JM v RM: A wrongful act of retention requires there to be a clearly agreed due date of return

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JM v RM concerned a father’s application for the summary return of his two children to Australia. The mother had brought the children to this country on the 26th of February 2020, with the agreement of the father, for the purposes of an annual visit. The father claimed that by early May 2020, at the latest, the mother had committed a wrongful act of retention. The primary defence of the mother was that there was no relevant wrongful act of retention, because the original due date of return was frustrated due to the pandemic, and no alternative due date was ever substituted. This, said Mostyn J hearing the application, was “a novel argument.”

The case turned on the sequence of events leading up to the father’s application, which was as follows:

1. The husband is Australian and the mother is English. They met in Australia in 2011 and were married in 2012. They have two children, aged 3 and 1. Both were born in Australia and have dual British and Australian citizenship.

2. Up until February 2020 the parties lived exclusively in Australia, although there were annual trips to this country for the mother to visit her parents and wider family.

3. As mentioned, the mother brought the children to England in February last year, for such a trip. It had been agreed between the parents that the father would join them here on the 9th of April, and that the family would return to Australia on the 23rd of April. Return flights were booked for that date. In the event the mother and the children have remained in this country to this date. 

4. As Mostyn J explains: "...following her arrival, the mother formed the intention around the date of her birthday on 16 April 2020 that she would not return to Australia with the children as she was not happy living there and saw no future in the marriage. She did not then express that view to the father."

5. Meanwhile, the pandemic intervened. The Australian government imposed restrictions on leaving the country, so that the father could not fly to England on the 8th of April as planned, and the return flights to Australia on the 23rd of April 2020 were cancelled.

6. There followed some communications between the parties, in which the mother indicated, but did not state, that she felt the marriage was over. Despite this, the father did not stipulate either an alternative fixed return date, or even that he was insisting on the children being returned to Australia.

7. The father eventually obtained compassionate permission to leave Australia, and travelled here on the 9th of July. On that day the mother texted the father, stating clearly for the first time that the marriage was over, thereby inferring that she intended to remain in England with the children.

8. On the 1st of August the parties had their first direct meeting. The father claimed (and Mostyn J accepted) that at this meeting he made it clear to the mother that he wanted the children to return to Australia.

9. The father issued his Hague application on the 23rd of October.

The first question considered by Mostyn J was: Was there a retention? As he explained:

"It is the mother's case that a trip which had been for a fixed period with a due date of return of 23 April 2020 became open-ended with the eruption of the pandemic and the cancellation of the return flights. The mother argues that retention as a concept requires there to be an operative agreement between the parents that one of them can take the children to another Convention country for a "fixed", "stipulated" or "limited" period with a "due date" of return."

The father did not agree:

"The father had to admit in his oral evidence that at no stage prior to 1 August 2020 had he stipulated that the children must be returned to Australia, sooner or later, whether on a fixed date or even in principle. However, he argues through his counsel ... that this is completely irrelevant. It was a clear common understanding that the trip to England was always going to be fixed or limited. That the original return date was frustrated by the pandemic is neither here nor there; the trip retained its temporary characteristic. Had the pandemic not erupted the mother would not have returned on 23 April 2020, and the case would have been an open and shut one of actual retention on that date. The mother cannot opportunistically seek to jump on the bandwagon of the pandemic and try to convert what was at all times, and for all purposes, a limited trip into an unlimited one."

Mostyn J admitted that this had not been an easy issue for him to resolve. However, he said:

"I have with some hesitation decided that [counsel for the mother] is correct. It seems to me that a wrongful act of retention, whether anticipatory/repudiatory (i.e. happening before the due date for return), or actual (i.e. happening after the due date of return), requires there to be, as a matter of fact, a clearly agreed due date of return. I believe that every reported case about retention has involved a finite period away with a due date of return. In my opinion it is implicit in the concept of wrongful retention, as referred to in Articles 1, 3, 12, 13, 14, 15 and 16, that the wrongful act must take place within, or immediately following, an agreed finite period of care by the retaining parent."

As to this case:

"The original due date of return was frustrated by the pandemic. Thereafter, until 1 August 2020 the parties operated an uneasy understanding or stand-off whereby no alternative due date of return was substituted. The father did not even in that period stipulate in principle an insistence that the children should in due course be required to return to Australia."

Finding that by the 1st of August both children were habitually resident in England, Mostyn J then quickly moved to his conclusion:

"...that on 1 August 2020, when the operative act of retention occurred, the children were habitually resident in England and that therefore ... "the Convention cannot be invoked"."

For good measure, he also found that even if, as the father claimed, the wrongful retention had occurred by no later than early May, the father subsequently acquiesced in that retention, and in those circumstances the court should not exercise its power to order a return of the children under the Convention to Australia.

The father's application was therefore dismissed.

The full judgment can be read here.