Commonwealth Central Authority & Cotter
[2016] FamCA 209
•5 April 2016
FAMILY COURT OF AUSTRALIA
| COMMONWEALTH CENTRAL AUTHORITY & COTTER | [2016] FamCA 209 |
| FAMILY LAW — CHILD ABDUCTION — 1980 Hague Convention — alleged wrongful retention of child — habitual residence. FAMILY LAW — CHILD ABDUCTION — exceptions to return — extent to which child is settled in new environment is irrelevant if application filed within one year of retention (as here) — grave risk of harm and intolerable situation — no exception to return applicable — a relevant consideration to the exercise of the discretion not to return a child if (unlike here) an exception had been found to apply may include delay and/or the extent to which a child has integrated into her new environment — application dismissed. FAMILY LAW — CHILD ABDUCTION – practice and procedure – appointment of an independent children’s lawyer – mediation – conditions to return — direct judicial communication within the International Hague Network of Judges. |
| Family Law (Child Abduction Convention) Regulations 1986 (Cth) |
| APPLICANT: | Commonwealth Central Authority |
| RESPONDENT: | Mr Cotter |
| INDEPENDENT CHILDREN’S LAWYER: | Victoria Legal Aid |
| FILE NUMBER: | MLC | 5000 | of | 2015 |
| DATE DELIVERED: | 5 April 2016 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Bennett J |
HEARING DATE: LAST SUBMISSION: | 14, 15, 16, December 2015, 29 January 2016 5 and 8 February 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Porritt |
| SOLICITOR FOR THE APPLICANT: | Department of Human Services, Legal Services Branch |
| SOLICITOR FOR THE RESPONDENT: | Self-Represented |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Dowler |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Victoria Legal Aid |
Orders
The application of the Commonwealth Central Authority (“CCA”) filed 3 June 2015 be granted.
The father, Mr Cotter, do all acts and things necessary to cooperate with the applicant CCA and the mother, Ms R, to facilitate the return of the child B born … 2010 (“the child”) to Argentina within 10 days or such other time as the CCA may agree upon and confirm in writing.
The child be returned to Argentina in the care of the mother Ms R (“the mother”).
For the purpose of the mother being able to return the child to Argentina, paragraph 1 of the Order made on 30 July 2015 (placing the child on the watch list) and paragraph 4 of the Order made on 14 December 2015, as amended on 19 December 2015 (for the surrender of the child’s passport to the court for safekeeping) be and are hereby discharged with the effect that the child’s details are removed from the watch list and the mother is hereby at liberty to collect the child’s passport from the court.
The CCA inform the father in writing of the details of the flights to be taken by the mother and child from Australia.
The father be and is hereby restrained by injunction:-
(a) from communicating with or being in the presence of the child within 24 hours of the child’s scheduled departure from Australia as notified to him pursuant to paragraph 5 of this Order;
(b) from removing the child from the State of Victoria;
(c) from attending at or within 100 metres of the airport from which the child and mother are scheduled to depart Australia;
(d) from being a passenger on the same flight as the mother and child are ticketed to depart -
and from causing permitting or suffering his agent or any member of his family or his partner, Ms N, to do so.
I reserve liberty to each of the CCA, the father and the independent children’s lawyer to have this matter relisted before me within 2 clear working days after delivery of this decision for the purpose of making application for any further or other conditions to return and any party who seeks to make such an application must first provide to each other party to the proceeding by electronic means a minute of the specific conditions sought by him or her and then provide a copy of that minute to Registrar Sikiotis of this Registry - email …
The CCA inform my associate (email …) promptly once it receives confirmation from the mother that the child has arrived in Argentina.
IT IS DIRECTED:
That, upon my associate receiving notification that the child has arrived in Argentina, this matter be relisted before me with all parties being excused from appearing or attending court and the application of the CCA and the response of the father thereto be otherwise dismissed and paragraph 6 of this Order be discharged.
That a copy of these reasons for decision be sent to Judge Tagle.
All subpoenaed material be returned to the party providing same within 30 days or the expiration of the appeal period.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Commonwealth Central Authority & Cotter 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 5000 of 2015
| Commonwealth Central Authority |
Applicant
And
| Mr Cotter |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
Contents
Introduction
Background
Procedural History
Evidence
(i) Standard and burden of proof
(ii) Credit and impression of witnesses
The Legislation
The Issues Raised by the Father
Habitual Residence
(a) The law
(b) Discussion on habitual residence
(c) Relevance of the father’s subjective intention
(d) Acquiescence
(e) Shuttle custody arrangement
(f) Conclusion of habitual residence
The Grave Risk Exception
(a) Professor V’s evidence in relation to crime and security in Rosario
(b) Dr D’s evidence in relation to crime and security in Rosario
(c) Travel warnings and government reports including United States Department of State reports
(d) Other evidence concerning grave risk of harm and/or intolerable situation
(e) The law
(f) Conclusion on Rosario posing a grave risk of harm or an intolerable situation
The Father’s Contention that the Child Is Settled in Her New Environment (Australia) as a Ground for Refusing Return
Exercise of Any Discretion about Return
Conditions to Return
Direct Judicial Communication within the International Hague Network of Judges
Conclusion
Appendix 1
Schedule of cases
Introduction
The Commonwealth Central Authority (“CCA”) by application filed 3 June 2015 seeks the return to Argentina of the child B born in 2010 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 mother, Ms R (“the requesting parent” or “the mother”).
The respondent is the father, Mr Cotter (‘the father”) of the child. He was born in Australia. He is 46 years old, a skilled tradesman and a property developer by occupation. He has British and Australian citizenship. He resides in a suburb of Melbourne with his partner, Ms N.
The requesting parent is Ms R. She was born in Argentina and is 45 years old. She is a professional. She holds dual Argentinian and Australian citizenship. She resides in the city of Rosario, Argentina. She is in Australia awaiting the outcome of these proceedings.
The child B is the only child of the respondent and the requesting parent. At the time of the hearing she was enrolled in preparatory grade at P Primary School. She is an Australian citizen and has an Argentinian identity card.
The Regulations implement the 1980 Convention on Child Abduction[1] (“1980 Convention”) into Australian law. 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. It is the Regulations, and not the 1980 Convention, which have force of law in Australia. I will refer to the Regulations and articles interchangeably depending on the context.
[1]Convention on the Civil Aspects of International Child Abduction; concluded at the Hague on 25 October1986.
The 1980 Convention entered into force between Australia and Argentina on 1 June 1991.
It is alleged that the father wrongfully retained the daughter in Australia, within the meaning of reg 16(1A) of the Regulations, on 24 February 2015. After six days of evidence and submissions and consideration of the legal principles that pertain to forum cases such as this, I am satisfied that retention is wrongful and that the application of the CCA should be granted.
The issues which arose for determination by me are:
(a) Whether the child was habitually resident in Argentina immediately prior to the father’s retention of her in Australia on 24 February 2015. The father alleges that the child had not acquired habitual residence in Argentina prior to the alleged wrongful retention notwithstanding that she had resided in Argentina from the age of six weeks, had thereafter been present in Australia for a total of only nine months[2] and then only with the agreement of the mother.
(b) Whether the return to Argentina would expose the child to a grave risk of harm or otherwise place her in an intolerable situation within the meaning of reg 16(3)(b) of the Regulations. The father alleges that Rosario is a city rife with drug related crime and corruption including corruption within law enforcement agencies and the judiciary.
(c) Whether the fact that the child has been in Australia continuously since 11 November 2015 is relevant where the application of the CCA is filed within a year of the alleged wrongful retention (as is the case here).
(d) What conditions (if any) on return of the child to Argentina are “appropriate to give effect to the Convention”.[3]
[2] From 24 November 2012 to 25 February 2012; from 24 November 2013 to 24 February 2014 and from 11 November 2014 to 24 February 2015.
[3] Pursuant to reg 15(1)(c) of the Regulations.
Habitual residence (issue (a) above) is a jurisdictional fact. If the father’s contention about habitual residence was correct, and the child was not habitually resident in Argentina immediately prior to the alleged wrongful retention on 24 February 2015, the Regulations would have no application to this case and the application must fail.
The issues of grave risk of harm (issue (b)) and necessary conditions to return (issue (d)) are determined by an assessment of the relevant evidence and the application of discretion, the exercise of which is informed by legislation and case law.
Issue (c) is misconceived.
I have decided that the child must be returned to Argentina in the care of the mother. I have imposed some conditions to ensure that the child has a return journey which is as uneventful as possible. A parenting agreement which was reached between the parents and signed in Argentina on 25 October 2012 will continue to operate unless or until some contrary judicial decision is made in Argentina or the parents otherwise agree. Direct judicial communication with the Hague Network Judge in Argentina leads me to believe that it would be possible to have any other orders to which the parents agree formalised prior to the child’s departure from Australia, if necessary or desirable.
The 1996 Convention[4] has not entered into force between Australia and Argentina. If it had, the recognition and enforcement provisions of the 1996 Convention would have been particularly beneficial for this family. The mother could have had the Agreement of 25 October 2012 rendered enforceable in Australia and avoided recourse to the 1980 Convention. As it is, the parents have run a Hague return proceeding and are assisted by direct judicial communication between myself and Judge Graciela Tagle of Cordoba, Argentina.
[4] 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 (“1996 Convention”).
Subject to not travelling on the same flight or being at the same airport as the mother and daughter as they make their way back to their home in Rosario, the father can move between Australia and Argentina as he pleases. Both parents can institute parenting proceedings in Argentina as and when he or she chooses to do so. Although, as I discuss later in these reasons, the family might just revert to the parenting arrangements which they have in place in which case no further proceedings may be necessary.
This Court’s jurisdiction is curtailed by s 111CD(1)(f) of the Family Law Act 1975 (“the Act”) and will, henceforth, be exercised having regard to the child’s place of habitual residence being Argentina. When the child is in Australia (and still habitually resident in Argentina), s 111CD(2)(b) of the Act provides, inter alia, that orders may be made by this Court for her urgent protection[5] or provisionally.[6] In either case any order made here will lapse once an order is made in Argentina which is incompatible with our order. Whilst the child is present in Argentina, this Court will not have jurisdiction to make orders about her unless a request to assume jurisdiction is made to this Court by, or at the invitation of, a court or other competent authority in Argentina.[7]
[5] See art 11 of the 1996 Convention.
[6] See art 12 of the 1996 Convention.
[7] See s 111CD(1)(c)(iii) of the Act.
It is appropriate that the child be returned to Argentina without delay. Accordingly, any party who seeks further conditions to return ought to act quickly.
Background
The parents met in South America in January 2002 and married in Australia in 2003. The couple lived mainly in Australia and would travel back to Argentina regularly to spend time with the mother’s family.
In 2004/2005 the mother was diagnosed with a breast tumour and operated on in January 2005 in Argentina. She underwent chemotherapy in Australia.
In May 2009 the mother went through fertility treatment in Melbourne and the child was born in early 2010. The fact that other fertilised embryos were stored for the mother is relevant to the acrimonious relationship which developed between the parents.
In March 2010 the mother was diagnosed with breast cancer. The father agreed in April 2010, that the mother take the child with her to Argentina for 18 months whilst the mother had medical treatment. The mother did so. The mother does not necessarily agree that their stay in Argentina was for the finite period of 18 months but she acknowledges that she agreed to return to Australia. The mother took the child to Argentina when the child was just six weeks old.
The parents’ relationship broke down whilst the mother and the child were in Argentina. The mother filed a divorce application in Australia in October 2011 and the couple were divorced according to Australian law in February 2012.
In March 2012 the child, who was then two years old, was enrolled at S School, Argentina.
On 11 May 2012 the mother, through her Australian lawyer, Mr Keith Elliott, requested a property settlement and advised the father that she would initiate proceedings in the Federal Circuit Court at Dandenong. At the request of the mother, Mr Elliott placed caveats on various of the father’s Australian properties on 15 May 2012.
This current proceeding is the second set of Hague return proceedings to have been instituted between the child’s parents. The first Hague return application was initiated by the father in March 2012 after the mother said that she would not return to live in Australia. The father alleged that the child was being wrongfully retained in Argentina by the mother. The father contacted the CCA and instructed them to lodge a Hague application for the return of the child to Australia. The CCA contacted the Argentinian Central Authority asking them to deal directly with his Argentinian lawyers, Sotelo & Sosa. Hague return proceedings were instituted in Argentina in due course by Sotelo & Sosa acting on behalf of the father.
On the 6 July 2012, the mother applied to the Rosario court seeking provisional custody of the child. The application was not granted. The court advised that ‘the status quo be maintained’ and that the father be notified of the application. In a letter from Lorena Greslin of Olivero, Silvano, Dubois & Pelly Lawyers to Nicholes Family Lawyers, Ms Greslin notes that there is no evidence on file of the father being notified of this application.[8]
[8] Exhibit “F1”, Letter from Lorena Greslin, of Olivero, Silvano, Dubois & Pelly Lawyers, to Nicholes Family Lawyers, 30 June 2015, 2.
The father’s Hague return application was set down for hearing, in Argentina, on 25 October 2012. Both parents and the child were in Argentina. Each parent was legally represented. There was discussion with the judge around a resolution of all matters. The father now alleges that the legal process in Argentina was flawed and that his Hague return application was not disposed of by the Tribunal colegiado de familia no. 3 according to law. On the same day, 25 October 2012, the mother’s application was before the collegial court of Rosario (Family Court of Rosario court number 3) seeking orders for a marital property settlement and temporary interim access orders for the child.
The parents, through their respective lawyers in Argentina, negotiated a settlement which was embodied in a number of documents. The father’s case is that the documentation failed to formalise all matters which were agreed, in particular, his entitlement to ownership of the frozen embryos. The requesting parent denied that any agreement was reached about the embryos.
An agreement was drawn setting out the terms of the compromise of the father’s Hague return application and what parenting arrangements would apply into the future (“the Agreement”). The legal representatives for the parents told the presiding judge, Deputy Judge Diana, of the Agreement. The Agreement was ratified and homologated[9] on 25 October 2012.
[9] Homologate is defined in the Macquarie Dictionary as to approve; ratify.
In relation to the Agreement, the father now alleges that he did not understand what he was agreeing to because his command of Spanish was inadequate at the time. In particular, he did not understand that he was relinquishing his entitlement to proceed with the Hague return application at some future date and that, he says, certain other financial matters and his entitlement to use the frozen embryos were omitted from the Agreement. The father acknowledges that, at the time of signing the Agreement, he was enormously relieved that the resolution involved the child living with him in Australia and in Argentina for some months each year and that she would shortly be in Australia to meet his family. The impression conveyed by the father to me was that he probably did not pay much attention to the details of the Agreement over and above having secured a visit by his daughter to Australia in the very near future and that he would spend time with her extensively into the future. The applicant CCA does not demur that the father’s command of Spanish was limited and that he had no interpreter to assist him when reading and signing documents all of which were written in Spanish.
The father was legally represented in proceedings in Argentina but did not insist on an interpreter. He could have refused to sign the Agreement until he was satisfied that he understood the terms of the Agreement. Significantly, there is no suggestion that he told anyone that he did not understand the Agreement at the time he signed the Agreement.
The Agreement, which has translated from Spanish to English, provides as follows:[10]
In the Hearing held on October 25th 2012, included at folio 33, and the parties being duly represented, Plaintiff (the mother) states that they [the parties] have come to an agreement with respect their daughter, as follows: One: [The custody] will be exercised by the Plaintiff (the mother), except during the time the Respondent (the father) remains in Argentina. Two: [The father] will remain in Argentina for a period of three (3) months a year, in this city of Rosario, and during said time custody will be exercised by the father, with ample regime of visitation in favour of the mother, who will have access at least every second weekend, and Tuesdays and Thursdays, from the end of school hours until dinner time, when the minor will be returned to her father. Three: In accordance with the contact regime favoring the father, while the mother has the custody, the minor girl will travel to Australia with her father or accompanied by a reliable person; the minor will remain in that country under the custody of her father for the period of three (3) months per year, ensuring the school calendar is not affected. Four: In case the minor’s accompanying person is the mother, and the mother remains in Australia for the period of three (3) months when [the child] is under her father’s custody, the mother will have contact with her daughter at least every second weekend, and two more days during the week, from 12.00 a.m. (noon) to 8 p.m., when the minor will stay with her mother. Five: Each party shall bear its own costs. Six: both parties require each other to submit authorizations so that [the child] travel abroad with either party for short periods, which shall not exceed fifteen (15) days per year. Seven: [The child] will travel together with her father to Australia between November 11 and the end of November, and he will return her to Argentina before February 10 2013. Eight: The parties hereto request confirmation of this agreement.
Ruling No. 3021 dated 14 November 2012 ordered the Confirmation of the Parties agreement for Custody and Visitation Regime for the child.
[10] Affidavit of Ms C sworn 2 November 2015 which attaches Ruling No 2883 of 23 October of the Three-Judge Family Court No 3 Rosario, Province of Santa Fe, Argentina together with an English translation, 12.
The child travelled to Australia with her father between 24 November 2012 and 25 February 2013.
On 20 December 2012 Mr Elliot on behalf of the mother wrote a letter to the father stating that the Agreement was ‘not very precise’ and requested a redraft. The style of the Agreement is perhaps less detailed than the terms in which Australian courts and practitioners customarily document agreements. We, in Australia, are accustomed to prescriptive drafting which descends to dates and times of day and provides for contingencies whereas many other jurisdictions do not. Other jurisdictions, such as the United Kingdom, employ much less detail than us. In any event, the Agreement was not redrafted.
The father sought legal counsel from Mr Le Souef of Meier Denison Guymer in Australia on 23 January 2013 because the mother had kept the child overnight without his consent. The Agreement provides that, when the child is in Australia for three months each year, the mother to have access to the child each alternate weekend and for two day periods each week. By email, the mother explained that the logistics of getting from her accommodation in the eastern suburbs to the father’s home in the south eastern suburbs of Melbourne, in the timeframe suggested by the father, was unreasonable. The mother asserts in her email that she had tried to contact the father the day before to ask him about keeping the child with her overnight. As she had not heard back, the child stayed with her mother who dropped her off the following day. This appears to be an instance of the father purporting to place reliance on the terms of the Agreement
The father’s evidence is that on the 1 February 2013 he sighted the English translation of the Agreement for the first time. He does not contest the authenticity of the document but asserts that he thought that the document which he signed provided the terms that he now realises were not included.
On 31 January 2013 the father wrote to an officer of the CCA regarding his dissatisfaction with the judicial process in Argentina which, he alleged, was non-compliant with the 1980 Convention. He also expressed his dissatisfaction regarding not receiving a translator.[11]
[11] The father to Ms W CCA, email dated 31 January 2013.
For the proceedings in Argentina the father was informed by the CCA that the Argentinian Central Authority in Buenos Aires had closed the matter as the parties had reached an agreement.
The father agreed in cross examination that the CCA had suggested he obtain legal advice, which he then sought from Mr Le Souef in Australia. According to the father Mr Le Souef’s advice was that “it was a very ambiguous situation and it could go either way”.
On 13 February 2013 Ms W of the CCA wrote to the father in response to the father’s concerns, noting she had passed them on to the Argentinian Central Authority. Ms W’s communication read:
The Argentinian Central Authority suggests you contact your Argentinian attorney or a different attorney in Argentina to explore your legal options in relation to the agreement. I also urge you to contact a lawyer in Australia if you are interested in having mirror orders made here which reflect the Argentinian agreement, which may assist in enforcing the agreement in Australia.
In cross examination the father confirmed that he did not act on this advice. He did contact his lawyers in Australia but not for the purpose suggested by Ms W. In fact, because the 1996 Convention had not entered into force between Australia and Argentina, any complimentary or “mirror” orders could only have been obtained in a parenting case under Part VII of the Act. Before me, the father sought to justify his inaction by saying “why would I be contacting an Argentinian lawyer to try to get something done that was done as a total joke in the first place”.
In his responding communication to Ms W, only 11 minutes after receiving her email, the father replied:
[Ms W] this is the problem. I went to court, chaired by a judge that was supposed to hear the hague application. Instead of proceeding with the case, the judge has suggested and chaired the negotiation which we were able to reach. Where was my translator? I thought it was a hague hearing. That is what i went over there for. This is a joke. i want the hearing held here then. This is like a scam. I withdrew the application based on the other points, which are now being manipulated. I have spoken to my lawyer here and nobody knows much about his stuff. The payment is a minor issue, but just to highlight my point, when the payment was devised they divided it up into 5 different parts. Custody, child support, property, something else i don’t remember and hague. So if the hague was withdrawn as they say, why am i paying for that part of it. I don’t want to send my daughter back. How can i trust their system?[12]
(errors in original)
[12] Affidavit of the father, affirmed 8 July 2015, Annexure “JRC-O5”.
Upon further enquiry as to why the father did not contact an Argentinian attorney or a different one the father said he didn’t have a lot of time between receiving the email and when his daughter returned to Argentina on 24 February 2013.
When the father was questioned by Ms Porritt , (counsel for the CCA) in cross examination as to why he had not taken any action to set aside the Agreement, or appeal it, over the past three and half years the father replied:
Well, a couple of things. I — unfortunately, I had faith in my ex-wife, again, and trusted her. And I tried my best to make it a situation that would work for everyone without — I — I’ve never wanted to make her – to force her to live here. I was prepared to be flexible. I asked her to be flexible. And I’ve — I have an email that I’ve sent to her and said, “You can forget that agreement. I wipe my arse with that agreement, so anything you get out of me from hereon is my generosity.
On 5 February 2013 the parents had an altercation at the changeover location, a shopping centre, in Australia. According to the father’s affidavit the parents were both physically violent to each other. The father deposes he “pushed the mother away in an attempt to stop her pulling at [the child] and the mother fell to the kerb of the road” and that when the mother went to the car to retrieve the child he “pulled her away from the car door”.[13] The police were called although it is unclear by whom. After explaining what had transpired, the father left the shopping centre with the child. During cross examination the mother recounts that she was
lucky not to get hit against the floor, where there was a big stone, … where you took [the child] from me, like a ball, I was lucky that there was somebody who calmed you down. And then you stopped, and you didn’t keep trying to do something else.
The mother frequently referred to this incident as an incident of family violence in which, had her head hit the nearby rock, she could have died.
[13] Affidavit of the father, affirmed 8 July 2015, [72].
The mother returned to Argentina with the child on 24 February 2013.
The father travelled to Argentina on two separate occasions in 2013 — 20 April 2013 to 24 June 2013; and 24 August 2013 and 25 September 2013 — to spend time with his daughter. During this time his daughter lived in his apartment in Rosario.
On 1 November 2013, the father wrote to his lawyers Sotelo & Sosa in Argentina accusing them of overcharging him for the proceedings in 2012. On 3 November 2013 the mother had informed the father via email that she has heard about lawyers regulating their fees and the alleged involvement of Judge Diana. The same day, the father responded, “this is incredible, and incredible timing too … People like this should be punished, otherwise Argentina is always going to be shit!!!!!”.[14] It appears that, to the extent that the father feels aggrieved at the legal costs rendered by his lawyers in Argentina, it is a grievance which the mother has in some respects promoted. In particular, the father objected to fees relating to an alteration of property interests being calculated with reference to the current market value of the property.
[14] Affidavit of the father, affirmed 9 November 2015, [14].
On 4 November 2013 the father sent another email to his lawyers Sotelo & Sosa expressing his frustration and dissatisfaction with the legal system in Argentina and further accusing them of overcharging him for their services and including property in the deal in order to get extra fees. The father accused them of only being “interested in … milking the maximum fee”. The email is lengthy and starts off in Spanish breaking into English about 15 lines in about a quarter of the way. The email begins by describing a newspaper article which portrays Judge Maria Diana as corrupt. From Australia, the father wrote:[15]
… After the court case, I might add was supposed to be a hague hearing, i got whisper of your intentions to have your fees regulated on property value … but the truth is, you always intended to get the judge to regulate in this way, and then you would have presented it to me, and said ‘look, we will do it for a reduced fee, because we like you” or some shit like that. Then you would hold up your hands and say, it is not our fault, those are the fees the judge regulated. I am not an idiot [Mr F]. There is so much evidence against you. You go to your corrupt judge Maria Diana and ask her to regulate the fees. Just make sure you tell her that my properties were purchased in 2001, and 2002, and i was married in 2003 you fucking CUNT. Also tell her that it was supposed to be a hague hearing, and that all the negotiations were done within the hour. Tell her that YOU FUCKING CUNT. Trust me [Mr F], you do not want to talk with me in person. I gave you plenty of time to prove to me, that you were not criminals, but you have pursued this out of greed and it will blow up in your face. I am not a sheep, like so many of your countrymen, who just roll over and go with the system. I will fight you every step of the way. You made a veiled threat about my apartment once before, and i will let it go, not knowing if i fully understood. Well you go for it. Do your best. The next time i am there i will be out the front of your office every second day, telling the whole world what a fucking cunt and criminal you are … You may have bitten of more than you can chew, you greedy little fat CUNT.[16]
(errors in the original)
Notably, the father did not complain about the lack of an interpreter or that the Agreement did not reflect the terms upon which he says he agreed. There is certainly no evidence to suggest that the Agreement was revoked.
[15] Ibid [144].
[16] Affidavit of the father, affirmed 9 November 2015, Annexure “JRC 43”.
According to the father, he and the mother reconciled in November 2013. The mother does not agree that there was any reconciliation.
The child was present in Australia with her father between 24 November 2013 and 25 February 2014.
In March 2014 the mother received a letter from the X IVF Clinic regarding the unused embryos which had been stored for five years. The parents had a dispute about whether to retain or destroy the embryos. The father implored the mother, verbally and in writing, to give control of the embryos to him so that, with the assistance of a surrogate (with whom he is in a relationship), he would arrange another pregnancy and the child would have a sibling. The mother did not agree.
On 24 August 2014, the father appealed to the Patient Review Panel[17] to seek an extension of 6 months storage for one embryo. On 28 August 2014, the mother informed the panel of her wish to have all embryos thawed and discarded. She advised that she and the father were divorced and had a daughter together.[18] The decision of the Review Panel records the father’s submission as including that “[the mother] will be in Australia in one month’s time and he is willing to do whatever it takes (including bribery and threats) to convince her to consent to the extension of storage and use of the embryo”.[19] At the hearing before me, the father said that he did not realise that his submissions to Patient Review Panel (about threats and bribery) could be recorded in the Review Panel’s decision which was published to the mother.
[17] The Patient Review Panel, established under the Assisted Reproductive Treatment Act 2008 is an independent body. It provides determinations on Assisted Reproductive Treatment applications.
[18] Affidavit of the mother, dated 21 April 2015, Patient Review Panel, Decision of the Patient Review Panel: Mr Cotter and Ms R, 20 October 2014, Annexure “L” 163.
[19] Ibid 164.
In an email dated 22 August 2014,[20] which was a few days before the father gave evidence before the Patient Review Panel, the father addressed the following remarks to the mother about her refusal to allow him to have the embryo:
It just shows who and what you are. I made so many excuses for you, after you kidnapped [the child], but i was delusional. You are just shit. If you don’t want the child, then have nothing to do with it. Let me have it. Do something for me. Well i have told you and i will tell you again, let me have the egg and i will make your life easy, destroy it and i will make your life as hard as i can. I took my foot off your throat during the hague trial, because i still cared, but destroy the egg and my foot will be on your throat for the next 10 years, i swear to god you have no idea how hard i can make it for you. Let me have it, and i can make your life easy. The choice is yours …
(errors in the original)
[20] Affidavit of the mother dated 21 April 2015 [21] and Annexure “M” 195.
The decision of the Patient Review Panel was delivered on 20 October 2014 and was to the effect that it had no jurisdiction to hear the matter pursuant to s 33A of the Assisted Reproductive Treatment Act 2008 (Vic). The father’s application was declined.
The mother was next due to take the child to Australia on November 2014, pursuant to clause three of the Agreement (see [31] of these reasons). On the 15 September 2014 the mother had filed a complaint to the Argentine court alleging violence from the father. She requested permission to not travel to Australia with the child due to the alleged threats. The court granted the relief sought by the mother in October 2014.
On the 20 October 2014[21] the father sent another email to the mother. He said, inter alia:
I never thought I could hate you so much. You are a cunt. I hope you don’t regret this, but then again, i know you won’t. You are a cold bitter cunt of a person. Always the boss. Always the boss. I know it is your right to do this but my opinion or wishes didn’t get a seconds consideration. Just like with [the child]. What [the mother] wants is all that matters. Don’t ever speak to me, don’t ever look at me, don’t ever ask me for a thing. You don’t exist in my heart or my mind. You are a fucking Bitch.
(errors in the original)
[21] Ibid Annexure “M”, 199.
In October 2014 the father arrived in Argentina and went directly to the child’s school without notice to the mother. The father tried to take the child. The child’s maternal grandmother intervened and invited the father to join her at a hotel. An argument ensued between the maternal grandmother and the father. The police attended. The child was returned to the care of her mother. A few days later, on 4 November 2014, the maternal grandmother, mother, father and the child attended court about the dispute over the child.
Orders were made on 10 November 2014 by the Collegial Court of Family Affairs number 3 in Rosario, Argentina in line with the Agreement that the child would travel with either parent: a) to Australia for three months between November and return to Argentina in February the following year, with an extension of ten days in the event of illness, strikes or other unforeseen circumstances; and b) for fifteen consecutive days a year to any country in the world returning to Argentina, until she is of age.[22]
[22] Affidavit of the mother, Authorisation to Travel, Annexure “O”.
Pursuant to the orders made 10 November 2014,, the mother consented to the father travelling with the child to Australia on 11 November 2014 and returning on 24 February 2015. The child travelled as arranged.
On 2 February 2015, some three weeks prior to the child’s scheduled return to Argentina, the father filed an initiating application seeking parenting orders under Part VII of the Act in the Federal Circuit Court in Dandenong.[23] The next day, the mother and maternal grandmother travelled to Australia to see the child and intending to take her back to Argentina on 24 February 2015.
[23] The Federal Circuit Court of Australia is the main trial court for family law in Australia. Appeals from the Federal Circuit Court lie to this Court. Appeals from this Court lie to the High Court of Australia only with leave of the High Court of Australia.
On 24 February 2015 the father refused to allow the mother to take the child back to Argentina and she has remained in Australia since then.
The child’s passport expired on 25 March 2015. During the hearing of this Hague return application, I indicated that I would direct that the parents do all acts and things necessary to obtain a further passport for the child. The father said that participation in any process which could lead to the child being taken out of Australia was beyond him. I dispensed with the father’s consent to the passport application and, I understand, that the mother would have caused a new passport to issue for the child.
An order restraining both parties from removing the child from Australia was made on 29 April 2015 and her name placed on the Airport Watch List for 60 days.
On 3 March 2016 the parenting proceedings pending in the Federal Circuit Court were dismissed by Judge Phipps with the effect that the only live proceeding in Australia is this Hague return application.
Procedural History
The mother completed her request for a return application to be made under the 1980 Convention on 3 March 2015. The mother’s request was sent through appropriate channels to the Australian Central Authority (“ACA”)[24] which collated all documents by 27 May 2015. This return application was filed on behalf of the CCA on 3 June 2015.[25]
[24] For the purpose of these reasons, there is no distinction between the ACA and the CCA.
[25] Ordinarily the application would be filed on behalf of the State Central Authority but there was a lapse in the appropriate delegation of power.
This application was listed before Johns J on 16 June 2015. Her Honour made orders for the parties to file evidence and allocated the final hearing to Macmillan J on 23 July 2015, estimated to take two days.
Macmillan J referred the matter to me to be allocated to another judge.
On 1 July 2015 I appointed an independent children’s lawyer and extended the time in which parties could file documents which Macmillan J had ordered be filed. My reasons for decision that day are published under case neutral citation [2015] FamCA 1202.
Pursuant to an order made on 1 July 2015 Ms Caroline Smith, Solicitor, was appointed as the independent children’s lawyer for the child within the meaning of Division 10 of Part VII of the Act. Her role is to form an independent view, based on available evidence, of what is in the best interests of the child and then act in these proceedings in what she believes those best interests to be.[26] Ms Smith is not a legal representative retained by the child and she is not bound by any instructions from her.[27] The role of the independent children’s lawyer is to deal impartially with the parties, ensure that any views expressed by the child are fully put before the court, to analyse documentary, expert evidence and reports and to distil from that evidence significant matters for the purpose of properly drawing them to the Court’s attention. The independent children's lawyer is also under a specific duty to take steps to minimise for the child the trauma associated with proceedings[28] and to facilitate an agreed resolution of matters at issue in the proceedings to the extent that it is in the best interests of the child to do so.
[26] Family Law Act 1975 (Cth) s 68LA(2).
[27] Family Law Act 1975 (Cth) s 68LA(4).
[28] Family Law Act 1975 (Cth) s 68LA(5)(d).
The father filed his response on 8 July 2015.
The parents attended a specialised Hague Mediation convened by Victoria Legal Aid with sessions on 16, 19 and 23 October 2015.
On 30 October 2015, I set the matter down for final hearing to commence on 14 December 2015. All parties agreed to an estimate of two days, which proved to be a gross under-estimate.
The final hearing proceeded on 14 December, 15 December and 16 December 2015. It recommenced on 29 January 2016 and then again on 5 February and 8 February 2016.
Evidence
There were no objections to the admissibility of evidence.
The CCA relied upon the following documents:
(a) Form 2, filed 3 June 2015, for commencement of proceedings under the Regulations, which includes an Application under the Convention regarding the child dated 3 March 2015; an Affidavit of Ms R (the mother), sworn 21 April 2015 with annexures A1-R; an Affidavit of Sofia Paglia, Attorney at Law dated 21 April 2015, and an Affidavit of Ms Y attaching authorisation.
(b) Outline of Submissions document filed 30 November 2015.
(c) Affidavit of Ms C, sworn 22 July 2015 which attaches a further affidavit of the mother sworn 20 July 2015.
(d) Affidavit of Ms C sworn 6 August 2015 which attaches a Social Report prepared by Ms U, Social Worker of the Coordination Centre, Rosario, Ministry of Social Development, dated 17 July 2015; and an email from Mr Z, Consular Officer, Consular Information Section, Consular Policy Branch, Consular and Crisis Management Division, Department of Foreign Affairs and Trade, dated 16 July 2015.
(e) Affidavit of Ms C, sworn 2 November 2015 which attaches Ruling No 2883 of 23 October of the Three-Judge Family Court No 3 Rosario, Province of Santa Fe, Argentina together with an English translation.
(f) Affidavit of Ms C, sworn 3 December 2015 which attaches an Affidavit of Dr D dated 25 November 2015.
The father relied upon the following documents:
(a) Outline of Submission document filed 7 December 2015.
(b) Form 2A, filed 8 July 2015.
(c) his Affidavit, affirmed 8 July 2015.
(d) his Affidavit, affirmed 9 November 2015.
(e) his Affidavit, affirmed 30 November 2015.
(f) Affidavit of Professor V affirmed 30 June 2015.
(g) Affidavit of Ms N, sworn 7 July 2015.
(h) Affidavit of the paternal grandmother Mrs T sworn 7 July 2015.
(i) Affidavit of the father’s sister Ms T sworn 7 July 2015.
The independent children’s lawyer relied upon the following documents:
(a) Case outline, tendered in court.
(b) Incoming passenger cards for the child B, marked as Exhibit “ICL 5”.
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 retained by the father, as alleged, which involves whether the child was habitually resident in Argentina at the time of the alleged wrongful retention of the child by the father.
The respondent father bears the onus of proving the grave risk exception to return.
With regard to the exercise of any discretion to refuse to return the child to Argentina which arises by virtue of an exception to return being made out, the parties would bear the onus of proof for the result for which they contend. The best interests of the child is relevant to the exercise of this discretion but not otherwise.
In these reasons, a statement of fact is a finding of fact.
(ii) Credit and impression of witnesses
Both parents were cross examined.
The mother was cross examined for approximately three days. I found the mother to be an intelligent witness. She gave evidence with the assistance of an interpreter although my observation is that she has a good grasp of English. The father’s cross examination of the mother was awkward in parts. Frequently he made speeches rather than asked questions, often his questions were submissions or based on a foundation which he had not established. The father’s cross examination took a long time, he was sometimes angry and frustrated but, ultimately, he succeeded in testing the mother’s evidence. There were occasions when the mother was reticent or avoidant to the point of being not responsive and she required direction to answer.
My impression of the mother is that she is a sophisticated woman comfortable with the adversarial system and able to present her case within that system to the best possible advantage. She has a reasonable and generous personality. She is insightful about matters concerning the child and her relationship with the father. She is confident but not impervious to the father’s remarks.
The independent children’s lawyer submitted that the mother’s evidence was internally consistent but nonetheless lacked credibility. I do not agree. The mother’s use of an interpreter when her English skills are good, allowed the mother more time to formulate an answer and that was evident throughout her testimony. My observation was that she was a careful but truthful witness and was amenable when directed to answer a question.
The father’s presentation was unfiltered by legal representation. It is likely that, away from these proceedings, he is a pleasant, affable and reasonably relaxed man. He is certainly intelligent and smart. However, he was stressed by these proceedings and by the potential that the child will be returned to Argentina. He presented as combative and lacking insight into the impact of his behaviour on the mother and others. Often, he was unable to think outside the case that he had constructed. He was well prepared but unable to deviate from his view of the world. When challenged, he became petulant. Sometimes he could not engage with whatever was being discussed without becoming angry.
The father is a considerably less mature and composed personality than the mother. My impression is that he has an abiding sense of being disadvantaged in his dealings with the mother. His judgment is most likely clouded by the acute stress he feels at the possibility of the child being returned to Argentina. Whilst there were inaccuracies in his evidence, my impression was not that he was dishonest or trying to deceive the court. He appeared to misremember or reinterpret events in order to cast himself as a victim of the mother and of the judicial system in Argentina and this Court. I have no doubt that his grief at the possibility of the child going back to live primarily in Argentina was wholly genuine and heartfelt. Later in these reasons I express my concern that he will not be able to shield the child from the distress he feels at her imminent departure. In summary, the father was overly emotional, unable to focus on issues and sometimes inaccurate in his recollections and impressions of events but I do not consider him to be dishonest.
Each party relied upon the evidence of an expert about the risk of harm associated in living in Rosario. The expert witnesses were Professor V and Dr D. I will deal with their evidence later in these reasons in the context of grave risk of harm and intolerable situation. The court’s technology to obtain evidence from overseas by audio visual link at minimal cost failed, yet again. The expert evidence was taken for hours by telephone link for which the court paid. My impression is that the experts’ evidence was received well enough, it would have been preferable to be able to see them but not so much better that it was necessary to postpone their testimony.
The respondent father relied on the evidence of his partner, sister and mother all of whom swore affidavits.
Ms N swore her affidavit on 7 July 2015. She is the father’s partner. Relevantly, Ms N deposes to having met the father in May 2010, which was about seven months after the mother and the child had gone to Argentina, which she believed was “for an agreed time of approximately eighteen months until around October 2011 so that [the mother] could have a double mastectomy and radiation treatment for breast cancer and have the support of her immediate family”.[29] She deposes that the father told her in July 2011 that the mother had told him that she was considering not returning to Australia with the child and that the relationship between the mother and father was over. In February 2012 the father told Ms N that the mother would not return to Australia with the child. Relevantly, whilst the father was in Argentina in November 2014 he told Ms N that he feared for his life and
was concerned about the possible police involvement in the parenting issues between him and [the mother] and told me that the police carried guns. [The father] communicated with me many times that he was concerned about [the child] being exposed to the violence in Rosario and police presence in the city.[30]
Of her own visit to Argentina in May to June 2014, Ms N says “Whilst Rosario is a very beautiful city I did not feel safe”.[31] Further that “[d]uring my time in Rosario I also noticed a large police presence. The police would often stand at the major intersections and would usually be in groups of 5 or more police officers”.[32]
[29] Affidavit of Ms N sworn 7 July 2015 [7].
[30] ibid [18].
[31] ibid [19].
[32] ibid [20].
Ms T affirmed her affidavit on 7 July 2015. She is the father’s sister and, therefore, the child’s paternal aunt. Relevantly, she confirms that the mother was diagnosed with breast cancer “[i]n or around April 2010, shortly after the birth of [the child]”.[33]
[33] Affidavit of Ms T affirmed 7 July 2015 [4].
Mrs T swore her affidavit on 7 July 2015. She is the child’s paternal grandmother. Relevantly, she deposes that the mother and the father “purchased a small apartment in Argentina in or around June 2012 so that when they returned to Argentina in the future for family holidays with [the child] they would have somewhere to stay close to [the mother’s] family”.[34]
[34] Affidavit of Mrs T sworn 7 July 2015 [4].
None of the father’s partner, mother or sister was required for cross examination. I accept their evidence insofar as it is relevant but much of their evidence could not rationally effect (directly or indirectly) my assessment of the probability of the existence of a fact in issue in the proceeding.[35]
[35] See section 55(1) of the Evidence Act 1995 (Cth).
The Legislation
Regulation 16 of the Regulations implements arts 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.
(2) If:
(a) an application for a return order for a child is made; and
(b) the application is filed more than one year after the day on which the child was first removed to, or retained in, Australia; and
(c) the court is satisfied that the person opposing the return has not established that the child has settled in his or her new environment;
the court must, subject to sub-regulation (3), make the order.
(emphasis added)
The CCA filed its application comfortably within 12 months from the date of the alleged wrongful retention.
The child is obviously under 16 years of age.
I am satisfied that, within the meaning of reg 16(1A), the mother had, and was exercising, rights of custody at the time of the alleged wrongful retention.
The disputed issue is whether the child was habitually resident in Argentina immediately before the wrongful retention which the applicant CCA alleges took place on 24 February 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)
The Issues Raised by the Father
First the father contends that his retention of the child is not ‘wrongful’ because she was not habitually resident in Argentina in February 2015.
Second, the father contends that there is a grave risk that the return of the child to Argentina would expose the child to physical or psychological harm or otherwise place her in an intolerable situation.[36]
[36] Family Law (Child Abduction Convention) Regulations 1986 (Cth) reg 16(3)(b).
If the father established the grave risk exception (which he did not), the court may refuse to return the child to the state of habitual residence. That is, return is discretionary. Later in these reasons, I deal briefly with the variety of factors which can inform the exercise of the discretion which arises if an exception to return is made out.
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 the Full Court decision of DW and the Director General, Department of Child Safety[37] Finn and May JJ discussed English and Australian authorities on the term ‘habitual residence’ including the reasoning of Waite J in Re B (Minors) (Abduction) (No 2)[38] which our Full Court in Cooper v Casey,[39] per Nicholson CJ (with whom Kay and Graham JJ agreed) adopted as part of our jurisprudence. At [43], Finn and May JJ quoted from the decision of Jordan J at first instance in Panayotides[40] (which was approved of by Fogarty and Baker JJ on appeal), as follows:
[37] [2006] Fam CA 93.
[38] [1993] 1 FLR 993 at 995.
[39] (1995) FLC 92-575.
[40] (1997) FLC 92-733 at 83,897.
The question of habitual residence has been the subject of much judicial deliberation, and I have been referred to numerous authorities in that regard. From those authorities, the following principles emerge:
(1) the expression “habitually resident” is not to be treated as a term of art with some special meaning, but rather it is to be understood according to the ordinary literal meaning of the two words used (see, In re J (a minor) (1990) 3 WLR 949);
(2) the question of whether a person is or is not habitually resident in a specified country is a question of fact to be determined by reference to all the circumstances of the case (see, In re J (a minor) (supra);
(3) the habitual residence of a child whose parents reside together is the habitual residence of those parents (see, Re B (minor) (1993) 1 FLR 993);
(4) it is not possible for one parent to unilaterally determine a child’s habitual residence by removing that child (see, State Central Authority v McCall (1995) FLC 92-552);
(5) habitual residence refers to the parents’ habitual abode in a country:
‘Which they have adopted voluntarily and for settled purposes as part of the regular order of their life for the time being whether it is of short or long duration.’(See, re B (minor) (supra) p.995).
I expressly adopt the aforementioned observations and those of Kay J in the Department of Health and Community Services v Casse (1995) FLC 92-629, wherein his Honour said:
All that the law requires for a “settled purpose” is that the parents’ shared intentions in living where they do should have a sufficient degree of continuity about them to be properly described as settled.
Later in DW and the Director General, Department of Child Safety [48], Finn and May JJ stated:
… [I]t will be recalled that the second of the principles enunciated by Waite J and adopted by Nicholson CJ [in Cooper v Casey (1995) FLC 92-575, with whom Kay and Graham JJ agreed] refers to “the parents’ shared intentions”. We regard the word “shared” as having the same meaning as “same” or “common”. That is, that the parties in question had the same or a common intention about their future living arrangements, even though — life being what it is — they may not have had a specific discussion and/or reached a clear agreement regarding their future living arrangements.
Until about ten years ago, the identification of a shared and mutual intention by parents to reside in a place dominated Australian jurisprudence in relation to habitual residence. This is understandable given the weighting which appears to be accorded to settled purpose and shared intention in decisions such as DW and the Director General and State Central Authority v McCall (1995) FLC 92-552. There, Treyvaud J relied on statements about habitual residence by Lord Donaldson and Lord Brandon in Re J[41] and Rattee J in A v A (Child Abduction).[42] In those and other decisions from the United Kingdom in the early 1990’s, the purpose for which the child was present in a country and the fact of a shared parental intention to reside in a country were referred to conjunctively rather than as separate factors. It followed that in the absence of shared parental intention to reside in a place for a settled purpose, habitual residence was not established. Consequently, some children were considered to have no habitual residence. Alternatively, a child’s place of habitual residence was identified as the last locale where the parents had both been habitually resident (with or without that particular child) and that habitual residence could pertain notwithstanding that one parent moved away. This parental intention model was, with respect, a construct, the application of which could produce highly artificial results.
[41] (1990) 2AC 562.
[42] (1993) 2FLR 225.
In 2009 the High Court (our apex court) decided LK & Director-General, Department of Community Services[43] (“LK & Director-General”). The 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.
[43] (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 v 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 found 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 High Court in LK v Director General unanimously concluded that a closed set, or a hierarchical set, of criteria would not assist in making a decision which could potentially fall into a very wide range of circumstances. Parental intention was relegated to a factor or an element. It was no longer a prerequisite to the identification of habitual residence. The principles expressed by the High Court are binding on me.
In 2011, May, Thackray and Moncrieff JJ decided the Western Australian case of Zoltowski & Commissioner of Police [No 2].[44] It is, with respect, a clear and succinct application of the principles in LK v Director-General. Their Honours allowed an appeal against a finding that a child’s state of habitual residence had changed to Poland in circumstances where the mother relocated to Poland in good faith but the father did so with fluctuating intentions about continuing the marriage, and when he called an end to the relationship, prevented the mother from leaving Poland with the child. Their Honours made the following observations about discrepant parental intention:
[44] [2011] FamCAFC 147.
[72]. The reference by the High Court in this passage to a “shared intention” gives rise to the question of how the law deals with cases where the intentions of one parent may be described as “settled”, but the other parent has different intentions that cannot be so described. This we perceive is more difficult where the parents are living together. In an article often cited, Clive E.M., ‘The Concept of Habitual Residence’, [1997] The Juridical Review 137, Dr Clive concluded, (at 145), that in cases where both parents have an equal right to fix the child’s place of residence, and there appears to be a “genuine difference” in their respective intentions, “then the conclusion must be that there is no settled purpose or intention”.
[73]. At the very least, as the High Court said in LK at 596 [34], the “possibility of ambiguity or uncertainty on the part of one or both [parents] must be acknowledged” (our emphasis added).
[74]. We also do not discern from anything said in LK that there has been any departure in Australia from the proposition that in order to find someone is habitually resident in a place they must generally have lived there for an “appreciable period”.
[75]. What amounts to an “appreciable period” will differ from case to case, and in our view must be dependent to some extent on the intentions of the parents. Thus, in a case which was mentioned in Crooks J’s reasons, the appellate court declined to interfere with a finding that a family had acquired a fresh habitual residence only one month after arrival in a new country. However, Butler-Sloss LJ, in delivering the principal judgment of the English Court of Appeal, was at pains to say (our emphasis added), “The judge was entitled to make the finding that the family did intend to emigrate from the UK and settle in Australia. With that settled intention, a month can be, as I believe it to be in this case, an appreciable period of time:” Re F (A Minor) (Child Abduction) [1992] 1 FLR 548 at 555 (“Re F”).
[76]. There are, of course, cases where the acknowledged ambiguity or uncertainty in the intentions of one or both of the parents will become irrelevant because they have been pushed into the background by “the brute force of geography and duration” (Clive, supra at 140). Thus, in Zenel v Haddow [1993] S.L.T. 975, a child was found to be habitually resident in Australia after 15 months, notwithstanding assertions there was no settled intention on the part of the parents to remain in Australia. In that case Lord Marnoch said at 979:
It seems to me that, while intention is undoubtedly a very important consideration, there must come a stage when the objective facts point unequivocally to a person’s ordinary or habitual residence being in a particular place.
[77]. On the other hand, as Dr Clive recognised (at 142), “the most difficult cases on habitual residence are usually those where the question is whether there has been a recent change in habitual residence”. We agree with him that in those cases, “the element of adequate duration is absent or doubtful and it is necessary to have regard to such factors as purpose and intention”. We recognise that in examining factors such as “purpose” and “intention” there may be cases in which it could be said that habitual residence has been acquired immediately (for examples, see Re M (Minors) [1993] 1 FLR 495 at 503 (“Re M (Minors)”); however, we also consider such cases would have to be seen as the exception, even allowing for the fact that there may be policy reasons against finding that a child does not have a place of habitual residence (as to which see LK at 594 [26], but see also at 595 [32]).
[78]. We also accept that merely because the purpose of an international relocation may be to allow parents to work on their relationship does not mean their purpose in relocating cannot be regarded as “settled”. Re B is an example of one such case. Similarly, the fact one party may be reluctant to agree to a move to a new jurisdiction; has misgivings about the state of the marital relationship; and has taken advice about a divorce before departing, does not mean they will not acquire a place of habitual residence in the new jurisdiction (see Feder v Evans-Feder (1995) 63 F. 3d 217).
[79]. On the other hand, the High Court held in LK (at 595 [29]) that the mother could not be said to have either a settled intention to reside permanently in Israel or a settled intention to reside permanently in Australia in circumstances where she had left Israel and come to Australia with the children “on the understanding that if the marriage was reconciled she would return, but if it was not, she would not return”. The High Court went on to say (at 595 [32]), “Because the possibility of reconciliation and return was not excluded when the mother left Israel, it may be said that her intentions, when she left were to that extent ambiguous”.
Subsequent to LK v Director General (2009) and Zoltowski & Commissioner of Police [No 2] (2011), 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. Nor will the absence of shared parental intention to relinquish or embrace a place of habitual residence per se leave the child in a vacuum.
The Supreme Court’s decision in A v A and Another (Children: Habitual Residence) (Reunite International Child Abduction Centre and Others Intervening)[45] illustrates how English jurisprudence in relation to habitual residence has also shifted away from a concentration on shared parental intention. Recent United Kingdom authorities align the identification of habitual residence under the 1980 Convention with European authorities under the revised Brussels II Regulation[46] (“BIIr”) and adopted by the European Court of Justice (“CJEU”) in 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.
[45] [2013] UKSC 60.
[46] 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).
The European jurisprudence as recently adopted in United Kingdom jurisprudence on habitual residence sits comfortably with the Australian approach from LK v Director General onwards. In order to appreciate the European context, however, I will deal briefly with BIIr. As summarised by Lowe, Everall and Nicholls in the text International Movement of Children (2004)[47] BIIr is a treaty which complements the 1980 Convention for cases within the European Union (“EU”) in that it implements supports for how the 1980 Convention operates between, and is binding on, EU Member States. For instance, where the left-behind parent does not accept the decision not to return the child, he or she is entitled to apply, as is the other parent, for a determination of custody, to the courts of the state in which the child was habitually resident immediately before the wrongful removal or retention. Therefore the courts in the state of habitual residence have the final say. This is based on the premise that the courts of the state of habitual residence of the child will generally be better placed to decide on what is in the child’s best interests and can also consider facts or matters relevant to why the non-return order was made. In the event that the court in the state of habitual residence makes a merit based custody order, then that custody order will be subject to enforcement in any other EU state where the child is present, provided that procedural safeguards pursuant to chapter III, s 4 of BIIr have been observed. BIIr imposes a further level of co-operation between EU states in the operation of the 1980 Convention. Habitual residence is as central to the operation of BIIr as it is to 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]”.
[47] Nigel Lowe, Mark Everall QC and Michael Nicholls, International Movement of Children (Family Law, 2004) [18.31] 385.
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),[48] the 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.
[48] [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)[49] 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.
[49] [2016] UKSC 4.
In the Supreme Court, Lord Wilson disagreed with the analysis of at first instance and at intermediary appellate level. He 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 [116].
Conditions to return are usually imposed to ease the transition of the child back into life in the country of habitual residence. Whilst the 1980 Convention is a forum selection treaty the operation of which is not preconditioned on the best interests of the child, it is now recognised that the imposition of conditions to return can make the operation of the 1980 Convention less blunt than it has sometimes been in the past. There is no harm in making life easier for a family if the underlying purpose and effect of the 1980 Convention is not compromised. Conditions are frequently referred to as “safe harbour orders”.
I encouraged the parents to prepare for outcomes and to give careful consideration to the arrangements he or she would seek in the event that the decision is what they want, and even more importantly, what they do not want.
Relevantly, the mother said that if the child is sent back to Argentina, she was content to abide the terms of the Agreement. She did not contemplate initiating any further proceedings in Argentina in her own right.
It was difficult to shift the father from his belief that, if the child returns to Argentina “I will never get to see her again”. However, eventually he said that if the child returns to Argentina he would return to Rosario after he sold his real estate in Australia, which he thought would be by May 2016, and would then want to spend time with the child regularly. He stated that he would be
prepared to go with what I had. It was not the end of the world … I had three months custody here, three months custody there and [if I am otherwise in Rosario for longer than three months] I think that I would be entitled to the same visitation rights as [the mother] gets [in Australia].
The father said that he would like to have Skype communication with the child on every second day that she is in Argentina and he is in Australia. However, the father also conceded that the mother
has generally been pretty good with Skype. It’s when the Hague proceedings aren’t pending that she has been pretty good at it … the only time I’ve ever had trouble with Skype was back in 2012 when we were coming up to the Hague trial [in Argentina]. Other than that, [the mother] has been pretty good with it.
The parents discussed in open court some further more detailed conditions that may assist them once the child is returned to Rosario. However, they were arrangements of a medium to long-term nature rather than safe harbour orders.
My impression is that the parents would be well able to regulate matters between themselves or to initiate proceedings and have any issues determined in Argentina if the need arises. It is not for me to meddle unnecessarily in arrangements that can be formulated in Rosario.
I will consider and implement any steps necessary to avoid the child being caught up in unpleasantness between her parents immediately before and after her return. The father will not receive this decision well. At times during the hearing, he was bereft at the prospect of the child being returned to Argentina. As earlier described [62], he said that he could not bring himself to do anything which has the effect of the child being removed from Australia including to cooperate with the mother’s application for a new passport to issue for the child. The father’s presentation over the six days of the final hearing leaves me with the strong impression that he would be either unwilling or unable to spare the child the disappointment and grief he feels at her imminent return to Argentina. For that reason, I am satisfied that it is in the child’s best interests that the father not see her within 24 hours of her proposed departure and he should be prohibited from attending the airport to farewell her and from travelling on the flight that the mother and child take back to Argentina. Likewise, the father must not allow any agent of his, member of his family or his partner to do likewise. I accept that the father does not have complete dominion over his family members or his partner. However, it will be within his power to conceal from them the arrangements for the child’s departure from Australia which should effectively preclude any of them from being at the airport contemporaneously with the child and the mother. I will impose conditions in those terms.
If the parents can agree on arrangements to be implemented once they are both back in Argentina, I am content to assist with those now to the extent that I can do so. I have in mind conditions of the nature discussed at the hearing and which are set out in my correspondence to the Hague Network Judge for Argentina below (see [262]).
Any party who applies for further conditions other than by consent should give to each other party to the proceeding notice of the precise conditions sought. I will give the matter my early attention but I do not wish to delay the child’s return to Argentina. Accordingly, I will impose a time restriction of two working days within which any further conditions can be sought. It follows that, if the father seeks conditions precedent to return, he should do so quickly.
Direct Judicial Communication within the International Hague Network of Judges
I discussed with the parties that, if conditions to return were to be imposed, I may have required that any orders necessary to support those conditions be obtained and be enforceable in Argentina prior to the child’s departure. That raised for consideration how the parents could obtain orders in Argentina whilst both are present in Australia.
As previously mentioned, the 1996 Convention has not yet entered into force between Australia and Argentina. Accordingly, the recognition and enforceability provisions in the 1996 Convention are not available to this family.
The parties requested that I make contact with my counterpart for Argentina within the International Hague Network of Judges and in accordance with the guidelines[89] I attempted to do so. After making no progress I contacted the Hague Liaison Legal Officer for Latin America who kindly provided me with an alternative email address for the Network Judge in Argentina, Judge Graciela Tagle of Cordoba.
[89] HccH, ‘Emerging Guidance regarding the Development of the International Hague Network of Judges and General Principles for Judicial Communications’ (2013).
By email dated 23 February 2016, I sent the following message to Judge Tagle:
I trust that this finds you well. The below message repeats a message which I sent you on 6 February but which bounced back, as undelivered, a week later. I would be most grateful if you could acknowledge receipt.
I am writing to you in my capacity as one of the Hague Network Judges for Australia and about a case in which I have just finished the evidence and legal argument and in which I hope to render a decision as soon as possible. The cause of action is an application under the 1980 Convention for the return of the child, [B] (aged 6 years) to Argentina.
The application is brought at the behest of the mother [Ms R] and prosecuted by the Australian Commonwealth Central Authority. The respondent father is [Mr Cotter].
The father opposes the return on a number of bases. However, the parties have agreed and requested that I ask you if safe harbour orders could be made in Argentina if I order that [the child] be returned. Obtaining the orders may be a condition precedent to return. At the moment the mother, father and the child are in Australia and, any orders which are made would have to be made whilst they are still all here in Australia.
The orders may include:
1. an injunction preventing the father from being at the airport around the estimated time of arrival of the child and mother in Argentina;
2. parenting arrangements providing the child reside with the mother and the specific times that the father can have access to the child. The mother is offering each Tuesday and Thursday from 4:00 p.m. to 8:00 p.m. and each alternate weekend from 4:00 p.m. on Friday to 8:00 p.m. on Sunday but the father seeks equal time;
3. that the changeover point for access be the child's school or a shopping precinct;
4. an injunction preventing either parent from removing the child from Rosario without permission of a court in Rosario;
5. the father be able to attend the child's school to observe functions usually attended by parents;
6. an acknowledgement by the mother that she will neither initiate nor cooperate with any civil or criminal prosecution of the father in Argentina arising out of his wrongful retention of the child in Australia (although she would be able to give evidence that the father was found by me to have wrongfully retained the child within the meaning of the 1980 Convention).
Please note that the mother is an Argentine citizen and, if I made a return order, it would be upon me being satisfied that she and the child are usually and habitually resident in Argentina.
The parents have previously conducted proceedings in the city of Rosario, Province of Santa Fe, Argentine Republic. The proceedings were before the Tribunal Colegiado de Familiia No. 3 in Case File 1642/2012. Orders were made or the parents' agreement was approved on 25 October 2012.
The parents had further proceedings in the above court and orders were made on 4 November 2014.
I would be grateful if you can tell me at your earliest convenience if the parties can obtain safe harbour orders from Australia. I am assuming that, if they can, they would both require representation before the Court. Is that so? Finally, but very importantly, how long would it take for the orders to be made? Time will be of the essence.
Judge Tagle promptly acknowledged receipt of the above message.
On 26 February 2016 I received a message from Judge Tagle in the following terms:
I’ve phoned the Judge in Rosario about the [Cotter] case. The judge told me that she agrees with all the points that you have included in your email of February 23. The only change that she suggests is the mutual changeover point mentioned in point 2 of your email. The judge prefers that the changeover should take place in the Social Workers Office of the 3rd Family Court in Rosario (Sala de Trabajadores Sociales del Tribunal Colegiado de Familia Nº 3 de Rosario) for one year. She also told me that the mirror order could be ruled in approximately 48 hours as from its presentation at the Court in Rosario.
The email communications constitute the entirety of my communication with Judge Tagle in this matter and a record of the communications (redacting personal contact details) has been admitted into evidence as Exhibit “C 1”.
In the event that the parties agree upon, or I subsequently order, further conditions to return, I anticipate that any orders which should be made in Argentina will be able to be made as described by Judge Tagle. I express my appreciation to Judge Tagle for her assistance.
Conclusion
I am satisfied that the father has wrongfully retained the child B in Australia. The father has not established any exception to return. Accordingly, I will order that the child be forthwith returned to Argentina.
I certify that the preceding two hundred and sixty-seven (267) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett and that the following nine (9) pages is the appendix referred to by her Honour at paragraph 241 of these reasons for judgment.
Legal Associate:
Date: 31 March 2016
Appendix 1
Schedule of cases
| 1 | In Lozano v Alvarez, 697 F.3d 41 (2nd Cir. 2012) the District Court For the Southern District of New York found that a child born to Colombian parents who had met and lived in London, had been exposed to the father’s mistreatment of the mother and had been negatively affected by issues in the parents’ relationship. On the 19 November 2008, the mother left their London apartment to take the child to nursery school and never returned. She resided in a women’s refuge in London for seven months. In July 2009 the mother travelled to New York where she stayed with her sister and her family. The father commenced proceedings in the United Kingdom in the summer of 2009. On 15 March 2010 the father filed a return application with the Central Authority for England and Wales and it was transmitted to America. In 2011, the trial judge in the United States denied the father’s return petition. The court in the United States rejected the mother’s submission that the child would face a grave risk of harm if returned. However, it found that the child had become settled in her new environment. The father filed a notice of appeal. The appeal was dismissed. In Lozano v Alvarez the date of wrongful removal was 19 November 2008 and the application for return was not filed in the United States until 10 November 2010, nearly two years after the wrongful removal. Accordingly, the second limb of art 12 of the 1980 Convention applied and the court was satisfied that child had become settled. |
| 2 | Director-General Department of Families, Youth and Community Care & Moore [1999] FamCA 284 was a decision of the Full Court of this Court. The State Central Authority appealed a decision in which the trial judge had found that the child, then aged 5, had become settled in his new environment (Australia) within the meaning of reg 16(1)(b) of the Regulations. The mother had left the family home in the United States of America without notice to the husband on 25 March 1997 and arrived in Australia two days later. The father obtained legal advice promptly upon the mother’s removal of the child but did not know that the mother and child were in Australia until he received notification from her family on 21 June 1997. The mother instituted proceedings in the Brisbane Registry of this Court in July 1997. An application for the return of the child under the 1980 Convention and, under the behest of the father, was not filed until 22 September 1998, that is, 18 months after the alleged wrongful removal. Accordingly the second limb of art 12 was engaged. |
| 3 | In Secretary, Attorney-General’s Department & TS (2001) FLC 93-063 the Secretary of the Attorney-General’s Department made a return application on the basis that the mother had wrongfully removed the child from their place of habitual residence (New Zealand) to Australia. The child was three months old at the date of the alleged wrongful removal. The parents were not married and had never lived together. The father, in the absence of a court order, had no parental rights. The father did however, have access to the child on a weekly basis. In December 1998 the father filed an application with the Court in New Zealand, seeking access and an order that he be made guardian of the child. In the same month, unaware of the father’s application, the mother filed an application for custody of the child, also in New Zealand. On 15 January 1999, concerned the mother might leave New Zealand with the child, the father filed an ex-parte application for an order that the child not be allowed to leave the country. The Registrar ordered that the mother surrender any travel documents with respect to the child and relevant orders were served that same day. On 18 January 1999 the Family Court in New Zealand ordered that the child not be removed from the jurisdiction. However the mother had left New Zealand for Australia the previous day taking the child with her. On 8 February 1999 the father made a request to the New Zealand Central Authority for the return of the child to New Zealand. On 29 September 1999 the Family Court of New Zealand appointed the father as additional guardian of the child and granted the father reasonable access. The application of the Australian Central Authority was filed in Hobart on 13 June 2000 which was almost 18 months after the child was removed from New Zealand. There were no specific reasons given for the delay. Secretary, Attorney-General’s Department & TS is authority for the proposition that time runs under regulation 16 from the removal or retention of the child and not from the date upon which the father established his right of custody. The case is also authority for the proposition the term “settled in his new environment” in reg 16(1)(b) should be given its ordinary, natural meaning and should not be given a restrictive interpretation. Secretary, Attorney-General’s Department & TS was a case which concerned an application filed more than one year after the wrongful removal (which is not the case here). |
| 4 | In State Central Authority & Quang [2010] FamCA 231 I considered an access case brought under Part 4 of the Regulations which implements into Australian law the provisions of art 21 of the 1980 Convention. The decision has no bearing on a return case such as this as it was wholly confined to rights of access.. |
| 5 | In Re F (A Minor) (Child Abduction) [1992] 1 FLR 548, the UK Court of Appeal dismissed an appeal against a decision returning a child to Australia. The parents and the child lived in England until April 1991 and then travelled to Australia. The parents sent 19 packing cases of their household goods and possessions from England to Brisbane. Upon entry into Australia, the father had declared on his application for a visitor’s visa that the family would not seek to settle in Australia. However, the transhipment of their possessions and other evidence satisfied the court that the parents had had an intention to settle in Australia. The relationship between the parents broke down and within three months the father returned to England with the child without the consent of the mother who remained in Australia. The mother instituted Hague return proceedings in England seeking the return of the infant to Australia. This case discusses disparate parental intentions but not in a way which is of any particular assistance to me in this case. The main significance of the decision lies in the discussion of the Court of Appeal about oral evidence in Hague return proceedings where there is irreconcilable affidavit evidence on crucial issues. |
| 6 | In Director General of the Department of Community Services & Apostolakis (1996) FLC 92-178, the court considered whether the wrongfully removed children had become settled in their environment. The parents married in 1975 in New Zealand and had a son and twin girls. Subsequently the mother removed the three children from Crete to Sydney without the father’s knowledge or consent. Some 17 months later an application was filed by the Central Authority, at the father’s behest, seeking the return of the children to Crete. At that stage, the oldest child was 12 years and the twins were 8 years old. The respondent mother relied on reg 16(1)(b) and submitted that the evidence established that the children were now settled in their new environment (Sydney) and the court should exercise its discretion to refuse to return the children. The court at first instance was satisfied that the children were settled and purported to exercise a discretion to refuse to return the children to Crete. This however, was an application which was brought a year after the wrongful removal (which is not the case here). |
| 7 | In Director General of the Department of Community Services & M. S was a decision Justice Maxwell in 1998 concerning habitual residence of twins then aged 8 years and their brother aged 5 years. The issue were whether the father had consented or acquiesced; whether a return of the children to Austria would pose a grave risk of harm to the children or otherwise place them in an intolerable situation and, finally, whether the children objected to return to Austria within the meaning of the Regulations. Maxwell J found that the children remained habitually resident in Australia notwithstanding that the children, who were relatively young, had spent 27 months in Austria. Maxwell J was not persuaded that the parents ever formed a shared intention or settled purpose to remain in Austria and for Austria to be the permanent residence of the children. In relation to acquiescence, the father’s actions in proceedings between the parties were found to be clearly and unequivocally inconsistent with his pursuit of a summary return remedy under the Convention. This conduct included his Sydney solicitor having participated in Australian proceedings for in excess of nine months before the mother was served with the return application. Maxwell J found that the mother was entitled to believe that the father was not insisting on a summary return of the children to Austria and that the father had acquiesced to the children being retained in Australia. I expect that the father relies on the comment in INCADAT that this first instance was “unusual” in that the children were found not to have acquired habitual residence in Austria notwithstanding their presence in that jurisdiction for the preceding 27 months. However, it is a decision which concentrates on mutual parental intention in the identification of the children’s habitual residence and does not, in my view, add any strength to Mr Cotter’s case before me. |
| 8 | In Tsarbopoulos v Tsarbopoulos 176 F.Supp.2d 1045 (E.D. Wash. 2001) the East District Court of Washington found the mother’s removal of the children from Greece to the United States of America could not be actioned in a petition for return under the 1980 Convention. Further the Court held that the art 13(b) defence that the child would be exposed to physical and psychological harm applied. In 1997 the parents and their three children moved from the United States of America to Greece where the father, who was a Greek citizen, had secured employment. There were several incidents of domestic violence perpetrated by the father on the mother and the children. In January 2000 following an attack by the father, the mother, who was an American citizen, took the children to the United States. The father filed a Hague petition for the return of the children to Greece in March 2000. After a summary hearing in the United States, the court granted the return of the children at the father’s expense. On appeal, the Ninth Circuit Court of Appeals remitted the case to the District Court. On remittal, the Court held that there was no shared intent to alter their habitual residence from the United States of America, therefore the removal was not wrongful. The father’s physical and verbal abuse and his control of the finances and all major decisions, in addition to the father’s deceit to his American employer, and the mother’s continued links with the United States provided support that she and the children had not intended to become habitually resident in Greece. In relation to art 13(b) the court considered spousal abuse and the domestic violence perpetrated by the father against the mother. It found potential for the father to also abuse the children. The court was satisfied that the children had not ‘acclimatised’ to life in Greece as the younger two children had spent almost all day, every day with their mother. The court found there was clear and compelling evidence that the return to Greece would expose the children to a grave risk of physical and psychological harm based on the father’s physical and emotional abuse of the children who were settled in Washington State. |
| 9 | In Kilah v Director-General, Department of Community Services [2008] FamCAFC 81 the Full Court of the Family Court delivered a decision on 24 June 2008. An appeal was filed to our apex court, the High Court, which allowed the appeal. Decision by the High Court of Australia is reported as LK v the Director General to which I have referred extensively in the body of these reasons. |
| 10 | Artso v Artso (1995) FLC 92-566 was a first instance decision by Justice Mushin of this court concerning the alleged wrongful retention of children then aged 12 and 8 years. The husband was Australian and the wife was English. The parents married in England in 1977 and travelled to Australia in 1978 where the child was born. The family returned to England in 1979 where the second child was born. In early 1990 the mother and children travelled to Australia. The father remained in England but was to join the family. The father’s case was that he and the mother had agreed to stay in Australia for at least a year. The mother’s case was that they would remain in Australia for not more than a year depending on the happiness of the children. In August 1990, which was within six months of the arrival of time mother and children in Australia but whilst the father was still in England, the mother decided that she wished to return to England. The father, who was still in England, refused to facilitate the return of the mother and the children to England and, instead, travelled to Australia. Upon his arrival in Australia, the father informed the mother that the marriage was at an end. He told the wife that he would not permit her to take the children back to England, as a consequence of which she returned to England alone. The mother instituted parenting proceedings in England and the father instituted parenting proceedings in Australia in November 1990. Mushin J was satisfied that, at the moment the husband advised the wife that the marriage was over, the mother’s agreement to stay in Australia for up to a year was at an end and, thereafter, the children were wrongfully retained by the father in Australia. Artso v Artso is a decision that bears on the date of an alleged wrongful retention. In the case before me, the date of the alleged wrongful retention is 24 February 2015 which was the date that the parties agreed that the child would return to Argentina pursuant to the Agreement but the father refused to facilitate the return. It is the date upon which the father retained the child in Australia contrary to the mother’s rights of custody. |
| 11 | In Ruiz v Tenorio 392 F.3d 1247 (11th Cir. 2004) the parties met when the mother, who is American, was on an exchange program in Mexico. Discovering she was pregnant in May 1992 the mother returned to Minnesota. The father, who was Mexican, visited Minnesota when the baby was born and returned the United States of America when the child graduated from high school. The parents married and in 1998 had a second child. They lived in the United States for seven years before moving back to Mexico. There was evidence that the parents’ marriage relationship was in some difficulty and it was alleged by one parent that they moved back to Mexico in order to save their marriage. The father told the mother’s mother that the move back to Mexico was on a trial basis and that, if it did not work out, the family would move back to the United States. However at the trial of a subsequent Hague return application, the father said he had intended the family to live permanently in Mexico. The mother visited the United States, twice with her children and once on her own in the two years and ten months they were in Mexico. She opened a bank account because she planned to return, and she undertook a Florida nursing licence on another of her visits. In August 2002 the mother took the children to Florida and told the father she was not returning. He convinced her to return to Mexico which she did. The couple separated in November 2002. In May 2003 the mother took the children to Florida with no intention to return. The father filed a petition under the Hague Convention alleging wrongful removal in July 2003. The District Court found that the children were not habitually resident in Mexico. The Court of Appeals subsequently affirmed the decision of the District Court at first instance that the parents did not have a shared, settled intention to take up residency in Mexico and to thereby abandon their habitual residence in the United States. |
| 12 | In Re H and Others (Minors) (Abduction: Acquiescence) [1998] AC 72 was an appeal by the father from a decision of the UK Court of Appeal which had dismissed the trial judge’s decision in which it was found that the father had acquiesced to the mother’s removal of his three children from Israel to England. The parents were strict Orthodox Jews. On the one hand, the father was not able to engage the secular court without the consent of the Israeli religious court. On the other hand, the mother refused to submit to the religious court. Six months later the father was permitted to apply for a Hague proceedings return order. The mother alleged that the father had acquiesced by reason of his failure to pursue immediate legal action for the return of the children and by his promise to return them to her if she permitted the children to spend Passover with him. The House of Lords allowed the appeal and ordered the children’s immediate return to Israel. The House of Lords noted that art 13 referred to the subjective state of mind of the left-behind parent as a question of fact and that the requesting parent’s subjective intentions should be disregarded only where a clear and unambiguous statement or action showing acquiescence had occurred. Their Honours found that attempts by the wronged parent to negotiate a resolution or to resolve the issues through a religious or other advisor did not signal an intention to accept the status quo if these attempts failed. |
| 13 | In Re S (Minors) (Abduction: Acquiescence) [1994] 1 FLR 819 the mother appealed a return order for the three children to the father in Australia on the basis it had been wrongly decided that the judge had no jurisdiction to refuse the return. The mother alleged that the father had acquiesced to the children’s removal because he did not start proceedings for their return until several months had passed. The father’s defence was that his inaction was a result of inaccurate legal advice. The Court of Appeal dismissed the appeal. The court were satisfied that the father had not taken any action because he had been wrongly advised and that the trial judge was entitled to find that the father’s inaction did not equate to acquiescence. |
| 14 | In Paterson, Department of Health and Community Services v Casse (1995) FLC 92-629 Kay J refused a return application in circumstances where like Secretary, Attorney-General’s Department & TS, the parents had entered Australia having unambiguously declared to the authorities that they would not seek to settle here during their temporary stay. However, the court was satisfied that the parents did intend to stay in Australia and had acted on that intention. When the marriage broke down, the father wished to return to Mauritius but the mother refused. The father brought a Hague return application seeking orders for the return the children to Mauritius. Kay J found that the father had acquiesced to the children remaining in Australia. There is a helpful discussion on consent and acquiescence and how statements and actions of parents are to be construed in the midst of trying to reconcile the relationship and consequently being in a state of emotional turmoil. |
| 15 | In Re A (Minors) (Abduction: Custody Rights) [1992] Fam 106 the child was removed by the mother without the father’s knowledge from Australia to England on 18 September 1991. On 23 September 1991 the father wrote to the mother and indicated he would not contest the removal. Upon obtaining legal advice, on 24 September, the father spoke by telephone to the mother and asked her if she would be living permanently in England. He asserted that he had told the mother he would do what he could to have the children returned to Australia. The mother replied to a letter from the father which she received on 27 September 1991 indicating that she had understood he had accepted the children’s removal to England. The father commenced Hague proceedings without informing the mother. The mother opposed the return of the children on the basis the father had acquiesced in their removal within the meaning of art 13(a) of the Convention and that the court was not bound pursuant to art 12 to order the children’s return. The judge at first instance accepted the mother’s recollection of the telephone conversation (wherein the father said that he would not contest her removal) but nevertheless found that the father’s conduct as a whole did not amount to acquiescence to the children’s removal. The children were ordered to return to Australia. The Court of Appeal allowed the mother’s appeal. The Court held that acquiescence could be active where demonstrated by clear and unequivocal words of consent or conduct, or it could be passive inferred by inactivity for a sufficient time or from silence on the part of the aggrieved parent. Either way, acquiescence was only effective if the wronged parent was aware of the child’s removal, knew that the removal was unlawful and knew of the rights against the other parent as was the case here. The Court of Appeal held that acquiescence could not be withdrawn once it had become known to the other party. |
| 16 | State Central Authority of Victoria & Ardito, is an unreported decision dated 29 October 1997 by Joske J sitting as a single judge in this Registry of this court. The decision turned on the inability of the mother, who was the taking parent, to re-enter the United States of America. The family was habitually resident in the United States America although the mother was not an American citizen and was present in the US pursuant to a spouse visa. The mother brought one of the two children of the marriage to Australia for a holiday and wrongfully retained that child in Melbourne. A return application issued at the behest of the father and the mother promptly consented to travel with the child back to America. The return order provided for the mechanics of the return (flights etc) were to be defined following the mother being granted a new visa. The father had facilitated the revocation of the mother’s spouse visa when the mother had indicated she wanted to remain in Australia. The mother had been convicted in absentia of certain criminal offences to do with her wrongful retention of one child. She was considered to be a felon. The United States authorities were resolute in their refusal for the mother to re-enter the United States of America for any purpose including for the limited purpose of being able to participate in parenting proceedings about future arrangements for the two children. The mother appealed the return order, which had been made by consent. On appeal, the mother was granted permission to adduce fresh evidence, in particular, the refusal of the US government to permit her to re-enter the US for any purpose whatsoever. The Full Court allowed the appeal, discharged the return order and remitted the Hague return application for trial before a single judge. On remittal, Joske J held that the child had been wrongfully retained by the mother in Australia. However he was satisfied that the return of the child to the United States would place the child in an intolerable situation because the mother had no ability to re-enter the United States of America to participate personally in proceedings in that jurisdiction for parenting orders. His Honour also stated that, whilst the point had not been argued before him, the return may also be contrary to fundamental freedoms within the meaning of Article 21 of the 1980 Convention. In the present case, there is no suggestion that Mr Cotter will not be able to re-enter Argentina. |
Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child.
Zafiropoulos & the Secretary of the Department of Human Services State Central Authority (2006) FLC
93-264 at [33], citing W v W (Child Abduction: Acquiescence) [1993] 2 FLR 211; TB v JB (formerly JH) [2000] EWCA Civ 337; H v H (Abduction: Acquiescence) [1996] 2 FLR 570.
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