Chawla & Dutta
[2021] FedCFamC1F 256
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Chawla & Dutta [2021] FedCFamC1F 256
File number(s): SYC 4238 of 2018 Judgment of: ALTOBELLI J Date of judgment: 8 December 2021 Catchwords: FAMILY LAW – CHILDREN – Jurisdiction – Habitual residence – Whether the Court has jurisdiction to make parenting orders about the child – Where there are competing parenting proceedings overseas – Considerations of s 69E and s 111CD of the Family Law Act 1975 (Cth) and the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-Operation in respect of Parental Responsibility and Measures for the Protection of Children – Whether the child is habitually resident in Australia – Where the evidence is that the child is habitually resident in Australia – Finding that the Court has jurisdiction. Legislation: Family Law Act 1975 (Cth) ss 69E, 111B, 111CD
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 10.13
Family Law Amendment (Child Protection Convention) Bill 2002 (Cth)
Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-Operation in Respect of Parental Responsibility and Measures for the Protection of Children
Cases cited: Kingsley & Secretary, Department of Communities and Justice (No. 2) (2021) FLC 94-010; [2021] FamCAFC 144.
LK v Director-General, Department of Community Services (2009) 237 CLR 582; [2009] HCA 9.
Division: Division 1 First Instance Number of paragraphs: 46 Date of last submission/s: 15 October 2021 Date of hearing: 15 October 2021 Place: Sydney (via videoconference) The Applicant No appearance The Respondent: Self-represented Litigant ORDERS
SYC 4238 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS CHAWLA
Applicant
AND: MR DUTTA
Respondent
ORDER MADE BY:
ALTOBELLI J
DATE OF ORDER:
8 DECEMBER 2021
THE COURT ORDERS THAT:
1.The mother’s Application in a Case filed on 19 May 2020 is dismissed.
2.The final hearing of this matter is expedited.
3.This matter is listed for mention on 25 January 2022 at 9am.
4.Within seven days of the date of these orders, the father do all things necessary to notify the mother of these orders.
THE COURT NOTES THAT:
A.The provisions of r 10.13(1)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 may apply to this matter.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 Chawla & Dutta has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALTOBELLI J:
INTRODUCTION
This case is about two children, X, who is 11 years old and Y, who is eight years old (“the children”). The children are currently with their mother in Country H. Their father lives in Australia. The Court had to decide whether it had jurisdiction to determine a parenting dispute relating to the children. This was dependent on a finding as to where the children were habitually resident. These reasons for judgment explain the decision that the Court has made.
THE PRESENT APPLICATION
In the context of substantive parenting proceedings initiated by the father on 18 April 2019, the mother filed an Amended Application in a Case on 30 July 2020 in which she sought that the father’s application be dismissed for want of jurisdiction or, in the alternative, be stayed pending the determination of the proceedings in Country H. The father opposed such application, and sought that it be dismissed.
At the time that the issue of the Court’s jurisdiction was first raised, the parties were legally represented. The matter was first listed for hearing on 3 February 2021. The mother was represented on this date, but the father was not. The matter was adjourned to 15 October 2021 to enable the father to obtain legal advice, given the potentially complex legal issues involved, and both parties were in fact encouraged to brief counsel.
The case was included in the winter callover before Wilson J on 9 August 2021. On this date the father appeared, but the mother did not. When the matter came before me for hearing on 15 October 2021 there was no appearance by the mother. This was notwithstanding the fact that on 7 October 2021 the mother had responded to a compliance check email from my associate indicating that the matter was still proceeding, that the directions had been complied with, that there were no further documents to be filed, and that she would appear at the hearing without the assistance of an interpreter. The mother, of course, remained in Country H, and the hearing was to take place by way of Microsoft Teams videoconference.
On 15 October 2021 the matter proceeded to hearing. The father appeared but the mother did not. The father asked to proceed on an undefended basis, and the Court did so. Much later that day, the mother communicated with chambers indicating that she was having difficulty dialling into the Microsoft Teams videoconference. Chambers advised the mother that the matter had already been dealt with.
The Court notes that the mother has the right to bring an application under r 10.13(1)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) which states:
10.13 Varying or setting aside orders
(1) The court may at any time vary or set aside an order, if:
(a) it was made in the absence of a party; or
(b) it was obtained by fraud; or
(c) it is interlocutory; or
(d) it is an injunction or for the appointment of a receiver; or
(e) it does not reflect the intention of the court; or
(f) the party in whose favour it was made consents; or
(g) there is a clerical mistake in the order; or
(h) there is an error arising in the order from an accidental slip or omission
The matter proceeded on the papers with oral submissions from the father. It is clear, with respect to the father, that he did not understand the legal complexity arising from the matter before the Court. Nonetheless, he did the best he could to assist the Court.
BACKGROUND
In setting out matters of background, and in referring to facts, it is important to recognise that the Court will rely predominantly on the mother’s evidence, and the father’s evidence where it is not put in contention by the mother, or is otherwise corroborated.
The mother’s Case Outline filed 22 January 2021 was prepared by her solicitor and contains this helpful summary of the relevant background, from the mother’s perspective:
1.The parties were married in 2006 in Country H and are both aged 38. There are two children of the relationship. Namely X, born in 2010 aged 10 and Y born in 2013 aged 7 years.
2.Both children were born in Australia after the parties came to Australia between February 2006 and May 2006.
3.The Respondent mother has been the primary carer of the children since birth till her departure to enable the applicant to work and provide financially for the children.
4.In December 2013, the parties were evicted from their home in Suburb C.
5.The mother and the children remained living with her friend Ms D for a while and thereafter it was agreed for the Applicant and the children to travel back to Country H.
6.The mother and children went to Country H in December 2013 and returned in February 2014, some two months later.
7.In August 2014, the party's relationship began to deteriorate. The father moved to Melbourne in July 2016
8.The Applicant moved out of the matrimonial home between January 2017 until March 2017. The mother considers the date of separation to be 28 March 2017.
9.After this date the father moved to Sydney and the mother moved to Ms F.
10.The father visited the children twice, once in 2017 and once in 2018 up until 26 December 2018 the date the mother travelled with the children to Country H.
11.The mother was due to return on the 27 January 2019 but was married in 2019.
12.The mother lives with her husband at G City in Country H.
13.Her husband has three children aged 11, 7 and 5 respectively.
14.The children have a strong attachment to the mother's husband and all attend school in G City known as "B School" and have made many friends.
15.Both children visit their grandparents and their cousins.
16.Both children are Country H citizens.
(As per the original)
The mother’s Case Outline filed 28 September 2021 in anticipation of the hearing was prepared by herself. It states as follows:
1.The children have been resident in Country H since December 2018, a period of about two years and two months.
2.X was aged 8 and Y aged 5 upon their departure from Australia,
3.The children have lived a relatively settled existence in Country H and during their stay have never once visited Australia.
4.It is conceded X would have some memory of Australia although Y may have none.
5.The children’s caregivers are living in Country H.
6.Their routine appears established in Country H.
7.It is likely to be very difficult for the children to return to Australia and fit into an established routine without their mother
8.The children reside in an established household and their mother stays at home to care for them.
9.As stated in my initial response to the application submitted by the father, I do not intend to stay in Country H indefinitely.
10.The delay has been circumstantial and the relocation needs to be a planned one to ensure it has no impact on kids and our financial situation.
11.I have been planning my return back to Australia since May 2021 but my plans are affected by border restrictions and financial constraints. I have kept Kids father updated of my plans.
12.It should be noted that, travel expenses including quarantine stay, and cap on incoming travelers by the Australian government has significantly impacted residents’ return.
13.I am currently dependent on my husband who is our sole financial provider. I need to ensure that this relocation is not a burden on him.
14.Accordingly, it is submitted that the children are in fact habitually resident in Country H with their mother and thus they are not habitually resident in Australia.
(As per the original)
The mother had filed two affidavits in the context of this application. Her first affidavit was made 10 March 2020. Relevantly, at [42] she deposes: “I came to Country H in December 2018 and was due to return on 27th of January 2019. I remained in Country H back because I remarried in 2019.” At [59] she deposes that the children are Country H citizens. At [60] she deposes that on 6 April 2019, she commenced guardianship proceedings in the J Court, K City to enable her to obtain a guardian certificate for the children and to enrol them in school.
Her second affidavit was made on 12 May 2020. There are a number of relevant paragraphs. At [46] she deposes:
I arrived in Country H with the children on 26 December 2018. I was due to return on 27th January 2019. Upon my arrival, I called the Applicant and informed him we had arrived safely and that he should keep in contact with the children. He told me he would speak to the children upon our return. In the late January 2018. before my return flight, I cancelled my plan and decided to stay for longer. I was married in 2018.
(As per the original)
A number of important observations can be made from this evidence of the mother. The children were born in and have lived most of their lives in Australia. She does not contend that her removal of the children from Australia to Country H was either known to or consented to by the father. She deposes to the father’s expectation that both she and the children would return to Australia. It was clearly her plan to return to Australia, a plan that she “cancelled” at one stage in January or February 2019. Nonetheless, as recently as the mother’s Case Outline filed 28 September 2021 it is clear from the mother’s own submissions that she intends to return to Australia. There is only one reference to proceedings relating to the children in Country H, and on the mother’s own evidence this related to the sole issue of enrolling them in school.
The father gives evidence in two affidavits, the first of which was filed 18 April 2019. The relevant paragraphs for present purposes are [39]–[56]. The father annexes the text of a number of SMS messages with the mother which he refers to in these paragraphs. The strong impression formed from this evidence is that the mother travelled to Country H with the children without his knowledge or consent. In almost all of their communication until 28 March 2019 she gave every indication that she would return with the children, and no indication that she would remain in Country H permanently with them. Indeed, she did not disclose that she had remarried, and the father discovered this through another source.
The father’s second affidavit was filed 2 November 2020. The relevant paragraphs are [26]–[36] and [47]–[48]. Of particular interest are annexures Y and Z to this affidavit which comprise copies of SMS messages exchanged with the mother. Thus on 26 May 2020 at 10.19 pm, the mother messaged the father: “I am ready to send the kids to live with you until the time I come back. They will be safer there!” The message exchange includes the following comments by the mother: “When I come back, I want to keep my home to be their primary home. We can get the basic consent plan ready a legal one. Simple that due to current global situation we are deciding this for the betterment of the kids to live in their home country.”
EVIDENCE
In support of his case, the father relied on the following documents:
(a)His Application in a Case filed 18 April 2019;
(b)His Affidavit filed 18 April 2019;
(c)The mother’s Amended Application in a Case filed 30 July 2020;
(d)His Response to an Application in a Case filed 2 November 2020;
(e)His Affidavit filed 2 November 2020; and
(f)His Case Outline filed 28 September 2021.
In support of her case, the mother relied on the following documents:
(a)Her Response filed 14 March 2020;
(b)Her Affidavit filed 13 March 2020;
(c)Her Affidavit filed 30 July 2020;
(d)Her Amended Application in a Case filed 30 July 2020;
(e)Her Case Outline filed 22 January 2021; and
(f)Her Case Outline filed 28 September 2021.
APPLICABLE LAW
Section 69E of the Family Law Act 1975 (Cth) (“the Act”) states the general rule that a child or parent must be present in Australia.
69E Child or parent to be present in Australia etc.
(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 in original)
The children are not present in Australia. If the mother is correct in asserting that the children now have Country H citizenship, it is possible that they are no longer Australian citizens. It would strain the facts to suggest that the children are ordinarily resident in Australia. The father is ordinarily resident in Australia and is present here. Prima facie, the Court has jurisdiction to hear the parenting proceedings.
However, as the note to s 69E of the Act states, Division 4 of Part XIIIAA, relating to the international protection of children, has effect despite s 69E, thus meaning that s 111CD applies. Thus the circumstances in which the Court’s jurisdiction will be exercised are limited by virtue of Australia having become 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 (“Child Protection Convention”) (see Part XIIIAA, Division 4 of the Act) signed at the Hague on 19 October 1996.
The objectives of the Child Protection Convention are set out in Article 1 as follows:
Article 1
(1) The objects of the present Convention are –
a)to determine the State whose authorities have jurisdiction to take measures directed to the protection of the person or property of the child;
b)to determine which law is to be applied by such authorities in exercising their jurisdiction;
c)to determine the law applicable to parental responsibility;
d)to provide for the recognition and enforcement of such measures of protection in all Contracting States;
e)to establish such co-operation between the authorities of the Contracting States as may be necessary in order to achieve the purposes of this Convention.
(2)For the purposes of this Convention, the term ‘parental responsibility’ includes parental authority, or any analogous relationship of authority determining the rights, powers and responsibilities of parents, guardians or other legal representatives in relation to the person or the property of the child.
Article 2
The Convention applies to children from the moment of their birth until they reach the age of 18 years.
Article 3
The measures referred to in Article 1 may deal in particular with –
a)the attribution, exercise, termination or restriction of parental responsibility, as well as its delegation;
b)rights of custody, including rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence, as well as rights of access including the right to take a child for a limited period of time to a place other than the child’s habitual residence;
c) guardianship, curatorship and analogous institutions;
d)the designation and functions of any person or body having charge of the child’s person or property, representing or assisting the child;
e)the placement of the child in a foster family or in institutional care, or the provision of care by kafala or an analogous institution;
f)the supervision by a public authority of the care of a child by any person having charge of the child;
g) the administration, conservation or disposal of the child’s property.
(Emphasis in original)
Thus it is clear that the provisions of the Child Protection Convention are intended to apply to applications, such as the present, where the Court is being asked to deal with issues of parental responsibility and where and with whom the child will live.
The provisions of the Child Protection Convention are imported into the Act at Division 4 of Part XIIIAA. This Division, and particularly s 111CD, qualifies the jurisdiction otherwise conferred on the Court pursuant to s 69E.
Section 111B stipulates that Division 4 has effect “despite the rest of the Act”. In the Explanatory Memorandum of the Bill inserting Division 4, it states:
Subsection 111CB(1) provides that Division 4 has effect despite any other provision in the Act. In order to ratify the Convention, Australian law must be adjusted so that the conflicts of law rules currently applied by courts under the Act conform to the provisions set out in the Child Protection Convention. Thus the effect of subsection 111CB(1) is that, to the extent of any inconsistency, the provisions in Division 4 prevail over provisions elsewhere in the Act such as subsection 31(2) (jurisdiction of the Family Court in relation to persons and things outside Australia), section 63E (registration of parenting plans), section 65D (making of parenting orders), section 67ZC (making of child welfare orders) and section 69E (child or parent to be present in Australia).
Section 111CD states:
111CD Jurisdiction relating to the person of a child
(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.
The term “Commonwealth personal protection measure” means a measure within the meaning of the Child Protection Convention. The application brought by the father in relation to the children is a Commonwealth personal protection measure.
The children are not present in Australia. They are, however, present in a non-Convention country. For all practical purposes, therefore, this Court only has jurisdiction if it finds that the children are habitually resident in Australia.
It is accepted that Country H is a non-Convention country for the purposes of s 111CD of the Act.
The High Court of Australia has considered the meaning of habitual residence in the context of the Convention in LK v Director-General, Department of Community Services (2009) 237 CLR 582 at [21]–[27]:
[21] The expression “habitual residence”, and its cognate forms, have long been used in international Conventions, particularly Conventions associated with the work of the Hague Conference on Private International Law.25 Although the concept of habitual residence was used in a Hague Convention (on civil procedure) as long ago as 1896,26 and has since been frequently used in other Hague Conventions,27 none of those instruments has sought to define the term. Rather, as one author28 has put it, the expression has “repeatedly been presented as a notion of fact rather than law, as something to which no technical legal definition is attached so that judges from any legal system can address(2009) 253 ALR 202 at 210themselves directly to the facts”. Thus the explanatory report commenting on the Abduction Convention said29 that “the notion of habitual residence [is] a well-established concept in the Hague Conference, which regards it as a question of pure fact, differing in that respect from domicile” (emphasis added).
[22] To approach the term only from a standpoint which describes it as presenting a question of fact has evident limitations.30 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.
[23] 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.
[24] Use of the term “habitual residence” to identify the required connection between a person and a particular municipal system of law amounts to a rejection of other possible connecting factors such as domicile or nationality. In particular, it may be accepted that “habitual residence” has been used in the Abduction Convention (as it has been used in other instruments) “[t]o avoid the distasteful problems of the English concept [of domicile] and the uncertainties of meaning and proof of subjective intent”.31 It was said32 in the nineteenth century that the notion that lies at the root of the English concept of domicile is that of permanent home.33 But it was soon recognised34 that domicile, in English law, is “an idea of law”. Thus, in considering acquisition of a domicile of choice, questions of intention loomed large, and the relevant intention had to have a particular temporal quality (an intention to reside permanently or at least indefinitely). Use of “habitual residence” in the Abduction Convention rather than domicile as the relevant connecting factor entails discarding notions like the revival of domicile of origin and the dependent domicile of a married woman which(2009) 253 ALR 202 at 211marked the English law of domicile.35 More importantly for present purposes, use of “habitual residence” in preference to domicile entails discarding the approach of the English law of domicile which gave questions of intention a decisive importance in determining whether a new domicile of choice had been acquired.
[25] It may well be said of the term “habitual residence”, as it was of the expression “domicile”,36 that “if you do not understand your permanent home … no illustration drawn from foreign writers or foreign languages will very much help you to it”. Yet it may be accepted that “[h]abitual residence, consistent with the purpose of its use, identifies the center of a person’s personal and family life as disclosed by the facts of the individual’s activities”.37 Accordingly, it is unlikely, although it is not necessary to exclude the possibility, that a person will be found to be habitually resident in more than one place at the one time. But even if place of habitual residence is necessarily singular, that does not entail that a person must always be so connected with one place that it is to be identified as that person’s place of habitual residence. So, for example, a person may abandon a place as the place of that person’s habitual residence without at once becoming habitually resident in some other place; a person may lead such a nomadic life as not to have a place of habitual residence.
[26] In deciding where a child was habitually resident at an identified time it is, no doubt, important to consider the context in which the inquiry is required. Here, the chief contextual consideration is that, in accordance with the Abduction Convention, the purpose of the Regulations38 is to facilitate resolution of disputes between parents relating to a child’s care, welfare and development in one forum — the child’s country of habitual residence — rather than any other forum. While that may tend in favour of finding that a child does have a place of habitual residence, neither the Regulations nor the Abduction Convention provides for a particular vindication or enforcement of rights in relation to the child. Vindication and enforcement of rights is to be a matter for the forum to which the Regulations and the Abduction Convention point: that of the child’s habitual 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(2009) 253 ALR 202 at 212elevate 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.
There are also important comments about purpose and intention at [28]-[35]:
[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. The facts of this case provide one example of such circumstances. The mother left Israel on the understanding that if the marriage was reconciled she would return, but if it was not, she would not return. In those circumstances, it is not possible to say that the mother then had a settled intention which was sufficiently described either as being an intention to reside permanently in Israel or an intention to reside permanently in Australia. Neither description would acknowledge the significance attached to the possibility of reconciliation.
[30] Both before and after she left Israel she set about establishing important connections with Australia consistent with her and her children establishing the centre of their lives here rather than in Israel. In particular, before she left Israel, she registered the children as Australian citizens and procured enrolment of the two older children at an Australian private school. In Australia she soon sought and obtained Centrelink benefits, the two older children started school and the next oldest was enrolled at preschool, the older children joined a soccer club and took music lessons. Later, with the assistance of her parents and the local Jewish community, she rented and furnished a home for her to live with the children.
[31] All of these steps (except the last) were taken before the father asked, in July 2006, for the children to be returned to Israel. All of the steps identified are consistent with, indeed support, the view that by registering the children as Australian citizens and enrolling the older ones in school before she left Israel, the mother was then set upon a course from which she did not thereafter deviate: to move to Australia unless the father decided (contrary to the then state of affairs between them) to live with her and the children.
[32] Because the possibility of reconciliation and return was not excluded when the mother left Israel, it may be said that her intentions, when she left, were to that extent ambiguous. Even accepting that to be so, because the notion of habitual residence does not require that it be possible to say of a person at any and every time that he or she has a place of habitual residence, it is important to recognise that a person may cease to reside habitually in one place without acquiring a new place of habitual residence.
[33] Second, 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(2009) 253 ALR 202 at 213in 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.
[34] 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. When parents are living together, young children will have the same habitual residence as their parents. 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.
[35] It follows from each of the three considerations just mentioned that 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.
The principles established by this case have been applied by the Full Court of the Family Court of Australia (as it was then known) as recently as 6 August 2021 in Kingsley & Secretary, Department of Communities and Justice (No. 2) (2021) FLC 94-010.
DISCUSSION
The thrust of the mother’s case was that the children were not habitually resident in Australia. Implicitly, the mother was contending that they were habitually resident in Country H.
Doing the best the Court can, the father seemed to be contending that the habitual residence of the children remained in Australia, they were Australian citizens as was he, and that in any event he was resident in Australia.
There are a number of difficulties with the mother’s contention.
Intention is a relevant factor in establishing habitual residence. The Court accepts that sometimes intentions may be ambiguous.
At [34] in the High Court’s decision in LK v Director-General, Department of Community Services it is clear that one parent cannot unilaterally change the place of habitual residence of children. The strong impression formed from the evidence in this case, explicit from the mother’s communications with the father, and implicit from her own evidence, is that she unilaterally relocated with the children to Country H. There is no evidence of the father assenting to this. Indeed, quite the opposite is apparent. The mother’s intention per se therefore cannot establish that the children are habitually resident in Country H.
It is clear from the father’s evidence, including his communications with the mother, that at no stage did he consider the habitual residence of the children to be anywhere but in Australia.
All of the mother’s actions before her unilateral relocation are consistent with the stated intention for the children’s habitual residence to be in Australia. They were born here and had lived all of their lives here. They were enrolled in school here. For all practical purposes, the known world from the children’s perspective was in Australia, even though the relationship of their parents was breaking down and there was a measure of residential instability both before and after separation. The mother and children had travelled to Country H before separation, with their father’s consent, and returned to Australia. All of this is consistent with the mother’s stated intention for the children’s habitual residence, and the actual reality for the children, to be in Australia.
The mother’s communications with the father after she relocated with the children conveys the possibility of reconciliation and a return to Australia. It was not, therefore, an open ended move to Country H. Up until the mother remarried, it is hard to discern an unambiguous intention to establish habitual residence in Country H.
Moreover, the mother’s representations to the Court strongly signal an intention to return to Australia with the children that is plainly inconsistent with an intention that Country H is their habitual residence.
Both of the above factors tend to undermine the significance of the period of actual residence of the children in Country H.
Nonetheless, the fact is that the children have lived in Country H with their mother, and her new husband and his children since December 2018, almost three years ago. They are undoubtedly well-established there. Nonetheless, there are two factors that diminish the otherwise significant weight that should be given to the above. Firstly, the children do not get to enjoy a relationship with their father, a situation imposed on them by their mother. Secondly, their mother has signalled to the Court an intention to return to Australia with the children. Indeed, a reasonable interpretation of the evidence is that she would have already returned but for the onset of the travel restrictions caused by the global COVID-19 pandemic.
Their father commenced this litigation on 19 April 2019, about four months after the mother unilaterally relocated with the children. Reviewing the procedural history of this matter, the Court discerns no delay in prosecuting these proceedings that cannot be explained by reference to the father becoming unrepresented at times, the difficulty of conducting proceedings when the respondent is overseas, and the seemingly ever-present problem of Court delays.
CONCLUSION
Having regard to the above, this Court concludes on the evidence that the habitual residence of the children is not Country H, and thus s 111CD of the Act does not prevent the making of the orders sought by the father. This Court clearly has jurisdiction. Accordingly, the mother’s Application in a Case seeking either dismissal of his claim, or a permanent stay, is dismissed.
This matter has lingered long enough and needs to be brought to a conclusion. On the Court’s own motion, the Court expedites the final hearing of this matter, and the matter will be allocated to my docket.
An order will be made that the father do all things necessary to notify the mother of the orders made today, within seven days of today’s date. Out of the abundant caution, my associate will be requested to communicate the outcome of the proceedings, and provide a copy of these orders, to the mother at her last known email address. Once again, it is so noted that the provisions of r 10.13(1)(a) of the Rules may apply to this case.
I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Altobelli. Associate:
Dated: 8 December 2021
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