No: FD24P00469 - [2025] EWHC 799 (Fam)

As I have already indicated there is a significant degree of dispute about the nature of the parties’ relationship and the father has sought on a number of occasions to categorise the allegations of domestic abuse that have been made against him as lies. In the context of summary proceedings such as these, I am not in a position to engage in any form of detailed fact-finding exercise. Instead, for the purpose of determining the mother’s Art. 13(b) defence I must assess what would be the risk to the child if the allegations made were true, unless I am able to confidently discount the possibility that the allegations would give rise to such a risk (see Re A (Children)(Abduction: Article 13(b) [2021] EWCA Civ 939 per Moylan LJ at [92]).

However, although there is a degree of dispute about specifics of various incidents, there is sufficient evidence here such that I cannot confidently discount the possibility that on a return the mother and child would be at risk of domestic abuse perpetrated towards them. On both parties’ accounts, their relationship has been characterised by arguments. The father’s evidence is that the problems only began in early 2023, although I note that in late 2023 the mother informed a psychological counsellor that there was “lots of conflict in the relationship”, and that there was a “lack of trust”, that she had “always felt insecure in the relationship” and that she felt that the father played “mind games”.

There was clearly an incident on a holiday in Bali in August 2023. Again, the parties’ account differ. However, common to them is the fact that there were significant arguments and there was an incident where the father put his hand on the mother’s shoulder. In her statement in these proceedings the mother describes the father as “grabbing her aggressively by the shoulder”. In her earlier statement to the Australian Police she describes the father putting his hand on her shoulder but stated “I felt that he was escalating in his aggression towards me”. In his statement, the father does not deny putting his hand on his shoulder although he provided an explanation that it occurred as they were passing each other on a narrow footpath on a busy road. I do not see why this should have caused him to make physical contact with the mother in this way, and whether his gesture is properly described as “grabbing her shoulder” or “putting his hand on her shoulder”, there appears to have been an element of physical control or aggression associated with the gesture.

The next substantial incident is that of Christmas 2023. Neither parent had done shopping for their Christmas meal and this led to the argument that I have already described. In the immediate aftermath of that incident the mother told the Police that the argument had escalated with the father pushing her out of a room and then throwing a vacuum cleaner “at” the mother which damaged the door. In her statement to this court the mother describes the father pushing her out of the door and picking up D to walk away from the shouting. However the father, in anger, “grabbed the hoover and threw it against the wall in the hallway, damaging a door just slightly away from where [D] and I were stood”.

In his submissions Mr Crosthwaite sought to make a point about the inconsistencies in these accounts and suggested that the mother was now seeking to exaggerate what had occurred. However, it seems to me that it is in fact the father’s accounts of this incident which have changed the most. In a text exchange which appears to have been sent immediately after the incident the father stated “I never hit you I pushed you out of the room as you would not leave”. In his first statement to this court the father makes no mention of having pushed the mother but accepted that “following the argument I threw the vacuum cleaner out of the way. [The mother and D] were in another part of the house but I did not realise that I was in their line of sight.”. However, by the time of his third statement, he was seeking to downplay the incident claiming that he simply “moved the vacuum cleaner between my legs with my feet hitting the wall” whilst the mother and D were in another part of the house.

Given what the father accepted that he did in his contemporaneous text message and first witness statement, I do not consider his subsequent attempts to downplay this incident to be reliable. This appears to have been a serious incident of aggression expressed by both physical pushing of the mother and the uncontrolled throwing of a heavy object against a wall in the presence of both the mother and the child. Unsurprisingly, this was taken seriously by both the Australian Police and courts and led to the imposition of the DVPO against the father. That order was made with the father’s consent. Whilst I accept that he did not make any admissions whilst agreeing to that order, the fact that he chose not to give an account of his behaviour on that evening to either the Police or to the court does nothing to persuade me that I can now confidently discount the possibility that the mother and child would be at risk of domestic abuse perpetrated towards them were a return to be directed.

There have been a number of other incidents since the mother’s move to the UK which have concerned her, and which Mr Evans sought to categorise as further exercise of coercive control by the father over the mother. These include:

What is clear is that the father had been recording his video contact with D without the mother’s knowledge or consent, and I note that among the examples of potential domestic abuse identified in the DVPO is the “unauthorised surveillance” of a person. It appeared to me that this could potentially amount to a breach by the father of the DVPO, and I put this to counsel in the course of argument. Mr Crosthwaite argued that the recording of contact sessions did not fall within the definition. I do not consider that I need formally to resolve this point, although I consider the surreptitious recording of a person may indeed be a form of controlling behaviour.

As to the other matters, I do not have the evidence to make a finding that the father was responsible for the chain of interventions in the mother’s life that have occurred over the past couple of months. That said I do not consider that I can confidently discount the possibility that the mother and child would be at risk of similar events occurring if I ordered their return to Australia. Further, whether or not these interventions were the result of actions by the father, it is clear that the mother sincerely believes them to have been and, as I set out below, that has implications for her mental health.

Mr Evans also sought to rely upon the fact that the father stopped paying the rent on the parties’ jointly rented property after he moved out as a form of economic coercion. It is certainly clear from their text messages that the father took this step unilaterally, and without informing the mother that he was going to do so. For the father Mr Crosthwaite sought to present this as an inevitable consequence of the parties’ financial position post separation. Nonetheless, it seems to me that the fact that the father took this step without making any prior attempt to communicate with the mother, can fairly be seen as a further example of controlling behaviour on his part.

Therefore, when considering the protective measures offered by the father, I consider that I will need to assess them against the risk that the mother and child will be at risk of both physical abuse and controlling behaviour from him should I order the child’s return.