MB v LC and Another

The applicant (father) and first respondent (mother) are the married parents of two minor children, both boys aged 8 and 6. The family resided in Perth, Australia. In September 2021 they began discussing an extended holiday abroad. On 22 May 2022 they purchased one-way tickets to Rome, and on 25 June 2022 one-way tickets from Cape Town to Perth with a scheduled departure date of 1 January 2023. After selling their home, the family left Australia on 16 July 2022, arriving in Rome the following day. On 1 August 2022 the father disclosed to the mother that he had been having an extramarital affair since at least October 2021. On 3 September 2022, while still in Italy, the father told the mother he had ended his affair; they agreed he would travel back to Perth on 8 September 2022 and join them in South Africa for A's birthday in mid-October 2022. The mother and children traveled to South Africa on 27 September 2022. The father returned to Perth and subsequently traveled to South Africa on 11 October 2022. After his arrival, the relationship between the parties was very strained. The mother established the father had resumed his extramarital affair while in Perth. In the first week of November 2022 the father told her he wanted a separation and moved out. On 10 November 2022 they started marriage counseling. According to the mother they agreed they would remain in South Africa until they had worked out their long-term plans. On 20 December 2022 the father informed the mother by WhatsApp that he would be leaving South Africa after Christmas using his flight booked for 1 January 2023. On 24 December 2022 he wrote to her suggesting she and the children stay in South Africa while they make better decisions. The father left South Africa on 1 January 2023. The mother and children remained in South Africa. The father launched a Hague Convention application in Australia on 27 February 2023 without informing the mother. The parties attended mediation from February 2023 until 14 March 2023 when the father withdrew. The father launched the present application on 29 November 2023 seeking the children's summary return to Australia under the Hague Convention, alleging the mother was wrongfully retaining the children in South Africa since 1 January 2023.

• Whether the mother wrongfully retained the children in South Africa in breach of the father's rights of custody under article 3 of the Hague Convention on the Civil Aspects of International Child Abduction
• Whether the father consented to the children remaining in South Africa beyond 1 January 2023
• Whether the father subsequently acquiesced to the children's retention in South Africa
• Whether, if the Convention applied but the mother established a defence under article 13(a), the court should exercise its discretion to order the children's summary return to Australia

The application was dismissed. The applicant (father) was ordered to pay the first respondent's (mother's) costs on the scale as between party and party as taxed or agreed, including any reserved costs orders and the costs of one senior counsel.

For the defence of consent under article 13(a) of the Hague Convention, consent must be real, positive, and unequivocal, and can be inferred from a parent's words and actions viewed as a whole and their state of knowledge of what is planned by the other parent. For acquiescence, the question is one of actual subjective intention of the wronged parent, and deliberate concealment of an intention to seek summary return can be regarded as an outward manifestation contrary to a professed subjective intention. A parent's failure to establish they did not consent or acquiesce to the children remaining in the foreign country beyond the alleged date of wrongful retention means there is no wrongful retention and the Convention does not apply.

The court noted that deliberately concealing steps taken to obtain a return from the party against whom such a return is sought should be regarded as an outward manifestation contrary to a later professed subjective intention. The court also observed that if the father cannot show he never consented or acquiesced to the children remaining in South Africa beyond 1 January 2023 for any period at all, then there can be no wrongful retention and the Convention cannot apply, meaning the court with jurisdiction to determine the children's arrangements will be a South African court, not an Australian court — though this may ultimately involve a permanent return order to Australia.

This case clarifies the application of consent and acquiescence defences under article 13(a) of the Hague Convention in South African law. It reinforces the principle that consent can be inferred from conduct, including WhatsApp communications, and that acquiescence requires an assessment of the wronged parent's actual subjective intention based on outward manifestations. The case emphasizes that deliberately concealing steps taken to obtain a child's return is relevant to proving acquiescence. It also illustrates the court's discretion under article 13 not to order summary return where children are settled, happy, and where the left-behind parent has failed to maintain physical contact.