Bohler & Jugovac
[2024] FedCFamC1F 592
•6 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Bohler & Jugovac [2024] FedCFamC1F 592
File number(s): SYC 5417 of 2021 Judgment of: ALTOBELLI J Date of judgment: 6 September 2024 Catchwords: FAMILY LAW – CHILDREN – Hague Convention on the Civil Aspects of International Child Abduction 1980 –Application pursuant to the Family Law (Child Abduction Convention) Regulations 1986 – Where the Court finds the child was habitually resident in Japan at the time of the retention – Where the applicant did not file her application within one year of the child’s retention – Where the child is settled in Australia – Application dismissed. Legislation: Family Law Act 1975 (Cth) s 111B
Family Law (Child Abduction Convention) Regulations 1986 regs 14(1)(b), 16
Hague Convention on the Civil Aspects of International Child Abduction 1980
Cases cited: Artso and Artso (1995) FLC 92-566
Bamfield & Secretrary, Department of Communities and Justice (2022) FLC 94-076; [2022] FedCFamC1A 35
Director-General of Department of Families and BW (2003) FLC 93-150; [2003] FamCA 335
LK & Director-General, Department of Community Services (2009) 237 CLR 582; [2009] HCA 9
P v Secretary for Justice (2006) 25 FRNZ 327; [2007] 1 NZLR 40
Re B (A Child) (Habitual Residence: Inherent Jurisdiction) [2016] AC 606
Re J (A Minor) (Abduction: Custody Rights) [1990] 2 AC 562
Secretary, Attorney-General’s Department v TS (2001) FLC 93-063; [2000] FamCA 1692
Townsend v Director-General, Department of Families, Youth and Community Care (1999) FLC 92-842; [1999] FamCA 285
Division: Division 1 First Instance Number of paragraphs: 63 Date of last submission/s: 31 July 2024 Date of hearing: 26 July 2024 Place: Sydney Counsel for the Applicant: Ms Clarke Solicitor for the Applicant: Saint Rose Legal Solicitor for the Respondent: Jones Hardy Counsel for the Independent Children's Lawyer: Ms Stolier Solicitor for the Independent Children's Lawyer: Mason Mia & Associates - Solicitors & Advocates ORDERS
SYC 5417 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS JUGOVAC
Applicant
AND: MR BOHLER
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
ALTOBELLI J
DATE OF ORDER:
6 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.The Applicant’s application pursuant to s 14(1)(b) of the Family Law (Child Abduction Convention) Regulations1986 contained within her Further Amended Response filed 20 May 2024 be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Bohler & Jugovac has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALTOBELLI J:
INTRODUCTION
These reasons for judgment explain the orders that the Court has made in proceedings between the applicant mother (“the mother”) and the respondent father (“the father”) concerning the mother’s application under the Hague Convention on the Civil Aspects of International Child Abduction 1980 (“the Hague Convention”) for the return of the parties’ child, X aged four (“the child”) to Japan.
BACKGROUND
The mother is a Japanese citizen, was born in Japan and moved to Australia in 2018 on a working holiday visa. She is 37 years old and now has permanent residency in Australia. She has had limited and unstable employment in Australia, although she is a health professional in Japan. The father is a citizen of Country B, was born in Country C and moved to Australia in 2010. He is 42 years old and now has permanent residency in Australia and has applied for Australian citizenship. It appears that he runs his own business and has a flexible work schedule.
The parties met in 2019, with their relationship soon progressing to an intimate relationship. The mother fell pregnant shortly thereafter. In 2020 the mother returned to Japan to visit family, with the father intending to travel to Japan shortly after. However, due to travel restrictions arising from the COVID-19 pandemic, the father’s flights were cancelled and the mother was unable to return to Australia as her pregnancy had progressed. The father obtained a travel exemption and was able to travel to Japan for the birth of the child, who was born in 2020. As the parties were not married at the time of the child’s birth, the father was not permitted to have his name on the child’s birth certificate under Japanese law. The parties became engaged in 2020 but never married.
The father returned to Australia in 2020 due to work commitments, and the mother and the child remained in Japan, before returning to Australia in 2021. The parties then lived together with the child in a property in Suburb D.
Over the following months, the parties’ relationship deteriorated. This culminated in the events in 2021 where the parties had an argument, the father went for a walk, and upon his return the mother and the child were not at home. The father contacted Suburb D Police Station to assist in locating the mother and the child, and a police officer was able to contact the mother via telephone.
The father commenced urgent proceedings in this Court on 27 July 2021, fearing that the mother was going to abduct the child and return to Japan. The mother purchased tickets on 27 July 2021 for a flight departing for Japan the same evening . The mother and the child were prevented from boarding the flight by the Australian Federal Police, due to the child being placed on the Family Law Watchlist earlier that day.
The mother attended Suburb E Police Station shortly after and made allegations of family violence perpetrated by the father. The father was charged with several offences, and an interim Apprehended Domestic Violence Order (“ADVO”) was issued on the same day. The father was later found not guilty in relation to these charges but was placed on a conditional release order with no conviction for breaches of the ADVO (which was also extended). The mother maintains these allegations, which the father denies.
Various interim orders were made regarding the father’s time with the child throughout 2021 and 2022, many of which were made by consent. The matter first came before me for case management on 29 November 2023. On 8 April 2024 I heard the father’s Application in a Proceeding filed 24 November 2024, where orders were made permitting the father to communicate with the child’s day care and attend special events, and for the parties to advise each other of any illness or medical treatment for the child. The matter was listed for final hearing to commence on 13 May 2024, with an estimated hearing time of five days.
On 13 May 2024, the final hearing was adjourned to 3 February 2025, in circumstances where the mother in her Outline of Case Document filed 10 May 2024 sought to run her case under the Hague Convention, and the father and the Independent Children’s Lawyer were not prepared to answer this case on short notice. The mother’s threshold application pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (“the Regulations”) (“the mother’s application”) was thus listed for defended hearing on 26 July 2024. Orders were also made by consent to increase the father’s time with the child (from five hours twice per week, to 10 hours twice per week) and for this time to be unsupervised.
On 26 July 2024, the parties made submissions about the mother’s application. The mother was represented by counsel, the father was represented by a capable solicitor advocate, and counsel appeared on behalf of the Independent Children’s Lawyer via Microsoft Teams, with her instructing solicitor present in Court.
The Court notes the parties’ opposing contentions about the mother’s intentions regarding her relationship with the father, and her travel between, and residence in, Australia and Japan with the child. The mother contends that the parties never intended to get married and she never intended for herself or the child to permanently reside in Australia. The father contends that the parties did intend to get married, live permanently in Australia and start a life together following the child’s birth. The Independent Children’s Lawyer adopts the mother’s position. This will be discussed further below where relevant.
THE COMPETING PROPOSALS
In short, the mother seeks for the child to be returned to Japan pursuant to the Regulations. She further seeks for the child to live with her until the child is returned to Japan, for the prevention of the child being removed from her, and for the father’s parenting application (presumably his Amended Amended Initiating Application filed 26 November 2023) to be dismissed.
The father opposes the mother’s application and seeks for it to be dismissed. He also seeks further interim parenting orders but was told by the Court at the hearing on 26 July 2024 that the issue of interim parenting orders would not presently be dealt with.
The Independent Children’s Lawyer’s position is that as the child’s return under the Regulations is a threshold issue, her role in the Court’s determination is limited. However, the Independent Children’s Lawyer largely adopts the position and submissions of the mother.
THE EVIDENCE BEFORE THE COURT
In support of her case, the mother relies upon the following material:
(1)Outline of Case Document filed 15 July 2024;
(2)Outline of Case Document filed 13 May 2024;
(3)Outline of Case Document filed 10 May 2024;
(4)Outline of Case Document filed 29 March 2024;
(5)Further Amended Response to Initiating Application filed 20 May 2024;
(6)Response to Initiating Application filed 25 October 2021;
(7)Her affidavit filed 27 May 2024;
(8)Her affidavit filed 9 May 2024; and
(9)Various documents tendered during the proceedings and marked in chambers as Exhibits A1–A32.
In support of his case, the father relies upon the following material:
(1)Outline of Case Document filed 24 July 2024;
(2)His affidavit filed 2 July 2024;
(3)His affidavit filed 29 April 2024;
(4)The mother’s affidavit filed 22 October 2021; and
(5)Various documents tendered during the proceedings and marked in chambers as Exhibits R1–R22.
In support of her case, the Independent Children’s Lawyer relies upon the following material:
(1)Outline of Case Document filed 22 July 2024;
(2)Single Joint Expert Report of Dr F dated 10 April 2024; and
(3)Child Impact Report of Ms H dated 3 August 2022.
THE APPLICABLE LAW
Section 111B of the Family Law Act 1975 (Cth) (“the Act”) provides for regulations to be made which enable Australia’s performance of obligations under the Hague Convention. The purpose of the Regulations is to give effect to s 111B of the Act.
The mother has made an application to the Court pursuant to reg 14(1)(b) of the Regulations, which states as follows:
14 Applications to court
(1)If a child is removed from a convention country to, or retained in, Australia:
…
(b)a person, institution or other body that has rights of custody in relation to the child for the purposes of the Convention may apply to the court, in accordance with Form 2, for an order mentioned in subparagraph (a)(i), (ii), (iii), (iv) or (v).
The mother’s application enlivens reg 16 of the Regulations:
16 Obligation to make a return order
(1) If:
(a) an application for a return order for a child is made; and
(b) the application (or, if regulation 28 applies, the original application within the meaning of that regulation) is filed within one year after the child’s removal or retention; and
(c) the responsible Central Authority or Article 3 applicant satisfies the court that the child’s removal or retention was wrongful under subregulation (1A);
the court must, subject to subregulation (3), make the order.
(1A)For subregulation (1), a child’s removal to, or retention in, Australia is wrongful if:
(a) the child was under 16; and
(b) the child habitually resided in a convention country immediately before the child’s removal to, or retention in, Australia; and
(c)the person, institution or other body seeking the child’s return had rights of custody in relation to the child under the law of the country in which the child habitually resided immediately before the child’s removal to, or retention in, Australia; and
(d)the child’s removal to, or retention in, Australia is in breach of those rights of custody; and
(e)at the time of the child’s removal or retention, the person, institution or other body:
(i)was actually exercising the rights of custody (either jointly or alone); or
(ii)would have exercised those rights if the child had not been removed or retained.
(2) If:
(a) an application for a return order for a child is made; and
(b)the application is filed more than one year after the day on which the child was first removed to, or retained in, Australia; and
(c)the court is satisfied that the person opposing the return has not established that the child has settled in his or her new environment;
the court must, subject to subregulation (3), make the order.
(3)A court may refuse to make an order under subregulation (1) or (2) if a person opposing return establishes that:
(a) the person, institution or other body seeking the child’s return:
(i)was not actually exercising rights of custody when the child was removed to, or first retained in, Australia and those rights would not have been exercised if the child had not been so removed or retained; or
(ii)had consented or subsequently acquiesced in the child being removed to, or retained in, Australia; or
(b)there is a grave risk that the return of the child under the Convention would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation; or
(c)each of the following applies:
(i) the child objects to being returned;
(iii)the child has attained an age, and a degree of maturity, at which it is appropriate to take account of his or her views; or
(d)the return of the child would not be permitted by the fundamental principles of Australia relating to the protection of human rights and fundamental freedoms.
(4)For the purposes of subregulation (3), the court must take into account any information relating to the social background of the child that is provided by the Central Authority or other competent authority of the country in which the child habitually resided immediately before his or her removal or retention.
(5)The court is not precluded from making a return order for the child only because a matter mentioned in subregulation (3) is established by a person opposing return.
(6) If:
(a)the court is considering whether to refuse to make an order under subregulation (1) or (2) on the basis of the matter mentioned in paragraph (3)(b); and
(b)a party to the proceedings, or an independent children’s lawyer who represents the interests of the child in the proceedings, raises in the proceedings any condition that could, for the purpose of reducing a risk mentioned in paragraph (3)(b), be included under paragraph 15(1)(c):
(i) in a return order for the child; or
(ii)in any other order that the court proposes to make under paragraph 15(1)(b) in relation to a return order;
the court must consider whether it would be appropriate to include the condition.
(7)In considering whether to refuse to make an order under subregulation (1) or (2) on the basis of the matter mentioned in paragraph (3)(b), the court may have regard to any other measures that would be reasonably likely to reduce the risk mentioned in paragraph (3)(b).
(8)Subregulations (6) and (7) do not limit the matters to which the court may have regard in considering whether to refuse to make an order under subregulation (1) or (2) on the basis of the matter mentioned in paragraph (3)(b).
DISCUSSION
Several matters need to be discussed sequentially to determine the issues before the Court.
Did the mother make an application for a return order for the child?
The Court notes that the mother did not make her application to the Court for a return order for the child in accordance with Form 2 of the Regulations, as stipulated in reg 14(1)(b) of the Regulations and Order 6 of the orders made by me on 13 May 2024. She instead filed a Further Amended Response to Initiating Application on 20 May 2024. The orders she sought are as follows:
Pursuant to the FAMILY LAW (CHILD ABDUCTION CONVENTION) REGULATIONS 1986 - REG 14, 14A & 16 (hereinafter the regulations) the mother makes this application to the Court as a person who was exercising rights of custody to the child at the time of the removal or retention within the meaning of Article 3 of the Hague Convention 1980 and seeks the following orders:
1. That the Child [X] born [in] 2024 be returned to Japan.
2.That until the Child is returned to Japan, the Child reside with the Mother and the Child is not to be removed from the custody of the Mother.
3.That the Marshal of the Court, all officers of the Australian Federal Police and all state and territory police officers prevent the Child from being removed from the Mother.
While the mother’s application was not in the correct form, the Court nevertheless accepts the mother’s application in the form it was submitted.
Was the mother’s application filed within one year after the child’s retention?
In Director-General of Department of Families and BW (2003) FLC 93-150, O’Reilly J cited Mushin J at 81,638 in Artso and Artso (1995) FLC 92-566, and determined:
Mushin J was not in that case dealing with the circumstance of a child taken out of a country of habitual residence for an agreed (in the sense of fixed) period of time. Thus, the date of the refusal to permit return to the country of habitual residence was found by Mushin J to be the date of retention, because there had been no actual fixed or agreed date of return.
(Emphasis added)
Two questions arise from this. Firstly, what was the date of the father’s refusal to permit the child to return to Japan, and consequently, was the child a habitual resident of Japan at that time?
What was the date of the father’s refusal to permit the child to return to Japan?
The Court determines the date of the father’s refusal to permit the child to return to Japan as the date he commenced proceedings in this Court, being 27 July 2021. In his Initiating Application filed on that date, the father sought a recovery order and in his supporting affidavit he stated that he is “desperately seeking an Airport Watch Order to be put in place” due to his concerns that the mother had intentions to take the child back to Japan.
The mother thus had one year from 27 July 2021 to file an application in accordance with reg 14(1)(b) of the Regulations, being 27 July 2022.
Was the child a habitual resident of Japan at the time of her retention?
Habitual residence is not defined in the Hague Convention or the Regulations and is in each case a question of fact to be determined by reference to all the circumstances of the case (Re J (A Minor) (Abduction: Custody Rights) [1990] 2 AC 562 at 578 (“Re J”)).
The High Court of Australia in LK & Director-General, Department of Community Services (2009) 237 CLR 582 (“LK”) at [44] accepted that the inquiry into habitual residence involves a “broad factual inquiry” and cited with approval an extract from the New Zealand Court of Appeal decision of P v Secretary for Justice (2006) 25 FRNZ 327 at [88] which stated that:
…Such an inquiry should take into account all relevant factors, including settled purpose, the actual and intended length of stay in a state, the purpose of the stay, the strength of ties to the state and to any other state (both in the past and currently), the degree of assimilation into the state, including living and schooling arrangements, and cultural, social and economic integration. In this catalogue, SK v KP held that settled purpose (and with young children the settled purpose of the parents) is important but not necessarily decisive. It should not in itself override what McGrath J called, at [22], the underlying reality of the connection between the child and the particular state…
The High Court went on to state at [44] that:
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…
The Court notes the High Court also explained that “intention is not to be given controlling weight” (at [28]) because “intentions may be ambiguous” (at [29]).
There is no dispute that the child was born in Japan, she is a Japanese citizen and she spent the first period of her life living in Japan with the mother (with the father being present in the weeks after her birth). The dispute arises in relation to the parties’ “shared intention” for the child to live in Japan “with a sufficient degree of continuity to be properly described as settled”.
The father contends that the mother returned to Japan to visit family before giving birth and that she intended to return to Australia to live and to give birth but was restricted from doing so due to the COVID-19 pandemic. The mother contends that she never intended to abandon Japan as her habitual residence and that her and the child’s lives were settled in Japan. Counsel for the Independent Children’s Lawyer submitted that “the child was a habitual resident of Japan, no matter what the circumstances were that led to that”, because she was born there, experienced her early life there, and is a citizen of Japan.
The Court surmises that there is veracity to both parties’ contentions. That is, it was the mother’s intention to visit Japan for a short period before returning to Australia to live and give birth, but the circumstances surrounding, and impact of, the COVID-19 pandemic dramatically altered the situation the parties found themselves in and the mother’s intentions may have changed. In any event, given the ambiguity of the parties’ shared intention for the child to live in Japan, the Court will focus on the connection between the child and Japan. The Court accepts the Independent Children’s Lawyer’s submissions in this regard. In circumstances where the child lived in Japan for the first period of her life, the mother was working in Japan, they were supported by extended family in Japan, and the child was enrolled in day care, the Court finds that there was a sufficient connection for the child to be habitually resident in Japan.
The question then becomes, however, whether the child ceased to be habitually resident in Japan upon travelling to Australia with the mother in 2021, and consequently whether the child was habitually resident in Japan when the mother attempted to return to Japan with the child on 27 July 2021.
In the United Kingdom Supreme Court decision of Re B (A Child) (Habitual Residence: Inherent Jurisdiction) [2016] AC 606 (“Re B”), Lord Wilson, with whom Lady Hale and Lord Toulson agreed, held that the subject children did not lose their habitual residence immediately upon removal from the first jurisdiction, even where there was a settled intention that they would no longer live there. Lord Wilson reasoned at [30] that “it is not in the interests of children routinely to be left without a habitual residence” and concluded at [45] that:
… the modern concept of a child’s habitual residence operates in such a way as to make it highly unlikely, albeit conceivable, that a child will be in the limbo in which the courts below have placed B. The concept operates in the expectation that, when a child gains a new habitual residence, he loses his old one. Simple analogies are best: consider a see-saw. As, probably quite quickly, he puts down those first roots which represent the requisite degree of integration in the environment of the new state, up will probably come the child’s roots in that of the old state to the point at which he achieves the requisite de-integration (or, better, disengagement) from it.
(Emphasis in original)
Lady Hale and Lord Toulson supported Lord Wilson’s decision but clarified at [57] that:
We do not, however, understand Lord Wilson to be laying down a rule of law that a child must always have an habitual residence: rather that, as a matter of fact, the loss of an established habitual residence in a single day before having gained a new one would be unusual. In this particular case, although the respondent said that her intentions were permanent, looked at from the child’s point of view, on the relevant date they had been in Pakistan for only nine days, they had no home there, and she had not yet been entered into a school. Had the respondent then changed her mind and decided that the move was a bad idea, it is unlikely that a court would have held that the habitual residence of either of them had changed during those few days.
When determining the habitual residence of a child, it is often important to examine where the person or persons caring for the child have their habitual residence, especially when the child is young (LK at [27]). However, attention should also be given to “whether presence at a place has a ‘degree of settled purpose from the child’s perspective’” (LK at [45]) (emphasis in original).
Regarding a party’s intentions, the High Court in LK stated at [33] that:
Secondly, because a person’s intentions may be ambiguous, in asking whether a person has abandoned residence in a place it is necessary to recognise the possibility that the person may not have formed a singular and irrevocable intention not to return, yet properly be described as no longer habitually resident in that place. Absence of a final decision positively rejecting the possibility of returning to Israel in the foreseeable future is not necessarily inconsistent with ceasing to reside there habitually.
(Emphasis added)
The High Court went on at [34] to say that:
Thirdly, when considering where a child is habitually resident, attention cannot be confined to the intentions of the parent who in fact has the day-to-day care of the child. It will usually be necessary to consider what each parent intends for the child… 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.
The mother contends that the child was habitually resident in Japan immediately before her retention in Australia, as the child was habitually resident in Japan before arriving in Australia and it was the mother’s intention that they both remain habitually resident in Japan during their “visit” to Australia. She explained that she travelled to Australia with the child in 2021 so that the child could spend her first birthday with the father and because she was “planning to have conversations around how we will parent [the child] while we live in separate countries” (the mother’s affidavit filed 27 May 2024, paragraph 23). She deposed to the father promising to accept whatever decision she made, including to continue to raise the child in Japan, if she travelled to Australia with the child and gave him an opportunity to “prove he changed” (the mother’s affidavit filed 27 May 2024, paragraph 27). She further noted that: she completed her professional certification in Japan and wished to work at a local business (Exhibit A5); she requested that the child’s day care hold her position rather than withdraw her enrolment (Exhibit A4); she applied for a single parent payment in Japan (Exhibits A6–A7); she continued to pay taxes in Japan; and she travelled to Australia in 2021 on a visitor visa (Exhibit A9). The Court notes that it places little weight on the mother’s evidence of an email from her professional mentor in Japan (Exhibit A5), or a letter from the child’s Japanese day care (Exhibit A4) in circumstances where it appears these documents were written retrospectively in preparation for the threshold hearing and the Court has not been provided with the correspondence requesting these documents.
By contrast, the father contends that it was always the parties’ intention to permanently reside in Australia, although he was unable to argue definitively whether the child was ever (or ceased being) habitually resident in Japan, or whether the child was habitually resident in Australia at the time of her retention. Nevertheless, he asserts that the mother and the child only arrived in Australia on a visitor visa due to technicalities arising from the COVID-19 pandemic and the lapse of the travel period associated with her Bridging Visa (the father’s affidavit filed 2 July 2024, paragraph 10). He tendered numerous evidence indicating their intentions to permanently reside in Australia including correspondence and messages, for example: about whether they should have a Japanese or Western style wedding (Exhibit R3); the mother saying that the child is excited to move to a new house (Exhibit R5); talking about buying furniture for their new house (Exhibit R6); discussing other couples who had their defacto partner visas granted (Exhibit R8); the mother sending a link to a school in Sydney (Exhibit R10); the mother saying they will be together at Christmas (Exhibit R11); and the mother sending the father a link to a mother’s group in Suburb J that she wanted to join (Exhibit R14).
Counsel for the Independent Children’s Lawyer submitted that whatever the mother’s intentions were when she travelled to Australia with the child in 2021, it is clear that by July 2021 her intentions had changed and that she formed the view that she wanted to return to Japan with the child. However, the Court notes it is equally clear that it was the father’s intention that the child not be permitted to return to Japan. In any event, the parties’ intentions are not determinative of this issue.
The gravamen of present authorities is that “there is not a hierarchy of relevant considerations and that each relevant factor will be given weight according to the individual circumstances of the child and her parents” (Bamfield & Secretrary, Department of Communities and Justice (2022) FLC 94-076 at [55]).
The Court’s view is that the mother’s conduct as described at [42] signifies the mother planning to establish a life in Sydney, at least in the long-term, if not permanently. However, the Court also recognises that at least by 27 July 2021, it was the mother’s intention to return to Japan with the child and for Japan to either continue to be, or revert to being, the habitual residence of herself and the child. It is also clear that at this time it was the father’s intention that the child remain in Australia and that Australia be her habitual residence. This polarity and ambiguity are acknowledged, and it is noted that as a general rule, neither party can unilaterally change the child’s habitual residence (LK at [34]). The parties’ intentions will not be given controlling weight in this matter.
Up until her retention, the child was only present in Australia for approximately two months (in mid‑2020). Her first two weeks in Australia were spent in hotel quarantine due to the COVID‑19 pandemic. After this, the parties lived together with the child in a unit in Suburb D for a period of about six weeks, during which time they celebrated the child’s first birthday. The Court notes that at this time the parties were subject to COVID-19 lockdown restrictions and the child did not attend day care. In these circumstances, especially from the child’s point of view, it is unlikely that she established “first roots” which represent “the requisite degree of integration” in Australia which pulled up her roots in Japan achieving “the requisite de‑integration” (Re B at [45]).
The Court thus concludes that the child remained habitually resident in Japan as at 27 July 2021.
Determination on whether the mother’s application was filed within one year after the child’s retention
Even if the Court accepts that the child was a habitual resident of Japan at the time of her retention on 27 July 2021, the Court does not accept that the mother’s application was filed within one year of the child’s retention, being 27 July 2022.
Counsel for the mother conceded that the mother had not used the “correct mechanism” until her most recent Further Amended Response to Initiating Application filed 20 May 2024. However, she implied that it could be inferred that the mother raised this issue in her Response to Initiating Application filed 25 October 2021 and that at that time the mother clearly presented as a person seeking to return to Japan with the child.
In her Response to Initiating Application filed 25 October 2021 the mother sought final orders to have sole parental responsibility for the child, for the child to live with her and spend time with the father as agreed in writing, for the child to be removed from the Family Law Watchlist, and to be permitted to relocate with the child to Japan. She also sought interim orders for the father to spend supervised time with the child for two hours each Saturday while the child is residing in Australia. No reference was made to the Hague Convention or the Regulations and no evidence was filed in support of the criteria required to be considered under these instruments. She clearly sought to be permitted to relocate to Japan with the child under the Act, rather than to have the child returned to Japan under the Hague Convention and the Regulations.
Counsel for the Independent Children’s Lawyer submitted that at the time the child was retained, due to her limited English the mother had little capacity to express what she could or could not do and sought legal advice. She suggested that it would be fair to say that the mother may not have been given the full breadth of options available to her at that time and that she took the course that was perhaps the most obvious (i.e., consenting to parenting orders in this Court).
Counsel for the mother conceded that there is no evidence to determine why the mother did not file the correct application when proceedings commenced over three years ago. However, she alluded to the mother not receiving adequate legal advice. This was supported by an email from the mother’s solicitor on 29 July 2024, extracting paragraph 30 from the maternal grandmother’s affidavit filed 8 May 2024, describing issues she had experienced with their former solicitor:
“30. My current lawyer ([Ms K]) requested that I prepare a letter if I had anything to advise the judge of. When I inquired as to what I should write, she answered that I should write the facts, my feelings, and matters which I would like the judge to consider and understand. I was shocked. When I was requested to prepare a letter by my previous lawyer ([Mr L]), I wrote about the domestic violence, the family, [Ms Jugovac]’s personality, what I observed, and all of my own feelings. Despite this, I was told not to write anything emotional, as it would be detrimental to [Ms Jugovac]. Not only this, but [Mr L] offered only unrealistic proposals, which led me to become increasingly worried. For example, the proposal that he, as the successor to the company which I work for, become the president and hire [Ms Jugovac], or the proposal that he become the president of the Australian branch of the company which I work for and hire [Ms Jugovac], or the proposal that he, as the person in charge of Airbnb, rent out a portion of [Mr M]’s house. The moment that supervision to protect [X] was decided upon, he proposed that we request to go to Japan by using unsupervised [visits] as a bargaining point. I began to feel anxious being charged money for this kind of thing, and our family all desperately began to look for another lawyer. As such, I am grateful for the opportunity to submit this letter.”
(Emphasis in original)
The father’s solicitor was invited to respond to the above. On 31 July 2024, the father’s solicitor submitted that (amongst other things), the maternal grandmother’s evidence at its highest demonstrates that the mother chose not to offer any evidence calling into question her instructions to that solicitor, despite being aware that the maternal grandmother took the opportunity to do so, and that the maternal grandmother did not provide any evidence that the mother was concerned about the advice she received from that solicitor. He submitted that two inferences can be drawn: firstly, on balance the “open offer” referred to was made on the mother’s instructions and represented her genuine assessment of what was in the child’s best interests in 2023; or, the mother’s representation was a calculated deception to entice the father to allow the child to return to Japan in 2023.
The Court acknowledges that the mother may have had unfortunate difficulties with obtaining appropriate legal advice, however the submissions above ultimately do not affect the Court’s determinations. The Court notes that the mother was legally represented at every Court event. Even if the mother was provided with inadequate legal advice, no such findings can be made on the evidence before the Court, and it does not rectify the position the mother now finds herself in.
Has the father established that the child has settled in her new environment?
Counsel for the mother conceded that if the Court finds that her application was made out of time, the Court would need to determine the matter on the basis of whether the child is settled in Australia (reg 16(2)(c)). The father, being the person opposing the child’s return, bears the onus of establishing that the child is settled in her new environment.
The Full Court set out the relevant law in Townsend v Director-General, Department of Families, Youth and Community Care (1999) FLC 92-842 at [35]:
In our view, therefore, insofar as Graziano suggests that the test for whether a child is “settled in his or her new environment” requires a degree of settlement which is more than mere adjustment to surroundings, or that the word “settled” has two constituent elements, a physical element and an emotional constituent, it represents a gloss on the legislation and should not be regarded as accurately stating the law. We agree with the Full Court in M and C (the correctness of which was not challenged before us) that “The test, and the only test to be applied, is whether the children have settled in their new environment”.
(Emphasis added)
This test has been held to not carry a heavy onus, rather simply requiring evidence that the child is settled as a matter of fact on the balance of probabilities (Secretary, Attorney-General’s Department v TS (2001) FLC 93-063 at [110]).
Counsel for the mother submitted that the child has not “assimilated” into an Australian way of life. For example, the mother has ensured that the child has maintained strong links to Japan and Japanese culture by keeping in contact with her Japanese family, sending her to a Japanese day care, and speaking Japanese at home. Counsel for the mother submitted that the child is not socially and culturally assimilated into the father’s household and that he is unable to facilitate the child’s assimilation into Australian culture due to the fact that he has spent most of his life outside Australia, he has a background in Country B with most of his family residing outside Australia, and that he works from home. She further submitted that the child’s life in Australia is “unsettled” due to the mother’s unstable employment, income, housing and welfare entitlements, and that the child’s behaviour at day care reflects the fact that she is unsettled.
Counsel for the Independent Children’s Lawyer adopted the mother’s submissions. She reiterated that the child has not “habituated” to Australian culture, that she continues to be immersed in Japanese culture both at home and at day care, and that she maintains contact with family in Japan. She submitted that the father and the paternal family have only recently been able to develop a relationship with the child (perhaps through no fault of their own), but that this cannot go to the child’s “habituation” in Australia. When I asked counsel for the Independent Children’s Lawyer whether the child is settled in Australia, she responded that the child is not settled in circumstances where there is not a “well established arrangement” for the child, the child is immersed in the full time care of her Japanese mother and attends a Japanese day care, and that everything that transpired post-2021 has happened as the mother has attempted to make the most of her situation.
The father, on the other hand, asserts that the child is well settled in Australia. In his Outline of Case Document filed 24 July 2024 the father contends that the child has no memory of living in Japan or of not spending regular time with him. The father’s solicitor submitted that the child is housed in stable accommodation, notwithstanding some uncertainty, has a regular day care schedule and has spent regular and increasing time with the father. Indeed, he submitted that the mother’s evidence demonstrates how the child is very settled in her routine which both parties have adhered to. This routine is set out at paragraphs 44–47 of the mother’s affidavit filed 27 May 2024 and shows an established pattern of the child spending time with the mother, attending day care, and spending weekly time with the father.
The Court agrees with the father’s submissions. The child has lived in Australia for over three years. While it is positive that the child can speak fluent Japanese and has been able to maintain her connection to Japanese culture, the Court does not see this as relevant to its determination as to whether the child is settled in Australia. Further, while the Court acknowledges some uncertainty regarding the mother’s housing and employment, the evidence demonstrates that to her credit she has nevertheless been able to put into place a steady routine for the child, including regularly attending day care, spending time with the mother, keeping in contact with family in Japan, and spending weekly time with the father. That the child has not “assimilated” into “Australian culture” is immaterial. The Court accepts that on the balance of probabilities, the child is settled in Australia.
The Court therefore need not discuss the matters listed in regs 16(1)(c), (1A) and (3)–(8) of the Regulations.
ORDERS
The Court dismisses the mother’s application pursuant to reg 14(1)(b) of the Regulations contained within her Further Amended Response filed 20 May 2024. The matter remains listed for final hearing commencing 3 February 2025.
I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Altobelli. Associate:
Dated: 6 September 2024
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