COMMISSIONER, WESTERN AUSTRALIA POLICE and N
[2009] FCWA 162
•23 DECEMBER 2009
[2009] FCWA 162
| 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 N [2009] FCWA 162 |
| CORAM | : | MONCRIEFF J |
| HEARD | : | 12 OCTOBER & 20 NOVEMBER 2009 |
| DELIVERED | : | 23 DECEMBER 2009 |
| FILE NO/S | : | PTW 657 of 2009 |
| BETWEEN | : | KARL JOSEPH O'CALLAGHAN, COMMISSIONER, WESTERN AUSTRALIA POLICE Applicant |
| AND | ||
| N Respondent | ||
| Catchwords: |
FAMILY LAW - international child abduction - habitual residence
Legislation:
Family Law Act 1975, Family Law (Child Abduction Convention) Regulations 1986
Category: Not Reportable
Representation:
Counsel:
| Applicant | : | Ms C Thatcher and Ms I Petersen |
| Respondent | : | Mr J Dorney |
[2009] FCWA 162
Solicitors:
| Applicant | : | State Solicitor's Office |
| Respondent | : | Holden Barlow |
Case(s) referred to in judgment(s):
Cooper and Casey 18 FamLR 433
LK and Director General, Department of Community Services [2009] HCA 9
Punter v Secretary for Justice [2007] 1 NZLR 40
[2009] FCWA 162
1 [Vanya N] is a 13 year old girl who presently resides with her mother, [Ms N], in suburban Perth.
2 The Central Authority seeks orders that I return Vanya to [her home country].
3 The Central Authority makes its application pursuant to regulation 14 of the
Family Law (Child Abduction Convention) Regulations 1986 (“the Regulations”). The Convention on the Civil Aspects of International Child Abduction (International Child Abduction Convention) (1980) is implemented in Australia by the Regulations.
4 Vanya came to Australia, from [overseas], with her mother in 2005. There is no
doubt that at the time she left [the country] she did so with the consent of her father. The parties entered into an agreement headed (as translated) “Authorisation to leave the country agreement between [Ms N] and [Mr R]”.
5 The agreement was executed by each of the parties, notarised and filed with the relevant court overseas in June 2005.
6 The agreement has been translated for the purpose of these proceedings and materially provides (in English and as translated):
“Paragraph 2 - The father grants permission for the minor [Vanya] to
travel abroad under the following conditions:
(a) The destination of the trip will be Australia, country where the mother will undertake a PhD Course at the [University] in Perth which will start within the second semester of 2005. (b) The minor, along with the mother, will stay in that country for a period of three years, plus the time necessary only for the mother to be able to do everything that is required to receive the PhD Degree mentioned in this clause and letter (a) above, which is a circumstance that the mother must prove through a certificate issued by the [University] or its proper legal representatives. Extension of the term of stay must only be related to the post- graduate course that originated this trip and is specified at letter (a) of this clause. Any other reason or the failure to present the certificate quoted above by August 30 2008, will make this authorisation expire and the mother shall return the minor back overseas immediately.”
7 On 21 August 2009 the Central Authority filed a Form 2 Application seeking orders that Vanya be returned to Overseas. The Central Authority pleads that:
“The child [Vanya R] was wrongly retained in Australia in the following circumstances; the child was retained in Australia by the mother without the father’s consent on or about 30 August 2008. A signed agreement dated 8 June 2005 and confirmed by the Family Court of [the city] permitted the child to reside with the mother for three years commencing after June 2005 so the mother could complete her post-graduate studies in Australia and for any additional time that relates to the completion of the
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post-graduated studies provided a certificate is issued by the relevant
academic institution (in this case, the [University]).No additional material was provided by an academic institute to extend the time for post-graduate studies. The mother filed an application in Overseas on 2 May 2008 to seek an indefinite extension to remain abroad but the father does not consent to the child remaining in Australia after 30 August 2008 (when the entry permit to Australia expired) and there are no relocation orders granted to the mother.”
8 The Central Authority and the respondent mother have agreed that this matter
should be approached from a preliminary point, namely, a determination by the Court as to whether or not at the time of the alleged wrongful retention Vanya was habitually resident overseas. It is conceded by the Central Authority that if I make a determination that at the relevant time Vanya was not habitually resident overseas then the application must fail.
9 Whilst that approach appears simple, arguably it is more simplistic than simple
in that it ignores any connection between the date of the wrongful retention and the
concept of Vanya being habitually resident overseas.10 The relevant regulation, being Regulation 16, provides as follows:
(1) [When court must order child's return] 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) [Wrongful removal or retention] 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
[2009] FCWA 162
(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) [Application more than one year after removal: when court must
order child's return]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) [When court may refuse to order child's return] 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
[2009] FCWA 162
(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) [Information on child's social background] 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) [Where court not precluded from ordering child's return] 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.
11 The particular limited enquiry for the purpose of the current application is
whether or not Vanya’s retention in Australia could be said to be wrongful as defined in Sub-regulation 16(1A) and involves a consideration of the words “the child habitually resided in a convention country immediately before the child’s removal to, or retention in, Australia”.
12 All five paragraphs in sub-regulation 16(1A) must be satisfied to establish that
Vanya’s retention in Australia was wrongful. Vanya is under the age of 16. The issue in dispute is Vanya’s habitual residence. The balance of the considerations in Sub- regulation 16(1A) will not apply unless I determine that Vanya was habitually resident overseas at the time of her retention in Australia.
[2009] FCWA 162
13 Were I ultimately to make that decision, that is not the end of the matter in the
| circumstances of this case as other factors prescribed in Regulation 16 may then come into play. |
| History |
14 Vanya’s parents commenced a relationship overseas in February 1995, and were
married in [in the capital city] [in] December 1995. Vanya was born on 31 October
1996 in [the city] and is now 13 years of age.15 It appears the parties separated in September 1998, shortly before Vanya’s
second birthday. The mother pleads that since separation from the father she has had sole parental responsibility and custody of Vanya, with the father having limited access visits.
16 In May 2005 the mother was offered the opportunity to undertake PhD studies at
[a University] in Perth. The agreement to which I have referred was entered into between the parties to enable the mother to undertake those studies, after discussion between the parties.
17 The agreement provided for Vanya and her mother to move to Australia for three
years for the purpose of her studies, with the ability to extend that period in limited circumstances, namely, for the purpose of completing her studies, if so notified by the University.
18 The mother further pleads that since arriving in Australia in 2005 (at which time
Vanya was eight), the mother and Vanya have resided with [Mr C]. Over time, a relationship between the mother and Mr C developed with a decision being taken by them jointly, firstly, that the mother would remain living permanently in Australia and, secondly, that they would marry. Mr C and the mother were married on 18 June 2008.
19 The mother further contends that Mr C and she discussed their intentions, in
particular, the mother’s wish to remain living in Australia with Vanya, with the father during a visit he undertook to Australia in January 2008. It is alleged that the father was initially agreeable and that further discussions were proposed to take place when the mother visited Overseas in April 2008.
20 The discussions between the parties were unsuccessful, with the father then refusing to agree to Vanya continuing to reside in Australia indefinitely.
21 On 2 May 2008 the mother applied to the Family Court of [the city] seeking
permission of the Court for Vanya to remain in Australia and to modify the prior
agreement and obligations created by that agreement.22 Those proceedings were ultimately unsuccessful, with the Family Court in
[the home country] dismissing the mother’s application in September 2009 (now
subject to appeal).23 The parties had been engaged in a preliminary hearing in the proceedings in
Overseas, in July 2008. In the course of that preliminary hearing, the mother entered
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into the Court Record, as evidence for the proceedings, the existence of correspondence from [the University] which confirmed that the mother would need to extend her studies until 16 August 2009. It is unclear as to the status of that document at that time as it would seem that the father’s representatives did not read or seek to read the document. It is also unclear whether the mother’s representatives provided a copy of that correspondence to the father. The letter is important as it entitles the mother to extend her stay in Australia within the terms of the agreement between the parties, and arguably the mother’s continuing stay with Vanya could be said to be consensual, at least to 16 August 2009.
24 Whilst the proceedings in Overseas were awaiting hearing, however, the mother
issued proceedings out of the Family Court of Western Australia seeking orders, effectively, that she have sole parental responsibility for Vanya and that the father spend time with Vanya at times and dates to be agreed between the parties in writing and at the father’s cost.
25 There is an issue about whether or not the father was served with the
proceedings; however, I do not need to make a finding as to whether or not he was for the purpose of the current proceedings. In any event, orders were made in the Magistrates Court, 150 Terrace Road, Perth, under the Family Law Act 1975 on 16 April 2009, by way of an interim order that Vanya reside with the mother and that the mother have sole responsibility for her day to day care, welfare and development.
26 On 17 June 2009 the Court made an order as a final order in the following terms:
“1. The child Vanya live with the applicant mother in Australia. 2. The applicant mother have sole parental responsibility for Vanya’s care. 3. The respondent father spend time with Vanya under conditions agreed with the applicant mother in writing. 4. Vanya be at liberty to travel outside of Australia and have authorisation to leave [the country] whenever she visited it.”
[I would observe that paragraph 4 of the orders is unlikely to be of any effect in [that
country].]27 On 21 August 2009 the Central Authority filed the current application under the
Regulations seeking Vanya’s return overseas. The Central Authority pleaded the date of retention as being on or about 30 August 2008, although Ms Petersen of counsel during submissions, particularly before me in November 2009, did not appear wedded to that date and suggested that the relevant dates may be:
• January 2008 when the mother disclosed her position to the father; • May 2008 when the mother commenced proceedings overseas; • 30 August 2008 (as pleaded); • 16 August 2009 being the date of an extension to complete her PhD as notified by [the University].
[2009] FCWA 162
28 Ms Petersen appeared to suggest that the date of wrongful retention was
irrelevant, that the selection of a particular date did not matter, and in any event if I considered the retention to have been consensual to 16 August 2009, she would simply amend the application, or refile as the case may be. That is a proposition with which I cannot agree. Whilst in this particular case the differences may not, at this stage, be apparently relevant, they certainly become relevant in the event that I was to determine Vanya was habitually resident overseas at the date of her alleged wrongful retention. Also, I would observe that the earlier the date of wrongful retention, the more tied is the question of Vanya’s habitual residence to her mother’s, and clearly, as at the end of 2007, the mother could not by any measure be said to be continuing to habitually reside overseas, having clearly abandoned [that country] as her place of habitual residence.
29 As mentioned, the central Authority pleads the date of wrongful retention as
30 August 2008. January 2008 is a significant date. Clearly the mother had communicated her intentions to the father, and he had initially agreed with her about Vanya staying indefinitely in Australia at that time. Whilst there was not a “wrongful retention” at that date given the 2005 agreement and the mother’s right to extend her stay with Vanya, the significance of the date is the impact of the mother’s decision on Vanya’s state of mind and her understanding of what the future for her was to be.
30 Further, I do not agree with the Central Authority’s proposition suggesting that
the mother’s action in commencing proceedings overseas is clear evidence of her accepting that Vanya was habitually resident in [the country], but rather an attempt by the mother to resolve the issues between her and the father, appropriately, when their discussions failed. I do not find any issue of estoppel is created by her so doing. I also observe that, curiously, the father’s representatives in the overseas proceedings appeared to have suggested at one stage that the Court lacked jurisdiction, given that the child was not resident in [the country].
31 The question for me to determine is whether Vanya has remained habitually resident overseas or has she ceased to remain habitually resident in [that country].
Habitual residence
32 Each of the parties have provided me with extensive lists of authorities and I express my gratitude to them for doing so.
33 However, the most recent and binding authority on this Court is the decision of
the High Court of Australia in LK and Director General, Department of Community
Services [2009] HCA 9, which was delivered on 11 March 2009.34 The Full Court, comprising French CJ, Gummow, Hayne, Heydon and Kiefel JJ,
in a unanimous judgment overturned the decision of the Full Court of the Family Court of Australia and the orders of the Judge at first instance, the effect of which was to allow an appeal against orders requiring the return of the parties’ four children to Israel pursuant to the provisions of the Regulations.
35 The decision involved the Court embarking upon a consideration of the expression “habitual residence” as it is used in the Regulations.
[2009] FCWA 162
36 The Court observed that there has been a longstanding tension, particularly in
English courts, between the concept of domicile and that of habitual residence, noting at paragraph 21:
“… Rather as one author has put it, the expression has ‘repeatedly been presented as a notion of fact rather than law, as something to which no technical legal definition is attached so that judges from any legal system can address themselves directly to the facts’. Thus the Explanatory Report commenting on the Abduction Convention said that ‘the Notion of habitual residence [is] a well-established concept in the Hague Conference, which regards it as a question of pure fact, the words differing in that respect from domicile’.” (original emphasis)
37 The Court then goes on to observe at paragraph 22:
“To approach the term only from a standpoint which describes it as presenting a question of fact has evident limitations. 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 in that place can be described as habitual.”
38 And at paragraph 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 the 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.”
39 Importantly, in this case, the Court, at paragraph 27, observed:
“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 …”
[2009] FCWA 162
40 Importantly, the Court also confirmed, at paragraph 25:
“… So, for example, a person may abandon a place as the place of that person’s habitual residence without at once becoming habitually resident in some other place ...”
41 And in paragraph 33:
“… 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.” (emphasis added)
42 The Court also took the opportunity to consider the concept of “settled purpose”
and found that the necessity to find a settled purpose is an integral part of a finding of habitual residence. The Court considered numerous authorities referring to settled purpose (or settled intention), concluding ultimately and by reference to Punter v Secretary for Justice [2007] 1 NZLR 40 at paragraph 44 of the judgment:
“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 re J, to decide the question of habitual residence ‘by reference to all the circumstances of any particular case’.” (emphasis added).”
43 Having regard to all of the above, is then Vanya habitually resident in Overseas,
or has she ceased to be habitually resident overseas? Noting, as the High Court observed in LK and Director-General, Department of Community Services, (supra) at paragraph 34, that in consideration of 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 is the child’s connection to the State, to be viewed from the child’s perspective, bearing in mind the age of the child. Further, it is not the future intentions with which the court should be concerned but rather past and current experiences of the child (see Cooper and Casey 18 FamLR 433 at 435).
Consideration of Vanya’s circumstances
44 On behalf of the Central Authority submissions were filed referring, as to the
law, principally to LK and Director-General, Department of Community Services
(supra) identifying many of the quotes to which I have referred above.
45 The history is, it would seem, largely common ground:
46 On behalf of the applicant it is submitted:
[2009] FCWA 162
“24. In June 2005, with her temporary departure from [the country] while the Respondent engaged in a course of study, the child did not lose her habitual residence in [that country].”
47 It was further asserted:
“26. The child retains contact with her home in [the country] through regular contact with her father. In addition, the father continues to pay for health insurance for the child. … According to the social worker’s report [prepared for the [country] proceedings] the father maintains a bedroom for the child in the house he lives in.”
48 And further:
“27. The child has extended family in [the country] and according to the social worker’s report ‘presents social roots, strong ties of love, culture and sense of belonging to [the country].”
49 The conclusions drawn by the social worker in the report prepared for the Court
[in that country], upon which the applicant relies, presented some difficulties with its methodology and the conclusions drawn, particularly where the author purports to draw conclusions at to a legal status. The report is said to be:
“… ‘a social expert report’ (as translated) and the author draws expansive conclusions, for example, ‘the development and social life of their daughter, the girl [Vanya], continued normally as any [local] girl sharing her life with her mother, father, paternal family, friends and school classmates. In this process she internalised the [country] culture and idiosyncrasy. She studied from the month of March in the year 2001 until the month of June in the year 2005 at the [School], where she attended kindergarten and part of the elementary, attending classes until the month of June of the year 2005 before travelling to Australia with her mother’.”
50 When considering the “housing situation” of the father the author reports:
“Another bedroom for the girl [Vanya]. This is a room well suited
according to her age and tastes [my emphasis] …”
and in conclusion:
“After carrying out the expert investigations for interviews, analysis of background and field work, the following elements that are mentioned next indicates that the child [Vanya] has habitual residency [my emphasis] in the [Republic].
• The child [Vanya], who is currently 12 years, 8 months old, was born in [the capital city of the country] [in] October of the year 1996 is a [citizen], born through normal labor at [the hospital] , in the district [of the capital city of the] Republic. This is corroborated by documents and people linked to the family group. She was registered as a [citizen] before the Registry Office under
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the inscription number x.xx of the [named] district, according to the
record issued by the aforementioned institution of the State;
• The child [Vanya] according to the education authorities, studied at the [School], being admitted to the preschool education in the month of March of the year 2001, being a student there until the month of June of the year 2005, when she was at third grade of elementary school. After that she travelled with her mother to Australia, authorised by her father through a judicially approved agreement; • Until the 5th of July of the year 2005, the girl resided in the [capital city of the Republic], being her last address [at the street name and suburb]. Afterwards, through the agreement approved judicially, she travelled to Australia with her mother, [Ms N]. Interviews in questioning of paternal relatives of the girl [Vanya] to the domestic employee of the residency of the paternal grandparents of the child and friends of the parents of the child, let me assert that the child in [the country] presents social roots, strong ties of love, culture and sense of belonging to [the country]. The people interviewed witnessed the birth and physical and intellectual development of the child of [Mrs N] and [Mr R]. • After carrying out the analysis of the dwelling in which [Mr R] lives, home that he shares with his parents and grandparents of the child [Vanya] through the pictures, belonging of the child and rooms where she sleeps overnight when she visits the father, let me say that a considerable part of her life she has stayed in the home with her paternal grandparents.”
51 The author then goes on to conclude a “social diagnosis” as follows:
“The investigation carried out through the observation in the field, interviews, study of background and documents let me point out the following:
1.
the girl [Vanya] has habitual residency in the [capital city of the republic], from [October] of the year 1996, date in which the child was born, until the month of July of the year 2005, date in which she travelled along with her mother [Ms N] to Australia with the purpose of staying with her mother who would study for a postgraduate degree in the said country, having had to return to [the home country] in the month of August of the year 2008, according to the authorisation of her father approved judicially. In the period in which the child resided in [the home country], she established social and sentimental roots. So it is indicated by the evidence submitted hereby.
2.
the social and economic evidence of the applicant [Mr R] indicates that he has the sufficient economic means to cover, in an adequate
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form, the housing, nutritional, educational and recreational needs of his daughter, which guarantees the social wellbeing of the child in [the Republic].”
52 Conspicuous by its absence is any mention of the child’s emotional or
psychological welfare or the likely effect of any separation from her clear primary attachment figure in her mother, the report seeming to proceed on the assumption of Vanya moving into her father’s care.
53 Also conspicuous by its absence is any clear statement as to the methodology
used, the persons interviewed, the “field studies” undertaken, and the background studied that would enable the reader to understand how it is that the author has come to the expansive conclusions she has. Notably, no input was had from the child or her mother.
54 The document also records that the father contributed child support for Vanya
until the date of the alleged withholding, at which time he was entitled to suspend child support payments. His contribution to her support amounts to the equivalent of US$1.46 per week as well as maintaining Vanya under a form of health insurance which covers both Mr R and Vanya, in [the country], at a total cost of the equivalent of US$180 per month. The report also noted that the responsibility for Vanya’s health care and “economic responsibility” is that of the mother whilst Vanya resides in Australia.
55 It would appear from the attachments to the report that the conclusions were
based on pictures of the child, pictures of the two houses in which the child has lived and a videotape made by her father, the most recently identifiable date of which was 2006.
56 Overall, I can attach little weight to the report.
57 Vanya spent one month in [the country] in 2006 and 2007, and a lesser period in
2008. In 2008 Vanya had contact with her father directly in Australia for a period of
about 10 days.58 When Vanya travelled to Australia in 2005 at age eight she was in Grade 3
Primary School.
59 It is trite to observe that the social dynamics that affect a 12 or 13 year old are vastly different from those that affect a child of eight.
60 The mother reports of Vanya’s current circumstances that she presently attends
[the local] Primary School and has done so since 26 August 2005. She is achieving very well at school, both academically and “otherwise”. She is shortly to finish Year 7. The Principal of the [Primary School] reports:
“[Vanya]is an outstanding student gaining excellent levels of all area (sic) of the West Australian Curriculum. [Vanya’s] ability can also be demonstrated by her inclusion in the Primary Extension and Challenge Programme for Academically Gifted Students … To further illustrate [Vanya’s] ability she has recently been accepted into the academic talent
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programme at [a College] for her secondary education. [The] College is a leading public school in Western Australia and it is seen as a real achievement to be accepted into their academic extension programme.”
61 He goes on to report:
“[Vanya] is an exemplar student. She is highly motivated to learn and actively engages in the diverse range of opportunities provided to her at [Prrimary School]. [Vanya] demonstrates a great deal of initiative, creativity and an excellent general knowledge from working towards her academic outcomes … [Vanya] is extremely mature and has excellent values. She was a peer mediator in 2008/2009. Peer mediators have an important function in the school where they attend a special course of conflict resolution, problem solving and mediation. They then assist younger students in the playground to solve their problems and liaise with teaching staff.”
62 It would seem that Vanya is an exceptional student.
63 Additionally she has, and has had, significant extra-curricular involvements
including horse-riding (jumping and dressage), Tae Kwon Do, drama, ice skating and she also attends Russian School. Vanya has participated in charitable events and enjoys social interaction with her two-step brothers, [Ron], now 17 years of age, and [Lennie], now 13 years of age.
64 It would appear that she has an active cultural and social life enjoying camping
with the family, bushwalking, archery, farm stays, barbecues and other family
activities such as going to the movies, the theatre, ballet and concerts.65 Her mother also speaks of Vanya having made many friends in Perth, both at
school and through her various hobbies and school activities. Her mother also reports that Vanya has a “boyfriend” and “adores living here and does not wish to return to [the country] to live”.
66 It would seem that Vanya has immersed herself in the social stratum and activities of her present environment and had done so at both of the relevant dates.
67 Vanya clearly resides in Australia and was resident in Australia on both
30 August 2008 and 16 August 2009 and continuing. The question is whether or not Australia could now be treated as her habitual residence or more importantly, whether she ceased to habitually reside in [that country]Overseas as at 30 August 2008, the date pleaded, or 16 August 2009, a date that is open to be found as the date of “retention”.
68 The question in my finding must be answered in the affirmative; that is, that
Vanya could not by any logical factual connection be said to have been continuing to be an habitual resident of that country.
69 The social and cultural inter-plays for the child of eight are vastly different from
those that affect a child of 12 or 13. That is clear from the evidence of her mother, but particularly from the report from her school principal, that Vanya has an independence
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of spirit and mind and ultimately, it is likely that her wishes in the matter would not be discounted, although they are of peripheral relevance to the current enquiry. The overall appearance for Vanya as she is described from a contemporary prospective (as opposed to the historical one utilised in the social expert’s report from overseas is that Vanya is immersed in Australian society and is an active participant in that society, with ongoing and open-ended commitments, although logically it is not likely that Vanya has made such commitments independently of her mother. The indicators are not of a child who has seen herself as being a temporary part of a society and the expression of her wishes is consistent with such observations.
70 Perhaps more importantly, these conclusions are to be drawn against a
background of the child knowing, no doubt, given her mother’s marriage and stated intention as to residence, that the future for her was likely to be in Australia from at least January 2008. For whilst a large number of the activities with which Vanya was involved, and remained involved, would be the usual expectation of a child who was residing in a country for an extended period, in this case they assume a greater significance given her mother’s intentions and the consequential disconnection from Overseas as and from January 2008, and must be viewed in that context.
71 I have regard to the matters referred to and as quoted above by the High Court in
LK and Director-General, Department for Community Services (supra), and I conclude that irrespective of any association with her mother, although obviously born of that association, Vanya has ceased to habitually reside in the overseas country and accordingly the application is dismissed.
Proposed orders
1. The application filed for and on behalf of the Central Authority pursuant to the Regulations is hereby dismissed.
I certify that the preceding [71] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court
Associate
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