A South African woman who married an Australian military man, came to South Africa to visit her parents with their one-year-old baby and decided not to return home, has been ordered to immediately take the boy back to his father.
The woman, who failed to use her return ticket to Brisbane in October last year, was accused by her husband, identified as MBM, of child abduction when he applied to the court for an order to have his child returned to him.
Despite efforts to legally oppose the matter, the mother, identified as NM, has been found to have unlawfully taken her child away from his father for more than a year. She has to return to Brisbane with the boy, identified as NEM, for the matter to be resolved by Australian courts.
MBM, with the assistance of the Republic of South Africa (the central authority), instituted proceedings in the Johannesburg high court in terms of the Hague Convention on the Civil Aspects of International Child Abduction for an order directing his wife to return their child to Australia. The high court ordered the return of NEM to Australia, subject to conditions.
Unhappy with the decision, NM sought intervention by the Supreme Court of Appeal (SCA), only to have the court confirm the order for her to take her baby back to his father. SCA judges Baratang Mocumie and Raylene Keightley found it was in the best interests for NEM to be immediately returned to Australia.
The SCA heard NM and MBM had met on holiday in Mauritius in 2019. MBM is Australian and NM is South African. They entered into a long distance relationship during which MBM visited NM in South Africa many times.
They married in South Africa on December 1 2020, and NM fell pregnant. They decided their child should have Australian citizenship so the couple settled in Brisbane, where NM gave birth. They lived in a modest family home and later visited South Africa as a family on holiday and returned to Australia, where MBM works for the Australian defence force.
A month after NEM turned one, NM told MBM she wanted to visit her parents in South Africa with the child. He agreed and bought return tickets for them for a month-long holiday from September 27 2022 to return on October 29 2022.
Two weeks before her return NM sent MBM a WhatsApp message informing him she was unhappy in the marriage. Four days later she messaged she would not be returning to Australia permanently. .
MBM instituted an application for the return of NEM in terms of the Hague Convention through the Central Authority of Australia in December 2022. The authority instituted proceedings in the high court for NEM’s return.
NM opposed the application, claiming NEM’s return to Australia would expose him to physical or psychological harm or otherwise place him in an intolerable situation.
NM told the court MBM physically abused her on one occasion, that he had not helped her after the birth of their son when she was struggling with post-partum depression, that he had often travelled for work and was away on duty for several weeks at a time, leaving her alone and that his family lived far away and were of no support.
She told the court she had instituted divorce proceedings and all the factors created an intolerable situation for her and their child.
For up to six months or until the finalisation of the custody proceedings, MBM will pay NM monthly instalments of $1,550 AUD (R18,000) per month to contribute to the cost of accommodation of her choosing in Brisbane, utility bills and other maintenance costs for NEM
— Supreme Court of Appeal
The court disagreed and found NM had failed to prove severe risk or an intolerable situation. Limited weight was given to her social worker report because no contribution had been sought from MBM. She had also failed to take into account the social support services available to her in Australia.
This led the Johannesburg high court to order NEM be returned to Australia, and that NM was required to notify the office of the central authority in Pretoria of her intentions to accompany the minor child.
Pending the return of mother and child to Australia, MBM was instructed to pay school fees for NEM to attend day-care.
“For up to six months or until the finalisation of the custody proceedings, MBM will pay NM monthly instalments of $1,550 AUD (R18,000) per month to contribute to the cost of accommodation of her choosing in Brisbane, utility bills and other maintenance costs for NEM.
“MBM shall provide proof, to the satisfaction of the central authority of South Africa, prior to the departure of NM and NEM from South Africa of the nature and location of such accommodation and that such accommodation is available for NM and NEM immediately on their arrival in Australia,” the court ordered.
MBM was further required to buy a roadworthy vehicle for NM, registered in her name for her sole use, pay for the car’s maintenance and register her and their son on his medical aid.
The court also instructed MBM to ensure NM has access to all the financial aid and social support services available to her in Australia, and to ensure there are no criminal charges pending against her in relation to her having kidnapped their child.
He was required to give an undertaking he would not pursue a criminal prosecution that would see her arrested and taken into custody.
MBM agreed their son would initially live with NM on his return to Australia, and that he would spend time with the boy to rebuild their relationship until parenting orders could be made by the federal court and family court of Australia in relation to care arrangements for their child.
The court ordered arrangements for the child’s return begin immediately and MBM should book and pay for economy class tickets for NM and their child on the shortest direct route from South Africa to Australia, and that he be given reasonable phone and Skype contact with the child until their departure.
NM was ordered to keep South African authorities notified of her address and contact number until her departure, and that neither she nor the child may leave Gauteng.
Should she decide against leaving South Africa, she was required to notify the court, MBM and the SA central authority so arrangements could be made for NEM to be safely returned to his father in Australia with as little friction and upset as possible.
It was ordered that the instructions be made a mirror order of the court in Brisbane, Queensland.
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