Chammalee and Fulwood

[2019] FamCA 583

FAMILY COURT OF AUSTRALIA

CHAMMALEE & FULWOOD [2019] FamCA 583

FAMILY LAW – JURISDICTION – Habitual Place of Residence – Declaration that the habitual place of residence of the child is Australia – Order for return of child to Australia from Thailand where he was wrongfully taken by his father.

Family Law Act 1975 (Cth) ss 4, 69E, 90J, 111CD
Family Law Regulations 1984 (Cth), schedule 1A

Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children
Karides & Wilson [1998] Fam LR 435
LK v Director-General, Department of Community Services (2009) HCA 9
Punter v Secretary for Justice [2007] 1 NZLR 40
Re J (A Minor) (Abduction) [1990] 2 AC 562
SK v KP [2005] 3 NZLR 590

APPLICANT: Ms Chammalee

RESPONDENT: Mr Fulwood

FILE NUMBER: SYC 1196 of 2019

DATE DELIVERED: 6 September 2019

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Henderson J

HEARING DATE: 9 August 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Shea

SOLICITOR FOR THE APPLICANT: Legal Aid NSW

COUNSEL FOR THE RESPONDENT: Mr Milanovic

SOLICITOR FOR THE RESPONDENT: Prestige Solicitors & Associates

Orders

1. A declaration that the habitual place of residence of the child, X, born … 2008, is Australia.

2. That the father cause the child to return to Australia forthwith at his expense.

3. That upon his return to Australia the child live with the mother.

4. That the father provide the child’s Australian and Thai passport to the mother.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Chammalee & Fulwood has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1196 of 2019

Ms Chammalee

Applicant

And

Mr Fulwood

Respondent

REASONS FOR JUDGMENT

1. This is an application by a mother to have her son, X, born in 2008, returned from Thailand where she says the father wrongfully removed him in December 2018.

2. The father resists the application asserting that he and the wife agreed X would live in Thailand, that the child’s habitual place of residence is Thailand, and that he should remain living in that country.

3. The child X currently lives in Thailand with the husband’s new wife and their child, whilst both his parents live in Australia. The father is living in Australia as I imposed upon him an injunction from returning to Thailand given the grave concerns the Court has in relation to the child’s living circumstances, and his removal from Australia in December 2018.

4. The material filed by the parties is follows:

   a)For the mother:

   i)Initiating Application filed 27 February 2019;

   ii)Affidavits of 1 August 2019 and 27 February 2019; and

   iii)Written submissions filed 14 May 2019 and 1 August 2019.

   b)For the father:

   i)Response filed 5 April 2019;

   ii)Affidavit filed 8 April 2019; and

   iii)Written submissions filed 4 June 2019.

Relevant procedural history

1. The mother filed an urgent application seeking return of the child from Thailand to Australia on 27 February 2019. Thailand is not a signatory to the Hague Convention.

2. The matter came before me on 28 February 2019 and I listed the matter for an interim hearing on 5 March 2019.

3. On 28 February, I directed the father to file his material setting out at minimum where the child is located in Thailand, who is caring for the child and contact details for that person, the location of the child’s passport, who has possession of the passport and his proposal for returning the child to Australia forthwith by 4pm on 4 March 2019. In addition, I placed the father’s name on the Airport Watch List, thereby ensuring his inability to leave Australia pending determination of these proceedings.

4. On 5 March 2019, the respondent did not appear and I listed the matter on 9 April 2019 for a possible undefended hearing.

5. I granted the mother leave to issue a subpoena for the personal attendance of the father at Court on 9 April 2019 to answer questions in relation to where the child and the child’s passport are located.

6. I indicated that if I was satisfied, the subpoena had been correctly served with appropriate conduct money tended and the father failed to attend Court, I would entertain an application for his arrest on the next occasion.

7. On 9 April 2019, the matter came before me and the father attended, represented by Mr Milanovic. The father sought I give effect to and register the orders of the Provincial Juvenile and Family Court dated 29 June 2017, which provided that the father have sole parental responsibility for the child. I dismissed that part of his application and listed the matter for final hearing on 9 August 2019. It was the father’s case at that time, and continues to be the case, that this Court is not seized with jurisdiction as the child’s habitual place of residence is Thailand and the Thai Court has made a determination in relation to his care.

8. The Affidavit filed by the father on 8 April 2019 discloses the following in relation to the child:

9. Paragraph 18:

   The applicant has always been aware and agreed to [X’s] travels to Thailand and has never opposed the travels or him staying in Thailand. In actual fact [X] has travelled over 20 times in the past five years.

10. Paragraph 19:

    The applicant also facilitated in [X] obtaining his Thai passport knowing my intention was to relocate and live in Thailand with my new family. [X] is currently residing with his stepmother and half-sister in Thailand.

11. That is the extent of the father’s compliance with my Orders of 28 February 2019 in relation to the child’s living circumstances and location of his passport and/or his recitation of any agreement with or knowledge by the mother that their son would live permanently in Thailand from 8 December 2018.

12. The mother disputes any knowledge or agreement between her and the father for the child to live with the father permanently and to live with him in Thailand.

Short relevant chronology

1. The father was born in Country A in 1963.

2. The mother was born in Thailand in 1971. The mother has three older children from a previous relationship, namely;

   a)Ms B, aged 23, who lives in Thailand;

   b)Mr C, aged 19, who lives with his mother in Australia; and

   c)Y, age 15, who lives with his mother in Australia.

3. On 1 January 2003, the parties commenced a relationship. At this stage, the mother was living in Thailand.

4. In early 2005, the parties married in Thailand. The father asserts the parties married in 2006 in Thailand. Nothing turns on this dispute.

5. On 1 January 2006, the parties moved to Australia. The wife entered Australia on a spousal visa as the husband is an Australian citizen.

6. In 2006, the parties’ child, X, was born. X is an Australian citizen and a Thai citizen. The child had always lived in Australia on a permanent basis until his father moved to Thailand in December 2018. These facts are not disputed by the father.

7. On 1 January 2009, the mother’s older three children moved to Australia and lived with the parties.

8. On 1 January 2011, the mother becomes an Australian citizen.

9. In November 2012, the parties purchase a home in Suburb B, New South Wales, in the name of the husband.

10. On 1 January 2013, the parties separated but continued to live in that property. It has been modified to provide for two separate residences with a connecting door. X lived between the mother and father at this property.

11. On 1 January 2015, the father went to Thailand. Subsequently, on the mother’s version of events, she found out he had commenced divorce proceedings of which the mother was unaware until a Divorce Order was slipped under her door in early 2016.

12. There is a significant dispute between the parties as to the wife’s knowledge of these proceedings, and she asserts she had no knowledge of the husband’s actions in Thailand.

13. In September 2015, the father obtained a case finalisation of the matter in Thailand. The mother asserts that at no time was she aware of these proceedings.

14. In December 2015, the parties were divorced in Thailand and the father commenced proceedings in the Provincial Juvenile and Family Court in Thailand relation to the child.

15. In the divorce and parenting proceedings in Thailand, the father claimed that X was in his care post separation, that he had had sole responsibility for making day-to-day decisions concerning the child, had fully supported the child and the mother had had very little to do with the parenting or care of the child in Australia. At the time of filing this Affidavit, X was living in Australia. The mother asserts she was completely unaware of the proceedings in relation to the child commenced by the father in Thailand.

16. The mother alleges that in January 2016, the father began to insist on changes to what had been X’s care. The mother says X had lived in a shared care arrangement with the child living with his mother or his father as he pleased given they were effectively living in the same premises with a connecting door. The mother asserts that the child became very stressed and remained in his father’s care every night, otherwise the mother continued in her care of the child.

17. In mid-2016, the child was wearing a key around his neck which gave him access to his father’s part of the house.

18. The mother asserts she heard the father yelling at the child, admonishing him for eating his mother’s dirty food. When she would ask the child to come and spend time with her, he would say words to the effect of, “I want to be alone. I don’t want to cause trouble.”

19. The mother asserts that prior to this date, in late 2016, the internal door between the sections of the house had been unlocked and the child had been able to move freely between the mother and father’s respective residences. The mother says this changed at this time and the door remained locked.

20. On 29 June 2017, the Provincial Juvenile and Family Court made an Order providing for the father to have sole parental responsibility for the child. The appeal period for that judgment expired on 11 August 2017. The mother asserts she was completely unaware of these proceedings or this Order.

21. On 1 November 2018, mother’s older child, Mr C, said he would take X to Thailand for a few weeks before travelling with the father, and the mother agreed. Mr C works in the father’s company in Australia.

22. The mother asserts it was not unusual for the parties to travel to Thailand with their son and this had been a frequent occurrence during the marriage and post separation. The father had taken the child to Thailand on previous occasions.

23. Unbeknown to the mother, the father had remarried in Thailand by this time and had a new family in that country.

24. On 8 December 2018, X travelled to Thailand with his brother. The Father paid for the trip and organised it.

25. X has not returned to Australia since that time.

26. On 20 December 2018, Mr C returns without his brother and told his mother that a woman had come to the airport to collect X in the interim because his father was not intending to arrive in Thailand until around 23 or 24 December.

27. From late December to January 2019, the mother asserts she repeatedly asked Mr C when X was returning home, who he was living with and who was caring for him, and he told her not to worry. The mother asserts her son became avoidant of her.

28. On 23 December 2018, the father arrives in Thailand.

29. 20 January 2019, the father returns from Thailand without the child leaving him in the care of his current wife.

30. The mother becomes extremely concerned for the child and seeks advice from police as to her options to have her son returned to Australia. She learns through the mother of a friend of the child who had been playing an online game with him, that the child was unsure if he was coming back to Australia because he was enrolled in a school in Thailand.

31. On 1 February 2019, the father travelled to Thailand and again did not return with the child.

32. In early February 2019, the mother asked her family in Thailand to pass on any information they can find out about the child to her.

33. On 7 February 2019, the mother attended the child’s school, C School in Sydney and was told that the father had signed documents in December 2018 confirming the child was not returning to school because he would be living in Thailand.

34. On 27 February 2019, the mother commences proceedings.

35. The mother spoke to the child for the first time on 2 June 2019, and again on 4 June 2019. Since that time, the mother has not been able to speak with her son.

36. Although the father raises the issue of jurisdiction of the Australian Courts, it is clear that I am seized of jurisdiction pursuant to section 69E of the Act[1] which provides that where any one the following matters exist the Court has jurisdiction. The relevant matters are as follows:

    a)The child is an Australian citizen;

    b)The mother is an Australian citizen;

    c)The father is an Australian citizen;

    d)The mother was present on the relevant day; and

    e)The father was present the relevant day. The relevant day means the day the matter was filed.

    [1]Family Law Act 1975 (Cth), s 69E.

37. All relevant factors are satisfied in this matter and only one factor needs to be found by the Court to enliven the jurisdiction of the Court. The fact the child is not in Australia is not a bar to this Court making a parenting order. The decision of Karides & Wilson[2] is authority for this proposition.

    [2]Karides & Wilson [1998] Fam LR 435.

38. The gravamen of the father’s case is that the child is habitually resident in Thailand and that the child was taken to live in Thailand permanently by agreement between he and the mother. Those matters are the significant issues of contest between the parties.

39. The husband raised section 70J of the Family Law Act 1975 which provides that where a Court in Australia is aware that an overseas child order is registered under section 70J[3], the Court must not exercise jurisdiction in the proceedings and make a parenting order in relation to the child. However, this section is not relevant to these proceedings as the Thai order has not been registered in Australia and could not be.

    [3]Family Law Act 1975 (Cth), s 90J.

40. In order for the Thai order to be registered, it must be an overseas child order, which is an order made by a Court of prescribed overseas jurisdiction[4].

    [4]Family Law Act 1975 (Cth), s 4.

41. Thailand is not a prescribed overseas jurisdiction pursuant to Regulation 14 and Schedule 1A of the Family Law Regulations 1984, and is also not a contracting party to the Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children. As such, there is no provision for the registration and subsequent enforcement in Australia of the Thai order.

42. The father now argues that the child is habitually resident in Thailand. As the child is currently in Thailand and Thailand is not a signatory to the Hague Convention, I must consider section 111CD of the Family Law Act 1975 before I exercise what would otherwise be the jurisdiction under section 69E of the Act.[5]

    [5] Above, note 1.

43. Section 111CD of the Family Law Act 1975 is as follows:

    (1)  A court may exercise jurisdiction for a Commonwealth personal protection measure only in relation to:

    (a) a child who is present and habitually resident in Australia; or

    (b)  a child who is present in Australia and habitually resident in a Convention country, if:

    (i)  the child's protection requires taking the measure as a matter of urgency; or

    (ii)  the measure is provisional and limited in its territorial effect to Australia; or

    (iii)  the child is a refugee child; or

    (iv)  a request to assume jurisdiction is made to the court by, or at the invitation of, a competent authority of the country of the child's habitual residence; or

    (v)  a competent authority of the country of the child's habitual residence agrees to the court assuming jurisdiction; or

    (vi)  the court is exercising jurisdiction in proceedings concerning the divorce or separation of the child's parents or the annulment of their marriage (but see subsection (3)); or

    (c)  a child who is present in a Convention country, if:

    (i)  the child is habitually resident in Australia; or

    (ii)  the child has been wrongfully removed from or retained outside Australia and the court keeps jurisdiction under Article 7 of the Child Protection Convention; or

    (iii)  a request to assume jurisdiction is made to the court by, or at the invitation of, a competent authority of the country of the child's habitual residence or country of refuge; or

    (iv)  a competent authority of the country of the child's habitual residence or country of refuge agrees to the court assuming jurisdiction; or

    (v)  the child is habitually resident in a Convention country and the court is exercising jurisdiction in proceedings concerning the divorce or separation of the child's parents or the annulment of their marriage (but see subsection (3)); or

    (d)  a child who is present in Australia and is a refugee child; or

    (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; or

    (f)  a child who is present in Australia, if:

    (i)  the child is habitually resident in a non-Convention country; and

    (ii)  any of paragraphs 69E(1)(b) to (e) applies to the child.

    (2)  A court may only exercise jurisdiction in accordance with subparagraph (1)(b)(ii) if the measure is not incompatible with a foreign measure already taken by a competent authority of a Convention country under Articles 5 to 10 of the Child Protection Convention.

    (3)  A court may only exercise jurisdiction in accordance with subparagraph (1)(b)(vi) or (c)(v) for a Commonwealth personal protection measure relating to a child if:

    (a)  one or both of the child's parents are habitually resident in Australia when the proceedings referred to in that subparagraph begin; and

    (b)  one or both of the parents have parental responsibility for the child; and

    (c)  the jurisdiction of the court to take the measure is accepted by the parents and each other person with parental responsibility for the child; and

    (d)  the exercise of jurisdiction to take the measure is in the best interests of the child; and

    (e)  the proceedings on the application for divorce or separation of the child's parents or the annulment of their marriage have not been finalised.

    (4)  Paragraphs 111CD(1)(a) to (d) are subject to the limitations in sections 111CE, 111CF and 111CH.

44. If I find pursuant to section 111CD(1)(e)(i)[6] that the child who is currently present in a non-convention country is habitually resident in Australia and given that all the factors in section 69E[7] apply, then my jurisdiction to make a parenting order is enlivened and pursuant to section 111CD(2) of the Act,[8] there is no longer a bar to the exercise of my jurisdiction.

    [6]Family Law Act 1975 (Cth), s 111CD(1)(e).

    [7] Above, note 1.

    [8]Family Law Act 1975 (Cth), s 111CD(2).

45. For the father’s application to succeed, I must determine whether X is habitually resident in Thailand or, as the mother asserts, habitually resident in Australia.

46. The father relies upon the following evidence to enable the Court to find that the child is habitually resident Thailand:

    a)Firstly, the child is a Thai citizen; and

    b)Secondly, he has a Thai passport and a Thai identification card.

1. The father asserts that the fact these documents were obtained is an indication that the child was to settle in Thailand.

2. The father’s evidence as to the agreement by he and X’s mother that the child was to live permanently in Thailand is sparse.

3. Reading from his Affidavit of 5 April 2019 the father says the following:

4. Paragraph 17:

   I refer to paragraph 52 and 53 of the applicants affidavit affirmed 25 February 2019 where it states there have been no previous parenting child support property an ADVO and divorce proceedings in Australia or Thailand between myself and the applicant. I say this is incorrect. The applicant had full knowledge of the proceedings being the divorce and parenting proceedings in Thailand where application in final orders have been made.

5. Paragraph 18:

   The applicant has always been aware and agreed to [X’s] travels to Thailand and has never opposed the travels or him staying in Thailand.

6. Paragraph 19:

   The applicant also facilitated in [X] obtaining his Thai passport knowing my intention was to relocate and live in Thailand with my new family. [X] is currently residing with his stepmother and half-sister in Thailand.

7. This is the highest the husband’s evidence amounts to. There is no recounting of a conversation between he and the mother on this important issue of their son being removed permanently from Australia, his siblings, his mother and school to live in Thailand with his new wife.

8. There is no evidence of any conversation with the mother, proposal or information provided to her from the father about X’s care and living arrangements in Thailand.

9. There is no email or text message from the father to the mother setting out his proposal for the permanent living arrangement for their son in Thailand. Only the father could have made any proposal as on his evidence he is the parent who determined this was the best arrangement for the child.

10. The father does not provide the Court with any details of the alleged agreement or understanding of the mother as proposed by him regarding their son’s removal to live in Thailand to live permanently.

11. The father does not tell the Court what knowledge X’s mother had of the father’s intention to remove their son to Thailand to live permanently in December 2018.

12. The father does not tell the Court, and most importantly, has not yet told the mother, where his son is living, the school he attends, the name of his second wife, or the name of his young child. The father has not put forward any proposal for the child to communicate with and have contact with his mother and his siblings living in Australia.

13. The best I have is the father’s opinion that the mother has always been aware and agreed to X’s travels without any evidence from him of what it is he asserts she has agreed to or understands. Rarely have I seen such a paucity of evidence on such an important topic of the long-term parenting arrangements for a child.

14. I reject the father’s argument and his evidence in its entirety.

15. The fact the child has a Thai passport and a Thai identification document does not persuade me that his mother, therefore, agreed to his permanent removal to Thailand to live with the father and his new wife.

16. The child and the mother are Thai and Australian citizens. The child does have connections to Thailand and has travelled there frequently with both his parents and on occasions with one parent. The holding of these documents in no way determines habitual residence of the child but provides a clear connection to Thailand.

17. It is clear to me on the evidence that the father removed the child out of the country and carried out a subterfuge on the mother, having removed him from school and advised the school he was no longer returning.

18. The father failed to inform the mother at any time that this was his intention when she agreed for her son to travel to Thailand with his older brother in December 2018 as he had done on other occasions and had returned the child to Australia.

19. I accept the child has now lived in Thailand for some 8 to 9 months due in part to the father’s failure to attend Court on two occasions and the necessity of this matter to be adjourned to August 2019 for a Final Hearing.

20. Secondly, when one reads the decision made by the Thai Courts in 2017 it was clearly done ex parte. The decision is attached to the father’s Affidavit of 5 April 2019. The decision recites facts given only by the father in relation to the mother’s neglect or carelessness of their son. It is clear the mother was not present at that hearing as her side of the story was not mentioned once by the Thai Courts.

21. Additionally, no evidence was tendered by the father of him having served the mother with the Thai proceedings or any document relating to those proceedings and nor was mention made of this in the judgment. The father did not produce an Affidavit of Service, letter, or email that the mother had been served with the proceedings, or was aware of the proceedings and chose not to participate.

22. The decision of the Thai Court is based only upon the father’s recounting of events. The Court accepted what he told them that the mother had not looked after the child post separation or provided for the child and he had been the child’s sole parent since separation.

23. Interestingly, at page 3 of the decision, the Court recites, “the plaintiff had trouble obtaining consent from the defendant”. There is no evidence of consent provided by the husband to the Thai Court or to this Court and the facts are to the contrary. No consent was ever sought as the father apprehended the mother would not agree.

24. It is clear on these facts that the husband acted deceitfully and on his own and wrongfully removed the child from Australia without the consent or knowledge of the mother.

25. His argument that this was an agreement between them is rejected by me. The mother’s actions in January 2019 when she realised the father had returned from Thailand without their son in notifying the New South Wales Police, contacting her sister in Thailand to try to find the location whereabouts of her son, attending the child’s school to speak with the principal and seeking legal advice to commence urgent proceedings, is all consistent with her lack of knowledge of the father’s wrongful behaviour. Such behaviour is contrary to any argument that she consented, agreed or even acquiesced to her son being permanently removed to Thailand in December 2018.

26. Habitual residence is not defined in the Family Law Act 1975 and is a notion of fact rather than law. The concept of habitual residence was extensively discussed by the High Court in LK v Director-General, Department of Community Services[9] where their Honours said:

    [9]LK v Director-General, Department of Community Services (2009) HCA 9.

    It is sufficient to observe that the enquiry into habitual residence is a broad factual enquiry.

27. Their Honours discussed the decision of the Court of Appeal of New Zealand in Punter v Secretary for Justice[10] in which the plurality held;

    “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, strength of ties to the state and to any other state (both in past and currently), the degree and assimilation into the state including living and schooling arrangements, and cultural social and economic integration. In this catalogue SK v KP[11] 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 the underlying reality of the connection between the child and the particular state.

    [10]Punter v Secretary for Justice [2007] 1 NZLR 40.

    [11]SK v KP [2005] 3 NZLR 590.

28. The High Court went on to hold:

    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. So understood, there is no disconformity between the approach of New Zealand and the need identified by Lord Brandon in In Re J[12] to decide the question of habitual residence by reference to all the circumstances of any particular case.

    [12]Re J (A Minor) (Abduction) [1990] 2 AC 562.

29. Moving onto the circumstances of this case.

30. Firstly, I do not accept there was a shared intention, let alone an agreement between the parents, that X would permanently live in Thailand from December 2018. Thus, there cannot be a shared intention that he would live in Thailand with a sufficient degree of continuity to be properly described as a settled arrangement.

31. Up until December 2018, the child had always lived permanently in Australia with his mother, father and older siblings, and had lived in a shared parenting arrangement.

32. X is currently living in Thailand with a woman who was in December 2018, a stranger to him and has been separated from his mother and siblings by the actions and conduct of the father.

33. The child had attended a school in Sydney, being C School, up until December 2018. The father has unilaterally changed his schooling.

34. X has never previously lived in Thailand on a permanent basis.

35. The father failed to advise the Court of the school the child attends in his Affidavit, any parenting arrangements or care arrangements for his son, or where child’s passports are located.

36. The mother the father and X are all Australian citizens.

37. The father is not a Thai citizen.

38. X and the mother are Thai citizens.

39. The father owns and operates a business in Australia and prior to going to Thailand in December 2018, the father was living and working in Australia as, on his own evidence in the Thai proceedings, he asserts he was the one supporting his son whilst living in Australia.

40. I find the father set out on a course of conduct to wrongfully remove the child to Thailand as it is clear had he raised this issue with the mother she would have objected to that course of action.

41. For all the above reasons, and having regard to all the circumstances of the case, I find that Thailand is not the habitual residence of X. Whilst he has a connection to Thailand with his Thai heritage and the many family holidays he has spent there, prior to the wrongful removal of the child by his father to Thailand on 8 December 2018, X’s habitual place of residence was Australia.

42. Thus, section 111CD of the Family Law Act 1975 does not apply to this matter and as such, I am seized of jurisdiction to make a parenting order the mother has made out her application that the child be returned to Australia forthwith and I will so order.

I certify that the preceding one hundred and four (104) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Henderson delivered on 6 September 2019.

Associate:

Date: 6 September 2019