COMMISSIONER OF POLICE and AZIZ
[2016] FCWA 83
•30 SEPTEMBER 2016
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
FAMILY LAW (CHILD ABDUCTION CONVENTION) REGULATIONS 1986 (Cth)
LOCATION: PERTH
CITATION: COMMISSIONER OF POLICE and AZIZ [2016] FCWA 83
CORAM: WALTERS J
HEARD: 19 APRIL 2016
DELIVERED : 30 SEPTEMBER 2016
FILE NO/S: PTW 5883 of 2015
BETWEEN: KARL JOSEPH O'CALLAGHAN, COMMISSIONER OF POLICE
Applicant
AND
MS AZIZ
Respondent
Catchwords:
FAMILY LAW – INTERNATIONAL CHILD ABDUCTION – Hague Convention – Family Law (Child Abduction Convention) Regulations 1986 (Cth) – application by State Central Authority for return of children to South Africa – Alleged wrongful removal – Whether children habitually resident in South Africa immediately before removal to and retention in Australia – Where parents had emigrated from South Africa to Australia in 2002 – Where subject children were born in Australia – Where father insisted upon returning to South Africa in 2014 – Where mother reluctantly agreed to return to South Africa on a trial basis – Relevance of past and present intentions of each parent – Whether intentions of each parent could properly be described as "settled" – Where father agreed that mother could return to Australia if the relocation to South Africa was unsuccessful – Where parents' relationship broke down and mother thereupon left South Africa with children – Held that children were not habitually resident in South Africa immediately before their removal to, or retention in, Australia – Application dismissed
Legislation:
Family Law (Child Abduction Convention) Regulations 1986 (Cth)
Family Law Act 1975 (Cth)
Interpretation Act 1984 (WA)
Category: Not Reportable
Representation:
Counsel:
Applicant: Ms Eagling
Respondent: Mr Taylor
Solicitors:
Applicant: State Solicitor's Office
Respondent: Esplanade Legal
Case(s) referred to in judgment(s):
LK v Director-General, Department of Community Services (2009) 237 CLR 582
Re B (Abduction) [No 2] [1983] 2 AC 309
State Central Authority & Camden [2012] FamCAFC 45
State Central Authority & Castillo [2015] FamCA 792
Zotkiewicz & Commissioner of Police (No. 2) [2011] FamCAFC 147
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
Introduction
1[Child A] and his sister, [Child B] ("the subject children") were born in Australia [in] 2004 and [in] 2008 respectively. Their mother is [Ms Aziz] ("the mother"); their father is [Mr Aziz] ("the father").
2The father and the mother were born in South Africa in 1972 and 1976 respectively. They were married (in South Africa) [in] 1998. They have three children, but the current application only relates to Child A and Child B. The oldest child of the father and the mother, [Child C], was born in South Africa [in] 1999.
3Although they commenced their relationship in South Africa, the father and the mother left that country and moved to Australia in March 2002. Child C came with them. As indicated above, the subject children were born here.
4The mother and the father are citizens of both South Africa and Australia. Extracts from the father's Australian and South African passports are attached to the application initiating proceedings. Both passports were issued in the second half of 2008 and are current until 2018.
5In or about August 2014 – in other words, after they had been living in Australia for approximately 12 years – the family returned to South Africa. The circumstances surrounding the return to South Africa are disputed. There can be no doubt, however, that the parties' relationship was in the process of breaking down at that time. The father and the mother separated, while in South Africa, in March 2015.
6In September 2014, some six weeks after the family had relocated to South Africa, the father travelled back to Australia to work and earn money. He remained in Australia for approximately four months.
7The father went back to South Africa at the end of January 2015, by which time the marriage was in tatters. The father and the mother did not cohabit, or cohabit for any significant period, after the father arrived back in South Africa.
8After his separation from the mother in March 2015, the father had limited contact with all the children. He saw them once or twice a week. They did not spend overnight periods with him.
9On or about 18 May 2015, the mother brought all the children back to Australia. The father asserts that – in relation to the subject children – she did so wrongfully.
10All three children presently live with the mother in a suburb of Perth, Western Australia. The father lives in [Town A], South Africa.
11Although the parties are not divorced under civil law, they have obtained an Islamic divorce. According to the mother, the process began in June 2015 (after the mother had brought the children back to Australia) and was finalised on 3 September 2015.
12The father's ultimate proposal is for the subject children to be "returned to live in Town A, however remain in the care of the mother and spend regular and ongoing time with him": see Family Consultant Ticehurst's report at [11].
Abbreviations and other terms used
13In these reasons, and unless otherwise indicated:
a)all statements of fact comprise findings of fact;
b)I have referred to Ms Aziz and Mr Aziz as the mother and the father (and I mean them no disrespect by doing so), because it is less confusing than referring to them in other terms; and
c)I have or may have referred to affidavits filed by or on behalf of the parties, or to evidence given by either of the parents, as being "sworn", even if the affidavits or the evidence given were/was affirmed by the deponent (and I note that, in a slightly different context, s 5 of the Interpretation Act 1984 (WA) provides among other things that "to swear" includes "to affirm").
The proceedings
14This is an application brought under reg 14(1)(a) of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) ("the Regulations") for an order for the return of the subject children to South Africa – which, like Australia, is a signatory to the 1980 Hague Convention on the Civil Aspects of International Child Abduction ("the Convention").
15In these Reasons, and unless otherwise stated, all references to regulations comprise references to the Regulations.
16Pursuant to reg 1A(2) –
[the] Regulations are intended to be construed:
a)having regard to the principles and objects mentioned in the preamble to and Article 1 of the Convention; and
b)recognising, in accordance with the Convention, that the appropriate forum for resolving disputes relating to a child's care, welfare and development is ordinarily the child's country of habitual residence; and
c)recognising that the effective implementation of the Convention depends on the reciprocity and mutual respect between judicial or administrative authorities (as the case may be) of convention countries.
17Article 1 of the Convention provides that its objects are:
a)to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and
b)to ensure that rights of custody and access under the law of one Contracting State are effectively respected in the other Contracting States.
18Regulation 16 is as follows:
Obligation to make a return order
1.If:
a)an application for a return order for a child is made; and
b)the application… is filed within one year after the child's removal or retention; and
c)the responsible Central Authority… 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.…
3.A court may refuse to make an order under subregulation (1)… 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;
ii)the child's objection shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes;
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.
19In this case, the application was filed within one year after the subject children's removal from South Africa to Australia. Thus, provided that the requirements of reg 16(1) and (1A) are satisfied, and that no discretionary ground for refusal is established under reg 16(3), this Court must make the return order.
20Regulation 16(1)(c) provides that the responsible Central Authority (in this case, the Commissioner) must satisfy the Court that the subject children's removal was wrongful within the meaning of reg 16(1A).
21Clearly, "the requirements of each of the five paragraphs of reg 16(1A) must be satisfied if it is to be shown that a child's removal to, or retention in, Australia is wrongful": LK v Director-General, Department of Community Services (2009) 237 CLR 582 ("LK") at [8].
22It is not in dispute that the subject children are under the age of 16 and that the father has rights of custody in respect of them under South African law. Nor is it in dispute that the father did not know about or consent to the subject children being removed from South Africa in May 2015.
23The mother argues, however, that –
a)the children were not habitually resident in South Africa immediately before their removal to Australia in May 2015 (see reg 16(1A)(b)); and
b)Child A, having attained an age, and a degree of maturity, at which it is appropriate to take account of his views, strongly objects to being returned to South Africa (see reg 16(3)(c)).
24Thus, it is the mother's case that the removal of the children from South Africa in May 2015 and their subsequent retention in Australia was not wrongful – but if they were indeed wrongful, the Court should take account of Child A’s views and exercise its discretion in favour of refusing to make a return order.
25These broad arguments are apparent from the mother's answer and cross application received by the Court on 19 February 2016. In her cross application, the mother seeks orders to the effect that the subject children live with her in Australia and communicate and spend time with the father according to their wishes. She otherwise seeks that the Commissioner's application be dismissed.
Documents relied upon
26The documents relied upon by the applicant are as follows:
a)application initiating proceedings filed 2 October 2015 and attachments; and
b)informal statement of the father provided to the Court under cover of a letter from the State Solicitor's Office dated 9 March 2016.
27The documents relied upon by the mother are as follows:
a)answer and cross application filed 19 February 2016; and
b)her affidavit sworn 19 February 2016.
28Neither party opposed the acceptance into evidence of the Family Consultant Report dated 15 January 2016 (see below). Further, neither party sought to cross-examine the Family Consultant who prepared the Report.
29The applicant filed an outline of submissions and list of authorities on 14 April 2016. The mother's outline of submissions was handed up by her solicitor, Mr Taylor, at the hearing on 19 April 2016.
The hearing
30The hearing took place on 19 April 2016. Ms Eagling appeared for the applicant. Mr Taylor appeared for the mother.
31The father was present – by video link from South Africa – throughout the hearing. The mother was present in person.
32The mother and the father both presented themselves for cross-examination during the course of the hearing. It was not in dispute that cross-examination should be permitted.
33As indicated above, neither party sought to cross-examine the Family Consultant.
34The evidence of the mother and the father was of great benefit to the Court.
Family Consultant Report
35On 9 November 2015, orders were made (by consent) to the effect that a Family Consultant Report be prepared in relation to the subject children ("the Report"). The Report was to address the following matters:
a)whether the subject children object to being returned to South Africa;
b)whether the subject children's objections show a strength of feeling beyond the mere expression of a preference or of ordinary wishes;
c)whether the subject children have attained an age and a degree of maturity at which it is appropriate to take account of their views; and
d)whether there is a grave risk that the return of the subject children to South Africa would expose them to physical or psychological harm or otherwise place them in an intolerable situation.
36The Report was prepared by Family Consultant Ticehurst. It is dated 14 January 2016.
37The family consultant interviewed the subject children. She also interviewed the mother and the father – the former in person and the latter by telephone (from South Africa).
38The subject children were interviewed alone and were advised that they did not have to express a view or give an answer if they did not wish to do so.
39When dealing with the background to the current dispute, the family consultant said at [9]:
Neither of the parties have re-partnered. Since separation the parties have not had a formal agreement regarding the children's living arrangements or the time they spend with the father. The mother reports the father spent time with the children approximately once a week and the father reports the time was less regular, however they both agreed that it did not include overnight stays.
40Clearly, the family consultant is referring to the period during which both parties were living in South Africa after their separation in March 2015. Given that the mother returned to Australia with the children in mid-May 2015, this arrangement could only have adhered for approximately two months.
Interview with Child A
41The family consultant described Child A as presenting as (and describing himself as) "a reserved and quiet child". She said that he "remained economical with his words and did not explain or elaborate on the majority of his responses".
42Child A expressed a preference for the school he is currently attending in Australia over the school he attended in South Africa. According to the Report at [18], however:
[Child A] said he missed his maternal family in [Town A] more than the school he was attending there, saying "I miss family when left, not school, not really miss anything to do with school… I didn't like the kids there, they were a bit naughty". [Child A] continued to say that he had a few friends in [Town A], however they did not socialise outside of school and instead he spent time playing cricket and soccer with his extended maternal and paternal family.
43In the Report at [20], the family consultant said:
[Child A] said he missed his extended family "lots" and spoke of time being spent with cousins, aunts, uncles, grandparents and that although this was with both the paternal and maternal family, it was "mostly" with his mother's extended family.
44Although Child A expressed a preference for living in Perth over living in Town A, it did not appear to be a strong one. He has no family in Perth (apart, of course, from the mother and his sisters). His preference for Perth arises from the fact that he "felt unsafe" in Town A because some people there "are dangerous". In other words, Child A regards Perth as being safer than Town A: see the Report at [22].
45Child A expressed a preference for living with his mother (whether in Australia or South Africa) and explained that his father would sometimes lose patience with him or his siblings and shout at them. He is well aware, however, that both his parents love him. He has no concerns about living with the mother, but said that he has occasionally felt "a little bit unsafe" with the father "because of yelling and screaming between my mum and dad": see the Report at [32].
46The family consultant summarised Child A’s views at [33]:
Throughout the interview [Child A] said that his preference was to remain living with his mother and in Perth. [Child A] said his reason was due to how "unsafe" he felt while living in [Town A] and Perth was a safer place. [Child A] was asked if [Town A] was safer where would he rather live, with [Child A] stating "both" however remained clear that wherever he lived he wanted to remain with his mother. [Child A] also spoke throughout the interview of missing his extended family, however that his preference to remain safe was stronger than returning to live near family. When [Child A] spoke of returning to [Town A] he spoke of the extended family and not of his father. [Child A] said if the Courts ordered his return to [Town A] he "wouldn't feel that happy, it's an unsafe place".
Interview with Child B
47According to the family consultant, the information provided by Child B "was minimal and caused the interview to be quite brief": see the Report at [34].
48It is apparent from the interview that Child B has a close and loving relationship with both her parents. She acknowledged that she misses the father.
49To the extent that it is relevant, Child B’s preference is to live with her mother, in Perth. She would like to visit her father, but does not wish to spend overnight with him.
50The family consultant summarised Child B’s views at [50]:
[Child B] said if she were to live in [Town A] she would like to live with her mother and "like to see dad" and then spoke about spending time with the extended family who also live in [Town A]. [Child B] was asked why her preference was Perth over [Town A] and responded with "next question, too hard". [Child B] also said it was "too tricky" to explain why she did not want sleepovers with her father.
Interview with the mother
51The mother explained that Child C has had the most difficulty of the three children in moving between Australia and South Africa. At the time of the interview, Child C was "devastated" that she had to repeat Year 11 in Perth.
52Not surprisingly, the mother described Child A and Child B as being happier and more settled in Perth than they were in Town A. She also described the relationship with the father as being neither loving nor close: see the Report at [55]. She implied (or stated expressly) that the father lacks patience with the children, has "limited awareness of raising children and spent limited time with the children during the marriage": see the Report at [63].
53The mother also described incidents of family violence. The family consultant refers to the subject in the Report at [64]:
[The mother] said during the relationship and while they were still living in Perth, the West Australian Police attended their family home on one occasion. No date was provided. The mother said during this altercation she had been physically harmed by the father, and the children were "not around that time". [The mother] said there were "a few" times when the father became physically aggressive and she was "smacked in front of the kids" on one occasion and other times the father "shoved me out of the room". [The mother] reported "day-to-day, walking on egg shells… watch him coming in the door… smiling or dark" and this determined the remainder of the day as the father would "lose his temper… bad temper". [The mother] also said the father seemed to control aspects of the family such as who they socialised with.
54In relation to the relocation from Perth to Town A, the family consultant said at [56]:
[The mother] reported that the decision to relocate from Perth to [Town A] was the father's and not hers. [The mother] said "I didn't, he wanted to" and said even today she is not "entirely clear why he wanted to return [to [Town A]]". [The mother] said she and the father had initially moved to Perth to "give our children a better future" and therefore when the suggestion to return to [Town A] was made, she encouraged the father to visit and spend time on his own in [Town A] prior to moving the family. [The mother] said she moved due to "in my religion, wife must follow".
55Although the mother was of the view that the return to South Africa was "irrational", the father "always did what he said… his way or no way… even moving to South Africa". The decision to return was made by the father "with little discussion or communication with her": see the Report at [63].
56The mother spoke of the parties' relationship deteriorating after the father returned to South Africa from Australia in February 2015, and confirmed that they separated in March 2015. She also said that she and the father were "divorced in our culture", having gone through a religious process between early June and early September 2015: see the Report at [58].
57In relation to the mother's decision to remove the children from South Africa and return them to Perth, the family consultant said at [61]:
[The mother] said the situation for her and the children after separation was difficult and she told the father that she wanted to return to Perth with the father saying "no".… [The mother] said there is "no freedom in South Africa, the kids can't play outside, children being kidnapped, robberies" and reported [[Child C]] attending a school which had "gangs and fighting" and spoke of knives, guns and regular murders. [The mother] said [[Child C]] did not attend school for days on end, due to her being frightened of harm. [The mother] said she and the children "didn't want to leave the house, felt unsafe" and this was for the entire 10 months they were in [Town A]. [The mother] said primarily due to the safety of the children and also herself, she "made the decision that Perth is home". In May 2015 the mother and children returned to Perth.
58In the mother's eyes, she was simply "taking the children home" when she removed them from South Africa to Perth – although she had done so without the father's knowledge or consent: see the Report at [66].
59The mother emphasised the difficulties she and the children would face if they were to return to Town A. Looming large among these is the fact that she perceives Perth to be a safe and peaceful place and Town A to be unsafe. She conceded that her views would be different if South Africa were a safer place: see the Report at [67].
Interview with the father
60The father said that he was living with his parents in Town A, but proposed to arrange separate accommodation if the children were to return to South Africa. He said his first priority would be to secure accommodation for the children and the mother upon their return to South Africa and that he would thereafter secure independent accommodation for himself.
61The family consultant described the father's concerns regarding his relationship with the children in the Report at [73]:
[The father] said he understood that his relationship with the children moving forward may be difficult, due to the children having become "caught in between" the parents since separation and also the current situation whereby they are "estranged from me". [The father] said since separation it has become "awkward and uncomfortable for them" in regard to how they relate to him, and said for [Child A] there "hasn't been much talking, worried he's saying the wrong thing" when they spend time together. [The father] said for [Child B], given her younger age the impact of the separation and therefore their relationship "hasn't been too bad". [The father] acknowledged that given all of this, since separation he and the children "did have some good times and some awkward moments".
62The father spoke positively of the mother's parenting of the children, although he indicated that she was somewhat possessive of them. As far as he was concerned, "it seemed that his role was to 'provide the money and the mother is the parent'": see the Report at [74].
63In relation to the relocation from Perth to Town A, the family consultant said at [75]-[76]:
[The father] disputed that the mother did not want to relocate to [Town A] and [said] that they returned under mutual agreement. [The father] did agree that Perth would have provided "better opportunity, if we'd worked together" during the years that they lived in Perth. [The father] said the mother was unhappy living in Perth and wanted to continually visit family in [Town A] and as a result money was spent on return visits, the family did not purchase a property and did not settle down properly during the time they lived in Perth.
Further, [the father] also said he and the mother "never had a good relationship, felt as the years got on it got worse". [The father] said "she had free reign" to do what she wanted to do in Perth as they were not surrounded by family and therefore no "families could tell her" or guide her in relation to raising the children, relationship issues or family. [The father] also said he "spent many years in Australia not wanting to be there, felt didn't fit" and said he told the mother "I can't live here anymore and she could stay… she chose to come".
64The father acknowledged that the relocation from Perth to Town A was initially difficult for the children, but said that they adjusted relatively quickly. He agreed with the mother that Child B had the most difficulty with the return to South Africa and added that she attended a school "in a notorious area, quite dangerous with gang violence… it's calmed down now, but at that time it was like that": see the Report at [79].
65The father also confirmed that his relationship with the mother was volatile and that they had argued and fought. The family consultant said at [80]:
[The father] said he and the mother did not share a good relationship which he said did not improve over time. [The father] said throughout the relationship there was "arguing, fighting between both of us… shouting going on in the house and maybe I would throw things, a book or something". [The father] confirmed there was one incident when they were living in Perth when the Police attended their home, and said "I did punch her in the chest" however it was after the mother "bent" his fingers, harmed him to the face and then included [[Child C]] in the dispute. [The father] said this was the only physical altercation between them and he did [not] smack the mother or push her as she described. [The father] also said the mother would "argue all night, keeps me up until two or three in the morning, arguing and I had to work". [The father] described the mother's behaviour as emotional abuse.
66The father did not appear to have any significant concerns for the children's safety while they are in the mother's care, although he is troubled by the prospect of them living in Perth in his absence, and without the input of both parties' extended families. He does not regard the mother as a particularly positive role model because she "fills the kids' brains for her personal gain": see the Report at [85].
67As might be expected, the father's opinion is that Town A is not as dangerous as the mother suggests, although he acknowledges that the crime rate in the city is higher than in Perth.
68The father said he has no plans to return to Perth to live – irrespective of where the children reside.
69As indicated above, the father's proposal is to the effect that the children should return to Town A where they would continue living with the mother and spend each alternate weekend with him. His preference would be for an arrangement which allows him to take the children to school "a couple of times each fortnight". He does not "want full custody of the children", and proposes to work long hours to support them: see the Report at [88].
Answer to question #1: whether the children object to being returned to South Africa
70The family consultant summarised the subject children's comments to the effect that their preference is to live in Perth. Irrespective of where they are physically located, however, they wish to live with their mother.
71Child B spoke of Town A being an "unsafe place".
Answer to question #2: whether the children's objections show a strength of feeling beyond the mere expression of a preference or of ordinary views
72The family consultant said at [91]:
… it was difficult to gauge the strength of feeling behind [Child A’s] objection, saying that he "wouldn't feel that happy" if he had to return to [Town A] and spoke about feeling unsafe in [Town A]. [Child A] also said if [Town A] were a safer place, as long as he remained living with his mother he did not mind either [Town A] or Perth.
73Although Child B’s preference was to remain living in Perth, she did not express any strong objection to returning to Town A.
Answer to question #3: whether the children have attained an age and a degree of maturity at which it is appropriate to take account of their views
74The family consultant found it difficult to determine whether Child A, at age 11, has attained a degree of maturity at which it is appropriate to take account of his views. Similarly, the family consultant found it difficult to determine whether Child A understood the reason for the interview process. Although he was consistent in his preference for continuing to live with his mother, in Perth, he provided little information beyond his categorisation of Town A as unsafe.
75As may be expected, Child B did not understand the complex issues associated with the current proceedings.
76It seems clear from the family consultant's comments that the short answer to the question of whether the children have attained an age and a degree of maturity at which it is appropriate to take account of their views is: no.
Answer to question #4: whether there is a grave risk that the return of the children to South Africa would expose the children to physical or psychological harm or otherwise place them in an intolerable situation
77The family consultant's response to this question was as follows:
96.Should the children be returned to [Town A] I would consider that they would go through a similar adjustment phase as they have experienced when moving to [Town A] in August 2014 and then when the mother returned with them to Perth in May 2015; having to learn to cope with a new school and living arrangement. Both parents spoke of the children's ability to adjust and adapt to new situations, given their ages and the mother said provided the children remain with her they will manage. However, it has to be noted that the children have experienced a high number of changes within a short period of time, relocating to [Town A] in August 2014, their father returning to Perth without the family from September 2014 until February 2015, their parents separating and then returning to Perth, without their father in May 2015. Support and understanding from both parents will impact on how the children will adjust and manage another change.
97.Based on the information provided during the interview should the children be returned to [Town A], it does not seem that they would be exposed to any physical or psychological harm or placed in an intolerable situation. However, this is based on the assumption that the children will remain living with the mother and spend time with the father. The mother spoke of family violence during their relationship whereby the children were exposed to ongoing verbal abuse, in relation to several incidents of physical violence. [Child A] spoke of being frightened by his father and feeling unsafe, talking throughout the interview of his father's yelling and shouting and he wished his father would be calmer. The father denies the allegations and said both parents throughout the relationship engaged in verbal altercations and there was one incident of physical violence. Should the children returned to [Town A] this needs to be considered in regard to the time the children spend with their father, to ensure the children do not feel frightened or unsafe. The children cannot be exposed to ongoing verbal abuse or altercations, as this may impact their emotional well-being.
Conclusion regarding the Report
78Having regard to the contents of the Report (and bearing in mind the issues identified by the parents in their documents and during the hearing), I am not satisfied that there is a grave risk that the return of the subject children to South Africa would expose them to physical or psychological harm, or otherwise place them in an intolerable situation.
79Although I am satisfied that Child A objects to being returned to South Africa, I am unable to make such a finding as it relates to Child B. I find, however, that Child A’s objection to returning to South Africa does not show a strength of feeling beyond the mere expression of a preference or of ordinary views. In any event, I am not satisfied that Child A has attained the degree of maturity at which it is appropriate to take account of his views. In relation to Child B, I am not satisfied that she has attained either an age or a degree of maturity at which it is appropriate to take account of her views.
Father's initial evidence
80In the letter dated 7 July 2015 from the Department of Justice and Constitutional Development (being the Central Authority for South Africa) to its Australian counterpart (see annexure A to the application initiating proceedings), the Chief Family Advocate wrote as follows:
During August 2014 the parties mutually agreed to return to South Africa on a permanent basis. To this end they arranged for the shipment of their personal belongings to South Africa and [the mother] also advised [Centrelink] to discontinue the payment of their social grant.
81In his affidavit sworn 24 June 2015 (see annexure C to the application initiating proceedings), the father deposed:
I and my family… emigrated to Australia on 25 March 2002. Of my three children, two were born in Australia, namely [the subject children]. All three [of] my children attended [School A] in Perth, Western Australia. I decided to migrate back to South Africa, with the agreement of my wife. We returned with our selected household items and personal effects… on 26 July 2014. My eldest daughter attended [L College] ([Town A]) and my younger two children attended [K Primary School] in… [Town A]. My wife and I separated in March 2015.
82In a further affidavit (sworn 6 August 2015 – see annexure D to the application initiating proceedings), the father deposed:
I returned to Australia on 22 September 2014 with the intention of only staying a few months. My reasons for returning alone were: so that I could obtain my termination of employment letter and also to increase my savings. I also did not succeed in selling my personal vehicle, so I shipped my car back to South Africa and I returned on 31 January 2015.…
Mother's affidavit evidence
83It is not disputed that, like the father, the mother has rights of custody in relation to the subject children.
84In her affidavit, the mother confirms that the subject children were born in Australia and, until July 2014, had never lived in South Africa – although they had holidayed there on several occasions.
85In relation to the return to South Africa in July 2014, the mother deposed:
3.Leading up to August 2014, [the father] expressed a wish for the family to return to South Africa. I opposed the move because it would involve uprooting the children, especially [Child C] who was approaching her final years of secondary school. In our religion and culture, the wife must follow the husband and so I reluctantly agreed to return to South Africa on a trial basis. I suggested that [the husband] travel first and get things set up in South Africa before I brought the children.
4.I only agreed with shipping our furniture and other belongings because I did not want to have to start all over again and it would have been expensive to have stored them in Perth and then organise shipping if we decided to stay…
86The mother said that the family left Perth on 26 July 2014 and travelled to Town A. Shortly afterwards (in other words, after the parties had left Australia), the father advised the mother that he proposed to return to Australia to work and to sell a car. He left Town A for Perth on 22 September 2014 and did not arrive back in Town A until 31 January 2015.
87For a short time after their arrival in Town A, the family stayed with the father's mother. While the father was away, however, the mother rented a house nearby. The father paid just over 60 per cent of the rent and the mother paid the balance (from moneys she had saved when she was in Australia).
88The rented premises were "secure", with "high walls and an electric fence, an alarm and security patrols": see the mother's affidavit at [7]. The mother and all three children lived there while the father was in Australia. Approximately five or six weeks after his return to South Africa at the end of January 2015, however, the parties separated and the father went to live in his mother's home. It follows that the father and the mother only lived together in the rented premises for approximately five or six weeks.
89Shortly after separation, the mother and the children moved in with her family, as the mother could no longer afford to rent the secure home in which they had been living. The mother said that the father wanted her and the children to live with his family, but she was unwilling to do so because the father "has two brothers who suffer from schizophrenia and I did not want the children to be around them": see [7]. The mother and the children lived in one room in her family's home.
90The mother said that she experienced financial difficulties after she and the husband separated, and that the father did very little to assist her and the children in that regard.
91In relation to her decision to bring the children back to Australia, the mother deposed at [8]:
… [The father] well knew that I had only agreed to return to South Africa on a trial basis and now that [the father] and I had separated, there was no longer any reason for the children and me to stay in South Africa. I was running out of money and [the father] was not helping. I told [the father] that I had given living in South Africa a good trial but I was going to go back to Australia. [The father] did not want to go…
92The mother added at [11]:
… I never formed the idea that I would live in South Africa but due to my religion and culture, I had to follow my husband.
93The mother said that Child C "was enrolled as an international exchange student on a short-term basis" at L College in Town A: see [13].
94In relation to the "high crime rate and lack of security" in Town A, the mother deposed at [15]:
All of the children were alarmed by the high crime rate and lack of security in [Town A]. This is something the children never quite got used to. The house we rented had high walls topped with an electric fence. In addition there was a monitored alarm and regular patrols. [Town A] is now also rife with gangs who rob people in the street, often at gunpoint or with a knife. Kidnappings for ransom are commonplace. Children get taken from the street to and from school. The children had never experienced this level of insecurity and it was a constant worry for them.
95No independent evidence was provided to this Court regarding the comparative crime rates of Perth and Town A; nor was independent evidence provided to support the mother's assertions regarding gang behaviour and kidnappings. I accept, however, that the mother (and Child C and Child B) felt fearful and insecure in Town A – far more so than they had ever felt in Perth.
96In her affidavit at [18], the mother deposed:
During the relationship, [the father] was a strict disciplinarian who would shout and scream at the children. Just before we left for South Africa, [the father] assaulted me. My daughter was present and saw it happen. In December 2010, police attended at our home after an assault on me.…
Father's informal response
97In his informal statement provided to the Court under cover of a letter from the State Solicitor's Office dated 9 March 2016, the father said (emphasis added):
2.[All three children] are essentially Australians, but they identify strongly with South Africa because of their parents and family and the South African community in Perth…
3.I expressed the desire to return to South Africa several years ago, but the last couple of years before we left Australia to return to South Africa, this desire became much stronger because of my failing marriage as I wished to have the support of her and my families respectively. The biggest problem was that it would be the most difficult for [Child C] to return to South Africa because of her schoolwork. Also xenophobia towards Muslims [is] on the increase in Australia. Therefore, I thought the pros outweighed the cons. I told [the mother] that I was returning to South Africa whether she wanted to or not. In the end she decided to return to South Africa out of her own free will. [The mother] wanted me to go over alone first, but I insisted that we all return together.
4.We did discuss the possibility of returning to Australia if things didn't work out, but that was only after we had made every attempt to make it work. No one in their right mind would migrate only to migrate again after a few months.
5.I told [the mother] to conserve money we needed to rent a granny flat, but she insisted on a freestanding house in a high cost rental area. This compelled me to return to Australia to earn dollars again to build up savings as well as tie up loose ends like my car which I couldn't manage to sell. I worked in Australia for four and a half months to make the trip financially worth it.
6.…
7.When I returned to South Africa I told [the mother] the rent was too much and we had to get a smaller place because I first needed to find work. She ignored my pleas and then I refused to pay the rent anymore. I suggested that we move in [with] my parents until I secured a job, but she wasn't interested, so we split up. Due to paying the massive rental fees on the house, my money was starting to dwindle, so [the mother] had no option but to move in with her family. I was concerned that she and the children had to sleep in one room, but she didn't want to stay [with] my parents where there would have been two rooms available to us.
98The father added at [15]:
The children did struggle to adjust to the higher level of security and safety awareness of people in [Town A], but it is not as dangerous as [the mother] makes it out to be.…
99In relation to the mother's assertion regarding the father's behaviour, and family violence, the father said at [18]:
… [The mother] and I had a tussle once she involved [Child C], but no charges were ever laid against me.…
Father's oral evidence
100As indicated above, the father gave evidence on affirmation by video link from South Africa on 19 April 2016.
101During cross-examination, the father said (among other things):
a)The marriage had been a "long and troubled relationship" – it was "not an easy relationship". The police had attended at their home when they lived in Australia.
b)The mother did not want to return to South Africa from Australia in 2014.
c)He was going to return to South Africa irrespective of the mother's views, leaving her with no option but to either remain in Australia with the children or travel with them and the father to South Africa.
d)Although he "insisted" that the mother return to South Africa, she still had "free will in the matter".
e)He disagreed that, religiously and culturally, the mother had no option but to return to South Africa with him. He conceded, however, that had the mother refused to return to South Africa with him, it would have ended their relationship – although he asserted that this reflected his own views and had nothing to do with his religion or culture.
f)He accepted that, although he never said it directly to the mother, the only way she could keep the relationship together was by returning with him to South Africa. He also accepted that his decision to return to South Africa placed additional pressure and stress on the already unhappy marriage.
g)He spent approximately four and a half months in Australia at the end of 2014 and the beginning of 2015, while the wife and all three children remained in South Africa. In addition to "sorting things out" in Australia, he stayed in this country for this period in order to accumulate additional financial resources.
h)His preference was that the family should obtain modest accommodation upon their arrival in South Africa, and he disagreed with the mother's decision to rent a free-standing home (which she wished to do because she did not want to drop her standard of living from that which the family had enjoyed in Australia). Nevertheless, he contributed "the majority" of the rent associated with the home chosen by the mother – although he could not recall the precise amount of the rent. Significantly, he confirmed that he "never even saw the lease contract"; the renting of the premises "wasn't a negotiation" and he "had no choice in the matter".
i)He admitted that, before he returned to Australia in late 2014, the family was not living in settled accommodation. He could not remember how long he lived with the family in the rented house before he returned to Perth. He suggested, however, that it was weeks not days – but a few moments later he said that he could not remember whether the wife rented the house before or after he left South Africa and returned to Perth.
j)Although the family (including the father and the mother) may not have had a settled household at any time between the mother's arrival in South Africa and her return to Australia, the mother (herself) had a settled household for most of that time. He emphasised, however, that he lived in the rented house "for a few weeks". He also said that he might have lived in the rented house (after his return from Australia) for something like a month and a half, but it could well have been less than that.
k)He agreed that the lease agreement for the rented house did not run its full term (which, according to the wife, was 12 months).
l)He regarded the relationship as over when he left the rented house and commenced living with his mother.
m)When asked whether any of the mother and children told him that they felt unsafe in South Africa, he conceded that they did. He referred, in particular, to Child C expressing such concerns. He emphasised, however, that "South Africa is a lot different from Australia", that "there is a lot more violent crime" there and that the children "only knew Australia".
n)In relation to Child A’s expressed concerns regarding the violence in South Africa, the father said that Child A is "under-age and very impressionable" and that, in his opinion, the mother "imprints things in his head". He was not prepared to take Child A’s comments in this regard as "factual", notwithstanding his own comments to the effect that South Africa is a more violent place than Australia.
102I note that, in re-examination, the father said that his insistence that the family return to South Africa "together" related to "the timing of the return", and did not amount to an insistence that the mother accompany him "full stop". In the circumstances, I give little weight to the father's evidence in this regard. I am satisfied that the father did indeed insist that the mother and children return to South Africa "full stop".
103The father's evidence regarding when he advised the mother that he proposed to return to Australia from South Africa after their arrival in that country in July 2014 was less than clear. I am satisfied, however, that he advised her of this intention to travel back to Australia to work within a few weeks of the family's arrival in South Africa.
104Towards the end of his oral evidence, the father said that it became apparent to him prior to the family's return to South Africa in 2014 that he would have to travel back to Australia for financial and other reasons. He then said that he did not tell the mother of this fact "because she was not a fully willing participant in going (to South Africa); she was reluctant to leave Australia". Nevertheless, he did not resile from his evidence that "in the end" she returned to South Africa of her own free will.
105Mr Taylor asked the father whether he and the mother had any discussions about what would happen "if things didn't work out in South Africa". The father replied:
Yes, we did.… She did say or ask me that if things didn't work out in South Africa if we could return to Australia.… I said yes, but obviously I said yes in the respect that we should give it obviously a reasonable amount of time to see if things work out.
106In this context, the father conceded that he could understand that the mother would have felt that she was able to return to Australia with the children if things didn't work out in South Africa. He also said that the mother never made an attempt to "make it work" in South Africa. For example, she refused to look for paid employment even though the father asked her to do so. He admitted, however, that the mother had told him that, as far as she was concerned, things were not working out in South Africa and that she wished to return to Australia. His response to her was that –
… you can't just leave after a few months; you have to make an effort in life, wherever you are, to make things work – you can't just get up and go after a couple of months.
107It was clear from the father's evidence that he and the mother had never discussed what might be considered to be "a reasonable amount of time" to see if things would work out in South Africa. To the extent that I accept the father's evidence in relation to this subject, I am satisfied that the mother's view of what might be perceived as "a reasonable amount of time" was always very different to the father's view in that regard. The father wished to return to South Africa permanently; the mother did not wish to return at all and was a most reluctant participant in the enterprise. Their very different views in relation to the move ultimately led to the breakdown of the marriage, which had obviously been unhappy and under considerable strain for many years.
108The father was pressed regarding his financial contributions to the family after his return to South Africa at the end of January 2015. He was reminded of the reasons he had given for returning to Australia – one of which was to earn money and receive the benefit of the favourable exchange rate between Australia and South Africa. The father's answers were vague and unhelpful, and his financial position at that time was most unclear. He complained of the mother renting an expensive property (to which he contributed until the final separation), but accepted that the lease had been broken shortly after his return to South Africa. He reluctantly admitted, however, that he did not support his children financially "for some time" after the parties separated. He also admitted that his and the mother's families would not have been able to continue to support the mother and all three children at that time. He said that he would have had to get a job in South Africa and that he was "in a bad space" during that period. In all the circumstances, I am satisfied that he did not support the mother and the children financially because he did not wish to do so. In other words, I am satisfied that he had the financial capacity to support his family in South Africa if he had been minded to do so. Although he may not have been working in South Africa at that time, I am satisfied that he had sufficient funds available to him from the months he had spent working in Australia to enable him to make a meaningful contribution to the family's support if that had been his desire.
109When the father was asked about the frequency with which he saw the children prior to their departure from South Africa, the father prevaricated, and displayed impatience and petulance. Eventually, he responded that the contact arrangements were "on the mother's terms". Only after he had been prompted by the Court was he prepared to concede that he saw the children "once or twice a week" during that period. The children did not spend any overnight periods with him.
110During re-examination, the father said that he and the mother and the children lived together "as a family" for the comparatively short period between their arrival in South Africa in 2014 and his departure to return to Australia in September of that year, and for a short period between his return to South Africa in early 2015 and the final separation. Ultimately, however, the father conceded at the end of his cross-examination that it could not be said that he and the mother ever had a settled household in South Africa. In my opinion, that concession was wholly consistent with the evidence.
111In re-examination, the father also sought to modify the effect of his evidence regarding violence in South Africa. He said that the children were not victims of violent crime while in South Africa. Similarly, he emphasised that he works as a driver (working night and day) and that he, also, has never been a victim of violent crime in South Africa. He added, however, that South Africa "is and can be a dangerous place, but if you are careful you can live a normal life" there.
Mother's oral evidence
112The mother was an impressive witness. Her responses to questions were appropriate and direct. She presented as candid, and somewhat disenchanted. She made concessions when it was fitting that she do so. She showed appropriate emotion and, at times, expressed some frustration with the father's attitude – although the sentiments she expressed were clearly genuine and her affect whilst expressing them was consistent with (and unsurprising in the light of) those sentiments. I am more than satisfied that she was a truthful witness.
113During cross-examination, the mother said (among other things):
a)The marriage was indeed troubled, as described by the father.
b)After migrating to Australia in 2002, she visited South Africa every three or four years.
c)All her family live in South Africa: "parents, aunts, uncles, everybody". She only has a distant cousin or cousins in Australia.
d)It took her a long time to adjust to the migration from South Africa to Australia. The father assured her that the reason why the migration was necessary was because it would permit the family to have a better future than that to which they could aspire in South Africa (because "South Africa at the time was not good, and still isn't good"). Then, when she had finally adjusted to living in Australia, the father wanted to go back.
e)She reluctantly agreed to move back to South Africa in 2014.
f)It was not apparent to her the father was particularly unhappy in Australia.
g)The main reason why she agreed to return to South Africa was because she hoped her relationship with the father would improve if they had their families nearby.
h)Although the marriage was indeed very troubled, she wanted it to work.
i)She and the father moved "half of their possessions" from Australia to South Africa because "things are very expensive there" and it was financially prudent to do so. The remainder of their possessions in Australia were either sold or given away.
j)She informed Centrelink of the family's departure from Australia.
k)She agreed that there were no discussions about the period of time after which a decision would be made as to whether the return to South Africa should be regarded as successful. The mother was happy to concede that she "intended to give things a good go" in South Africa.
l)The house she rented in South Africa was subject to a 12 month lease. It was close to her family and to the children's schools, and had the security features referred to in the mother's affidavit.
114The mother was not challenged regarding her evidence that she reluctantly agreed to return to South Africa on a trial basis; nor was she challenged regarding (for example) –
a)the question of whether her agreement to return to South Africa could fairly be regarded as a decision made "of her own free will";
b)the limited periods of time the family lived together in South Africa;
c)the financial difficulties she experienced after she and the father separated;
d)her evidence that she told the father that she had given living in South Africa a good try but that she was going to go back to Australia;
e)her concerns regarding her and the children's safety and security while in South Africa (although this was effectively conceded by the father);
f)her evidence regarding the father assaulting her just before the family's departure for South Africa in 2014; and
g)the contents of the Report, including the question of whether she had influenced Child A’s views in any way.
Some legal principles
115Before discussing some of the relevant legal principles, it is pertinent to observe that, in this case, I am not required to determine the relevant issues on the basis of untested affidavit evidence. I have had the significant advantage of seeing and hearing the parties, including during cross-examination. I accept, of course, that the father gave his evidence by video link from South Africa, but I was well able to hear his words and observe his demeanour. He was a significantly less credible witness than the mother.
116I am well aware that the Regulations are intended to be construed having regard to the principles and objects mentioned in the Preamble and Article 1 of the Convention, and I recognise that, ordinarily, the appropriate forum for resolving disputes relating to children's care, welfare and development is the child's country of habitual residence. Similarly, I understand that the effective implementation of the Convention depends on the reciprocity and mutual respect between judicial (and other) authorities of Convention countries.
Habitual residence
117The most significant question for me to determine in this case is whether the subject children habitually resided in South Africa immediately before their removal to, or retention in, Australia: see reg 16(1A)(b).
118To a very large extent, the notion of habitual residence is a question of pure fact. As the High Court said in LK at [22], however, "to approach the term only from a standpoint which describes it as presenting a question of fact has evident limitations" (my emphasis). Their Honours continued (footnotes omitted):
22.… 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. … [The] 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.
119Bearing in mind that it is the habitual residence of the subject children (as opposed to their parents) that must be ascertained, the following passage from LK at [27] is important:
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… the question of habitual residence of a child is one of fact, it is important not to elevate the observation that a child looks to others for care and housing to some principle of law…
120Under the heading "Purpose and intention", the High Court in LK said:
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.…
…
32.… [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.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.…
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.…
121When reviewing earlier authorities, the High Court in LK approved the following passage from the decision of Waite J in Re B (Abduction) [No 2] [1983] 2 AC 309 at 342:
Habitual residence is a term referring, when it is applied in the context of married parents living together, to their abode in a particular place or country which they have adopted voluntarily and for settled purposes as part of the regular order of their life for the time being, whether of short or of long duration.
All that the law requires for a 'settled purpose' is that the parents' shared intentions in living where they do should have a sufficient degree of continuity about them to be properly described as settled. (Emphasis added.)
122The High Court in LK added at [44] that "the search is for the connection between the child and the particular state". References to settled purpose direct focus "to the intentions of the parents":
[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.
123In Zotkiewicz & Commissioner of Police (No. 2) [2011] FamCAFC 147 ("Zotkiewicz"), the Full Court gave consideration to a scenario in which the intentions of one parent could be described as "settled", but the intentions of the other parent could not. In its opinion, and "at the very least", the possibility of ambiguity or uncertainty on the part of at least one parent must be acknowledged by the Court: see [73].
124In Zotkiewicz at [82], the Full Court said the trial judge's "task" (in a case involving a dispute as to habitual residence) was twofold:
The first was to ascertain whether the parents had a shared intention that the child would live in [the country to which the parents had moved] with a sufficient degree of continuity that their purpose could properly be described as settled. The second was to determine whether the period of time spent in [the country to which the parents had moved] was sufficiently appreciable for it to be said that the underlying reality of the connection between the child and [the country to which the parents had moved] was such as to justify a finding he was habitually resident in that country.
125In State Central Authority & Camden [2012] FamCAFC 45 at [53], however, a differently constituted Full Court said:
We do not consider that this Court in Zotkiewicz in fact prescribed a new two limbed test for determining habitual residence in each new case in which it has to be decided. The High Court's decision in LK authoritatively settled the applicable principles. This Court's subsequent decision in Zotkiewicz determined the appeal in that particular case. We consider it important to emphasise that we read the reference… to "the task of the Judge" as being "twofold" as being directed to the determination of that case on its facts and not to all Hague Abduction Convention cases where "habitual residence" is in issue.
126Bearing this qualification in mind, I note that the Full Court in Zotkiewicz said at [99]:
We accept, as the High Court said in LK, that when determining a person's place of habitual residence their intentions should not be given "controlling weight". However, the High Court made this observation having first said that "examination of a person's intentions will usually be relevant to a consideration of where that person habitually resides" and that "sometimes, intention will be very important in answering that question". It follows that it would usually be important for a finding to be made as to the intention(s) of the person(s) whose residence is under scrutiny.
127When dealing with the question of volition regarding change of habitual residence, the Full Court in Zotkiewicz said:
117.Although the authorities speak of a person acquiring a place of habitual residence only if they have taken up that residence "voluntarily", we do not wish anything we have said to be seen as suggesting that a significant period of involuntary residence cannot ultimately be found to constitute habitual residence. The examples sometimes given in the cases are Napoleon and Robinson Crusoe, who would probably have been found to be habitually resident on their respective islands, even though they wanted to be elsewhere …
118.… [One] of the policies underpinning the Convention is that parents should not be able unilaterally to choose the forum in which they litigate their disputes. In our view, a court ought not strive to find habitual residence in a country where the beneficiary of such a finding had effectively prevented the other parent from leaving that country. This would be especially so in a case [such as Zotkiewicz itself] where it is suggested that a child had become habitually resident in a country in which he spent the last five months, when the other available forum for determination of any dispute is the country in which the child had been habitually resident for the previous three years.
128In the context of the present proceedings, the final sentence of the paragraphs quoted above is significant. The father acknowledged that the subject children are "essentially Australians", who had been born and lived all their lives in Australia until the relocation to South Africa in 2014. They spent some nine months in South Africa in the circumstances described elsewhere in these Reasons and were then brought back to this country. There was no ambiguity in the mother's intentions at any time, either prior to her departure from Australia or during her sojourn in South Africa: she was a most reluctant participant in an enterprise foisted upon her by the father, and the father well knew of her reluctance and misgivings. The family's circumstances changed dramatically after their arrival in South Africa and the mother – who never had any settled intention of remaining in South Africa – elected to return to Australia. Even the father had no difficulty in understanding why she felt she was able to do so. The father conceded that he and the mother never had a settled household in South Africa.
Regulation 16(3) exceptions – child's objection to being returned
129As explained above, a court may refuse to make an return order if a person opposing return establishes that a child objects to being returned, the objection "shows a strength of feeling beyond the mere expression of a preference or of ordinary views" and the child "has attained an age, and a degree of maturity, at which it is appropriate to take account of his or her views".
130Clearly, the mother bears the onus of proof of establishing one of the discretionary grounds for declining to order the return of the subject children to South Africa. The only discretionary ground upon which she relies relates to Child A’s wishes.
131It is not in dispute that questions of whether a child objects to being returned and the strength of those objections, and whether the child is old enough and mature enough to have his or her views taken into account, are questions of fact. I have reviewed the Report and discussed its implications (in the context of all the evidence presented to the Court) elsewhere in these Reasons. There is no need to discuss the subject further at this point.
Discussion and findings
132The date of alleged wrongful removal is 18 May 2015, being the date on which the mother left South Africa with the children and returned to Australia.
133Having regard to all the evidence before me, I am not satisfied that the move from Australia to South Africa in 2014 was intended to be a permanent one. The father may have had such an intention, but I find that the mother did not. The mother was prepared to give the move "a good go" but, from her point of view, it was only ever a trial arrangement. This was so notwithstanding the arrangements made to facilitate the family's relocation. The family lived in rented accommodation in Australia. It follows that it was not necessary for them to sell their home in order to leave the country. I accept that approximately half of their belongings were shipped back to South Africa (for the reasons given by the mother) and that the children were enrolled in schools in that country.
134The applicant submits that a common intention to stay in South Africa on a permanent basis (or, at the very least, for an indeterminate period) can be inferred from the fact that the family's belongings were shipped back, a house was rented, no residence in Australia was retained (and no belongings were stored here) and the children were enrolled in schools in South Africa. I do not agree. These actions are equally consistent with the mother's expressed intention to return to South Africa on a trial basis and to give the move "a good go". The evidence of both the father and the mother was that their relationship had been troubled for a very long time. The father was well aware that the mother was most reluctant to return to South Africa (to the extent that he was not willing to tell her that he was going to have to leave her there and return to Australia to work and otherwise arrange his affairs). He was also well aware that the mother did not want to return to South Africa permanently and was only willing to do so on a trial basis. I accept her evidence that she felt she had no choice but to uproot the family from Australia if she wanted the marriage to continue.
135I find that the reality of the family's life in South Africa was very different to anything that may have been planned prior to their departure from Australia. Most obviously, the father left the family to return to Australia to work – leaving the mother and the children largely to their own devices for a period of approximately four months. I accept that he contributed towards the rental payments during that time. I find, however, that he did so reluctantly – because he felt strongly that the home rented by the mother was of a higher standard than was required in the circumstances and more expensive than he would have liked.
136I find, as well, that the mother made it clear to the father upon his return to South Africa from Australia that she felt she had given the trial relocation "a good go", that she did not wish to remain in South Africa and that she wished to return to Perth. The father's unwillingness to allow her to do so ultimately led to the breakdown of the marriage. I am satisfied that, upon the marriage having broken down, the father elected not to continue to support the family financially (beyond the provision of very modest assistance). This resulted in the mother having no option but to break the lease in respect of the rental property and move in with her family – where she was required to live with the children in a single room.
137In my opinion, all the foundations upon which the proposal to return to South Africa had been constructed were eroded during the period the mother and the children lived in Town A. The mother found herself in a very different position from that which she had anticipated when she most reluctantly agreed to give the relocation "a good go". After having been left in rented accommodation with the children for approximately four months while the father worked and organised his affairs in Australia, the mother separated from the father, lost her (physically) secure accommodation and found herself in financial difficulties and living in one room with the children. In every sense, she had given the relocation "a good go". It had not worked and, as the father conceded, she had every right to form the view that she was entitled to return to Australia.
138I do not accept that the mother and the father (jointly) adopted South Africa either voluntarily or for settled purposes as "part of the regular order of their life for the time being". Similarly, I do not accept that the subject children were habitually resident in South Africa immediately before the mother removed them back to Australia. She was their undisputed primary caregiver (indeed, she was effectively their sole caregiver at that time), and their residential arrangements depended entirely upon her. Their habitual residence (if it existed) was her habitual residence.
139I find that the father and the mother never had a shared intention that the subject children would live in South Africa on a permanent basis. I find, as well, that the children never lived in South Africa with a sufficient degree of continuity to be properly described as "settled". Because of the circumstances in which the mother found herself, the children's residential arrangements were anything but settled.
140I have not ignored the period of time that the mother and the children lived in South Africa. Nor have I ignored the fact that the mother and Child C were born in South Africa (although the subject children were not). I am aware that the children attended school in South Africa while they were there and that all the mother's (and the father's) family members are in that country. I am satisfied, however, that the mother did not integrate – socially or economically – while she was in South Africa. Indeed, the father's evidence was that the mother refused to seek paid employment in Town A. The mother's (and the children's) links with South Africa were tenuous, not because the mother did not have significant family support there, but because the mother never saw herself as being in the country other than temporarily – and behaved accordingly. I reiterate that the mother and the children were anything but settled in South Africa. In this regard, I note that the applicant presented no evidence regarding the subject children's integration into the social environment in South Africa – although I accept that the topic is dealt with, to some extent, in the Report. I accept that the children had a close relationship with their extended family.
141Put shortly, I find that the subject children are Australian children who were, at all times, habitually resident in Australia but who travelled to South Africa with their parents in the circumstances I have described. While I accept that the father wished to return to South Africa permanently, it is clear that the mother did not wish to do so – and that the father gave her the option of returning to Australia if things did not work out. In reality, therefore, the children went to South Africa so their mother could assess whether a permanent relocation to that country might be in the family's best interests. For reasons which are unassailable, and which reflected radically changed circumstances from those which the mother was entitled to anticipate when she most reluctantly agreed to the move, the enterprise was an abject failure and the mother thereupon returned to Australia with the children. Nobody could have been surprised when she did so – least of all the father.
142Even if a finding to the effect that the mother and the children ceased to be habitually resident in Australia after the relocation to South Africa in 2014 (or at some point after the relocation) might be deemed appropriate, it does not follow that South Africa became their place of habitual residence. In my opinion, the most favourable view of the totality of the evidence from the father's point of view could lead to no other conclusion than that the mother (and, with her, the children) had no place of habitual residence after the move to South Africa – although that is not a conclusion with which I would concur. I reiterate that the mother agreed (most reluctantly) to relocate to South Africa on a trial basis only. The trial failed spectacularly and the mother and children "went home", as it were.
143It follows from the above that the subject children's removal to, or retention in Australia was not wrongful and that the application initiating proceedings must be dismissed.
Child A’s views
144For reasons already expressed, although I am satisfied that Child A objects to being returned to South Africa, and that he is fearful of the violence in that country, I am not satisfied that his objection shows a strength of feeling beyond the mere expression of a preference or of ordinary views. In other words, I accept that he is old enough for his views to be taken into account, but I am not prepared to give them the weight that the mother argues they should be given.
145It is clear beyond argument that Child A wishes to continue to live with the mother. On the other hand, I accept that he misses his family in South Africa (and that he spent a significant amount of time with them when he was there).
146I am aware that the family consultant concluded that it was difficult to determine whether Child A has attained a degree of maturity at which it is appropriate to take account of his views. Given that neither parent was cross-examined about Child A’s degree of maturity (although the father suggested that he had been influenced by the mother's views), I have no reason to reject the opinion set out in the Report.
147Suffice it to say that even if Child A is old enough and mature enough for his views to be taken into account, I am not prepared to give them significant weight because they do not show a strength of feeling beyond the mere expression of a preference or of ordinary views.
Conclusion
148I acknowledge that the delivery of these Reasons has been delayed. In that regard, I apologise to the father and the mother, and to the two Central Authorities. As Bennett J commented in State Central Authority & Castillo [2015] FamCA 792, it must be acknowledged that the work of the Central Authorities is made more difficult by undue delay.
149As I have foreshadowed, I have concluded that the subject children did not habitually reside in South Africa immediately before their removal to, or retention in, Australia in 2015. It follows that their removal to, or retention in, Australia was not wrongful. In those circumstances, the application will be dismissed.
150Having regard to the terms of the mother's answer and cross application, I shall now hear Counsel regarding the orders that flow from this Judgment, and any further or other orders that may be necessary to give effect to it.
I certify that the preceding [150] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court
Associate
30 September 2016
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