
and return with him to Australia;
77.3 He will provide reasonable additional financial support to the mother as may be
necessary to facilitate a smooth transition back to Australia;
77.4 He will act as guarantor for the mother should she be unable to secure a rental
property due to ‘lack of financial documentation’ and provide up to three months
rental assistance in her securing suitable accommodation;
77.5 He will support H financially, physically and emotionally (I deal further with the
issue of child support below);
77.6 Upon his return, H will be promptly re -enrolled in appropriate schooling (he is
eligible for free or low-cost public education) and he will support H’s participation in
extra-curricular and community activities to promote continuity and stability in his
life; and
77.7 He will facilitate and encourage H’s relationship with the mother and her family,
and take all reasonable steps to safeguard his well -being and emotional stability
during the transition period following his return.”
[82] In that affidavit the father also confirmed that as a permanent resident of
Australia, the mother has full access to Medicare, as does H. In addition
to mental health care dealt with separately above, this includes subsidised
medical and dental services, the Pharmaceutical Benefits Scheme, free
public hospital treatment, free or subsidised consultations with general
practitioners and specialists and subsidised prescription medication.
[83] In addition, says the father, the mother is eligible for certain government
benefits, including the Family Tax Benefit and the Child C are Subsidy.
Depending on her circumstances , the mother may also be eligible for
other payments and supports , such as Rent Assistance , Parenting
Payment, and access to government funded community services. The
father annexed a printout from the Australian Department of Human
Services website, which sets out the benefits available and brief eligibility
requirements. The mother also has access to legal aid, again subject to
eligibility.
[84] The further information provided by the father in the same affidavit is as
follows. He is employed as an engineer, and his annual adjustable
taxable income is now $ 191 969. He understands that, even in an equal
care arrangement, child support will still be payable by him to the mother
if there is a significant difference between their respective incomes. He
undertakes to meet any such obligation in accordance with Australian
child support laws. His income and financial position enable him to meet
these obligations without difficulty, ensuring that H’s needs are met in
both households. He referred to an updated Services Australia child
support estimate dated 12 August 2025 which was allegedly annexed,
although this was not included in the papers before me.
[85] In his replying affidavit in these proceedings, the father gave the
following further undertakings:
“81.1 He will give the mother additional funds to enable a friend or family member
of her choosing to travel with her and H to Australia , in order to provide meaningful
support to her during the transition period following her return; and
81.2 He has increased his offer of rental for the mother from three months to four (the
reference to an increase to four weeks, not months, elsewhere in his replying affidavit
was clearly an error), which he states is intended to provide her with adequate time to
secure suitable employment and to obtain any applicable government or financial
support to which she may be entitled.”
[86] The mother did not deal at all with the tenders made by the father in his
affidavit to the ACA, although it pre-dated these proceedings. I accept
that, given the increased tender made in reply, she was , strictly speaking,
deprived of the opportun ity to deal with it, although given the new
approach to evidence in Convention proceedings, she would have been
permitted to file a further affidavit had she reque sted the opportunity to
do so.
[87] The mother state s that if the father’s tender is to be understood as her
being required to resume living with him under the same roof, this will
indeed expose H to a grave risk of harm and/or place him in an
intolerable situation , as there is simply no way that she could cope
emotionally in such circumstances. I will accept this, as I also accept her
rejection of the father’s suggestion that H can move back to the former
common home to live with him. The father’s suggestion is unrealistic on
this score, given how much time has passed since H left Australia on 22
January 2025.
[88] The mother appears to have adopted the stance that it is only required of
the father to place evidence before the court about the resources and state
benefits available to her in the event of H being ordered to return to
Australia. The same applies to employment opportunities for her and
what she considers to be the reasonable cost of maintaining herself , as
well as a reasonable contribution to H’s maintenance, which obviously
includes the cost of rental accommodation.
[89] Her attitude throughout has been that the father must satisfy her , without
more, that she will be well looked after financially should she return.
This cannot be correct. This is an individual who, as a fact, lived in
Australia for some six years before her return to South Africa in January
2025; who held down employment during that period ; and who received
benefits in respect of mental health care and the like provided by the
Australian government. She clearly has this information at her disposal.
Her election no t to place any such information before the court, so that
the father’s tender could be evaluated against it, leaves me with no
alternative but to rely solely on the father’s evidence.
[90] The father has set out in some detail what those benefits and resources
are. There is nothing before me to indicate that they are insufficient, save
for a few tweaks and that in my view the father’s offer in respect of rental
accommodation should , out of caution, be e xtended to a period of six
months. This is because the AHCA failed to place any information
before me regarding how long the process is likely to take in the
Australian court. I do take into account however the AHCA’s advice that
the mother is nonetheless at liberty to pursue any maintenance claims that
she may have in the Australian court as well.
Costs
[91] During argument it was submitted on behalf of the mother that the
AHCA should be ordered to pay the costs of this application in the event
of the mother being successful. It was contended that the AHCA had not
properly considered the mother’s defences before launching these
proceedings. I disagree that there is anything in the conduct of the
AHCA which warrants any sort of costs order. It was clearly fulfilling its
statutory mandate at the specific request of the ACA, and , even had the
mother been successful, a costs order of this sort would have a chilling
and deterrent effect on the AHCA in other Convention cases.
[92] The AHCA and the father sought costs in the event of the mother
opposing this application. Similarly, the mother sought costs against
them. In the exercise of my discretion, and given the nature of these
proceedings, it is appropriate that that there be no order as to costs.
Order
[93] The following order is made:
1. The minor child, H[...] M[...] M[...] (born on 6 June 2021 ), shall be
returned to Australia, subject to the terms of this order , in accordance
with Article 12 of the Hague Convention on the Civil Aspects of
International Child Abduction, read with Chapter 17 of the Children’s
Act 38 of 2005.
2. The second applicant is granted leave and authorisation, insofar as
may be necessary , to remove the minor child from the Republic of
South Africa ( RSA) and accompany him back to Australia, being the
minor child’s country of habitual residence immediately prior to his
wrongful retention in RSA by the respondent on 23 April 2025.
3. The second applicant shall not remove the minor child in accordance
with paragraph 2 above prior to Monday 13 July 2026, in order for the
minor child to be prepared for his return in a sensitive and responsible
manner by the respondent.
4. In the event of the respondent electing to accompany the minor child
to Australia, the second applicant shall fund the cost of the
respondent’s economy flight (in addition to the economy flights in
respect of paragraph 2 above) and the following further conditions
shall apply:
4.8 The second applicant shall fund the cost of a return economy
flight for an adult of the respondent’s choice to accompany
her to Australia;
4.9 The second applicant shall procure rental accommodation for
the respondent of a nature similar t o that of the residence of
the second applicant in Australia, and shall bear the cost of
such accommodation in full for a period of 6 (six) months ,
subject to the court in Australia extending this period or
varying the terms hereof;
4.10 The second applicant shall be solely responsible for the
maintenance of the minor child, including but not limited to
his education and related expenses and a cash contribution of
$400 per month to the respondent until such time as the issue
of the minor child’s maintenance is determined by the court
in Australia;
4.11 The second applicant shall be solely responsible for the costs
of the mother’s mental health care with a professional(s) of
her choice to the extent that it is not covered by the benefits
offered by the Australian governmen t, unless the court in
Australia orders otherwise;
4.12 The second applicant shall, to the extent necessary, ensure
that the respondent is provided with a reliable moto r vehicle
for her use for a period of 6 (six) months, subject to the court
in Australia extending this period or varying the terms
hereof;
4.13 Within 7 (seven) days of the respondent’s return the second
applicant shall refer the care and contact arrangements for
the period that the minor child remains in Australia to the
Family Court for mediation and/or determination, unless the
second applicant and the respondent agree otherwise; and
4.14 The second applicant shall not institute any civil or criminal
proceedings, or support any civil or criminal proceedings
that might be instituted against the mother by the Australian
authorities, arising from her wrongful retention of the minor
child in South Africa.
5. A copy of this order shall forthwith be transmitted by the first
applicant to the Australian Central Authority, accompanied by a
written request for its assistance in o rder to ensure that the terms
hereof are complied with.
6. There is no order as to costs.
____________________________
J I CLOETE
JUDGE OF THE HIGH COURT
Appearances
For the applicants: Adv J Williams
Instructed by: State Attorney, Cape Town
For respondent: Adv J McCurdie SC
Instructed by: Catto Neethling Wiid Inc