COMMISSIONER, WESTERN AUSTRALIA POLICE and L
[2010] FCWA 65
•21 JUNE 2010
[2010] FCWA 65
| JURISDICTION | : | FAMILY COURT OF WESTERN AUSTRALIA |
| ACT | : | FAMILY LAW ACT 1975 FAMILY LAW (CHILD ABDUCTION CONVENTION) REGULATIONS 1986 |
| LOCATION | : | PERTH |
| CITATION | : | COMMISSIONER, WESTERN AUSTRALIA POLICE and L [2010] FCWA 65 |
| CORAM | : | MONCRIEFF J |
| HEARD | : | 14 JUNE 2010 |
| DELIVERED | : | 21 JUNE 2010 |
| FILE NO/S | : | PTW 589 of 2010 |
| BETWEEN | : | KARL JOSEPH O'CALLAGHAN COMMISSIONER, WESTERN AUSTRALIA POLICE Applicant |
| AND | ||
| L Respondent | ||
| Catchwords: |
CHILD ABDUCTION - Hague Convention - acquiescense
Legislation:
Family Law Act 1975
Family Law (Child Abduction Convention) Regulations 1986
[2010] FCWA 65
Category: Not Reportable
Representation:
Counsel:
| Applicant | : | Ms Thatcher |
| Respondent | : | Mr F Castiglione QC |
Solicitors:
| Applicant | : | State Solicitor's Office |
| Respondent | : | W A Legal Pty Ltd |
Case(s) referred to in judgment(s):
Commissioner, Western Australia Police v Dormann (1997) FLC 92-766
Re A (Minors) (Abduction Custody Rights) [1992] Fam 106; [1992] 1 All ER 929
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1 [Catherine L] is the four year old child of [Will L] (“the father”) and [Maya
L] (“the mother”).
2 Catherine L is presently residing in Australia with her mother and orders have been sought under the Family Law (Child Abduction Convention) Regulations 1986 (“the Regulations”), which incorporate into Australian law the Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”) to which Australia is a party.
3 The Central Authority seeks orders that Catherine L be returned to [the country] where the father resides. The country is also a party to the Hague Convention.
4 In considering such applications the Court must apply Regulation 16 of the Regulations which provides as follows:
(1) If:
(a) an application for a return order for a child is made; and (b)
the application (or, if regulation 28 applies, the original application within the meaning of that regulation) is filed within one year after the child's removal or retention; and
(c)
the responsible Central Authority or Article 3 applicant satisfies the court that the child's removal or retention was wrongful under subregulation (1A);
the court must, subject to subregulation (3), make the order. (1A) For subregulation (1), a child's removal to, or retention in, Australia
is wrongful if:
(a) the child was under 16; and (b)
the child habitually resided in a convention country immediately before the child's removal to, or retention in, Australia; and
(c)
the person, institution or other body seeking the child's return had rights of custody in relation to the child under the law of the country in which the child habitually resided immediately before the child's removal to, or retention in, Australia; and
(d)
the child's removal to, or retention in, Australia is in breach of those rights of custody; and
(e)
at the time of the child's removal or retention, the person, institution or other body:
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(i) was actually exercising the rights of custody (either jointly or alone); or
(ii) would have exercised those rights if the child had not been removed or retained.
(2) If:
(a) an application for a return order for a child is made; and (b) the application is filed more than one year after the day on which the child was first removed to, or retained in, Australia; and (c) the court is satisfied that the person opposing the return has not established that the child has settled in his or her new environment; the court must, subject to subregulation (3), make the order. (3) A court may refuse to make an order under subregulation (1) or (2)
if a person opposing return establishes that:
(a) the person, institution or other body seeking the child's return: (i) was not actually exercising rights of custody when the child was removed to, or first retained in, Australia and those rights would not have been exercised if the child had not been so removed or retained; or
(ii) had consented or subsequently acquiesced in the child being removed to, or retained in, Australia; or
(b)
there is a grave risk that the return of the child under the Convention would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation; or
(c) each of the following applies:
(i) the child objects to being returned; (ii)
the child's objection shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes;
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(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.
5 During the course of the proceedings before me it became apparent that the
resolution of this matter came down to a determination of a single issue, namely, whether or not the father had acquiesced in the retention of Catherine L in Australia by the mother between August 2009 and December 2009.
6 The Central Authority pleaded in its application that the child was wrongfully retained in Australia in the following circumstances:
“The mother, [Maya L], …, removed the child from [the country] on 25 January 2010 without the father’s knowledge or consent. On 24 January 2010 the child [Catherine L] spent the day with her father and wanted to sleep at the father’s house. The mother refused, but told the child that she could spend the night of 26 January 2010 with the father. However on 25 January 2010 the father tried to establish the whereabouts of the mother and was told be (sic) her brother that she had left that morning to go to Australia. The father instituted proceedings in [the country] and the High Court ordered the child be immediately returned to that jurisdiction. The High Court order recorded that a provisional booking had been made for the child to return [overseas] on 14 February 2010. The child has not been returned to the [country].”
7 During the course of argument it was agreed between counsel for the mother and
counsel for the Central Authority that if I found that the father had acquiesced in the retention of Catherine L in Australia in late 2009, then notwithstanding the fact that there was no doubt that she was removed from [the country] in January 2010 without her father’s consent, that I was not, under the provisions of the convention, obliged to make an order for the return of the child.
8 Both counsel accepted as an accurate statement of the law that is contained in
the Court of Appeal decision in Re: A (Minors) (Abduction: Custody Rights) [1992] Fam 106; [1992] 1 All ER 929, where, in the judgment of Stuart-Smith LJ at page 941 (All ER), where considering the withdrawal of acquiescence or a change of mind:
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“The change of mind cannot alter the fact that he had acquiesced. Acquiescence is not a continuing state of affairs. The question is whether at some time prior to the issue of proceedings the plaintiff had acquiesced. If the acceptance is quickly withdrawn, that is no doubt a relevant matter for the judge to consider when exercising his discretion; but it does not affect the acceptance”.
9 Stuart-Smith LJ went on to observe (with particular relevance to the current
proceedings):
“The judge also said that it would be dangerous to judge an issue of fact such as acquiescence on communications between parents alone, particularly on communications written not after the unlawful removal when the writer is in a state of emotional turmoil. If the express acceptance relied upon is in truth confused, equivocal and unclear, such as may be the case if it is written by a parent in state of emotional turmoil, then of course it does not amount to an acceptance in clear and unambiguous terms.”
10 The statement of the law as it applies to acquiescence in Australia appeared to be
accepted by each counsel as being best reflected in the words of Holden CJ in Commissioner, Western Australia Police v Dormann (1997) FLC 92-766 at page 84,430, where his Honour, quoting the then newly published decision of the House of Lords in Re: H and Other (Minors) said:
“1. For the purposes of Article 13 of the Convention, the question whether the wronged parent has ``acquiesced'' in the removal or retention of a child depends upon his actual state of mind. The court is primarily concerned, not with the question of the other parent's perception of the applicant's conduct, but the question whether the applicant acquiesced in fact. 2. The subjective intention of the wronged parent is a question of fact for the trial Judge to determine in all the circumstances of the case, the burden of proof being on the abducting parent. 3. The trial judge, in reaching his decision on that question of fact, will no doubt be inclined to attach more weight to the contemporaneous words and actions of the wronged parent than to his bare assertions in evidence of his intention but that is a question of weight to be attached to evidence and is not a question of law. 4. There is only one exception. Where the words or actions of the wronged parent clearly and unequivocally show and have led the other parent to believe the wronged parent is not asserting or going to assert his right to the summary return of the children and are inconsistent with such return, justice requires that the wronged parent be held to have acquiesced.”
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11 It is the situation contemplated in the last of the four paragraphs referred to by
his Honour that is relevant to these proceedings; in other words, has the respondent discharged her burden of proof to show that the father, by his words or actions, clearly and unequivocally demonstrated and led the mother to believe that he had acquiesced in the retention of Catherine Lin Australia in late 2009?
12 If that question is answered in the affirmative then the Court is not obliged to
make an order for the return of the child, although it may still make an order for her
return in the exercise of its discretion.13 Clearly the issue to be determined in this case is an issue of fact. Each of the
mother and the father had filed affidavits in the proceedings and it was clear that there
were some significant disputes of fact on the face of the affidavit material.14 At the commencement of the proceedings before me I asked whether either party
wished to cross-examine the other on the affidavit material and neither party sought to
do so.15 I should note that the father had travelled from overseas with his attorney for the
purpose of the proceedings and was present in court. The mother was present in court and represented by one of Her Majesty’s counsel. Accordingly, it is left for me to determine issues of fact based on the affidavit material before, however I acknowledge the significant assistance provided by each of Counsel for the Central Authority, Ms Thatcher, and for the mother, Mr F Castiglione QC.
16 The father and the mother were married [overseas in] March 2003.
17 Since their marriage the father and the mother have had a very real connection
with Australia, although I accept that it was never the father’s intention to reside permanently or habitually in Australia, however he wished to obtain Australian citizenship, be allowed to live in Australia if he wanted to at some future time and also be able to register Australian companies to shield his assets from the uncertainty and instability that he said he may experience [overseas].
18 The father accordingly has Australian citizenship and [overseas] citizenship.
19 Following their marriage, the mother, at that time [an Asian citizen], applied for permanent residence status [overseas], a status which was granted to her on 13 December 2004.
20 Catherine L was born in Australia and the father specifies that one of the reasons
why she was born in Australia was that Medicare Australia would pay all the costs for the birth and additionally, the mother would receive the then $3,000 cash “Baby Bonus” from the Australian Government.
21 Shortly after Catherine L’s birth the father and the mother took her [overseas].
22 Catherine L has since become a naturalised citizen [in that country] and has both
Australian and [overseas] passports and the right to reside permanently in either
[country].
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23 The mother also has permanent residence status in Australia.
24 It is common ground that the father and the mother travelled between [the two
countries] from time to time to attend to the father’s business interests and file tax
returns.25 Some disharmony had arisen in the relationship between the father and the mother leading to a separation in or about October 2007.
26 The father and the mother subsequently attempted a reconciliation which appeared to have been successful.
27 During the period of separation the mother resided in Australia, apart from a period of time when she visited [Asia].
28 It would appear there was some further matrimonial disharmony in late 2008, however, again, it would seem that the father and the mother reconciled their differences and remained reconciled until August 2009.
29 In August 2009 the father, the mother and Catherine L came together to Australia, arriving in Australia on 8 August.
30 The mother states that whilst in Australia she became aware of ongoing
infidelity on behalf of the father and formed the view that the relationship was at an end. She says that after some discussion between them it was accepted by the father that she would remain in Australia and indicative of that acceptance was the subsequent purchase by the father of some significant pieces of furniture.
31 The father’s position is that there was never an acceptance by him that the
mother and Catherine L would remain in Australia and that the purchase of furniture was for return [overseas] as there were already items of property belonging to the father and the mother that were to be returned [overseas] and there was accommodation within the container for further items.
32 Very soon after the alleged discovery by the mother of documents that
confirmed the father’s ongoing relationship with a third party, the father and the
mother commenced an email exchange, to which I will refer later in these reasons.33 The father and the mother were due to return [overseas] with Catherine L on 12
September 2009.
34 The father returned alone, at an earlier date, namely 5 September 2009.
35 He says that the legal advice that he had at the time was that “we should deal
with [Maya L] and the issue of the minor child when mother and child returned to
[the overseas home]” [paragraph 112 of the father’s affidavit sworn 11 May 010].36 It should be noted that the father is a man of not insignificant means who runs
what appear to be successful businesses [overseas] and from which he has been able to make substantial financial provision for the mother and other members of her family, as well as providing what is described as luxurious accommodation for the family to
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reside in [overseas], with luxury motor vehicles and other accoutrements at their
disposal.37 The father is a person who was not restricted at any time by reason of a lack of
financial capacity to obtain legal advice and, indeed, it would seem that he did obtain legal advice, although the nature of that advice as pleaded in his affidavit and as confirmed by his attorney in a confirming affidavit, is vague at best.
38 I have some concern that it may well have been the case that the father’s rights
under the Hague Convention were being used for “a tactical advantage” in an attempt to secure, in a summary way, the return of the child [overseas] and thereupon to embark upon litigation relevant to the child’s welfare.
39 Each of the father and the mother commenced proceedings in their respective
jurisdictions, the mother in Australia subsequent to her return from overseas in January 2010, and the father in December 2009 in anticipation of the mother’s arrival overseas with the child during that month.
40 However, the critical period for determination of the question of acquiescence is
that between August 2009 and 13 December 2009, when the mother returned
[overseas] with Catherine Lto facilitate Catherine Lspending time with her father.41 Effectively, the determination of this matter very much turns on email exchanges
between the father and the mother and their actions or inaction in the circumstances they found themselves in following the declaration by the mother that she was not returning to [the overseas home].
42 On 23 August 2009 the father emailed to the mother:
“Hi [Maya L]
As we find it so difficult to talk in person and after the recent episode where you change your mind again, would you please let me know if you are sincere in saying you want to stay on in Australia?
If so, I will arrange for the stuff in the storage unit to be sent to [overseas] and then I will return myself. Please let me know what your pland (sic) are.
[Will L]”.
43 On 24 August 2009 the mother responded:
“My reason for not going back [overseas]:
1.) We cannot communicate. 2.) We found it hard being near to each other. 3.) We cannot agree to our ongoing settlement agreement.
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4.) I find it misleading when you say that you want US living in [overseas]and staying married and you hoping that we can get back together in the future and wehn (sic) i ask you how about [A] you say she has move on (sic), while you actually settled [A] in [Asia] and sponsor her on her studies. [Will L] i only wish for your happiness and i really mean that. Unfortunately, you need to see my side too. [Overseas] is not a first price fo rme (sic) for me to settle down. There’s so much negativity that happened to me in that country not only with the crime but also for our future divorce. To ask me to sign of (sic) what you want to happen with the agreement is a bit much.
Thanks
[Maya L].”
44 Of some significance was that that email exchange occurred whilst the father
was still in Australia. However, by 15 September 2009 he had returned [overseas] and
wrote by email:“Hi [Maya L]
I hope you are both well.I have been taking some time to try to think of a way we can both agree on this.
Obviously, I am deeply saddened that you have chosen now to keep C [referring to Catherine L] in Australia. I really would like to find a way to spend more time withy (sic) her … as well as for her to see [N] and the rest of the family [overseas]
Would you be agreeable for me to sometimes take her [overseas] for a few weeks at a time … at least until she starts big school when she could travel during her school holidays?
I would certainly be happier to comply with your financial requests if you meet half way on the C visitation issue.
[Will L]”.
45 On 17 September 2009 the mother writes by email to the father:
“Hi [Will L]
How’s everything your side? Hope all is well.First of all thank you for your letter about spending more time with [Catherine L]. I would never make it hard for you to see your daughter, its the last thing on my mind is getting her in the middle of something she
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knows nothing about, as long that you as a father will do all the right thing
(sic) for her then I will be willing to compromise or meet you half way.Having said that, I hope that you will also understand that as a mother I can’t bear to be away with my daughter for that long, just the thought of not seeing her for a few days will make me sad let alone for a few weeks is beyond my imagination. She’s only three years old … maybe when she’s old enough, can understand a bit and hopefully adopt the situation then ill (sic) be comfortable to do that. But for now, I would prefer to travel with her wherever she goes.
I have chosen to live in Australia because of the situations (this is about you and me) and it does not mean that I have taken [Catherine L] away from you, because I know that will be wrong – you are her Dad – and she loves you very much.
I am not asking for additional finances. I am asking the usual amount of finance that you are putting in the family as usual. And You know this very well, i do feel that you are trying to eliminate it.
I really hope that you don’t feel like its a kinda (sic) exchange of spending time with [Catherine L] she’s your daughter and that would never change.
Keep Well,
Regards [Maya L].”
46 In response the father wrote on 17 September 2009:
“Hi [Maya L]
“I would never make it hard for you to see your daughter”.I find this a quite incredible statement as this is exactly what you have done by suddenly “changing your mind” and keeping C in Australia. In fact, you have not only made it harder for her to be with her Dad but also her grandfather, [M] and her [family overseas] all of whom love her dearly and she loves them. All this because you are only thinking of your own needs and not hers. By selling the apartment in Australia I would have saved tremendously on electricity, water, gas and levies as well as having additional capital to recoup my losses on the stock exchange. You have now made it impossible for me to save this money. I am now paying for three homes. After I have provided you with the apartment and car and paid all the services and levy, you should have far more money than you need … even after paying money to your family in [Asia]. My only decision is not whether to give you more but whether I should deduct my Australian expenses from your salary or even whether I should pay you a salary at all.
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I will also now have the additional expense of regular trips to Australia to visit C. Maybe I should also deduct the costs of these trips from your salary as it is your decision to make it harder for me to see her.
Although it seemed quite easy for you to leave C with me when you went off to visit your friends in [the Eastern states] you suddenly can’t bear to be away from her. Why the sudden change of heart?
[Maya L], you know as well as I do that she loves me dearly. [D] was quite ok to live in the same town as me. Why can’t you? Why do this to C?
[Maya L],I don’t want to argue with you. It is essential to C’s welfare that we get on ok. Please try and compromise for once. It is so hard for me not to see C’s face every day.
Regards
[Will L].”
47 And further, on 17 September 2009 the mother emailed the father further, materially includes the following:
“…
We don’t get along [husband] and thats a sad thing, all your backfighting about me made me vomit again and again. Telling me that we gonna stay married and hopefully we will get back together and yet you are so busy with your other relationships is so absurd and a scam.
My only wish is to get along with you for the sake of [Catherine L]. I am not hoping for extra or anything because i have seen and experienced more than i can chew. I am on a stage in my life where i want to forgive and forget everything about US and move on peacefully with my life, God knows where i am going but just hoping he will guide me this time.
We are all different [husband] if [D] stayed in one town with you that’s her decision. But its not her decision to stay marriage (sic) with you after she founnd (sic) out that you have an intimate relationship with another woman, unfortunately my decision is not to live [overseas] and stay married to you while you keep your mistress. I know you are cutting all costs even when im (sic) was there you were so difficult about money and give me a lil (sic) irritating remarks about money. I do prefer to live quietly, peacefully and less stress. After i found out that you had rented an apartment for ou (sic) and [Catherine L] in [Asia] it gave me the strength to make my decision to stay in Australia I am just not happy to put [Catherine L] in an environment where ther (sic) is no mutual respect and dignity I am comfortable that [Catherine L] would thank US for doing what is right at the moment and im in peace with that. In fact i want to thank that this time has come.”
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48 The wife then went on to enquire in the email:
“We are booked on 13th December [for overseas]?
Arent you booked to [Asia] in October you said? Maybe you could come and visit [Catherine L] as well?”
49 On 18 September 2009 the father emailed the mother in the following terms:
“Dear [wife]
I have tried to sort our differences out amicably but you have yet again resorted to baseless accusations and insults.
I am really disappointed as if we can’t be civil to each other then our child will suffer the most.
I have provided two homes [overseas] for both you and C …of which you could take your choice. But you have decided that your interests must come before our child and have decided on your own that she will live in Australia away from her Dad and family.
I will continue to pay for the flat and utilities. I suggest you utilise the substantial amounts of money I have given you ie R177 000 in your [overseas] bank account. A$35 000 in NAB and A$69 000 in St George to pay for any other expenses. I made profits of $8 000 in July, $5 500 in August and so far $3 100 in Sep on the stock exchange for you.
I have instructed [Ms B] to end your salary payments as it would be illegal to pay you a salary for working there when you are not even in the country. I cannot accede to your request for [an overseas] credit card as if you were to use money from it to pay Australian expenses you would be in breech of [the country] foreign exchange regulations.
I hope we can discuss these matters further when you return [overseas] in
December and come to a mutually acceptable settlement arrangement.Regards [Will L].”
50 The father departed [from overseas] on 29 October 2009 for Perth and then
returned [home] on 13 November 2009. Very little is said in either of the father’s and mother’s affidavits about what occurred during that period. The father, in his affidavit at paragraph 45, deposes:
“I returned [overseas] on 12 November 2009 without [Catherine L] and
she remained in Australia without my consent.”
51 At that time it was certainly open to the father to have invoked Australian
domestic law to have sought a determination about interim arrangements for Catherine
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L. Given the strength of connection that the father had with Australia it is not a situation where he was restricted from access to the domestic courts by a barrier of language, absence of finance or a lack of understanding and the availability of advice.
52 In paragraphs 242 to 244 of his affidavit the husband deposes:
“242 During my visit in November 2009 we had a great time together. I was picked up at Perth Airport by [Maya L] on arrival and dropped off there on the day of my return. During this time we lived as a family going to movies together taking train rides together riding on the Perth Wheel together taking [Catherine L] to swimming lessons together taking a boat ride to Fremantle together visiting friends together spending time with my other daughter [K] together and generally behaving like a “normal” family except that [Maya L] and I did not sleep together. 243 During this time the differences between us were discussed and we agreed that she would arrange travel tickets which I would pay for and that she and [Catherine L] would return [overseas] early the next month which they did. 244 Again we discussed whether [Catherine L] should return with me but we decided that [Catherine L] would return with [Maya L] in a few weeks time.”
53 The mother does not respond to that portion of the affidavit, however the father’s affidavit is very “open” as to the nature of the proposed return [overseas].
54 That return became the subject of subsequent email exchanges between the father and the mother.
55 On Friday 20 November 2009 the father emailed the mother:
“[Maya L]
I will not be giving you any money to live on in Australia as you have, without my permission, decided to take my child away from me and live in Australia. I have told you this many times.
The money I have given you is obviously for the air tickets for you and [Catherine L] to come [overseas] for Christmas and also tickets for you and her to visit your Dad.
I have also offered to pay any expenses for your Dads sickness.
If we reach a divorce settlement then obviously you will get an agreed monthly payment.
I have quite a few meeting today. Can I be online with [Catherine L] on
Sunday at 4pm your time?
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Regards
[Will L].”
56 What is significant about that email is the contrasting position it paints when
compared with paragraphs 242 to 244 of the father’s affidavit. Quite clearly, in that email there was no apparent suggestion that the mother was returning [overseas] in December to resume residence.
57 On 24 November 2009 things appear to have calmed a little in terms of the email
exchanges between the father and the mother and at 6:35 pm on that day the father
wrote:“Hi [Maya L]
I have not seen a bank staetment (sic) of yours for some time. I will let you know if one arrives here.
Have you decided whether you will be here for Christmas or not?
If so, what are your travel plans now?
[Will L].”
58 To which the mother responded at 8:00 pm:
“Hi [Will L]
Its ok, dont (sic) worry bout the address, but if i got letters please gave it to
[C], Thanks.For some reason i cant book the domestic fl8t (sic) from [here to there] on the 28 of December. Would you mind to book it for me (sic)?
Can you please get the second flight i guess its PMB9am or so return on the 14 Jan 9am also.
I have paid R 2736.43 total for the rebooking fee of our flight [overseas] on the 13 of December will you please used (sic) it for this flight?
If everything goes well, we are arriving on the 13 of Dec. and and (sic) Fly to [Asia]. on the 28th of Dec. back on the 14th of Jan. Back to OZ on the 29th. Hope the business and all are doing well. My Dad is in the Hospital. God Bless Au voir
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[Maya L].”
59 At 9:49 pm on 24 November the father responds:
“Hi [Maya L]
Thanks for being here for Christmas.I will arrange the domestic flights. [Will L].”
and the email exchange continues between the father and the mother for a further five emails
on 24 and 25 November 2009, all to do with flight arrangements.
60 On 8 December 2009 there is an exchange between the father and the mother about the transfer of funds and at 7:43 pm the mother emails the father:
“Hi [Will L]
Below are our flights total i will give you the print out for receipts (sic).18 430.00 …( return) (cathay pacific)
938.83 …(return (cebu pacific)
15 456.00 …(one way (Qantas Airways)
2 693.00 … one way (Saa)
2 736.43 (rebooking payment for our return on the 13th)
= 40 254.26 totalRegard’s
[Maya L]
Au voir
[Maya L].”
61 Within the body of the email there are two references to a flight from [overseas]
to Perth. Firstly, as to the cost at R15,456 and secondly, for a sum of 2,736.43 for the rebooking payment for the use of the ticket originally scheduled to be used by the mother and child in 2009.
62 It is clear from the email that the total costs of R40,254.26 includes a payment of
a one way ticket from [overseas] to Perth, which would not have been necessary if the mother and child were returning to [overseas] and not returning to Australia. In those circumstances the only cost would have been the rebooking payment.
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63 In response, on 9 December, the father emails:
“Hi [Maya L]
I will transfer at R10 000 per day which is my transfer limit.[Will L].”
64 There is then a further email exchange over 9 and 10 December about what it is
that the father would like the mother to bring overseas, for example, financial
statements, a flash drive with pictures on it and an article of clothing.65 In the email to the father of 17 November, the mother states:
“Also I am booked and paid the [overseas] flight on the 13th, and
committed to spend Christmas with [N].What I can think of is if I go now I would like to spend Christmas with my
DAD then maybe go to [overseas] for New year.Have you have a thought and been advised about the our (sic) fare tickets and money yet?”
66 The husband, in paragraph 247 of his affidavit says of this email:
“Annexure ML 16 [of which the email comprised a part] at page 50 clearly
mentions that [Maya L] planned to buy a one way ticket [overseas].”
67 There is nothing in the email that supports such an assertion.
68 Overall, the tenor of the emails is one of prospective arrangements and suggests
a position of acceptance by the father of the circumstances in which he was confronted. The email exchange speaks clearly of future arrangements involving visitation between Australia and [overseas] and the making of financial provision on an ongoing basis.
69 Ms Thatcher for the Central Authority suggests that these emails were merely
negotiation of the type encouraged and contemplated between the father and the mother in Family Law matters, and indeed, they speak only of the need, it would seem, to settle financial matters on an ongoing basis.
70 Of concern is paragraph 61 of the husband’s affidavit where he refers to the November 24 emails and the return flight to Australia. The father swears:
“I obviously was shocked about this disclosure, especially in light of the devious manner in which she obtained the money [for the airfares]. However, this did not concern me because I knew that once [Maya L] will be [overseas] proceedings will commence and she would not be able to leave the jurisdiction. I did not comment on the same as I did not want to alert [Maya L] about the proceedings that I intended to institute as in law I
[2010] FCWA 65
was entitled to do especially in light of the fact that we were residing
[overseas] at that stage permanently for at least three years already.:
71 Further, by the time the mother arrived [overseas] the father was aware of the
fact that she had already sought legal advice and he had received correspondence from
solicitors instructed by the mother in Australia.72 Yet the father deposes as follows in paragraph 272, 273 and 274 of his affidavit:
“272 On our arrival [overseas] on 13 December, when she returned to our home in [town]. where [Maya L], [Catherine L] and I slept that night. 273 When the Deputy Sheriff served the summons on her at 9:00 am on 14 December 2009 she flew into a rage, left our home and took [Catherine L] with her to the house in [the town] where her brother lived. 274 I had intended obtaining a court order preventing [Catherine L] from leaving [the country] until the custody issues were resolved. Due to her anger and the consequences thereon on [Catherine L] when she received the divorce summons I requested my attorneys to only obtain the court order ensuring [Catherine L] had to stay in [the country] after [Catherine L’s] birthday had been celebrated [in] January 2010.”
73 The position adopted by the father is somewhat extraordinary, particularly given
the adverse reaction by the mother to service of the proceedings as he then takes no steps to secure her attendance [overseas], choosing to wait for an event more than six weeks later.
74 What is of further concern in these proceedings is that if the father had not
acquiesced, he had given the appearance of having acquiesced. The question is begged, was it the intention of the husband to create a “sham acquiescence” in an attempt to lure the mother back [overseas] with the intention of restraining her there, as referred to above?
75 As Butler Sloss LJ in Re: AZ (A Minor) [1993] 1 FLR 682 at 687 noted:
“Acquiescence has to be conduct inconsistent with the summary return of the child to the place of habitual residence. It does not have to be a long term acceptance of the existing state of affairs.”
76 If it is the case that the “wronged” parent creates a state of affairs intentionally,
albeit as a sham, for the purpose of inferring acquiescence when no real acquiescence exists, that parent should not be permitted to hide behind that sham when the circumstances created, if viewed objectively would indicate acquiescence, for as much as it is the creation of the circumstances that lead to the finding on an objective basis of acquiescence, it is also the other party’s reliance upon those representations in the prevailing circumstances and the actions or inactions of the “wronged parent”.
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77 Having regard to the totality of the circumstances that existed between the father
and the mother between the proclamation by the mother that she would not return to live [overseas] with the child and her arrival in [the country] on 13 December 2009, I am satisfied that an objective observer in the circumstances, and having regard to the father’s and mother’s communications and interactions – both by email and interpersonally, would be led to the conclusion on the balance of probabilities that the father had acquiesced to the retention of Catherine L in Australia and as such the mother has established one of the exceptions contemplated by the Regulations incorporating the Hague Convention.
78 The issue then remaining for me to consider is whether to exercise my discretion as provided in Regulation 16(5) of the Regulations in favour of the father.
79 There is little doubt that the child is secure with the mother. It appears, having
regard to the extended periods of separation between the father and the mother, that there has been no challenge to the mother’s ability to properly provide for the child and that for me to determine in the exercise of my discretion, in favour of a summary removal at this stage would, in my finding, be inconsistent with the arrangements that have existed between the father and the mother in the past and also inconsistent with my finding as to the father’s acquiescence.
80 That being said, I would remind the father and the mother that proceedings
issued under the Hague Convention are of a summary nature and are not the positive enquiry into what is in the best interests of the child that would be conducted under domestic Australian law. This decision is not determinative of parental responsibility or of with whom and where Catherine L should ultimately reside and I propose to make directions as to the future conduct of the proceedings that are extant in Australia, seeking to determine what parenting orders should be made in Catherine L’s best interest.
81 Accordingly and for these reasons I dismiss the application by the Central Authority for the return of the child, Catherine L, [to the overseas home].
I certify that the preceding [81] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court
Associate
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