COMMISSIONER, WESTERN AUSTRALIA POLICE and CAIN
[2015] FCWA 113
•23 DECEMBER 2015
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW (CHILD ABDUCTION CONVENTION) REGULATIONS 1986 (Cth)
LOCATION: PERTH
CITATION: COMMISSIONER, WESTERN AUSTRALIA POLICE and CAIN [2015] FCWA 113
CORAM: DUNCANSON J
HEARD: 25 NOVEMBER 2015
DELIVERED : 23 DECEMBER 2015
FILE NO/S: PTW 4945 of 2015
BETWEEN: KARL JOSEPH O'CALLAGHAN COMMISSIONER, WESTERN AUSTRALIA POLICE
Applicant
AND
MRS CAIN
Respondent
Catchwords:
FAMILY LAW - CHILD ABDUCTION - Hague Convention - where the husband's application is for the return of the children to Country A - where the Court found the children had been wrongfully removed from Country A - where there are no grounds to refuse to make an order for the return of the children - where the Court ordered the return of the children to Country A
Legislation:
Family Law Act 1975 (Cth), s 111B
Family Law (Child Abduction Convention) Regulations 1986 (Cth)
Convention on the Civil Aspects of International Child Abduction
Category: Reportable
Representation:
Counsel:
Applicant: Ms N Eagling
Respondent: Ms K Heslop
Solicitors:
Applicant: State Solicitor's Office
Respondent: Cleveland & Co
Case(s) referred to in judgment(s):
In DP v Commonwealth Central Authority; JLM v Director General, NSW Department of Community Services (2001) 206 CLR 401
LK v Director General, Department of Community Services (2009) 237 CLR 582
Re B (Minors) (Abduction) (No 2) [1993] 1 FLR 993
Zotkiewicz v Commissioner of Police (2) (2011) FLC 93-472
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
1The proceedings concern [Child A] born [in] 2010 and [Child B] born [in] 2012 (collectively “the children” and individually “Child A” and “Child B”).
2On 30 April 2015 [Mrs Cain] (“the wife”) brought the children to Australia from [Country A]. [Mr Cain] (“the husband”) seeks the return of the children.
3This is an application by the Central Authority for the return of the children to Country A. The application is made pursuant to regulation 14 of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”). The Convention on the Civil Aspect of International Child Abduction (“the Convention”) is implemented in Australia by the Regulations which are made under s 111B of the Family Law Act 1975 (Cth) (“the Act”).
4Article 1 of the Convention states that the objects of the Convention 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 of access under the law of one Contracting State are effectively respected in the other Contracting States.
5The Central Authority has been asked by the husband to apply for the return of the children. The husband alleges the children were wrongfully removed to Australia by the wife. The wife opposes the return of the children to Country A. Her case can be summarised as follows:
•the children were not habitually resident in Country A immediately before their removal to Australia;
•the husband consented to the children’s removal to Australia;
•the children would be placed in an intolerable situation should they be returned to Country A.
BACKGROUND
6The husband was born in [Country B] [in] 1975 and is currently aged 40 years. The wife was born in [Country C] [in] 1978 and is currently aged 37 years. The parties were married in Country C [in] 2007. Child A was born [in] 2010 and Child B was born [in] 2012. Both children were born in Australia.
7The parties relocated to [Country D] in 2007.
8The parties relocated to Australia in 2008. They became Australian permanent residents in 2011. In April 2012 the parties relocated to [Country E] with Child A for the purpose of the husband’s employment.
9In April 2013 the parties became Australian citizens.
10The husband’s employment in Country E ended in May 2013, but in June 2013 he was offered employment in Country A.
11Notwithstanding difficulties in their relationship the parties and the children moved to [Town F] in Country A [in] October 2013. The parties disagree as to how long they intended to remain in Country A.
12In late 2013 the parties purchased a home in Country A.
13In November 2014 the wife travelled to Country C with the children. In December 2014 the husband flew to Country C for Christmas.
14In January 2015 the wife and children returned to Country A. Difficulties in the parties’ relationship continued.
15The wife says on 18 April 2015 she told the husband she wished to return to Australia as she had no support in Country A. On 28 April 2015 the wife and children left Country A and arrived in Australia on 30 April 2015.
16In June 2015 the wife obtained accommodation in Australia and the children commenced school.
17The husband’s first communication with the children took place on 18 July 2015.
18On 23 July 2015 the husband applied for a divorce in Country A. In October 2015 the wife counter-sued for divorce in the [State G] Court.
THE APPLICABLE LAW
19The husband’s application for the return of the children to Country A is brought pursuant to Regulation 14 on the basis that the children have been removed from Country A to Australia.
THE RELEVANT PROVISIONS OF THE CONVENTION AND THE REGULATIONS
20Regulation 1A provides that:
(1)The purpose of these Regulations is to give effect to section 111B of the Act.
(2)These 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.
21Regulation 16 relevantly provides:
Obligation to make a return order
(1) If:
(a) an application for a return order for a child is made; and
(b)the application (or, if regulation 28 applies, the original application within the meaning of that regulation) is filed within one year after the child's removal or retention; and
(c)the responsible Central Authority or Article 3 applicant satisfies the court that the child's removal or retention was wrongful under subregulation (1A);
the court must, subject to sub regulation (3), make the order.
22The husband must satisfy the Court that the children’s removal to Australia was wrongful. Regulation 16(1A) provides as follows:
(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.
23Subregulation 1(A)(a), and (c), (d) and (e) are uncontentious. With respect to subregulation (b) the wife disputes the husband’s submission that the children were habitually resident in Country A immediately before their removal to or retention in Australia. She submits they were habitually resident in Australia.
HABITUAL RESIDENCE
24Habitual residence is not defined in the Regulations or the Convention. It is a question of fact and requires an evaluation of all relevant circumstances. In LK v Director General, Department of Community Services (2009) 237 CLR 582 the High Court held:
... to try to identify set criteria in determining where a child is habitually resident, or to attempt to list the possible matters that might bear upon the question of habitual residence, would be to deny the simple observation that the question of habitual residence falls for decision in a very wide range of circumstances.
25The High Court said:
[25]… 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” (Scholes, Hay, Borchers and Symeonides, Conflict of Laws, 4th Ed (2004) at 247, 4.14). …
…
[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. …
[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.
26As to the ambiguities in the intentions of a child’s parents the High Court made the following points:
[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.
…
[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. 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. (original emphasis)
[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 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.
27At [40] the High Court adopted the view of Waite J in Re B (Minors) (Abduction) (No 2) [1993] 1 FLR 993 that:
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.]
28After surveying authority from other jurisdictions the High Court concluded:
[44]… it is sufficient to observe that in P v Secretary for Justice [2007] I NZLR 40, the effect of the decision in SK was described in the plurality reasons of the Court of Appeal of New Zealand … as holding that the inquiry into habitual residence is “a broad factual inquiry”. The plurality went on (69) to say in P:
“Such an inquiry should take into account all relevant factors, including settled purpose, the actual and intended length of stay in a state, the purpose of the stay, the strength of ties to the state and to any other state (both in the past and currently), the degree of assimilation into the state, including living and schooling arrangements, and cultural, social and economic integration. In this catalogue, SK v KP held that settled purpose (and with young children the settled purpose of the parents) is important but not necessarily decisive. It should not in itself override what McGrath J called at [22], the underlying reality of the connection between the child and the particular state.”
As the plurality rightly said, the search is for the connection between the child and the particular state. That being the nature of the search the plurality’s references to settled purpose are to be read as directing attention to the intentions of the parents. But as explained earlier in these reasons, the relevant criterion is a shared intention that the children live in a particular place with a sufficient degree of continuity to be properly described as settled. So understood, there is no disconformity between the approach of the New Zealand courts and the need, identified by Lord Brandon in In re J, to decide the question of habitual residence “by reference to all the circumstances of any particular case” (emphasis added).
(Footnotes omitted and bold emphasis added)
29The High Court observed at [45]: “…And it is that approach, as described in Punter, which should be followed.”
30In Zotkiewicz v Commissioner of Police (2) (2011) FLC 93-472 the Full Court said at [76]:
There are, of course, cases where the acknowledged ambiguity or uncertainty in the intentions of one or both of the parents will become irrelevant because they have been pushed into the background by “the brute force of geography and duration” (Clive, supra at 140). Thus, in Zenel v Haddow [1993] S.L.T. 975, a child was found to be habitually resident in Australia after 15 months, notwithstanding assertions there was no settled intention on the part of the parents to remain in Australia. In that case Lord Marnoch said at 979:
It seems to me that, while intention is undoubtedly a very important consideration, there must come a stage when the objective facts point unequivocally to a person’s ordinary or habitual residence being in a particular place.
THE HUSBAND’S CASE
31The husband submits that the parties move to Country A in October 2013 was a permanent one. Prior to that, the family lived in Country E, having moved there for the husband to work on a temporary assignment for two years. The assignment ended after 18 months by reason of a global reorganisation and change of strategy.
32Child A was born in Australia prior to the parties moving to Country E. The wife travelled to Australia for Child B’s birth [in] 2012 and subsequently returned to Country E.
33It was put to the husband that the contract to work in Country A was for a period of one year only which the husband denied. Although he acknowledged the parties entered Country A on a non-immigrant visa (Non-immigrant Petition EACO7), he pointed out the validity dates of his visa were from 18 September 2013 to 17 September 2018, upon which it could be extended. That document referred to dates of intended employment as 9 September 2013 to 9 August 2016. However, the husband said his contract of employment was the reliable evidence of his permanent transfer to Country A. The executive summary of [Company A] transfer policy provides as follows:
The Transfer Policy applies to employees transferring to another country for an indefinite period of time with no intent expressed by the employee or the company for the employee to repatriate back to the departure country within a defined time frame.
34This document is referred to in the letter from Company A dated 20 August 2013, which confirms the husband’s transfer to Town F where he would be employed as [an Engineer]. That letter states:
In accepting the above transfer you acknowledge that you have read and fully understand this Letter of Transfer and the Transfer Policy v1.2 which constitute the entire terms and conditions of your international transfer.
35The husband signed that letter on 23 August 2013. Having signed it he asserted the information therein was more reliable than the [Non-immigrant Petition] a document which was prepared by an agent of his employer and not signed by him. The husband also referred to the letter from his employer dated 30 September 2013 which is headed “International Transfer” as opposed to temporary assignment.
36The husband distinguished his employment in Country E from that in Country A. He said in Country E he was on a temporary assignment for a fixed term of two years, he received ex-pat benefits and salary uplift. He did not receive those benefits with his transfer to Country A. For example, he did not receive assistance with the children’s school fees as he had in Country E. He was, however, provided with relocation support.
37Upon leaving Australia for Country E the parties gave up their rental property and disposed of their furniture. The husband says they did this as they had no firm plans to return to Australia.
38In November 2013, shortly after their arrival in Country A the parties purchased a home with a mortgage. They selected a suburb which had good schools as Child A was to start school in 2015. They purchased a motor vehicle and entered into a four year lease in respect of another vehicle.
39The parties incurred costs in relation to the purchase of their home and their 30 year mortgage. They fully furnished their home.
40On 7 April 2015 the parties enrolled Child A to start school locally on 24 August 2015.
41The wife applied for, and was subsequently granted a work permit. She had enrolled at university to commence an associate degree in 2015, a course which lasts two years.
42The wife made close friends while in Country A.
43It is not in dispute that there were difficulties in the parties’ marriage, including with respect to financial issues. The husband asserted that, in any event, the wife was more likely to consider Country C as her home rather than Australia. Her family lives there. She did not take the children to Country C, however, as she could not do so without his written approval.
44Upon legal advice the husband commenced legal proceedings against the wife in Town F. He filed an application for divorce [in] July 2015.
45On 30 September 2015 a State G Court denied the wife’s Request for Court to Decline Jurisdiction and found it had initial custody jurisdiction.
46On 7 October 2015 the wife counter-sued for divorce in the State G Court, which the husband asserts is a concession that State G is home and that it has jurisdiction.
THE WIFE’S CASE
47The wife says prior to moving to Country E the parties agreed that a period of four years would be “an absolute maximum for ex-pat work”. She said she wanted Child A to attend school in Australia with friends she had made there from the wife’s mothers’ group. When the parties left Australia the wife’s sister took over their rental accommodation and belongings. Child B was born in Australia. The wife said this was so she would be Australian by birth and by citizenship. The husband said Child B was born in Australia because his private health cover did not cover her birth in Country E.
48The wife says the husband’s job in Country E was “cut” in about May 2013. She asserts he was offered a one year position in Country A and she relied on an email to the husband from his employer referring to a one year full-time SPD/risk opportunity with [Company B]. The wife said she sought an assurance from the husband that the contract was for 12 months and not a shorter period. The husband explained this document was simply an email “identifying” the employment.
49The wife also drew attention to the Non-Immigrant Petition which refers to the intended period of employment as from 9 September 2013 to 9 August 2016. The wife says she went to Country A very reluctantly.
50The wife says the parties purchased a home because they were shocked to see how high rental prices were. They ascertained that the rental costs would be on a par with the costs of a mortgage. She said they decided this was more cost effective for them as they could live in a nice neighbourhood, pay the same amount as they would have in rent and make a small profit upon the sale of the home.
51The wife said they purchased a home in [Suburb H] because it had a good re-sale value. The house was purchased for financial gain, not to establish a permanent residence in Country A.
52The wife said she purchased inexpensive furniture. The parties bought and leased motor vehicles but only obtained insurance on their motor vehicles for 12 months.
53By reason of financial difficulty the wife said the husband told her she would have to find work. They did not immediately apply for a work permit as they had to save funds to do so.
54They enrolled Child A in school, although the wife anticipated she would only be there for about six months before returning to Australia in 2016.
55The wife said the husband’s employer cut their benefits when they moved to Country A. The husband explained this by saying as they were permanent employees they did not receive the same benefits as ex-pats, such as assistance with school fees.
56The wife said she did not meet many people in Country A and felt lonely. This is inconsistent with her evidence to which I refer at paragraph 63 below that she had close friends.
57The wife said their relationship was in difficulty. Since moving to Country A they had lost their employee packages and the possibility of regular travel and she was not studying or visiting her family. The wife saw a psychologist in Town F. The husband was invited to attend. The psychologist notes dated 31 March 2014, contain the following note: “Plans to move to [Country C] in 19 mos”.
58On 25 November 2014 the wife took the children to Country C. The husband followed her and spent Christmas with them there. The wife said her father put pressure on her to return to Country A. The wife wanted to facilitate a fresh start between the parties upon their return.
59The wife found documents containing notes written by the husband which she interpreted as an intention by the husband to end their relationship, although the husband denied this. The wife sought legal advice. Following that advice she decided she wanted to return to Australia.
60The wife told the husband she wished to return to Australia and she deposed he said words to the effect of “you always change your mind [Mrs Cain]”. This was a reference to the wife having previously wanted to return to Country C where her family lives.
61At paragraph 110 of her affidavit, the wife deposed: “I had decided by now that I would return to Australia with the children, although I had not decided if it would be a permanent move or for a holiday only.”
62She said at no time had the husband said he wanted to stay in Country A indefinitely.
63The wife further deposed: “Before I left, I told all my friends in [Country A] that I was returning to Australia to sort things out and decide on a next step. All my close friends in [State G] knew this.”
64The wife said she told the husband she wanted to mediate but only if she and the children returned to Australia. The husband said he stated he did not want a divorce and wanted to reconcile.
65The wife left Country A with the children. She did not tell the husband of her intended departure. She said he contacted her family demanding to know where she was, but he did not contact any of her close friends, all of whom knew where she was.
Conclusion as to habitual residence
66I am not persuaded that the parties’ move to Country A was only ever intended to be as the wife said, for 12 months unless extended, or until the start of 2016.
67The steps taken by the parties upon their arrival in Country A, including the purchase of a home and motor vehicles, indicate a shared intention to live in Country A, if not permanently, at least for a period consistent with the husband’s employment.
68Country A was the place of the husband’s employment. The wife made close friends and applied for and obtained a work permit. She enrolled in a two year university course and attended church.
69Had the marriage not been in difficulty she may have remained settled in Country A for an indefinite period of time. Clearly there were difficulties in the parties’ relationship which latterly had the effect of destabilising the wife. Had she had the opportunity, it appears the wife might have returned to Country C rather than Australia. It was not until April 2015 she decided to take the children to Australia and even then she had not decided if it would be a permanent move or a holiday.
70Upon the facts, I am satisfied that the parties shared an intention that the children would live in Country A for the time being and while the husband was employed there. This intention has sufficient continuity to describe the parties’ purpose as settled.
71Both parties and the children had integrated in the social and family environment in Country A over the period of about 17 months in which they lived there. The steps taken by the parties to purchase a home in a particular suburb which had good schools are evidence of that. The matters referred to above with respect to the wife making friends, enrolling in a university course and obtaining a work permit would similarly indicate she had assimilated in the community there.
72In all the circumstances, I find Country A was the children’s habitual residence at the time of their removal.
73I, therefore, find that the matters in sub-regulation 16(1A) to have been proved and the removal of the children was consequently wrongful.
Refusal to make an order
74Subregulation 16(3) – (5) provides as follows:
(3)A court may refuse to make an order under subregulation (1) or (2) if a person opposing return establishes that:
(a) the person, institution or other body seeking the child's return:
(i) was not actually exercising rights of custody when the child was removed to, or first retained in, Australia and those rights would not have been exercised if the child had not been so removed or retained; or
(ii) had consented or subsequently acquiesced in the child being removed to, or retained in, Australia; or
(b) there is a grave risk that the return of the child under the Convention would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation; or
(c) each of the following applies:
(i) the child objects to being returned;
(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.
Consent
75The wife relies on the exception referred to in subregulation 16(3)(a)(ii).
76The wife submits the husband was aware of her intention to return to Australia. She says she spoke to him about it and they agreed to return to Australia in the year Child A was to commence school, which she says was in or prior to 2016. She says she informed the husband of her wish to return to Australia on at least two occasions.
77The husband said the wife told him she wished to return to Australia and his comment was that she continually changed her mind. The wife says the husband was aware she accessed Australian bank accounts, something the husband also denies. The wife submits that the husband’s inaction and lack of explicit refusal may be viewed as implied consent.
78I reject the wife’s submission that the husband either expressly or impliedly consented to her removing the children from Country A. He did not know she intended to remove the children from Country A prior to her doing so. This is apparent from the email correspondence between the parties between 28 April and 6 May 2015. In an email dated 28 April 2015 the wife wrote:
The last couple of weeks have been very sad for me. There are a lot of things I have to think about. The kids and I will be visiting my family for the summer holidays. We will call you when we arrive.
79On 30 April 2015 the husband wrote in response:
This is not a summer visit.
If it was you would have discussed it with me before hand, and I would have known about it.
You have purposefully and deceitfully arranged this.
It is tantamount to abduction of our children.
I want them back in [Town F] by Sunday 24th May…
80A later email from the husband dated 6 May 2015 said as follows:
Do you mean you never booked return tickets or that you can’t change your return?
Let me know and I will make arrangements for your and the Girls’ return either but [sic] paying the change fee or booking new tickets
81The evidence does not support the proposition that clear, unequivocal and informed consent was given by the husband prior to the children’s removal to Australia. I therefore reject the assertion that the husband consented to the children’s removal to Australia. He was opposed to that occurring.
82In the circumstances, I am satisfied the exception contained within Regulation 16(3)(a)(ii) is not established.
GRAVE RISK
83The wife also relies on the further exception contained within Regulation 16(3)(b).
84The wife submits the Court should exercise its discretion to decline to return the children to Country A, because the return would expose the children to physical or psychological harm, or otherwise place the children in an intolerable situation.
85The physical harm concerns previous incidents where the wife alleges the children have been harmed in the husband’s care and the husband has behaved inappropriately with them. She says the children would be at risk of psychological harm as a result of the intolerable situation they would be placed in by their separation from her.
86As to the physical harm, the wife refers to the husband’s lack of attention to the children and lack of insight into their needs. She specifically refers to an incident in October 2012 when Child B, aged four months, was in his care and a coffee table fell on her head. The husband had left Child B on the ground with an unstable coffee table nearby. The wife says the husband did not take Child B to the doctor, although the husband says they both did. The wife does not mention what, if any injury Child B suffered.
87The wife said the husband was dismissive of her concerns regarding the care provided to the children by their maid. The wife also says that in July 2013 she found Child A showering with the husband, who at the time had an erection. She said she was concerned about this behaviour and has not allowed the husband to bathe the children since.
88The wife said the husband has an addiction to pornography. She said he would consume pornography to excess and this negatively affected their relationship. She deposed to her concerns that the children will be exposed to overly sexualised behaviour with the husband. However, the wife frequently allowed the husband to spend time with the children unsupervised on the weekends while she was studying. Ultimately, the wife admitted in her oral evidence the husband was “a good father when he supports his children”.
89The husband denied that he was addicted to pornography. He said the wife introduced and encouraged pornography early in their relationship. He said the files produced by the wife were historic and he absolutely denied he viewed pornography while the children were in the house. It seems likely that the husband’s alleged use of pornography was a source of conflict between the parties, however, there was little evidence relating this to the children.
90The husband denies the children are at any risk of harm in his care. He says he was a very attentive parent and did most of the evening and bed-time caring as the wife would “clock off”. He asserted the wife lacked attention when the children were bathing and smacked Child A aged less than two, for nearly letting Child B drown in the bath.
91As to the incident involving the table, the husband said it was an accident and Child B suffered no injury. He accompanied the wife to the doctor.
92The husband described the incident in the shower as a false accusation and completely untrue. The husband’s evidence is that he was extensively involved with the care of the children which was not denied by the wife.
93The wife’s assertion that the children would be placed in an intolerable situation if they were to return, relates to her visa status.
94The wife submits the intolerable situation for the children will be created by their separation from her and the husband’s inability to care for them.
95The wife submits she is precluded by her visa status from returning to Country A and consequently cannot defend the divorce application brought by the husband there. Should the Court order the return of the children the wife submits she would not be able to accompany them.
96The wife received legal advice regarding her visa situation. That advice was obtained from an attorney practicing in the field of immigration law. The letter from [Law Firm A] dated 24 September 2015 contains that advice.
97The attorney records that the parties are Australian nationals. The husband has an [A-1] visa to work in Country A. The wife as his spouse has obtained an [A-2] visa.
98The attorney goes on to say the word “spouse” is very important as the A-2 visa is dependent upon the spousal relationship with the holder of the A-1 visa. The letter states:
Once your client is divorced from her husband, she will no longer be a spouse and, hence, no longer eligible to hold [A-2] status. She will be required to depart [Country A] immediately.
99The attorney states the children will not lose their A-2 status which is derived from them being the under aged children of the A-1 visa holder.
100The letter further advises that as an Australian national, the wife is entitled to enter Country A without a visa for a maximum period of 90 days. When foreign nationals enter Country A too frequently, the customs and border protection officers will often refuse entry with the admonition that the foreign national must obtain a visa for a longer duration.
101The wife also obtained advice from the Country A Consulate concerning the parties’ visa status. This advice confirms that an individual must enter the Country A on a valid visa that corresponds with the purpose of travel. It is stated:
If you are no longer married to the principal visa holder of an [A-1], then an [A-2] would no longer be valid for entry to [Country A].
102The wife sought advice from an attorney who represents the husband’s employers. The said attorney stated:
If your husband has filed for divorce in [Country A], then you probably do not qualify for [A-2] dependent spouse visa anymore and should not try to return to the [Country A] with the [A-2] visa.
103The husband sought clarification of the above advice. He provided further information to the attorney who confirmed that in the present circumstances, where the divorce has not been finalised the A-2 visa is still valid for entry in [Country A]. The attorney stated:
If your wife is in [Country A] on [A-2], she will be out of the status as soon as the divorce is finalized ... You are correct until the divorce is finalized your wife may continue to use the [A-2] for [Country A] entry.
104Having reviewed the evidence concerning the visa status, I conclude that the wife may enter Country A and remain there on the A-2 visa as long as she remains the spouse of the husband.
105The husband agreed to withdraw or non-suit his divorce proceedings until the custody issues have been determined. It would be necessary for the wife to do likewise as she filed a counter-petition also seeking divorce.
106In relation to the proceedings in Country A, the wife says the husband obtained a restraining order against her. The husband explained that the terms of that order are “standard”. The restraining order dated 7 May 2015 provides that both parties are restrained from hiding or secreting the children from the other party, making disparaging remarks about the other party, cancelling or failing to renew health insurance policy concerning the children.
107The wife submits that as follows:
The mother does argue that the children would be at grave risk of psychological harm, as a result of the intolerable situation they would be placed in. The children would be placed in an intolerable situation by their separation from their mother.
108In DP v Commonwealth Central Authority; JLM v Director General, NSW Department of Community Services (2001) 206 CLR 401 Gaudron, Gummow and Hayne JJ stated at [41 and 42], in relation to reg 16(3)(b) as follows:
The burden of proof is plainly imposed on the person who opposes return. What must be established is clearly identified: that there is a grave risk that the return of the child would expose the child to certain types of harm or otherwise place the child in “an intolerable situation”. That requires some prediction, based on the evidence, of what may happen if the child is returned…
Necessarily there will seldom be any certainty about the prediction. It is essential, however, to observe that certainty is not required: what is required is persuasion that there is a risk which warrants the qualitative description “grave”…
Because what is to be established is a grave risk of exposure to future harm, it may well be true to say that a court will not be persuaded of that without some clear and compelling evidence…
These considerations, however, do not warrant a conclusion that reg 16(3)(b) is to be given a “narrow” rather than a “broad” construction….The exception is to be given the meaning its words require.
That is not to say, however, that reg 16(3)(b) will find frequent application. It is well-nigh inevitable that a child, taken from one country to another without the agreement of one parent, will suffer disruption, uncertainty and anxiety. That disruption, uncertainty and anxiety will recur, and may well be magnified, by having to return to the country of habitual residence. Regulation 16(3)(b) and Art 13(b) of the Convention intend to refer to more than this kind of result when they speak of a grave risk to the child of exposure to physical or psychological harm on return” (at p.417 to 418).
109I am not persuaded that the children will be placed in an intolerable situation by reason of the potential separation of them from the wife because of her visa situation. The wife remains the holder of an A-2 visa and will continue to do so until and unless she is divorced. The husband has agreed to stay or non-suit the divorce proceedings, provided the wife does likewise. Her visa will enable her to enter Country A and remain there so long as she remains the spouse of the husband.
110The husband says he agrees not to proceed with the divorce until custody issues have been resolved by the Court in State G.
111The husband also offers to provide financial support for the wife and children upon their return. The wife has many close friends in State G who may be able to provide her with emotional support.
112The wife has a valid work permit and the evidence did not suggest that there were any obstacles to her working while her A-2 visa remains valid.
113The children were integrated in the community in Suburb F and their circumstances in that location are familiar to them. In all the circumstances, I am not persuaded that the children would be separated from the wife and in this way placed in an intolerable situation.
114Even if the children were to be separated from the wife, I find that they would not be exposed to grave risk of either physical or psychological harm in the husband’s care. It has not been established that the children have been harmed in the husband’s care in past incidents. The husband was involved in the children’s care around his working hours. At weekends, when the wife was studying or working on her assignments, the children were in his sole care.
115As to the husband’s use of pornography, there is no evidence to suggest the children have been exposed to this. The wife’s own evidence is that the children love and miss the husband as is evidenced by her emails to him following her removal of the children to Australia. Upon legal advice the husband did not communicate with the children or provide financial support for a period of time after the wife’s departure. On numerous occasions the wife emailed the husband asking him to speak with the children regularly as they were eager to do so. On several occasions she urged him to talk with them. For example, on 20 July 2015 the wife emailed the husband thanking him for getting in touch for Child B’s birthday. She said:
She had a super day and it was even more special with all your gifts and calls. They were both over-the-moon when you called [Mr Cain], you should have heard and seen their little reactions that their dad was calling them after not being able to reach you for so long. Thank you for getting in touch.
I urge you to please speak to them on a regular basis.
116In her report dated 13 November 2015, Family Consultant Stone concluded at paragraph 42: “There does not appear to be any proven grave risk of physical or psychological harm if they return to [Country A]”.
117Family Consultant Stone did not address the possibility of a separation of the children from the wife, but I have found that the children are unlikely to be separated from her and, in any event, the husband is able to care for them.
118I find that the exception provided for in s 16(3)(b) has not been established by the wife.
CONCLUSION
119I find that the husband has established a case for the return of the children to Country A. Matters such as the divorce petition, financial support and accommodation will have to be addressed and I will hear submissions about conditions to be made.
I certify that the preceding [119] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court
Associate
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