Commonwealth Central Authority and Newcombe
[2016] FamCA 485
•16 June 2016
FAMILY COURT OF AUSTRALIA
| COMMONWEALTH CENTRAL AUTHORITY & NEWCOMBE | [2016] FamCA 485 |
| FAMILY LAW –CHILD ABDUCTION – 1980 Hague Convention – return application - habitual residence not established – removal young child was unilateral and without consent of father but not wrongful within the meaning of the Regulations – application dismissed |
| APPLICANT: | Commonwealth Central Authority |
| RESPONDENT: | Ms Newcombe |
| INDEPENDENT CHILDREN’S LAWYER: | Victoria Legal Aid |
| FILE NUMBER: | MLC | 758 | of | 2016 |
| DATE DELIVERED: | 16 June 2016 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Bennett J |
| HEARING DATE: | 7 and 8 April 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Porritt |
| SOLICITOR FOR THE APPLICANT: | Department of Human Services Legal Services Branch |
| COUNSEL FOR THE RESPONDENT: | Self-represented |
| SOLICITOR FOR THE RESPONDENT: |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Dowler |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Victoria Legal Aid |
Orders
Paragraphs 6, 7, 8 and 9 of the Order made on 10 February 2016 be and are discharged and the mother be and is hereby entitled to collect from the Registry all passport(s) she has lodged with the Registry.
In the event that the father or mother file a parenting application within 3 years, that application may be listed before me for directions within 24 hours.
The application of the Central Authority, filed 2 February 2016, be otherwise dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Commonwealth Central Authority & Newcombe has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 758 of 2016
| Commonwealth Central Authority |
Applicant
And
| Ms Newcombe |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
Introduction
The Commonwealth Central Authority (“CCA”) by application filed 2 February 2016 seeks the return to Germany of B born in 2014, pursuant to reg 14 of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”). The application is made at the behest of the child’s father, Mr C (“the requesting parent” or “the father”).
The respondent is the mother (‘the mother”) of the child. She was born in Australia and is an Australian citizen. She is 22 years old and works as a manager. She currently resides in a country town outside D Town with her grandmother and daughter.
The requesting parent is Mr C. He was born in Germany and is 28 years old. He is foster carer. He is a German citizen and does not have a current residency or work permit visa for Australia. He resides in the small town of E Town approximately 2-3 hours’ drive outside City F in Germany.
B is the only child of the respondent and the requesting parent. She was born in D Town and is an Australian and German citizen. She has an Australian passport and has a German Registration Card.
The Regulations implement the 1980 Convention on Child Abduction[1] (“1980 Convention”) into Australian law. It is the Regulations, and not the 1980 Convention, which have force of law in Australia.
[1]Convention on the Civil Aspects of International Child Abduction; concluded at the Hague on 25 October1986.
The 1980 Convention is a forum selection treaty which operates between contracting states when one parent wrongfully removes a child to, or retains a child in, another convention country. The 1980 Convention entered into force between Australia and Germany on 1 December 1990.
The 1980 Convention addresses the unilateral removal or retention of a child or children across international borders by generally requiring the prompt return of the child to the child’s place of habitual residence unless the taking parent can bring himself or herself within one of the five exceptions to return. Not every non-consensual removal or retention of a child is caught by the 1980 Convention. The removal or retention must meet certain criteria to attract the court’s jurisdiction under the 1980 Convention. The criteria are often referred to as jurisdictional facts. The court’s satisfaction as to each is a precondition to the court having power under the 1980 Convention.
Here, it is alleged that the mother wrongfully removed the child from Germany within the meaning of reg 16(1A) of the Regulations, on 21 April 2015.
The issue which arises for determination by me is whether the child was habitually resident in Germany immediately prior to the mother’s removal of her to Australia on 21 April 2015. The mother alleges that the child had not acquired habitual residence in Germany prior to the alleged wrongful removal notwithstanding that she had resided in Germany from 2 September 2014.
When the mother commenced this case she also asserted that the return of the child to Germany would expose the child to a grave risk of harm or otherwise place the child in an intolerable situation. This is one of the five exceptions to return rather than a jurisdictional fact. The mother’s argument on the Article 13 grave risk was not developed to any significant degree at the hearing so I will not spend any further time on that issue. Had the argument been successfully developed by the mother and accepted by me, I would then have a discretion to refuse return. In the event of non-return, the father would be entitled to take up parenting proceedings in Germany or in Australia but he would have to proceed without the benefit of this forum selection treaty. He would also have to navigate the jurisdictional rules provided for in the 1996 Convention.[2]
[2] Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children, concluded at The Hague on 19 October 1996.
If I ultimately made a return order, I could also impose conditions on return of the child to Germany which are “appropriate to give effect to the Convention”.[3]
[3] Pursuant to reg 15(1)(c) of the Regulations.
After hearing the evidence and submissions and consideration of the legal principles that pertain to habitual residence, I find that the child was not habitually resident in Germany immediately prior to her return to Australia on 21 April 2015. Accordingly, the application must fail.
Background
The parents met in Germany in October 2012 while the mother was travelling. The mother stayed in Germany for a couple of weeks before travelling to and settling in the United Kingdom in November 2012. The father joined the mother in the United Kingdom in March 2013.
The parents lived together in the United Kingdom. During this time the mother fell pregnant with the child. In August 2013 the parents left the United Kingdom and travelled for a couple of weeks around Europe. The mother returned to Australia in September 2013 and the father joined her shortly after in November 2013. The couple lived with the mother’s grandmother.
The parents married in 2013 in D Town, Australia. D Town is a large rural city in the State of Victoria.
The child was born in D Town, Australia in 2014. A month later, in February 2014 the parents separated. The mother continued to reside at her grandmother’s residence with the child. The father rented a room in D Town.
In April 2014 the mother moved to Perth with the child to share a house with a friend and her friend’s family. The parents’ evidence conflicts over how long the mother intended to stay in Perth. The mother submits that she had assisted the father in seeking employment in Perth.[4] The father attests that the mother was only going to Perth for a few days.[5]
[4] Affidavit of Ms Newcombe sworn 19 February 2016 [10]. .
[5] Affidavit of Ms G, Annexure “PB-1”, sworn 15 March 2016.
In any event the father did not follow the mother and the child to Perth (which is the capital of Western Australia and situated on the other side of the continent). The father went to work in Queensland in April 2014. The father left his job in Queensland after two weeks and returned temporarily to Victoria before returning to E Town, Germany in May 2014. The father said that he left Australia due to expiration of his Australian visa. I place some significance on the fact that the father left the mother, in Perth, with the child and with no arrangement to see the child nor any explicit arrangement about the child’s long term care and development.
After an initial lack of communications between the parents, the father and mother commenced discussion about a reconciliation and the notion that the mother would return to Germany with the child to be with the father.
The mother and the child arrived in Germany on 2 September 2014.
The mother submits that her intention of travelling to Germany was primarily to establish whether the relationship between the father and her would work out and that she had no intention of staying permanently in Germany with the child if it did not.
The father alleges that the parents had reconciled and the mother and child had gone to Germany to live with him permanently.
Once the mother and the child arrived in Germany, they moved into a residence adjoining or close to the home of the father’s mother. For some of the six months that the mother and the child were in Germany, the father lived on the same property but separately. He came and went without much reference to the mother.
The mother’s contention is that her sole purpose of retuning to Germany was to reconcile and, when that failed to eventuate, she left. On 19 April 2015 the father went to work and this was the last time that he saw the child.
On 21 April the paternal grandmother went to the residence of the mother and child and found a letter from the mother advising that mother and the child were flying to Australia for a short time.
The father informed the mother via Facebook that he did not approve of her flying to Australia with the child. The mother replied two days later saying she and the child would remain in Australia for a short time.
The father sent messages requesting that the mother return the child to Germany.
The mother informed the father via Facebook on 28 June 2015 that she would not be returning to Germany with the child.
Under German law, the father has rights of custody in respect of the child as the parents were married at the time of the child’s birth. German law provides both parents with automatic custody of the child.
Procedural History
An application to return the child to Germany was initially filed in the Family Court of Western Australia at Perth ((P)PTW92/2016).
His Honour, Justice Walters, of the Perth Registry, heard an ex parte application on 18 January 2016 and made orders which included an injunction for the mother to surrender all current passports and tickets relating to herself and the child and requiring their names to be placed on the PASS alert system at all airport and seaport terminals in Australia
The mother was unable to be located by the Western Australian police for service of the application to return and the subsequent orders that were made in Western Australia.
Pursuant to reg 14 of the Regulations, this application was filed on behalf of the Victorian State Central Authority seeking a court order for the return of the child to Germany. The application was made by the Legal Services Branch, Department of Health and Human Services following a request for assistance from the father for the return of the child to Germany.
Evidence
There were no objections to the admissibility of evidence.
The CCA relied upon the following documents:
a) Form 2, filed 2 February 2016, for commencement of proceedings under the Regulations, which includes a Form 2 Application under the Convention regarding the child dated sworn 7 January 2016 and filed in the Family Court of Western Australia which includes attachments A-K; orders made by the Honourable Justice Walters in the Family Court of Western Australia at Perth dated 18 January 2016; and an Affidavit of Ms H attaching authorisation.
b) Outline of Case document filed 24 March 2016.
c) Affidavit of Ms G, affirmed 15 March 2016 which attaches a copy of a document prepared by the father, Mr C, in response to the mother’s Affidavit dated 19 February 2016.
d) Affidavit of Ms G, affirmed 5 April 2016 which attaches a letter from the father’s lawyer in Germany dated 24 March 2016 following a request by the Department of Health and Human Services for further information.
The mother relied upon the following documents:
a) Outline of Case document filed 1 April 2016;
b) Form 2A, Answer and Cross Application, filed 23 February 2016;
c) her Affidavit, sworn 19 February 2016;
d) her Affidavit, sworn 4 April 2016.
The independent children’s lawyer relied upon the following documents:
a) Email outlining preliminary view subject to testing of the Independent Children’s Lawyer, marked as Exhibit “ICL 1”.
b) Case Outline, tendered in court, marked as Exhibit “ICL 2”.
I note that reg 29(2) provides prima facie that the documents incorporated in the application are “admissible as evidence of the facts stated”.
(i) Standard and burden of proof
Pursuant to s 140 of the Evidence Act 1995 (Cth), the standard of proof is to a balance of probabilities.
The CCA bears the onus of proving the child was wrongfully removed and retained by the mother, as alleged, which involves whether the child was habitually resident in Germany at the time of the alleged wrongful removal of the child by the mother.
It was intended that the father would be cross examined by the mother and the independent children’s lawyer with the benefit of audio-visual technology between Australia and Germany; that did not occur because of a technological glitch. We lost the entire first day of hearing because the court could not connect with the father.
This is yet another occasion in recent months that the Court’s technology designed to obtain evidence overseas in a cost-effective way has failed. As a fall-back position, the Court placed a call to the father but again was thwarted in achieving its aims due to a technological hiccup in being able to reach the father’s mobile. The father agreed to ensure his credit limit was topped up and placed a call to the Court. In order to ensure a clear line he had to stand outside his place of work, in the early hours of the morning, in the cold and give his evidence and be cross examined. I think that the time on the telephone would have approximated two hours. He did not object. However, it is not a reasonable way to treat a witness and the lack of effective technology in this Court is an embarrassment.
By the time we started the case, hearing time was restricted. Some consideration was given to adjourning the matter but, ultimately that would have meant a change of counsel for the applicant. The trial was conducted in the knowledge that I would shortly be away from the Registry for eight weeks and there would be a corresponding delay in delivery of this decision.
In these reasons, a statement of fact is a finding of fact.
(ii) Credit and impression of witnesses
Both parents were cross examined.
I found the father to be an intelligent and willing witness. He is more mature and worldly than the mother. He had a good grasp of English and did not require an interpreter. The mother’s cross examination of the father was calm and her line of questioning had been thought out and planned. At times, the father showed frustration at trying to find the correct English phrase, or word, to express his meaning and to ensure clarity of his expression. The father did not agree with many of the statements that the mother put to him and remained steadfast in his view that the relationship was intended to be of a permanent nature whilst the parents were living together in Germany. The father could not readily recollect certain events and there seemed to be a discrepancy in the parents’ account of how they met.
My impression of the mother is that although she is a young woman, she is confident and capable in presenting her case to the best possible advantage. She has a calm and amiable personality. She impressed me as headstrong. She appears to have a number of friends and family in Australia she can rely on however, she has had an itinerant lifestyle and finds it difficult to settle in one place. She is not proactive or forward-thinking as might be expected of someone of her age. She appears not to have engaged in social infrastructure in Germany and found it difficult establishing herself and integrating into the community and with the father’s friends. She was close to the paternal grandmother who she saw or spoke to most days while living in Germany. The mother regards her mother-in-law with obvious affection.
My assessment is that neither parent was dishonest. The differences in their evidence are attributable to the different way in which they perceive what occurred between them. It is a case of differing perspectives rather than a case where credibility leads me to prefer one parent’s version over the other. Later in these reasons I will discuss the electronic correspondence which passed between the parties before, during and after the mother and child travelling to Germany. An advantage of having access to the electronic communication is that it represents a contemporaneous, although not necessarily comprehensive, record of what each parent said and may be more reliable than evidence which each now gives unsupported by documents and from memory alone.
The Legislation
Regulation 16 of the Regulations implements Articles 3 and 12 of the 1980 Convention and sets out the circumstances in which the Court is obliged to make a return order. That regulation provides:
(1) If:
(a) an application for a return order for a child is made; and
(b) the application is filed within one year after the child’s removal or retention; and
(c) the responsible Central Authority or Article 3 applicant satisfies the court that the child’s removal or retention was wrongful under sub-regulation (1A);
the court must, subject to sub-regulation (3), make the order.
(1A) For sub-regulation (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.
The CCA filed its application comfortably within 12 months from the date of the alleged wrongful retention.
The child is clearly under 16 years of age.
It was conceded that, within the meaning of reg 16(1A), the father had, and was exercising, rights of custody at the time of the alleged wrongful removal.
The disputed issue is whether the child was habitually resident in Germany immediately before the wrongful removal which the applicant CCA alleges took place on 21 April 2015.
If the retention is wrongful within the meaning of reg 16(1A), return of the child to the state of habitual residence is mandatory unless one of the five exceptions to mandatory return apply. The best interests of the child are not a precondition to return.
Regulation 16(3), (4) and (5) implement arts 13 and 20 of the 1980 Convention which provide the five exceptions to mandatory return. Regulation 16 states:-
(3) A court may refuse to make an order under sub-regulation (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 sub-regulation (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 sub-regulation (3) is established by a person opposing return.
(emphasis added)
Habitual Residence
(a) The law
Habitual residence is a question of fact in each individual case. Neither the Regulations nor the 1980 Convention define “habitual residence”.
In 2009 the High Court (our apex court) decided LK & Director-General, Department of Community Services[6] (“LK & Director-General”). There the High Court made two preliminary observations regarding the criteria for determining a child’s place of habitual residence. First, there are a wide variety of circumstances that bear upon where a child resides and whether that residence is habitual. Second, the past and present intentions of a child’s parents will affect the significance to be attached to particular circumstances, such as the duration of a person’s connections with a place of residence.
[6] (2009) 237 CLR 582.
Regarding intention, the High Court noted that a parent’s intentions will usually be relevant to, but not necessarily be determinative of, habitual residence. The High Court noted that a person’s intentions may be ambiguous.
In LK & Director-General, the mother had left Israel with the children on the understanding that if she and the father reconciled she and the children would return to Israel but, if they did not reconcile, she and the children would remain in Australia. The High Court decided that it was appropriate to have regard to the steps the mother took before and after her arrival in Australia as supporting the mother’s argument that it was her intention to move to Australia unless the marriage reconciled. The High Court drew several points from the ambiguities of the parents’ intentions:
[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.
[34] Thirdly, when considering where a child is habitually resident, attention cannot be confined to the intentions of the parent who in fact has the day-to-day care of the child. It will usually be necessary to consider what each parent intends for the child. When parents are living together, young children will have the same habitual residence as their parents. No less importantly, it may be accepted that the general rule is that neither parent can unilaterally change that place of habitual residence. The assent of the other parent (or a court order) would be necessary. But again, if it becomes necessary to examine the intentions of the parents, the possibility of ambiguity or uncertainty on the part of one or both of them must be acknowledged.
(emphasis in original)
Following the above discussion, the plurality in LK & Director General unanimously concluded that a closed set, or a hierarchical set, of criteria would not assist in making a decision which could potentially encompass a very wide range of circumstances. The principles expressed by the High Court are binding on me.
The impact of LK & Director General was to shift focus away from an examination of parental intention as a determinative factor in ascertaining a child’s place of habitual residence in favour of an objective and broader measurement of the integration of the child into the place contended to be the child’s state of habitual residence.
In Australia, shared parental intention remains a relevant consideration but it is not determinative in the identification of whether or where a child will tend to be habitually resident. The absence of shared parental intention as to relinquish or embrace a place of habitual residence per se will not leave the child in a vacuum.
In the United Kingdom, the Supreme Court’s decision in A v A and Another (Children: Habitual Residence) (Reunite International Child Abduction Centre and Others Intervening) (“A v A”)[7] illustrates how English jurisprudence has also moved away from joint parental intention as a predominant factor.
[7] [2013] UKSC 60.
In A v A the Supreme Court aligns the identification of habitual residence under the 1980 Convention with European authorities under the revised Brussels II Regulation[8] (“BIIr”) and adopted by the European Court of Justice (“CJEU”) in the case of In Proceedings brought by A ((2009) Case C-523/07) and affirmed by it in Mercredi v Chaffe ((2010) Case C-497/10 PPU). That is
that habitual residence is ‘the place which reflects some degree of integration by the child in a social and family environment'. Shared parental intention to reside in that place is relevant but not a necessary prerequisite to the establishment of habitual residence.
[8] Council Regulation (EC) No 1347/2000 of 29 May 2000 on jurisdiction and recognition and enforcement of judgements on matrimonial matters and in matters of parental responsibility for children of both spouses which is colloquially known as “Brussels II”. Brussels II was revised on 29 November 2002 by agreement of the Council of Ministers (Justice and Home Affairs). The revising law was Council Regulation (EC) No 2201/2003 of 27 November of 2003 and completely repeals BII. It is known variously as BII revised or BIIr or BII bis (bis meaning approximately encore).
I hold to view that I expressed recently in Commonwealth Central Authority & Cotter [2016] FamCA 209 that the European jurisprudence on habitual residence, recently adopted in United Kingdom, sits comfortably with the Australian approach from LK & Director General in 2009 onwards. Habitual residence is as central to the operation of BIIr as it is to the operation of the 1980 Convention. It is, as Lord Wilson recently described in the matter of B (A Child) [2016] UKSC 4 at [27], “the internationally recognised threshold to the vesting in the courts of that state of jurisdiction to determine issues in relation to [children]”.
In In Proceedings brought by A ((2009) Case C-523/07) the Supreme Administrative Court of Finland sought a ruling by the CJEU on the interpretation to be given to the concept of “habitual residence” within the meaning of BIIr art 8(1). The Finnish proceedings related to three children who had been living in Sweden since 2001 with their mother and step-father. In the summer of 2005 they went to Finland on vacation and lived in caravans and a range of campsites. In October, the family applied to social housing. The mother and step-father returned to Sweden leaving the children in Finland with the step-father’s sister. The children were taken into care in November 2005 on the basis that they had been abandoned. The mother commenced proceedings to have the children returned to her care.
The CJEU, comprising the President of the Chamber, A. Rosas, the Rapporteur, A. Ó Caoimh, J.N. Cunha Rodrigues (Rapporteur), and Judges U. Lõhmus and P. Lindh, stated in relation to art 8(1) of BIIr at [44]:
… [T]he concept of ‘habitual residence' under Art 8(1) of the regulation must be interpreted as meaning that it corresponds to the place which reflects some degree of integration by the child in a social and family environment. To that end, in particular the duration, regularity, conditions and reasons for the stay on the territory of a Member State and the family's move to that State, the child's nationality, the place and conditions of attendance at school, linguistic knowledge and the family and social relationships of the child in that State must be taken into consideration. It is for the national court to establish the habitual residence of the child, taking account of all the circumstances specific to each individual case.
Last year, in AR v RN (Habitual Residence),[9] the United Kingdom Supreme Court considered whether to return two girls to France who had been living temporarily in Scotland with their British/Canadian mother. The girls were born in France in August 2010 and June 2013, and lived there with their French father and mother. In July 2013, during her 12-month maternity leave, the mother and children temporarily relocated to Scotland where the maternal grandparents lived. The mother claimed that the intention was for the family permanently to relocate to Scotland after 12 months. She had moved into a rental property that both she and the father had inspected. During this time, the mother learnt of the father's infidelity and she decided to end the relationship. She commenced proceedings for a residence order in respect of the children and a prohibited steps order preventing the father from removing the children from Scotland. The father brought Hague return proceedings seeking a return order (to France). At first instance it was found that the children had maintained their habitual residence in France because there had been no jointly held parental intention to leave France permanently. This decision was reversed by an Extra Division of the Inner House of the Court of Session [2014] CSIH 95. The decision was overturned on the basis that it had been incorrectly determined that a shared parental intention to move permanently to Scotland was an essential element in any alteration of the children's habitual residence from France to Scotland; upon re-considering the Extra Division found that the children had become habitually resident in Scotland.
[9] [2015] UKSC 35.
The father’s appeal was dismissed by the plurality of the Supreme Court. The Supreme Court reiterated that habitual residence was a question of fact that required an evaluation of all relevant circumstances. It considered the situation of the child, with the purposes and intentions of the parents merely being among the relevant factors. The important element was the stability of the residence not the permanency of it. The Supreme Court held that there was no requirement that there should be a particular period of time that the children should have been resident in Scotland before acquiring habitual residence there, nor need there be an intention on the part of one, or both, parents to reside there permanently or indefinitely. It was held that, in failing to consider the stability of the mother’s and the children’s lives in Scotland, the Extra Division had not taken into account their social and family environment there.
Lord Reed who delivered the judgment for the Supreme Court, noted at [16]:
It is … the stability of the residence that is important, not whether it is of a permanent character. There is no requirement that the child should have been resident in the country in question for a particular period of time, let alone that there should be an intention on the part of one or both parents to reside there permanently or indefinitely.
In a more recent case, Re B (A Child) (Habitual Residence: Inherent Jurisdiction)[10] (“Re B”) the United Kingdom Supreme Court considered the circumstances and point at which habitual residence was lost. Lord Wilson, with whom Lady Hale and Lord Toulson agreed, held that the subject children did not lose their habitual residence immediately upon removal from the jurisdiction, even where there was a settled intention that they would no longer live there. Their Honours’ reasoning was that children lose their habitual residence when they achieve the required degree of disengagement from the jurisdiction. The daughter was the child of a same-sex couple who had been in a relationship until 2011. In February 2014, the respondent birth mother, a British national of Pakistani ethnicity, went to live in Pakistan with the aim of entering into a business partnership. On 13 February 2014, the other mother (who was the appellant) became aware that the daughter had been removed from her home but was unaware that she had been taken abroad. She issued an application under the Children Act 1989 for leave to apply for shared residence of the child or for contact with her. Both the High Court and the Court of Appeal were satisfied that the child had been lawfully removed by her birth mother who had a settled intention of making a new life abroad. The Court of Appeal upheld the first instance decision to dismiss the other mother’s application for shared residence of the seven-year-old daughter on the basis that, by the time the application had been made by the other mother, the child had lost her habitual residence in England.
[10] [2016] UKSC 4.
In the Supreme Court, Lord Wilson disagreed with the analysis of at first instance and at intermediary appellate level. Lord Wilson noted that two consequences flowed from the modern international concept of habitual residence. First, that it was not in a child’s interests to be left without a habitual residence. Second, that the domestic interpretation of habitual residence should be consonant with its international interpretation. A third issue was whether the point at which habitual residence was considered to be lost required adjustment following the court’s adoption of the European concept of habitual residence in A v A and Another (Children: Habitual Residence) cited earlier in these reasons at [63].
In Re B, Lord Wilson stated:
[28] A child's habitual residence is also the thread which unites the provisions of the Hague Convention on the Civil Aspects of International Child Abduction 1980 (“the 1980 Convention”). This Convention applies to a child habitually resident in a contracting state immediately before his wrongful removal or retention: article 4. It is the law of that state which dictates whether his removal or retention was wrongful: article 3(a). It is that state to which, subject to exceptions, other contracting states must order the child to be returned: article 12. Under the Hague Convention on Jurisdiction etc 1996 it is, again, the courts of the contracting state of the child's habitual residence which, as against other contracting states, has jurisdiction to make orders for his protection: article 5(1).
…
[30] Two consequences flow from the modern international primacy of the concept of a child's habitual residence. The first is that, as Reunite submits to this court and as the respondent broadly accepts, it is not in the interests of children routinely to be left without a habitual residence. In that event the machinery of international instruments designed to achieve an orderly resolution of issues relating to them does not operate as primarily intended. Indeed, if they are unilaterally removed from a state in which they were not habitually resident, those aggrieved by their removal can have no recourse to the 1980 Convention. In In re F (A Minor) (Child Abduction) [1992] 1 FLR 548, 555, Butler-Sloss LJ accepted that for that reason it was important that, where possible, a child should have an habitual residence. Indeed, in his article entitled “The Concept of Habitual Residence” in the Juridical Review 1997, p 137, Dr Clive, the great Scottish family law jurist, wrote at p 143 that “with the increasing importance of habitual residence as a connecting factor, it is not sensible to have a situation in which people are routinely without a habitual residence”. In the absence of the habitual residence of children anywhere, Regulation B2R provides a fall-back jurisdiction based on their presence. But, in the context of adult disputes about them, the presence of children in a particular state on a particular day is an unsatisfactory foundation of jurisdiction because, by moving them from one state to another, one of the adults can so easily invoke a favourable jurisdiction or pre-empt invocation of an unfavourable one.
I interrupt here to point out that, whilst Australia is not a party to BIIr we are a contracting state to the 1996 Convention which also provides for a secondary jurisdiction based on presence in circumstances of urgency or where provisional orders should be made. Notably, any protective measures (orders) made pursuant to Arts 11 and 12 of the 1996 Convention must yield to any protective measures (orders) made in the state of habitual residence.
In Re B, Lord Wilson continued:
[31] The second consequence [which flows from the modern primacy of the concept of habitual residence] is that the interpretation in the courts of England and Wales of the concept of habitual residence should be consonant with its international interpretation: see the judgment of the Court of Justice of the European Union (“the CJEU”) in Proceedings brought by A [2010] Fam 42, para 34. Its traditional interpretation in England and Wales has been substantially influenced by the stance adopted by one or both of the parents, often at the expense of focus on the child's own situation. By way of example, our courts had accepted a proposition that one parent with parental responsibility could not achieve a change in the child's habitual residence without the consent of the other parent with parental responsibility: Re M (Abduction: Habitual Residence) [1996] 1 FLR 887, 892 E-H and 896 B. This court has now held that proposition to be wrong: In re R (Children) [2015] UKSC 35; [2016] AC 760 . By way of another example, our old law largely proceeded by reference to a proposition that a child's habitual residence would necessarily follow the habitual residence of the parent with whom he lived: see the discussion of it in In re LC (Children) [2014] UKSC 1; [2014] AC 1038, para 33. But it was held in the LC case, at paras 34 to 37, that the international interpretation of habitual residence required that proposition to be relaxed.
…
[45] I conclude that the modern concept of habitual residence operates in such a way as to make it highly unlikely, albeit conceivable, that a child will be in the limbo in which the courts below have placed [the child]. The concept operates in the expectation that, when a child gains a new habitual residence, he loses this old one. Simple analogies are best: consider a see-saw. As, probably quite quickly, he puts down those first roots which represent the requisite degree of integration in the environment of the new state, up will probably come the child’s roots in that of the old state to the point at which he achieves the requisite de-integration (or better, disengagement) from it.
(emphasis in original)
[46] … The identification of a child’s habitual residence is overarchingly a question of fact. In making the following three suggestions about the point at which habitual residence might be lost and gained, I offer not sub-rules but expectations which the fact-finder may well find to be unfulfilled in the case before him:
1. the deeper the child’s integration in the old state, probably the less fast his achievement of the requisite degree of integration in the new state;
2. the greater the amount of adult pre-planning of the move, including pre-arrangements for the child’s day-to-day life in the new state, probably the faster his achievement of that requisite degree; and
3. were all the central members of the child’s life in the old state to have moved with him, probably the faster his achievement of it and, conversely, were any of them to have remained behind and thus to represent for him a continuing link with the old state, probably the less fast his achievement.
Lord Wilson concluded his analysis based on the discussion at [44] in the Opinion of Advocate General Kokott in In Proceedings brought by A, that all the circumstances in the case must be taken into account where there is a change of place. He described the necessary process as follows:
This should be a composite consideration of all the circumstances in the new environment and as a mirror image, in the old environment in order to determine whether habitual residence has shifted from the latter to the former.[11]
[11] Re B (A Child) (Habitual Residence: Inherent Jurisdiction) [2016] UKSC 4 [54].
In their joint judgment, Lady Hale and Lord Toulson support Lord Wilson’s decision and add a pragmatic perspective. Instructively, they say:
[57] We agree fully with Lord Wilson's reasoning and conclusion on the issue of habitual residence. He has described the identification of a child's habitual residence as overarchingly a question of fact (para 46). At the risk of appearing pedantic, we would prefer to describe it as a mixed question of fact and law, because the concept is a matter of law but its application is a matter of fact. We do not, however, understand Lord Wilson to be laying down a rule of law that a child must always have an habitual residence: rather that, as a matter of fact, the loss of an established habitual residence in a single day before having gained a new one would be unusual. In this particular case, although the respondent said that her intentions were permanent, looked at from the child's point of view, on the relevant date they had been in Pakistan for only nine days, they had no home there, and she had not yet been entered into a school. Had the respondent then changed her mind and decided that the move was a bad idea, it is unlikely that a court would have held that the habitual residence of either of them had changed during those few days.
Taking into account the circumstances of the situation, Lord Wilson considered a range of factors that might lead to a conclusion of a level of disengagement from the old environment and the integration with the new in order to determine the child’s habitual residence. On weighing the factors, he found that the child was still habitually resident in England.
I conclude that what is identified by Lord Wilson as the international interpretation of habitual residence is consonant with the state of the law in Australia.
(b) Discussion on habitual residence
In this case, the mother argues that the child was not habitually resident in Germany on 19 April 2015. She contends that the child never became habitually resident in Germany because her time in Germany, from 2 September 2014 to 19 April 2015, was only on a temporary basis for the purpose of she and the father working on their relationship. As I understand the mother’s case, it is that the assumption by the child of habitual residence in Germany was contingent upon a successful and ongoing reconciliation of the parents’ relationship (which did not eventuate). Expressed thus, the mother’s contention appears to rely heavily on considerations of parental intention, which the above discussion establishes no longer has primacy in Australia or in the United Kingdom. The court is required to examine all the circumstances of the case including, if appropriate, the child’s disengagement with her habitual residence in Australia and her integration with her new life in Germany as well as the intentions of both parents and how either or both implemented his or her intentions.
The child was only seven months old when she left Australia and she remained in Germany for just over six months before her return to Australia in April 2015. I accept that a child’s habitual residence status may differ from his or her primary carer. However, given her young age, I am not inclined to the conclusion that the child did integrate into life in Germany to an extent which was qualitatively different from the extent to which the mother integrated. Whilst in Germany, the child was enrolled in day care for some of the time and became acquainted with her paternal grandmother who lived next door. However, given her very young age, my assessment of the degree to which she assimilated and integrated into life in Germany is closely related to the extent to which her primary carer, the mother, became integrated into life in Germany. This is not an issue of principle, just an issue of fact. As I discuss below, I am not persuaded that the mother did assimilate.
The purpose and underlying intention of the mother and child’s travel to Germany is a relevant factor to be considered along with the others facts. Amongst other things, the mother’s intention and plans provide context to her conduct. I am satisfied on the evidence that the mother intended to remain in Germany only if her relationship with the father reconciled and they wanted to reside together as a family unit.
The evidence before me contained numerous email and text messages passing between the mother and father from before the mother and child arrived in Germany on 2 September 2014 and after they left on 21 April 2015. The oral evidence of the parents covered each of their respective recollection of what they said and did at certain points in time. The electronic communication stands as an actual record of what was stated. Sure enough, it is open to interpretation but probably less likely to be distorted by individual interpretation or faulty recollection. The electronic communication evidence ran to a total of 112 pages in various documents. Unfortunately it was incomplete, sometimes illegible, often repetitive or selectively extracted. If I excuse the disorderly presentation on the part of the respondent mother and the applicant State Central Authority of the email evidence, I do think that counsel for the independent children’s lawyer could and should have put the evidence in better order. It is not open to the Court to disregard evidence merely because it is poorly presented. That may not do justice to the applicant and the respondent nor, most importantly, the child who is the subject of these forum proceedings. More time than should have been spent organising and ordering the electronic communication evidence was spent and that work, together with my absence from the Registry, has contributed in some part to the delay in delivering this decision. In the result, I have been assisted by evidence of the contents of the electronic communications.
Annexed as Exhibit “A” to these reasons are extracts from the electronic communication in evidence before me. It is not a comprehensive reproduction. However I am satisfied, it is representational of the parents’ electronic communications with one another and provides an overview of their electronic communication. I incorporate Exhibit “A” into these reasons.
The impression which I have obtained from hearing the oral evidence and reading the electronic communications (including but not limited to Exhibit “A”), is that the couple had an on again, off again relationship. In the early stages of their marriage they were hampered by a lack of money, the father trying to get adequate work in Australia, and the mother suffering from post-natal depression. In addition the mother expresses jealousy of the father’s personal relationships and/or friendships with other women.
The couple first separated when the child was one month old. Shortly after, the mother decided to go to Perth to live with friends residing there. In preparation for the move, and despite still being separated, the mother tried to get the father employment in Perth. She emailed one of her friends, Mr I, asking if he could help her “ex” find any work. Around this time the father received an offer of employment in Queensland and, given the possible Perth position could not start for at least six to eight weeks, and even then, never certain, the father decided to go and work in Queensland. For some reason, which is not clear from the correspondence, the father’s job in Queensland finished earlier than expected. The father elected not to go to Perth as the couple were still separated. Instead, he returned to Germany. In addition, there is mention that the father obtaining a marital visa was not assured given the parties had separated. The father was on a bridging visa while waiting for his marital visa to be granted.
After a period of non-communication the couple started communicating again about reuniting. The father expressed wariness about the future of the relationship while the mother expressed interest in going to Germany and getting back together. The emails and texts during this time convey an impression the mother really wanted to try rebuilding the relationship, yet the father remained hesitant and non-committal. In a series of text messages and emails the mother pressed the father for some indication of certainty that the relationship would work out before she went to Germany, indications which he was reluctant to provide.
The couple had little money between them to pay for flights and general living expenses. As a result, this delayed any possible speedy reunion in Germany while the mother had to save up for airfares and sort out her personal affairs.
The mother talked about trying really hard to reignite the relationship in Germany; in some messages she referred to it as a visit, she sold some of her belongings (including the child’s cot) but not everything – possibly to pay for flights. The mother sent a couple of small boxes of toys and children’s clothes over to Germany and left larger size baby clothes in Australia. It is not clear whether the mother elected not to sell all her possessions because she was thinking she would return to Australia or because she was disorganised. It is possible that it could have been a bit of both. My overall impression is, however, that the mother was enthusiastic and totally committed to making a success of her relationship with the father if he would meet her half way.
The mother went to Germany in September 2014. In cross examination, the father says he did a range of things to help the mother integrate into life in Germany. For instance he organised language lessons, assisted with getting visas and the relevant residency permits, and enrolled the child in day care so that the mother could get a job.
The mother was resentful of his female friends visiting the father and occasionally sharing the father’s bed or living quarters. The mother did not integrate into life in Germany. She did not to try to do so. My impression is that the success of her relationship with the father was a precondition to her making any effort to establish a life for herself in Germany. It is apparent that the mother was disappointed with the lack of effort and commitment by the father as early as two weeks after she and the child arrived in Germany. Her existence in E Town was tenuous and precarious. She gave evidence that she felt lonely. She was not able to speak the language, having made no effort to do so, and she did not take up any work even though she was offered a couple of positions including as a waitress or washing dishes.
My impression is that the mother did not put down roots in her new environment at any time. The purpose of her spending time in Germany was to provide the father with an opportunity to change his ways and enter into the kind of idealised relationship with her that she craved. It never happened. The most substantial thing that the mother did was to purchase a Thermomix, which is an expensive electrical kitchen appliance, German made and fully portable. It was a purchase for which the father criticised her on the basis that she could not afford it financially. The transaction and the father’s response is emblematic of the parents’ relationship in particular that, in spite of their close physical proximity, they made no life together or as a family.
The mother developed a relatively good relationship with her mother-in-law who she saw regularly. She relied on her as a confidante and spoke to her mother-in-law about her issues. The mother was noticeably emotional when she gave evidence about the relationship she had with her mother-in-law and my distinct impression is that the mother is very fond of the paternal grandmother.
In or about October 2014 the mother decided she wanted to return to Australia as she was homesick and realised that the relationship was not going to work. However, she remained in Germany for some months after this. The mother said that she had to save her fare home as her savings had been depleted by having to purchase essentials and basic food with which, she said, the father failed to provide her and the child. I accept that this was the case.
Counsel for the applicant CCA submitted that, as the relationship seemed doomed from early on in the mother’s visit, the fact that the mother remained in Germany for another five or more months indicated that she settled in Germany. It is a sound submission but not one which accords with my impression of the evidence which is that the mother well-knew that once she left Germany, there would never be another possibility to form a family with the father and that she remained in Germany in order to be satisfied that she had given the father every opportunity, as well as to save up her fares home.
In April 2015 the mother left the house without warning (maintaining that the father would stop her if he knew she was going) and returned to Australia. She left a note saying she was going to Australia for a short period of time. Initially, in response to a flurry of emails that the father sent when he realised the mother had fled Germany taking their daughter with her, the mother suggested she would return but gave no specific date, as time went on it became clear she would not return.
Counsel for the CCA submitted, with some force, that the mother’s indications that she would return to Germany were corroborative of the fact that the mother recognised that she and the child had made a life there and, indeed, had become habitually resident in Germany. I do not accept that submission. I interpret the mother’s response to the father as her leaving the door ajar in the hope that the father would try to persuade her to return, such was the mother’s almost stubborn intent to form a family with the father.
(c) Conclusion of habitual residence
The mother and child were in Germany for just over six months. I am satisfied that the mother went to Germany with the intention she and the father would become a family unit but it did not eventuate.
The father was actively promoting the child’s integration into life in Germany with a view to possibly retaining her in Germany. However, given the child’s tender age, there was no integration. The child was merely cared for by the mother and, to a lesser extent, the father. It was irrelevant to the child’s existence that she was in Germany. Against this background, I am unable to find that this young child became habitually resident in Germany at any stage of the six or so months in which she was in Germany. Accordingly, I will dismiss the application.
Outcome
The parents participated in a number of mediation sessions which were directed to preparing for the possible outcome of this proceeding as much as trying to resolve the forum issue. The mediation did not result in any agreement as to parenting orders which could be made in the event that the application fails (as it has) so I cannot proceed to make orders of that nature. The parents have very limited financial resources. Neither have funds to travel now. I think that the best that I can do for the child at this point in time is to provide for an expeditious listing before me of any parenting application which either parent wants to make in the future. That will mean that the matter comes before me as soon as possible. Subject to each party being accorded procedural fairness, I will not be overly concerned with formality.
I certify that the preceding one hundred (100) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered and that the following six (6) pages is the annexure referred to by her Honour at paragraph 84 of these reasons for judgment.
Legal Associate:
Date: 16 June 2016
Exhibit A
Extracts of Electronic Correspondence
Discussion about giving it a try and going to Germany? Mother seeking reassurance
[Mother] (Email 5/10/2014 9.55am)[12]
[12] Mother’s Affidavit 19 February 2016, 22
It’s not that I tried to get rid of you, but yeah I pushed you away because I didn’t know how to deal with everything and that was stupid but I didn’t know how else to deal with it all ….. So now it’s you that doesn’t want to give it a second chance, you’ve given up after he first try. Yeah you had a lot of reasons too but is that reason for not having a second chance? Yes I know everything that happened before but now I’m sitting here asking for a second chance and you don’t’ want it? Are you positive that you’ve given up after one fail? I know you got hurt but you know what’s probably the best thing to fix that is being loved again and feeling happy and confident in a relationship and in your family … The worst that could possibly happen is that we try again and fail but this time you know we tried our absolute best and still failed. And then we could both move on knowing that it couldn’t possibly work because we tried our hardest.
[Father] (Email 5/11 7.49 pm)[13]:
So you want to come to germany and see what happens? ….
[13] Mother’s Affidavit 19 February 2016, 23, Mother’s Affidavit 4 April 2016, 24.
[Mother] (Email 5/11 8.40 pm)[14]: …
Can you please go back and read that part where I told you what I wanted. Because I don’t want you saying yes and getting my hopes up when you don’t even know what you’re saying yes to …
[14] Mother’s Affidavit 19 February 2016, 23
[Mother] (Email 5/13 2.28am)[15]
You know exactly what it is that I want from coming there though, so don’t tell me I can come if you have no intention of giving me what I want or at least trying to. Don’t let me come if what you want is different from what I want.
[15] Mother’s Affidavit 19 February 2016, 24; Mother’s Affidavit, 4 April 2016, 26.
[Father] (Email 5/13 2.30am) [16] don’t say “let’s see what happens” then
[16] Mother’s Affidavit 19 February 2016, 24
[Mother] (Email 5/13 2.33am) [17]
Sorry that was probably too loose a phrase. I meant “let’s see what happens with us” if nothing is going to happen then there’ll be no point coming. … what is it that you want?
[17] Mother’s Affidavit 19 February 2016, 24
[Father] (Email 5/13 2.30am) [18]
i told you want i want.i want certainty, stability and i don’t want to get fucked oer again. you don’t want to come unless i tell you now tha i will pick you up from the aiport with open arms and a bunch flowers? (errors in original)
[18] Mother’s Affidavit 19 February 2016, 24
[Father] (email date unreadable possibly 5/11) [19]
… I want a life not a game alright. I don’t think you like hear that but what can I say? That’s how it is rather you like to hear that but what can i say? that’s how it is. rather an uncomfortable truth then a sweet empty words eh? You want to come and see what happens ok it cannot harm
[19] Mother’s Affidavit, 4 April 2016, 25.
[Mother] (email 5/11) [20]:
yeah but you have to understand I’m not going to save all year to come there just to say hi and so you can see the child it’s going to be hard enough doing that much travel with a baby. If I come there it’s for a reason. To be with you or to at least try. If you read the msg I sent right before you told me I’m not your priority, that will tell you exactly what I picture in coming over there and then I asked you want you see?
[20] Mother’s Affidavit, 4 April 2016, 25.
[Mother] (Email 5/13) [21]
it is what is in your mind that will decide. I don’t want to waste my time and all my money if you’ve already decided it won’t work in your mind as you will never achieve anything your mind is not open to.
Are you even interested in giving it another chance or not?
[21] Mother’s Affidavit 19 February 2016, 25
[Father] (Email 5/13) [22]
i don’t know [mother].i don’t know what you are like by the time you’d get here.i don’t know where i will be then.
[22] Mother’s Affidavit 19 February 2016, 25
[Mother] (Email 5/15 12.45am) [23]
Yeah but what options do you think you have at the moment?
If I could have things my way, it would mean that we would get back together and we have our happy loving relationship back. And seems living in Australia didn’t work then I would see maybe me and the child living in Germany with you.
I’m not 100% convinced that I should be fighting for our relationship still because you don’t seem interested as I would hope. I’m worried that I want it and you don’t care too much, and then this time I will get hurt because it isn’t what you want.
[23] Mother’s Affidavit 19 February 2016, 27; Mother’s Affidavit, 4 April 2016, 27-28.
[Father] (email date unreadable but probably5/15 ) [24]
I am very careful that’s all.until you’d get here is some time and i’m not sure what yo will be like by then i go easy perhaps in a few weeks you change your mind again.
[24] Mother’s Affidavit 19 February 2016, 27; Mother’s Affidavit, 4 April 2016, 28.
[Mother]: (email date unreadable but probably 5/15) [25]
Unless something happens then I don’t think I will change my mind. I’m a very determined person and I know what I want and I usually don’t stop until I get it.
[25] Mother’s Affidavit, 4 April 2016, 28.
[Mother] (Text message: date unknown): [26]
It just makes me wonder if it could have worked if we gave it another chance.
[26] Mother’s Affidavit, 4 April 2016, 19-20.
Visit or permanent relocation?
Text messages:
M: (30 May 2014) …. I think it’s a time to focus on us and our family to see if it will work …[27]
[27] Mother’s Affidavit 19 February 2016, 28; Mother’s Affidavit, 4 April 2016, 30.
F: (30 May 2014) how long are you planning on staying here anyway? [28]
[28] Mother’s Affidavit 19 February 2016, 28; Mother’s Affidavit, 4 April 2016, 30.
M: (31 May 2014) Well it just depends on how it goes. I will most probably book my ticket there and see how it goes and just book my ticket home when I’m ready. I guess the maximum stay without a visa is 3 months …[29]
[29] Mother’s Affidavit 19 February 2016, 28; Mother’s Affidavit, 4 April 2016, 31.
…
M: (31 May 2014): … I just don’t want all your friends coming over because they all want to meet the child or something. And definitely I do not want … visiting.[30]
[30] Mother’s Affidavit 19 February 2016, 30–31; Mother’s Affidavit, 4 April 2016, 32.
F: (31 May 2014): … if you stay here on long term,this thing between the two of you will have toget sorted.
M: (no date - around 20 June 2014) Yeah I was thinking that for the visit we will at least need a car seat and a pram maybe?[31]
[31] Mother’s Affidavit 19 February 2016, 34.
M: (20 June 2014) And of course I have to have everything planned for, if it will work because its going to be a massive change, I have to get rid of everything I own and all of the childs stuff too just to move there. And I don’t really have a plan if it doesn’t work out. then I just would have wasted a lot of time and all my money and have to start from scratch again with saving and everything … It scares me to think that I could see you and all those yuck feelings come back instead of the nice ones. That everything would be wasted again. That I could move there and get back together just to have the same thing happen, and then if I leave, the child and I leave with absolutely nothing, or would I stay with you and be unhappy just so the child doesn’t have to start over again with nothing? I don’t know and it scares the crap out of me [32]
[32] Mother’s Affidavit 19 February 2016, 32–33; Mother’s Affidavit, 4 April 2016, 29–30.
F: (21 June 2014) so your not sure if it was pregnancy after all?
you know that i did the same thing.don’t throw everything away.pack it up as i did and leave it with a friend for now. [33]
[33] Mother’s Affidavit, 4 April 2016, 30.
…
Breaking up in Germany
Father] (email date unclear – September):
a few more years of hate? So you hate me, feel so terrible, after not even two weeks here in germany, you come up with such sayings and you still dig deep down in the box to bring up the same story again, lets say focused. we talked about that let’s focus on now. so you hate it all, you are terribly sad and i’m a fucking idiot alright, so you already mentioned what you want instead. you want to separate, take the child and lave is that it? how is that a better option? I don’t get it. i don’t get IT after five minutes here you want to turn around and go again. who said it would be easy? we were quiet (sic) down and now wanted to come back together, and before that even happens you already judges us to all coming years full of hate and suffers …[34]
[Father] (email 9/28 10.41pm).
… you didn’t want “to see how things goin”, you wanted all or nothing, and ok, so we did. when you say that things are bad and that you don’t see it happen that it changes and then you would (if nothing changes) rather be alone, then what else am i supposed to understand if not that you say that you would go then, of course with the child. you know, things have changed quiet (sic) some bit, we have a own flat now, i have a proper job and we all are perfectly secure with the insurances. we got everything we need, the child will have a great educationsystem to benefit from and a loving father and grandmother at her side now. she has a secure home. things have gotten better for her. is that unrealistic? i don’t think so. and we can be good too …(errors in original) [35]
[Mother] (email 12/30 10.45am)[36]
All you do is make everything difficult. I’ve been trying my fucking hardest and sometimes I mention going back to Australia coz yeah it would be the easy option. But have I ever planned it or booked a ticket? No, I’ve been her fucking trying down the last second.
Me ending it? Is this not mutual? It is just my fault it’s ending again?
[Mother] (email 12/30 10.48am)[37]
I will not take sole responsibility this time round for our relationship failing. We have always been as bad as each other and I have put in more fucking effort in to this working now than I ever have to anything. So fuck off blaming me for our relationship not working all the time.
[Mother] (email 12/30 10.53am)[38]
I’m not the one ending it this time. You are. I came over to find out what was going on seems you were so rude as to not even tell me you were home. But instead I get abused and told to leave because I’m going back to Australia anyway? Well thanks for deciding for me, made my life a bit easier.
[Mother] (email 12/30 10.53am)[39]
I said if I wanted to ten (sic) then I would. I never said I was booking a ticket and was leaving. I said if I wanted to then you wouldn’t be stopping me.
I NEVER BOOKED A TICKET, NEVER PLANNED TO LEAVE. Until now. Now you’ve crossed a line. And I’m not subjecting the child o a life lie this where WE ARE BOTH fucking things up further and further and providing and (sic) unstable and unhealthy life for our child. (Caps in original).
…
[Father] (email 12/30 11.11am)[40]
You did not say it would be an Option, you said that you will go home!!! and you said that more than once, not ment (sic) to be a thread (sic)? i believed you though, not taking it as an joke as later you claimed it to be: nothing funny about that to me. I did not say to make your life hard. only to make it hard for you to take the child with you. and as i explained to you that i believe that you would do the same in my possision ... (errors in orginal).
[Mother] (email 12/30 11.11am)[41]
Of course I said it many times, I thought about it often as our relationship kept getting worse and worse but I could never leave until I know it’s the end. And apparently this is the end now. Part of me kept thinking it would be best to leave as it’s only going to get worse and the other part of me knew I couldn’t do that …
[34] Mother’s Affidavit, 4 April 2016, 44.
[35] Mother’s Affidavit 19 February 2016, 39.
[36] Mother’s Affidavit 19 February 2016, 42.
[37] Mother’s Affidavit 19 February 2016, 42.
[38] Mother’s Affidavit 19 February 2016, 42.
[39] Mother’s Affidavit 19 February 2016, 43.
[40] Mother’s Affidavit 19 February 2016, 44.
[41] Mother’s Affidavit 19 February 2016, 44.
Post Germany
[Father] (email 4/21 1.43am)[42]
why are you telling me all that stuff again? it’s not like i havnt heard your lies before. you can keep that to yourself as i heard it far too many times and am tired of arguing with you. if you are so sure about how it was i must wonder why you had to steal off secretly instead of doin it the rightand proper way. must be easier for you to justify your actions by demonizing mine.
[42] Mother’s Affidavit 19 February 2016, 61.
…
[Father] (email 4/23)[43]
it was wrong what you did not matter how hard you try to convince yourself.
[43] Mother’s Affidavit 19 February 2016, 62.
[Mother] (email 4/23)[44]
Not for the child it wasn’t. Only for you but it isn’t about what’s best for you.
Make sure you tell the authorities so they stop giving you money for the child.
The 700 euro of the childs money I have with me encase she needs something. If she doesn’t need anything the I will put it in her bank account for her.
[44] Mother’s Affidavit 19 February 2016, 62.
[Father] (email date unreadable)[45]
why would she need an account for her over there if not for staying?
[45] Mother’s Affidavit 19 February 2016, 62.
…
[Mother] (email 4/23)[46]
Every time you message me it is to demand a date that I will bring her back …
[46] Mother’s Affidavit 19 February 2016, 63.
[Father] (email 4/23)[47]
i am not demanding a date. why is it so hard for you to give some sort of an answer? you must have some slight idea if it will be weeks or years ….
[47] Mother’s Affidavit 19 February 2016, 63.
[Father] (email 7/25)[48]
You always hear what fits you, what you did was disgusting and cowardly the child had a great home here and the way you took that from her was wrong. you claimed to come back and then of course, you decided different i dont believe you ever even considered for a second to come back. you lied. no matter how much you try to convince yourself of it it was not a good thing you did nor was it for the child. it was wrong its NOT on. you alone can decide but you got that point wrong from the start and get over yourself. your actions were not for her but for yourself. i still cant believe that you just left without a word and i hate that you cant see anything wrong with it. i always said and still do, that you are a good mother but this, this was not the act of a good mother but selfish.
[48] Mother’s Affidavit 19 February 2016, 67.
[Mother] (email date unreadable):[49]
Sorry but I did not steal YOUR kid. She is OUR child. I brought her to Germany with me to work on our marriage, it didn’t work out and so we left again. No I didn’t want to leave in that way but there were no other choices for me. You were hardly going to drop us at the airport and wave goodbye. Instead YOU tried making the decision that the child shall not leave Germany and when I tried talking to you about other outcomes you didn’t want to know anything except that the child shall stay in Germany because you said so and with no real expectations about how that would even work just that you wanted everything your own way …
[49] Mother’s Affidavit 19 February 2016, 68.
0