Alfarsi & Elhage
[2016] FamCA 428
•2 June 2016
FAMILY COURT OF AUSTRALIA
| ALFARSI & ELHAGE | [2016] FamCA 428 |
| FAMILY LAW – JURISDICTION – Where both parents and children are Australian citizens – Where children were removed from Australia to Iraq by the father in September 2014 – Where agreed that children were habitually resident in Australia at the time of their removal – Where the father asserts that he does not know who is caring for the children in Iraq – 1996 Convention as implemented in the Family Law Act 1975 does not have application – Consideration of habitual residence of the children – Children have remained “habitually resident” in Australia – Satisfied the Court has jurisdiction. |
| Convention on the Civil Aspects of International Child Abduction Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children Family Law Act 1975 (Cth) ss 69E, 111CA, 111CC, 111CD |
| [Alfarsi] & [Elhage] No. 2 [2016] FCCA 200 (unreported) Secretary, Department of Family and Community Services & Padwa [2016] FamCAFC 57 State Central Authority & Spring-Ernest (No.2) [2013] FamCA 906 |
| APPLICANT: | Ms Alfarsi |
| RESPONDENT: | Mr Elhage |
| FILE NUMBER: | PAC | 6203 | of | 2014 |
| DATE DELIVERED: | 2 June 2016 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 18 May 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Snelling |
| SOLICITOR FOR THE APPLICANT: | Thurlows Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Mando |
| SOLICITOR FOR THE RESPONDENT: | Kings Law Group |
Orders
That the father’s application for dismissal for want of jurisdiction is dismissed.
That any application for costs be made within 14 days by way of written submissions with any response thereto to be by way of written submission within a further 14 days thereafter.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Alfarsi & Elhage has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAC 6203 of 2014
| Ms Alfarsi |
Applicant
And
| Mr Elhage |
Respondent
REASONS FOR JUDGMENT
These are parenting proceedings concerning the children A born in 2009 and Z born in 2011 who were taken to war-torn Iraq in September 2014 by their father and left there whilst he returned to Australia. The mother seeks the return of the children.
The father contests the jurisdiction of this Court to make orders in relation to the children as, he asserts, the children are now habitually resident in Iraq.
The father through his counsel conceded that there were no relevant proceedings in Iraq in relation to the children.
He seeks a dismissal of the proceedings and consequently the discharge of the injunction restraining him from leaving Australia.
A History: The Federal Circuit Court Proceedings
Proceedings concerning the children were commenced by the mother in the Federal Circuit Court of Australia by application filed on 23 December 2014. In that application the mother sought final orders in relation to the children that in summary provided:
a)That the mother have sole parental responsibility for the children;
b)That the children live with the mother; and
c)That the mother and father be restrained from removing the children from the Commonwealth of Australia and the children be placed on the airport family law watch list.
In the same application the wife sought urgent interim orders that:
a)The father be restrained from leaving Australia;
b)That the father sign all necessary documents so as to allow Australian passports to be issued for the children;
c)That the father forthwith facilitate the children’s return to Australia and that he be responsible for any costs in relation to the children’s passports, costs of the children’s flights to Australia and the cost of the flight of any person required to accompany the children to Australia;
d)That the children live with the mother; and
e)That upon the return of the children the father and mother be restrained from removing the children from the Commonwealth of Australia and the children be placed on the airport family law watch list.
On 23 December 2014 orders were made on an ex-parte urgent basis in summary as follows:
a)That the father be restrained from leaving the Commonwealth of Australia;
b)That the mother and father be restrained from removing the children from the Commonwealth of Australia;
c)That the children be restrained from leaving the Commonwealth of Australia and that their names be placed upon the airport watch list for a period of two years;
d)That the father do all things necessary to make arrangements for the children to be returned to the Commonwealth of Australia;
e)That the mother forthwith cause personal service to be effected on the father of her Initiating Application, her affidavit in support of interim orders and a copy of the orders made today;
f)That the father file and serve a Response and any relevant affidavit material by 9 January 2015.
The mother’s application was then listed before the Federal Circuit Court of Australia on 9 January 2015, and on that date there was no appearance by or on behalf of the father. The matter was adjourned for further directions to 3 February 2015.
On 3 February 2015 the father appeared in person. The court ordered that the mother file and serve within 21 days more fulsome affidavit evidence in support of the orders sought by her and that the father file and serve a response and any relevant affidavit evidence within 42 days. The matter was adjourned to 8 April 2015.
On 8 April 2015 both parties were represented and orders were made extending the time for the father to file his response and affidavit material to 30 April 2015. Interim orders were to continue. The matter was adjourned to 12 May 2015.
On 8 May 2015 the mother filed an application that the father be dealt with for contempt by reason of his failure to return the children to Australia as required by orders made on 23 December 2014. That application was later dismissed on 11 November 2015.
On 9 May 2015 the father belatedly filed a response to the mother’s application. In that response the father in summary sought orders as follows:
a)That the father have sole parental responsibility for the children;
b)That the children live with the father;
c)That the children live with the father in Canberra in the Australian Capital Territory or such other city in Australia as is agreed between the parties, that the children spend time with the mother as defined including alternate weekends, overnight in the off week and half of the school holidays; and
d)Various other specific issues orders not relevant for the present purposes.
On 12 May 2015 all applications were adjourned for further directions to 6 August 2015 with that date later being vacated and the matter being relisted before the court for directions on 8 October 2015.
On 8 October 2015, both parties on that day being represented, the court relevantly ordered:
a)Each of the applicant and respondent consents to Ms O, the maternal grandmother of the children, having responsibility to collect the said children as soon as is possible and thereafter return those children as soon as possible to the Commonwealth of Australia; and
b)Any responsibility for costs arising from such order including the costs of any airfares are reserved for further determination.
On 12 November 2015 the court ordered:
a)The mother file and serve by 22 December 2015 an affidavit setting out steps taken to register the orders of 23 December 2014 with the Iraqi Consulate in Sydney;
b)An affidavit from the lawyer she has retained in City Q, Iraq setting out steps taken to obtain registration of those orders and/ or orders of a properly constituted court in City Q together with certified translated copies of any orders issued by a properly constituted court in Iraq; and
c)An affidavit setting out steps to enforce any such Iraqi order;
d)The father shall on or before 22 January 2016 file and serve an affidavit from any paternal relative in Iraq attesting to the care that they had provided for the subject children and whether or not they have been contacted or been served documents from a properly constituted Iraqi court or government institution relevant to the children.
The proceedings were adjourned for interim hearing to 1 February 2016 to determine whether or not orders made on 23 December 2014 will be discharged as sought by the father or as to whether or not those orders will be retained and further orders made. The clear that it is appropriate that the father remain in Australia until such time as there can be a hearing, including a testing of evidence, on all relevant issues. It is also necessary that the father be on hand within this jurisdiction to facilitate the return of the children to the jurisdiction.
On 1 February 2016 Judge Dunkley delivered reasons for judgment as to costs arising from the dismissal of the mother’s contempt application. The application for costs by the father was dismissed.
The interim parenting issues were not determined on that day but proceedings were transferred to this Court with Judge Dunkley giving reasons for the transfer (Al-Asadi & Elassadi No. 2 [2016] FCCA 200 (unreported)) that included a useful summary of background facts:
2. On the ex parte application of the mother filed on 23 December 2014 the following ex parte orders were made:
That the father, [Mr Elhage] is hereby restrained from leaving the Commonwealth of Australia.
Each of the father and the mother are restrained from attempting to remove, or causing or permitting to be removed, [A] and [Z] from the Commonwealth of Australia.
The Australian Federal Police give effect to those orders by placing the father’s name and the children’s name on the watch list.
That the father is directed to forthwith do all things, give all consents and make all arrangements for the children [A] and [Z] to be returned to the Commonwealth of Australia.
3. At the time of the making of those orders it was submitted on the mother’s behalf that the children were resident within the Commonwealth of Australia at a location unknown to her in the care of the father.
4. In fact, the children had left the Commonwealth of Australia in the care of the father on or about 29 September 2014 and travelled to Iraq where the children have remained since.
5. There is an issue between the parties as to whether or not the children have left the Commonwealth of Australia and changed their place of habitual residence. This is relevant because there was made on behalf of the father, today, a challenge to the jurisdiction of the court. The father having always previously submitted to the court’s jurisdiction.
6. It is the mother’s case that she believes Australian passports for the children, who are Australian citizens, were obtained by fraud. She says she signed no documents to enable Australian passports to be issued for the children.
7. It is the father’s case that with the mother’s knowledge and consent he removed the children at her request to Iraq so as to ensure their personal safety given incidents that were happening in the household of the mother.
8. A s.112AP application was filed by the mother and determined by me and, for reasons previously delivered last year, dismissed because the mother could not prove that the father was in flagrant disregard of the orders made on 23 December 2014 notwithstanding that the children remained in Iraq.
9. The mother has travelled to Iraq on or about 2 October 2015 in an attempt to recover the children. She was unsuccessful in that attempt. At the time that she went to Iraq she believed that the children were in the care of the paternal grandmother. On arriving in Iraq with the assistance of persons in Iraq she determined that the children were not in the care at the time of her arrival, of the paternal grandmother.
10. It is the father’s case that the mother’s uncle now has the care of the children in Iraq.
11. The father first became aware of the orders make (sic) on 23 December 2014 when he was served with them on 3 February 2015, although he had some knowledge that the orders were in place because he had attempted to leave the Commonwealth of Australia in January 2015 and had been prevented at the airport from doing so.
12. The father remains unable by the orders made on 23 December 2014 to leave the Commonwealth of Australia. He says that he wants to do so, so as to collect the children and return with them to the Commonwealth of Australia.
13. It is the mother’s case that if the restrictions on the father’s travel are lifted he will remain in Iraq and not return. She suggests that he has sold property in Australia, and she suggests that those proceeds have been transferred to a place unknown to her.
14. The case was listed today for interim hearing essentially to determine whether the travel restrictions as and against the father made on 23 December 2014 should be discharged or retained.
15. Such is the conflicting evidence and such is the importance of this case as to the welfare of the children that the findings that are necessary to be made to determine that issue cannot be made at interim hearing.
16. There will need to be a hearing in which the parties’ evidence is tested by cross-examination, and in which witnesses can give evidence and be cross-examined, and at which documents can be subpoenaed and produced and examined. At an interim hearing such would be the irresolvable conflicted evidence justice could not be done in determining the important issues.
17. Further today, the jurisdiction of the Court has been raised.
18. What we know is that the children are currently in Iraq. We know that Iraq is not a Convention country. The children are not present in Australia and have not been since September 2014.
19. The issue of whether their habitual residence has ceased to be in Australia by virtue of the agreement that is alleged to have been reached between the father and the mother on his case, or whether or not they were removed from their residence in Australia by act of the father alone remains unresolved but is an issue that requires determination.
20. The determination of these facts has a dual purpose. It relates to the jurisdiction issue the father has belatedly raised. It also intersects with the capacity to enforce orders in Iraq.
21. The complexities in the case dictate that this case should be determined in the Family Court, and the proceedings are transferred to the Family Court of Australia to be heard on a date to be advised.
The Family Court of Australia
The proceedings were first listed before the Court on 15 March 2016. The preliminary question as to the Court’s jurisdiction in relation to the children was raised. The discrete issue was adjourned for hearing to 18 May 2016 and was heard on that day with judgment reserved. As best as can be understood the father’s challenge to jurisdiction firstly contends that the children are habitually resident in Iraq and secondly that it is Iraq and not Australia that has jurisdiction to make parenting orders. The father’s contention appears to ignore the premise in s 69E that, regardless of the habitual residence of the children (which is very much a live issue in this case), proceedings can be instituted here based on the presence of either parent in Australia and their Australian citizenship.
Background
The mother relied on her affidavits filed on 25 February 2015, 9 November 2015, 28 January 2016 and 17 May 2016.
The father relied on his affidavits filed 8 April 2015, 6 August 2015 and 29 January 2016 together with affidavits of Mr B (father’s brother) filed 30 June 2015 and 29 January 2016, affidavit of Mr M (mother’s father) filed 6 August 2015 and affidavit of Mr L (mother’s uncle) filed 6 August 2015.
The mother was born in Iraq in 1992 and came to Australia in 1999. She is an Australian citizen. She is now 23.
The father was born in Iraq in 1972. He is an Australian citizen.
The mother was aged 15 at the time of her religious “marriage” to the father in April 2008 in Australia.
The first child was born when she was just 16. It is common ground that the children were born in Australia and are Australian citizens. The father as yet is not registered as to the birth of the second child.
It is common ground that both the mother and father are Australian citizens, ordinarily resident here and were present in Australia at the date the mother filed her application.
A Diversion: The X Bank Accounts (Exh E)
In January 2014 the father sold the then matrimonial home at Suburb Y in Sydney for $520,000. After discharge of mortgage to the X Bank (Mortgage Account …764) the net proceeds of sale were $312,408 which was deposited by him to his X Bank account …829.
The father opened an X Bank account …362 in his name only on 4 February 2014. The father deposited to this X Bank account $300,000 from his account …829 on 4 February 2014. That sum remained on interest bearing deposit intact until 29 September 2014, the day on which the father left with the children. That day he withdrew $15,000 in cash.
On 1 December 2014 he transferred $10,213 being the balance of account …829 to account …362 thus consolidating his funds.
On 1 December 2014 he transferred the remaining balance of account …362 being $299,274 to X Bank account …609.
The details of X Bank account …609 are not known and thus the whereabouts of the sale proceeds is not known to the mother but she suspects that they have been remitted to Iraq.
The Children’s Departure
There is significant dispute as to the circumstances surrounding the issue of Australian passports for the children (Exh F). Applications for the issue of Australian passports were made and dated 23 January 2014 lodged by the mother. The father provided his consent. The applications were witnessed by the maternal grandmother. The children’s passports were issued on 5 February 2014.
It is common ground that the children were habitually resident in Australia before their removal to Iraq by the father on 29 September 2014. The father travelled with the children and he returned to Australia on 10 October 2014.
The children travelled on return air fares that were later extended by the father to September 2015.
The father asserts that the mother agreed for the children to go to Iraq for a period “until things settle down” in relation to extended inter-family conflict and violence. The mother asserts that she at no time consented to the children being removed from Australia.
On the mother becoming aware that the children were in Iraq with the father she contacted police on 1 October 2014 (Exh C). She was told to seek legal advice. The mother became distressed and an ambulance was called to attend to her (Exh D). The mother also contacted the Australian Passport Office who confirmed to her that the children had departed Australia. The mother initially sought the cancellation of the children’s passports but they remained valid to facilitate the hopeful return of the children to Australia. The mother asserts that the father refused her requests for the children to be returned.
The parties finally separated on about 15 December 2014 with the mother filing her application about a week later. The mother initially moved to a refuge and then obtained independent accommodation.
On 9 January 2015 an interim provisional Apprehended Domestic Violence Order was made for the protection of the mother at the Local Court.
The Australian Passport Office was alerted to the fact that the father had previously changed his name, not for the first time, by Deed Poll in 2006 and may seek the issue of a new passport in a false name.
The father tried to leave to travel to Iraq on 15 January 2015 but was stopped at the airport. He intended to travel to Iraq to facilitate the return of the children. The father says he has no intention of living in Iraq. In June 2015 he asserted that he was providing for the children financially in Iraq.
The mother registered the orders of December 2014 with the Iraqi Consulate in Sydney on 19 May 2015 after they were certified by the Department of Foreign Affairs and Trade. The mother forwarded the orders to her lawyer in Iraq in an attempt to seek the return of her children. It appears that the lawyer was able to procure the issue of an arrest warrant directed to the police in City Q to arrest Mr J in relation to the children “unjustly taken” by the father.
The mother travelled to Iraq in October 2015 in an attempt to recover the children by reason of the warrant but they could not be located.
The mother has grave concerns for the welfare of the children in Iraq that can only be heightened by the father’s contention that he now is unaware as to the children’s whereabouts. As at June 2015 they were with the paternal grandmother and paternal uncle Mr B who at that time deposed that he would only give the children to the father personally.
The Jurisdiction Issue: the Father’s Contention
It is common ground that the Convention on the Civil Aspects of International Child Abduction concluded at The Hague on 25 October 1980 has no application to this matter.
It is common ground that Iraq is not a signatory to the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children (“the Convention”) signed at The Hague on the 19 October 1996.
As observed by Bennett J in State Central Authority & Spring-Ernest (No.2) [2013] FamCA 906 at [44]-[47]:
The effect of the 1996 Hague Child Protection Convention
This court must be satisfied of certain jurisdictional facts before it can make parenting orders in relation to a child who is not habitually resident in Australia. The jurisdictional facts differ depending on whether the country in which the child is habitually resident is a Convention country or a non-Convention country. A Convention country is a country for whom the 1996 Convention has entered into force with Australia. A non-Convention country is a country for whom the 1996 Convention has not entered into force with Australia.
…
Australia ratified the 1996 Convention on 29 April 2003. The Act was amended with effect from 1 August 2003 to enable the performance by Australia of its obligations under the 1996 Convention and to obtain for Australia any advantage or benefit under the Convention…
Prior to Australia’s ratification of the 1996 Convention, this court’s power to make orders about a child, including orders with extra territorial effect, was not circumscribed by where the child was habitually resident.
As to jurisdiction relating to children, s 69E of the Family Law Act 1975 (“the Act”) provides:
(1) Proceedings may be instituted under this Act in relation to a child only if:
(a) the child is present in Australia on the relevant day (as defined in subsection (2)); or
(b) the child is an Australian citizen, or is ordinarily resident in Australia, on the relevant day; or
(c) a parent of the child is an Australian citizen, is ordinarily resident in Australia, or is present in Australia, on the relevant day; or
(d) a party to the proceedings is an Australian citizen, is ordinarily resident in Australia, or is present in Australia, on the relevant day; or
(e) it would be in accordance with a treaty or arrangement in force between Australia and an overseas jurisdiction, or the common law rules of private international law, for the court to exercise jurisdiction in the proceedings.
(2) In this section:
"relevant day ", in relation to proceedings, means:
(a) if the application instituting the proceedings is filed in a court--the day on which the application is filed; or
(b) in any other case--the day on which the application instituting the proceedings is made.
Note: Division 4 of Part XIIIAA (International protection of children) has effect despite this section. (emphasis added)
Part XIIIAA Division 4 (International Protection of Children) of the Act implements into our domestic law provisions of the 1996 Convention.
Thus s 69E must be read subject to the provisions of ss 111CC and 111CD of the Act that provide a “series of qualifying connections” that must apply before this Court can exercise jurisdiction.
Relevantly s 111CC of the Act provides:
Application of this Subdivision
This Subdivision applies only if an issue under this Act is whether a court, as opposed to any of the following authorities, has jurisdiction to take measures directed to the protection of the person of a child:
(a)a central authority or competent authority of a Convention country;
(b) a competent authority of a non-Convention country.(emphasis added)
Section 111CD of the Act relevantly provides:
(1) A court may exercise jurisdiction for a Commonwealth personal protection measure only in relation to:
…
(e) a child who is present in a non-Convention country, if
(i) the child is habitually resident in Australia; and
(ii)any of paragraphs 69E(1)(b) to (e) applies to the child; …
“Competent authority of a non-convention country” is defined in s 111CA thus:
competent authority of a non-Convention country means an entity that has responsibility or authority under the law in force in the country to take measures or make decisions about:
(i) protecting the person of a child; or
(ii) appointing or deciding the powers of a guardian of a child's property.
“Measure of protection in relation to a child” is, for the purposes of these proceedings, a parenting order.
It is the father’s primary contention that the children are now habitually resident in Iraq and thus this Court has no jurisdiction by reason of s 111CD(1)(e) set out above.
It is contended on behalf of the father that the children have acquired habitual residence in Iraq by reason of:
a)The children having resided there for more than a year;
b)The children being taken to Iraq in September 2014;
c)The mother being informed by the father of their whereabouts shortly after their removal by him from Australia;
d)The mother being able to contact the children in Iraq at times;
e)The children being in Iraq with relatives;
f)The children’s time in Iraq has been uninterrupted;
g)The children are settled in Iraq; and
h)The children will remain in Iraq indefinitely unless the father is permitted to travel to Iraq for the purpose of returning them to Australia.
Yet such contentions are at odds with much of the father’s evidence and the factual matrix as set out above.
The Mother’s Contention as to Jurisdiction
The mother asserts that the children are within the jurisdiction of this Court by reason of s 69E of the Act and even if the Convention (as implemented in Australia by reason of the insertion of Division 4 of Part XIIIAA (International Protection of Children) of the Act) was applicable the children would be within the Court’s jurisdiction by reference to s 111CD(1)(e) above.
Does the 1996 Convention have application?
The Convention is primarily designed to operate between contracting States to the Convention. However the implementation of the Convention into the Act has seen the introduction of “qualifying connections” applicable in Australia as between Australia and non-Convention countries as to jurisdiction over a child (see: s 111CC and s 111CD(1)(e) and (f)).
Primary jurisdiction under the Convention is with the State where the child is habitually resident: (Art 5). “Habitual residence” is not defined in the Convention or indeed in the provisions of the Act that implement it.
It is important to note the provisions of s 111CC of the Act as set out above that relevantly provides that the provisions of Subdivision C (Jurisdiction for the Person of a Child) of Division 4 (International Protection of Children) of the Act applies only if an issue under this Act is whether a court, as opposed to a “competent authority of a non-Convention country” has jurisdiction to take measures directed to the protection of the person of a child.
In the context of these proceedings no such issue arises. There is no evidence of any such jurisdictional conflict or issue that needs to be resolved by the application of the Subdivision C. Indeed there is no evidence as to existence or otherwise of any such “competent authority” in Iraq that may or may not or has sought to exercise jurisdiction over the children.
The conclusion must be that the Convention has no application to the present matter.
If that conclusion may be wrong then the determinative question is as to the “habitual residence” of the children (s 111CD(1)(e)).
Habitual Residence of the Children
The question of “habitual residence” was the subject of consideration by the Full Court in Secretary, Department of Family and Community Services & Padwa [2016] FamCAFC 57. The applicable principles were discussed as follows:
WHAT PRINCIPLES GOVERNED THE APPLICATION?
31. The High Court (French CJ, Gummow, Hayne, Heydon & Kiefel JJ) dealt with the question of habitual residence under the Regulations and the Convention in LK. Having (at [21]) noted that the explanatory report on the Convention described habitual residence as a “question of pure fact, ‘differing in that respect from domicile’”, at [22] the High Court said:
22. To approach the term only from a standpoint which describes it as presenting a question of fact has evident limitations. The identification of what is or may be relevant to the inquiry is not to be masked by stopping at the point of describing the inquiry as one of fact. If the term "habitual residence" is to be given meaning, some criteria must be engaged at some point in the inquiry and they are to be found in the ordinary meaning of the composite expression. The search must be for where a person resides and whether residence at that place can be described as habitual.
(footnote omitted)
32. In Re B (A Child)(Habitual Residence: Inherent Jurisdiction),[9] Lady Hale and Lord Toulson supporting Lord Wilson’s decision said:
57. We fully agree with Lord Wilson’s reasoning and conclusion on the issue of habitual residence. He has described the identification of the child’s habitual residence as overarchingly a question of fact (para. 46). At the risk of appearing pedantic, we would prefer to describe it as a mixed question of fact and law because the concept is a matter of law but its application is a matter of fact ...
33. Returning to LK, the High Court said:
Having regard, however, to the stated determination to eschew definition of the expression in its use in the Abduction Convention, and other instruments derived from the work of the Hague Conference, it would be wrong to attempt in these reasons to devise some further definition of the term intended to be capable of universal application. Rather, it is sufficient for present purposes to make two points. First, application of the expression "habitual residence" permits consideration of a wide variety of circumstances that bear upon where a person is said to reside and whether that residence is to be described as habitual. Secondly, the past and present intentions of the person under consideration will often bear upon the significance that is to be attached to particular circumstances like the duration of a person's connections with a particular place of residence.
...
27. When speaking of the habitual residence of a child it will usually be very important to examine where the person or persons who are caring for the child live – where those persons have their habitual residence. The younger the child, the less sensible it is to speak of the place of habitual residence of the child as distinct from the place of habitual residence of the person or persons upon whom the child is immediately dependent for care and housing. But if, as the writings about the Abduction Convention and like instruments repeatedly urge, the question of habitual residence of a child is one of fact, it is important not to elevate the observation that a child looks to others for care and housing to some principle of law like the (former) law of dependent domicile of a married woman.
Purpose and intention
28. Although intention is a necessary element in deciding domicile of choice, and "habitual residence" is chosen as a connecting factor in preference to domicile, examination of a person's intentions will usually be relevant to a consideration of where that person habitually resides. Sometimes, intention will be very important in answering that question. The example of a person who leaves a jurisdiction intending not to return is one such case. But unlike domicile, considerations relevant to deciding where a person is habitually resident are not necessarily confined to physical presence and intention, and intention is not to be given controlling weight.
29. First, individuals do not always act with a clearly formed and singular view of what it is intended (or hoped) that the future will hold. Their intentions may be ambiguous.
...
34. ... No less importantly, it may be accepted that the general rule is that neither parent can unilaterally change that place of habitual residence. The assent of the other parent (or a court order) would be necessary. But again, if it becomes necessary to examine the intentions of the parents, the possibility of ambiguity or uncertainty on the part of one or both of them must be acknowledged.(emphasis added)
35. ... to seek to identify a set list of criteria that bear upon where a child is habitually resident, or to attempt to organise the list of possible matters that might bear upon the question according to some predetermined hierarchy of importance, would deny the simple observation that the question of habitual residence will fall for decision in a very wide range of circumstances. And examination of decided cases in the area does not require the identification of a closed set of criteria, or the attribution of predetermined weighting between them.
34. In the course of its reasons in LK the High Court considered what was said by the Court of Appeal of New Zealand in Punter v Secretary for Justice (“Punter”).[10] The High Court said:
44. ... As the plurality rightly said, the search is for the connection between the child and the particular state. That being the nature of the search the plurality's references to settled purpose are to be read as directing attention to the intentions of the parents. But as explained earlier in these reasons, the relevant criterion is a shared intention that the children live in a particular place with a sufficient degree of continuity to be properly described as settled.
35. The shift away from the concentration on shared parental intention in determining habitual residence is evident from the UK Supreme Court’s decision in A v A (Children: Habitual Residence) (Reunite International Child Abduction Centre and ors intervening),[11] AR v RN (Habitual Residence)[12] and Re B (A Child) (Habitual Residence) (above). Although not binding on us, uniformity with decisions made in other jurisdictions interpreting the same Convention is desirable at the very least, and the UK jurisprudence is consistent with what the High Court has decided in LK.
36. Crucially, the High Court went on to say in LK:
Moreover, the approach described in Punter accords with the general tenor of decisions in the United States of America. It may be observed of those decisions that there is seen to have been a division between the Circuit Courts of Appeals about the relevance of the parents' subjective intentions for the child or children concerned. When it is also observed, however, that the resolution of the competing approaches has been to invite attention to whether presence at a place has a "degree of settled purpose from the child's perspective" (emphasis added), the difference in expression of the relevant considerations may not be great. At all events, a thread common to the leading decisions in the United States remains the need to look at all of the circumstances of the case. And it is that approach, as described in Punter, which should be followed.
(footnotes omitted)
37. It is of considerable importance that the High Court justices themselves highlighted the words “from the child’s perspective”.
38. In determining habitual residence the ultimate question for the trial judge was whether, immediately prior to 19 December 2015, the child’s presence in the Netherlands had a degree of settled purpose from the child’s perspective, in all the circumstances of the case, to result in the conclusion that the child was habitually resident in the Netherlands.
It is the agreed position of the parties that the children were habitually resident in Australia at the date of their removal by the father.
The mother contends that the children were removed without her consent and she seeks their return. The father contends that they were removed for a temporary purpose to be returned to Australia after a period.
The father asserts concern for the welfare and safety of the children. He asserts that he does not know who is caring for them or whether they are attending school. He asserts concerns for the youngest child who suffers from asthma.
The circumstances of the children in Iraq cannot in any way be described as settled particularly having regard to the uncertainty of their physical circumstances and to the present intentions of both of the parents for them to be returned to Australia.
It is clear that the children from their perspective have remained “habitually resident” in Australia with the result that if the Convention as implemented into the Act applied, this Court would have jurisdiction over them: s 111CD(1)(e).
Section 69E
As the Convention does not apply the question of jurisdiction falls to be determined by reference to s 69E of the Act.
It is clear from the provisions of that section set out above and by reason of the matters discussed above that this Court has jurisdiction.
The father’s application for dismissal for want of jurisdiction is dismissed. It is otherwise appropriate that the current orders remain in force as being made within jurisdiction.
I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 2 June 2016.
Associate:
Date: 2 June 2016
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