DAVIDSON & DAVIDSON

[2012] FamCA 403

FAMILY COURT OF AUSTRALIA

DAVIDSON & DAVIDSON [2012] FamCA 403

FAMILY LAW – CHILDREN – Application for the Minister to issue a passport for a child – Parties in Europe and have separated – Father has possession of child and his whereabouts is unknown – No prior resident, custody or parenting orders – Very recent separation – Mother has caused to have issued in Poland proceedings pursuant to the Hague Convention and proceedings for custody in that country – Father having issued proceedings for parenting orders in Australia – Issues of jurisdiction where neither of the parties or the child is in Australia or in the country of the wife’s intended residence – Circumstances of the separation and the removal of the child by the father – Welfare and best interests of the child in urgent circumstances – Regularity of the proceedings and structuring orders to facilitate the earliest possible hearing by the appropriate court and in the appropriate venue as hereafter is to be determined – Interim orders – Undertakings given by members of the father’s family to facilitate, provide financial support and comply with urgent interim orders made in the best interests of the child – Adjournment of proceedings for an urgent hearing subject to further events and applications and material to be filed

Australian Passports Act 2005 (Cth) ss 11(1), 11(4) and 22
Family Law Act 1975 (Cth) ss 61C, 61D, 65C and 69E
Family Law (Child Abduction Convention) Regulations 1986 (Cth) r 19

De Lewinski v Department of Community Services (1997) FLC 92-737
LK v Director-General, Department of Community Services (2009) 237 CLR 592
State Central Authority v Camden (2012) FLC 93-501
State Central Authority & Weston [2010] FamCA 599
Zotkiewicz v Commissioner of Police (No 2) (2011) FLC 93-472

APPLICANT: Mr Davidson

RESPONDENT: Ms Davidson

FILE NUMBER: MLC 4646 of 2012

DATE DELIVERED: 1 June 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Young J

HEARING DATE: 25 and 29 May 2012 and 1 June 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: MS Tulloch

SOLICITOR FOR THE APPLICANT: Carew Counsel Pty Ltd

COUNSEL FOR THE RESPONDENT: Dr Ingleby

SOLICITOR FOR THE RESPONDENT: Macpherson & Kelley

Orders

UPON THE UNDERTAKING OF MS B:

1. THAT she will pay from her own funds, or from funds derived from another member of her family:

   a.such amount as is required to purchase a return economy air fare for the mother, inclusive of costs and charges, in her sole name and departing from a nominated European city to Melbourne, Australia and return;

   b.the sum of $1,000 to meet the mother’s immediate financial needs upon her arrival in Melbourne, Australia;

   c.rental accommodation for the mother to a maximum sum of $450 per week and for a period of not less than three (3) months from her arrival or until her earlier departure from Australia;

   d.the further sum of $200 per week for her living and out-of-pocket expenses for a period of not less than three (3) months or until the date of her earlier departure from Australia.

AND UPON THE FURTHER UNDERTAKING OF MS D:

1. THAT she will:

   a.promptly do all acts and things and attend to all matters required to assist with or collect the Australian passport issued for the child J DAVIDSON (“the child”) born in June 2009;

   b.pay or cause to be paid all costs and expenses of and associated with the issuing of that passport for the child;

   c.travel on the first available flight to Europe for the purposes of collecting the child and returning him directly to Melbourne, Australia;

   d.pay or cause to be paid all costs and expenses of and associated with the child’s return flight to Melbourne, Australia;

   e.ensure that all required funds are available for the father to facilitate his immediate return to Melbourne, Australia;

   f.as soon as the child is in Australia to facilitate immediate and proper telephone contact between the child and the mother.

IT IS ORDERED:

1. THAT the order for the stay of proceedings sought by the respondent mother in her Response filed 28 May 2012 be dismissed.

2. THAT pursuant to s 11 of the Australian Passports Act2005 (Cth) the Minister forthwith issue an Australian passport in the name of J DAVIDSON born … June 2009 (“the child”) and without the necessity of obtaining the consent of the child’s mother for that purpose.

3. IT IS REQUESTED THAT the child’s passport be issued with the following attached conditions:

   (a)that it is to be valid for international travel for a period of twenty-one (21) days only;

   (b)that it is to be valid for the purposes only of direct travel, by plane, by the child from his European point of departure on a direct flight to Australia.

4. THAT the Australian passport for the child be issued by the Minister, at his discretion, in Australia or through an Australian Embassy or Consulate in Europe as may be most appropriate for the child and where appropriate documentation can be issued or sighted, if required.

5. THAT for the purposes of facilitating the direct travel of the child to Australia the sister of the applicant father, Ms D, be authorised and permitted to travel internationally with the child for that sole purpose of transporting him from a European location directly to Melbourne, Australia.

6. THAT the father be and is hereby restrained from travelling internationally with the child until further order of the Court.

7. THAT the father, his agents or servants, be and are hereby restrained from taking or permitting the child to be taken to any country that is not a signatory to the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction. 

8. THAT upon the child’s Australian passport being issued pursuant to Order 2 hereof the Minister then immediately cancel the current Australian passport of the child, being Passport No. …, pursuant to s 22 of the Australian Passports Act2005 (Cth).

9. THAT upon the child’s arrival in Australia:

   (a)he is to be cared for by the father’s sister, Ms D, she to be assisted by other of the father’s family members, pending the arrival of either party in Australia or any further orders of the Court that may then be pronounced upon further applications to be filed and further evidence in support thereof;

   (b)Ms D is to facilitate daily and substantial telephone contact between the child and the mother pending the arrival of the mother in Australia (if she elects to travel to Australia) or any further orders of the Court that may then be pronounced upon further applications to be filed and further evidence in support thereof;

   (c)Ms D is to immediately advise the father’s solicitors of this event, and they are to then immediately notify by email and in writing the mother’s Australian and Polish firms of solicitors, the Registrar of the Family Court of Australia, Melbourne Registry, the Australian State Central Authority and any other appropriate person or organisation;

   (d)Ms D is to immediately deliver up to the father’s solicitor the Australian passport of the child which must then be lodged forthwith by that solicitor with the Melbourne Registry, Family Court of Australia for safekeeping and pending any further order of the Court.

10. THAT as soon as practicable the parties are to engage in discussions and mediation as to the welfare, best interests and current circumstances of the child pending any further hearing in this Court or actions taken by the Australian State Central Authority or other overseas Court of proper jurisdiction.

11. THAT upon the child’s arrival in Australia the matter be forthwith listed for further hearing before a Judge of the Family Court of Australia, Melbourne Registry.

12. THAT upon the child’s return to Australia the father, his servants or agents, Ms D and other members of the father’s family be and are hereby restrained by injunction from removing, attempting to remove or permitting the removal of the child from the Commonwealth of Australia.

13. THAT upon the arrival of the child in Australia liberty be reserved to all parties to make application for an interim Airport Watch List order so as to restrict his further travel or departure from this country.

14. THAT otherwise all extant applications be adjourned for an urgent hearing in the Family Court of Australia, Melbourne Registry at an appropriate date and when the child is within the jurisdiction and convenient to the travel arrangements of the father and/or mother.

15. THAT a transcript of the Undertakings provided to the Court by Ms B and Ms D be transcribed, placed upon the Court file and made available to all parties.

IT IS NOTED:

A.THAT insofar as these orders impact upon or require Ms D to undertake and perform actions, she has voluntarily consented and undertaken to the Court that she will strictly perform and abide by all Court orders. 

B.THAT these orders are pronounced as a matter of urgency and subject to all further evidence and submissions as to the jurisdiction of this Court and orders that are appropriate for the best interests and welfare of the child.

C.THAT these orders are pronounced in an endeavour to provide some structure and organisation for a further Court hearing and to better facilitate a proper examination of the appropriate venue and the proceedings that should be before a Court so as to promote and secure the best interests of the child. 

D.THAT the Court, in the hearings so far undertaken, has not considered or determined any issues of or related to the parties’, or the child’s, past or current residency circumstances. 

IT IS NOTED that publication of this judgment by this Court under the pseudonym Davidson & Davidson 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 4646 of 2012

Mr Davidson

Applicant

And

Ms Davidson

Respondent

REASONS FOR JUDGMENT

ISSUES

1. The urgent issues in this case have arisen in circumstances where the father has taken, or abducted, his three year old son from a location in France and is in hiding in an undisclosed European location.  He holds his Australian passport but does not have possession of the child’s passport.  His actions have separated the mother from the child and she has been placed in the wholly unacceptable situation of having no knowledge of her child’s welfare or whereabouts, or contact with him.  The parties had met, married and their child was born in Australia which was their undisputed country of habitual residence until they departed for overseas on 12 April 2012. 

2. The father, by his urgent application filed in this Court on 25 May 2012, has sought an order for the Minister of the Department of Foreign Affairs and Trade (as the ministerial responsibility lies within that portfolio) to issue a new Australian passport in the name of the child and for the cancellation of his old (current) passport and then for the child to travel, with his Aunt, to Melbourne, Australia for the purposes of a Court hearing and determination of all proper orders.  The father proposes to separately and independently return to Melbourne.

3. To the Court’s knowledge, there are no extant child custody or parenting orders alive. The current residence of both the mother and father and the child is in dispute and that issue must hereafter be litigated in an appropriate Court and venue.  There is limited but very conflicting evidence before the Court on this subject. 

4. The mother, who is a Polish national and citizen, but who has lived in Australia for approximately the past seven years, has deposed that the parties and the child had permanently departed their home and residence in Australia and, as of 15 April 2012, acquired a residency of choice in Poland.  Alternatively perhaps it could otherwise be argued that the residency of the parties and the child was in France. 

5. Based upon her evidence, the mother has engaged solicitors in Poland and has caused to have issued in that country child custody proceedings. There has been also issued on her behalf, in Poland, proceedings under the Hague Convention for the immediate return of the child to Poland and into her care. The Hague proceeding is based upon the mother being able to prove that the child acquired a habitual residence in Poland from 15 April 2012.  That is a matter of very real dispute. 

6. With that very brief overview and acting solely in the best interests of the child, the difficult and confronting task for the Court, on limited and emotional evidence, is to consider and if appropriate, both on the facts of this case and subject to a determination of the proper jurisdiction, pronounce necessary interim orders and otherwise to structure an orderly and proper further interim hearing of all parenting, residency, travel and other matters in dispute between the parents of this young child. 

ORDERS SOUGHT

FATHER

1. By an Initiating Application filed 25 May 2012 the father sought final and interim orders in respect of the child of the marriage J born in June 2009 (“the child”).

2. As a final order he sought an order that he and the child’s mother share equal parental responsibility with other orders to be particularised pending the determination of the interim orders sought. 

3. As interim orders he sought the following:

   1.That all necessary times be abridged to enable this matter to be heard urgently.

   2.That the father has sole parental responsibility for the child of the marriage [J] born … June, 2009 (“the child”).

   3.That the father be permitted to urgently obtain an Australian Passport for the child [J] (born … June 2009) to enable the child to return to the Commonwealth of Australia notwithstanding that the consent of the mother has not been obtained and it is requested that the Department of Foreign Affairs and Trade issue a passport for the child.

   4.That the father, and/or his servants and agents be permitted to travel with the child to return to Australia forthwith.

   5.That forthwith on service of a sealed copy of this Order on her the mother deliver any passport in her possession or control relating to the child to the Registrar of this Registry of the Court to be held by the Registrar pending further Order of the Court.

   6.That upon the child’s return to Australia, the mother, her servants and/or agents be and are hereby restrained by injunction from removing or attempting to remove the child [J] (born … June 2009) from the Commonwealth of Australia.

   7.The Marshal and all officers of the Australian Federal Police and of the police forces of the various States and Territories are requested and empowered to take all necessary steps to give effect to these Orders, including all things necessary to include and retain the said child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and to maintain the child’s name on the Watch List until further Order of the Court.

   8.That the mother pay the father’s costs of this Application on an indemnity basis.

4. In the listing of the matter on 1 June 2012 Counsel for the father submitted prepared minutes of orders sought and undertakings proposed to be given by each of his sisters, Ms B and Ms D.  Without objection that document was agreed to be received in the proceedings and leave was given for its filing.

   MOTHER

5. By a Response filed 28 May 2012 the mother sought an order that the father’s Application in relation to the child be stayed pending the determination of her Hague Convention Application and her further Application for sole custody filed at Torun, Poland, on 24 May 2012.

AFFIDAVITS RELIED UPON

1. The father’s initial affidavit was an unsworn document which was annexed to an affidavit of his solicitor, Keleigh Jane Robinson filed 25 May 2012.  The father’s affidavit was signed by him on 24 May 2012 but had then not been witnessed by a Notary Public or other authorised person.  Annexed to that affidavit of the father was a colour photocopy of the identification page of the Australian passport of the child and for the purposes of these proceedings I have been asked to take notice of and accept into evidence that copy passport page, document No. ….

2. Otherwise the father’s unsworn affidavit annexed a rental agreement which the parties had entered into for the lease of a two bedroom apartment in a town in the south of France and a bank document exhibiting the transfer of money for the prepayment of the rental monies.  The parties had rented for the period from approximately 15 May 2012 until 31 October 2012 and for that time that was to be the residence of the family, including the child.

3. Thereafter the solicitors for the father have filed, and his case relied upon:

   (a)his further affidavit sworn 28 May 2012 and filed in this Court on the following day and the annexures thereto (indeed at the end of the proceedings there was agreement between Counsel for both parties that the Court should only rely upon this sworn affidavit and its annexures and otherwise not to read or rely upon the earlier signed affidavit of the father’s dated 24 May 2012 and accordingly that is what I have done with the lease agreement for the apartment in France being identically annexed to both documents);

   (b)the further affidavit of his solicitor filed 29 May 2012;

   (c)the affidavit of his sister, Ms B, filed 29 May 2012;  and

   (d)the affidavit of another sister, Ms D, filed 29 May 2012 and the various annexures thereto and in respect of which no objection was raised by Counsel appearing for the mother.

   MOTHER

4. The solicitor acting for the mother, Ms Uyen Nguyen, swore and filed an affidavit on 28 May 2012 wherein she deposed that she has the conduct of the matter on behalf of the mother, had obtained instructions from her and had prepared an affidavit which was annexed to her affidavit but which was, as yet, unsworn due to the circumstances of the mother, her location in France and the time difference between Europe and Australia.

5. The mother’s affidavit was purportedly signed by her and dated 28 May 2012.  I was advised that a sworn copy of that affidavit, in its exact form and content, would be available to the Court as soon as it was received by her solicitors, and that was expected within the next day or so.  In fact that document was received by her solicitors and filed in the Court on 31 May 2012 and thus the mother’s evidence was in proper form and has been accepted into evidence, together with the annexures to her affidavit, which were not the subject of any objection taken by Counsel appearing for the father.

ORDERS OF 25 MAY 2012

1. This matter was first listed before me as a matter of urgency at approximately 11.30 a.m. on Friday 25 May 2012.  Ms Robinson, the father’s solicitor, then appeared for the father. Mr Weil of Counsel appeared for the mother, who had been given short notice of the hearing, as had his instructing solicitors, and he appeared without documentation to represent her.

2. I heard briefly from both legal practitioners, ordered a transcript of the proceedings to be prepared and placed upon the court file, gave directions for the filing of further affidavits and otherwise adjourned the further hearing before me to 2.15 p.m. on Tuesday 29 May 2012 and that is when this further hearing re-commenced, albeit with different Counsel for both parties.

3. The child was not represented and no application was made for the appointment of an Independent Children’s Lawyer, perhaps having regard to the particular geographical circumstances of this case and, of course, because of the tender age of the child.

4. The listing of the matter on 1 June 2012 was for the purposes of the pronouncement of orders and the delivery of written Reasons for Judgment and to receive Undertakings as had been discussed in the prior days proceedings.  What occurred on the morning of that judgment date, and without leave of the Court, was that solicitors for both the mother and father filed electronically further affidavits, copies of which were also forwarded to my Chambers by email.

1. The mother’s solicitor filed herself a further affidavit deposing to various conversations that she had with her client or with an Italian solicitor engaged on her behalf.

2. The father’s solicitor filed:

   (a)a further affidavit of Ms B;

   (b)a further affidavit of Ms D;

   (c)a further affidavit in reply by the father to matters raised by the mother in her earlier affidavit.

3. I raised the filing of each of these four affidavits with Counsel and heard submissions from them as to why they should be received into evidence in the proceedings before me which had formally concluded, save for issues of and concerning the Undertakings to be given by the father’s sisters as had been earlier outlined on the prior day’s hearing.

4. There was no leave to file any further affidavits and the Court was not advised that such documents were intended to be filed.  There are, in any event, issues as to the admissibility of material and otherwise as to matters of relevance in certain of the affidavits.  I declined to read the affidavits and both Counsel ultimately concurred that they would not form part of the evidence before me on this interim hearing.

5. I allowed the affidavits to remain on the Court file, subject to all future objections that may be taken, and they can be referred to in any other proceedings that subsequently may be listed in this matter in this Registry.

BACKGROUND FACTS

1. The following facts were agreed upon by the parties:

   (a)the father is 45 years of age having been born in Australia in 1966;

   (b)the mother is 27 years of age having been born in Poland in 1985;

   (c)the mother, her parents and her three sisters relocated from Poland to Australia in June 2005, primarily for the purposes of the children receiving an appropriate education;

   (d)the mother and father (“the parents”) commenced living together in 2007 and thereafter became engaged and were married in an inner suburb of Melbourne, Australia in December 2008;

   (e)the mother was pregnant when the parties married and their son J was born in June 2009;

   (f)the parents lived in Melbourne for the whole of their married life and until they decided to sell up the majority of their assets and travel to Europe in April of this year;

   (g)the mother’s parents have returned to live permanently in Poland and each of her three sisters have also returned to live in Poland, although that fact was somewhat disputed by counsel for the father;

   (h)the parents and their child left Australia for Europe on 12 April 2012 arriving in Germany on 14 April 2012 and then travelled by car to Poland where they arrived the following day;

   (i)prior to their departure from Australia the father had been declared bankrupt.  A Certificate of Appointment of a Trustee had been issued to him on 5 April 2012 and his appeal against such an appointment was unsuccessful, though that was determined on a date after the family had left Australia; and

   (j)the parties had sold their Melbourne home prior to departing for Europe. 

PASSPORTS AND CITIZENSHIP STATUS

1. There is a present level of confusion as to the passports and the citizenship status held by the father and the child.  This confusion seemingly arises from the fact that each of the parents have deposed that they applied on behalf of the child for a Polish passport and citizenship, and also that the father had applied for a Polish passport. It is unknown on the current evidence whether such documents have issued or whether such citizenship has been granted.

2. The father is the holder of an Australian passport which he has in his possession at this time.

3. The child is the holder of an Australian passport which is presently in the possession of the mother.

4. The mother is a Polish citizen and is the holder of a Polish passport.  It is unknown to the Court whether she also has an Australian passport.

5. The evidence of the father in paragraph 18 of his sworn affidavit is that:

   18.Whilst in Poland we attended the immigration office in … to make an application for a Polish passport for [the child] and I.  We were informed by the Polish immigration department that as [the child] was the son of a Polish citizen he was eligible for immediate residency and Citizenship status.  The written consent of [the mother] and I was required to enable this application to be processed.  I signed the forms at the immigration office.  I also applied for a 12 month passport for myself.  This could be extended for a further term of 2 years after which I would be eligible for citizenship.

   19.A week after the meeting at the Immigration office it was discovered that there was an error in forms signed for [the child].  We both re-attended, however it was only my signature that was required at that second meeting.  As soon as my signature went onto the page [the mother’s] mood changed.

6. The mother’s evidence is contained in paragraph 32 of her affidavit and she there deposed that:

   32.Whilst in Poland [the father] and I decided to organise citizenship for [the child].  As I was a Polish citizen this was not difficult.  We also applied for a Permanent Residency Visa for [the father].  Throughout our dealings with the Polish Department of Immigration [the father] dealt with an English speaking officer and was entirely aware and understood the nature of the documents he signed for himself and [the child].

7. As I have previously recorded, the outcome of the various Polish applications remains uncertain and unknown to the Court. Nevertheless the father’s application to this Court, and the exercise by me of the jurisdiction of this Court, is predicated upon the Australian citizenship of the father as I have hereafter identified pursuant to s 69E of the Family Law Act1975 (Cth). The question therefore of the outcome of the child’s citizenship application and the various Polish passport applications may be relevant facts in any further hearing and may also be relevant to the determination of the appropriate court or venue for further applications, but presently I can proceed only on the known evidence in the filed affidavits.

FAMILY LAW ACT 1975 (CTH)

1. The father’s application sought, as a final order, for the parties to have equal shared parental responsibility for the child.  I have made clear to Counsel in the course of argument that I will not hear and determine that issue at this time and that part of the application can be adjourned to a date to be fixed pending further evidence to be filed and the outcome of any other proceedings.

2. This Court has jurisdiction to hear and determine applications where parenting orders are appropriately sought by either of the parents or otherwise as provided for in s 65C of the Family Law Act 1975 (Cth) (“The Act”). The appropriate parenting orders are a matter for further evidence and submissions by the parties and a prior determination of the appropriate court and venue.

3. Section 69E of the Act sets out the requirements for proceedings to be instituted under the Act and in relation to a child. For the purposes of the proceedings before me a parent of a child, if he or she is an Australian citizen, can institute proceedings. The father is and remains an Australian citizen and most likely the child presently is and remains an Australian citizen, though further evidence on this issue is required. The father therefore has standing to bring an application before this Court which has appropriate jurisdiction to hear and determine, at least on an interim basis, matters of urgency which arise out of and concerning the child and his best interests and wellbeing.

4. Section 69E of the Act provides as follows:

   (1) Proceedings may be instituted under this Act in relation to a child only if:

   (a) the child is present in Australia on the relevant day (as defined in subsection (2)); or

   (b) the child is an Australian citizen, or is ordinarily resident in Australia, on the relevant day; or

   (c)a parent of the child is an Australian citizen, is ordinarily resident in Australia, or is present in Australia, on the relevant day; or

   (d) a party to the proceedings is an Australian citizen, is ordinarily resident in Australia, or is present in Australia, on the relevant day; or

   (e)it would be in accordance with a treaty or arrangement in force between Australia and an overseas jurisdiction, or the common law rules of private international law, for the court to exercise jurisdiction in the proceedings.

   (2) In this section: relevant day, in relation to proceedings, means:

   (a)if the application instituting the proceedings is filed in a court — the day on which the application is filed; or

   (b)in any other case — the day on which the application instituting the proceedings is made.

5. Nonetheless, the Court’s jurisdiction in this matter is limited by Regulation 19 of the Family Law (Child Abduction Convention) Regulations 1986, which states that:

   If an application for a return order for a child is made, a court must not make an order, except an interim order, providing for the custody of the child, within the meaning of regulation 18, until the application is determined.

39. Regulation 18 defines “custody”, in relation to a child, to include:

(a)      guardianship of the child; and

(b)responsibility for the long-term or day-to-day care, welfare and development of the child; and

(c)responsibility as the person or persons with whom the child is to live. 

40. This Regulation makes it clear that while this Court cannot currently make final orders relating to the custody of the child given the fact that the mother has filed a return application pursuant to the Hague Convention, this Court can nonetheless make interim orders of any nature or final orders which do not relate to the custody of the child, notwithstanding that current Hague return application. 

AUSTRALIAN PASSPORTS ACT 2005 (CTH)

1. The Family Court, as a Superior Court, is vested with powers as a court of the Commonwealth to make orders of and impacting upon the passport issued in this country and it is under this power that the father has sought an order to urgently obtain a newly issued Australian passport for the child.

2. Section 11(1) of the Australian Passports Act 2005 (Cth) (“Passports Act”) states:

   The Minister must not issue an Australian passport to a child unless:

   (a) each person who has parental responsibility for the child consents to the child travelling internationally; or

   (b)an order of a court of the Commonwealth, a State or a Territory permits the child to travel internationally.

3. Section 11(4) states that:

   For the purposes of subsection (1), a reference to:

   (a) …; or

   (b) an order of a court permitting a child to travel internationally includes a reference to an order permitting:

   (i) the issue of an Australian passport to the child; or

   (ii) contact outside Australia between the child and another person.

4. Section 22 sets out when an Australian travel document may be cancelled. “Australian travel document” is defined in s 6 of the Passports Act as “an Australian passport or a travel-related document”. Section 22 states:

   (1) The Minister may cancel an Australian travel document.

   (2)Without limiting subsection (1), the Minister may cancel an Australian travel document that has been issued to a person if:

   (a) the document is still valid at the time when the person applies for, or is issued with, another Australian travel document; or

   …

5. For completeness I record that Ms Tulloch, Counsel for the father, submitted that the Court’s authority to order that a passport be issued pursuant to the Passports Act derived from ss 61C and 61D of the Act, which both relate to parental responsibility. 

CONVENTION COUNTRIES

1. Both Australia and Poland are signatories to and have ratified the Hague Convention Agreement of 1980 and the subsequent 1996 Agreement.

2. Otherwise, and given the factual issues raised in the evidence, both France and Italy are signatories to the Convention.

FATHER’S EVIDENCE

1. The father deposed that the parties sold their Melbourne home and took a six month lease of a home in a town south of Melbourne, which expired at the end of March 2012 and he said that they then decided that, as a family, they would spend six months travelling in Europe for a holiday and to visit the mother’s family in Poland. 

2. The parties and their son had previously spent six weeks in France in mid 2010.

3. Prior to the departure from Australia on 12 April 2012 the parties had discussed the fact that neither the father nor their son held European Union passports and thus were restricted to any period of stay for a maximum period of three months on an Australian passport. 

4. With that background they had discussed applying for a Polish passport and it was decided that both the father and their son would make arrangements to apply for Polish passports upon arrival in that country.  The family therefore took with them their marriage certificate, birth certificates and Australian passports.

5. The air tickets purchased were for one way travel only and the father asserted that was because of limited available funds and that return tickets would be purchased when an investment property in Australia was sold and settled and monies then became available.  Whilst there is no evidence before the Court of the ownership or selling of any disclosed investment property in the father’s material the weight to be placed upon the parties’ purchase of one way air tickets, and the reasons therefore, is a matter for further evidence and determination on another day.

6. Prior to leaving Australia the parties negotiated and paid for the continuous rental of a two bedroom apartment in the south of France for the period 15 May 2012 through 31 October 2012.  The annexed documents evidence the lease agreement being entered into by the mother and the full rental, including costs, being paid in advance by an international money transfer through their bank.

7. Likewise the parties purchased or hired a Peugeot motor vehicle for that period of their stay in Europe and the annexed document to the father’s affidavit highlighted that the motor vehicle was to be made available to them on their arrival at the German airport on 13 April 2012 and the nominated return date and end of period of insurance was 10 August 2012.

8. On their arrival at the German airport the parties collected that motor vehicle and the family drove directly to the mother’s parents’ apartment in Poland.

9. Whilst in Poland the father made an application on his behalf and for his son for a Polish passport to issue for each of them and for citizenship.  The outcome of that application remains unknown to the Court save that the father was ineligible for Polish citizenship until he had held a Polish passport for two years, whereas the child was eligible for both immediately.  These matters were deposed to by the father in paragraphs 18, 19 and 23 of his affidavit which I have carefully read and considered.

10. On or about 14 May 2012, and having spent approximately one month in Poland, the father drove to the south of France and the mother and child subsequently flew to France and there joined the father.

11. The father, in paragraphs 24, 25 and 26 of his affidavit deposed to the circumstances of the mother when she remained in Poland, her social activities and the fact that she did not want to leave her country of birth for the purposes of travelling to France.

12. Thereafter the relationship between the parties quickly deteriorated as evidenced by the father’s evidence in paragraphs 27 and 28 of his affidavit.

13. The father’s evidence is that he became concerned that the mother may leave the marriage with the child and that his son would never be returned to Australia.  He therefore deposed in paragraph 30, and with no particular detail or proper explanation of the event, that he decided:

    to take [the child] and drive to [Italy] for his security and safety.  When the three of us were out one day, [the mother] got out of the car to direct me into a parking space.  I drove off with [the child] in the car, briefly returning to the apartment to collect my important papers, including my passport and the car registration papers.

14. Thereafter the affidavit of the father concentrated upon his arrival in Italy, his attendance at the Australian Consulate in that city, his travelling to Rome and his intention to obtain a fresh passport for his son so they could return to Australia as soon as possible. 

15. The father’s evidence in that regard, and his intended course of action is explained by him in paragraph 32 of his affidavit where he said as follows:

    I am seeking urgent orders to enable me to obtain a passport for [the child] so we can return to Australia.  Melbourne is the only home [the child] has ever known.  My family and their children reside in Melbourne and I have my business in Melbourne.  I acknowledge that [the mother] and my relationship is over and that we will need to come to an agreement about what arrangements should be made for [the child] in the future.  Although I have played a significant role in [the child’s] life, [the mother] has been [the child’s] primary carer since his birth and I am aware that he needs to see his mother.  I am not however prepared to return him to [the mother] whilst we are overseas as I am extremely concerned that she will retain him in Poland and then I will have to bring what I understand and known as Hague proceedings for his return to Australia.  If the court deems it necessary, I undertake to produce [the child] to the court once we arrive in Australia.  I am also seeking that once we return to Australia, [the child] is placed on the Airport Watch List to ensure he is not removed again unless ordered by the court.  When I return to Australia, I will be staying at my mother’s home at [an eastern suburb of Melbourne].  There is room for both [the child] and I to stay there until alternate arrangements are made.

16. In paragraph 33 of his affidavit the father made an assertion, after discussions with the mother and her family, of and concerning the Polish courts which is inadmissible and to which I have had no regard and that last sentence in that paragraph should properly be struck from his affidavit.

17. In paragraph 35 of his affidavit the father asserted that he and his wife had made plans to return to Australia, after their six month stay in Europe.  As an example he said that they planned to rent the house in a town south of Melbourne for the Christmas period 2012 and exhibited an email of interest in that regard.

18. At the time of the preparation of this further affidavit of the father and his swearing to the accuracy of the contents thereof he had before him the affidavit of the mother which had been filed the previous day in court and had been served upon his solicitors.  His responses to that affidavit are contained within paragraphs 36 - 49 (inclusive) but they are extremely limited and there are significant paragraphs of the mother’s affidavit and issues raised which are simply ignored by the father in his response thereto.

MOTHER’S EVIDENCE

1. The mother deposed to being the primary carer of the child and said that until he was removed from her on 20 May 2012 by the father she had never spent a day apart from her son.

2. The alleged financial difficulties of the father and his state of health and reliance upon prescription drugs feature heavily in the mother’s affidavit.  She identified what she deposed to be the father’s problems with the law, his loss of his driver’s licence on two occasions, including once for drink driving and the fact that two court intervention orders had been taken out against him, one by his mother and another by another lady after alleged assaults.  The father did not admit these allegations.  These matters however were acknowledged and explained in more detail in paragraphs 4 and 5 of the affidavit of the husband’s sister Ms B.

1. The mother deposed in paragraph 13 of her affidavit to discussions between the parties of the possibility of relocating permanently to Europe.  She alleged that the father was depressed about his financial affairs in Australia and wanted a fresh start in Europe.  She deposed that there were discussions about the parties owning a home in Poland and another home in France as each of them both loved that country.  These facts are denied by the father in paragraph 39 of his affidavit.

2. The mother alleged that the father engaged in increasing violent and abusive behaviour, that he verbally and physically assaulted her and that in particular the police were involved in the issue deposed to by her in paragraph 15 of her affidavit.  The father has denied these allegations including the threat to remove their son from his mother if she ever tried to make a statement about violence or ever discussed such issues with any other person. 

3. The circumstances of the father’s bankruptcy are highlighted in paragraphs 17 – 21 (inclusive) of the mother’s affidavit.  In annexures to her affidavit she has provided a document from the appointed trustees of the father’s affairs and thereafter a draft of what is said by her to be the father’s intended answers thereto.

4. That annexed document is in the handwriting of the father and that has been informally identified as such by his sisters in Court as his handwriting.  That document is unsigned and incomplete and most likely in early draft form.  With those qualifications and without otherwise making any findings of fact on these issues, I have read paragraph 4 thereof in which the father recorded the following:

   4.My wife is of Polish extraction and whilst we have visited Europe twice over the last four years it can be said that we have developed a clear intention approximately two years ago to move to Europe permanently.

5. The mother asserted in paragraph 24 that the official declaration of the father’s bankruptcy cemented the decision to relocate to Europe permanently as “[the father] felt that he had failed in life in Australia and wanted to start a new life in Europe”.

6. It was deposed to by the mother that their intention was to travel to Europe, visit Poland and then spend some time holidaying in France before returning to Poland to settle down permanently.  There may however be some likely conflict in the mother’s evidence where she says in paragraph 33 of her affidavit that the parties spent time in Poland looking for apartments as they wanted to live independently from her family.  In contrast, in paragraph 42 of her affidavit, she deposed to visiting a bank in France with the father, inquiring about a mortgage and potential borrowings and then disclosed that verbal offers had been made to purchase apartments both in Poland and France but that they were unsuccessful in that endeavour.

7. All of these facts highlight the difficulty that will confront a court, in whatever appropriate jurisdiction, in one day determining the issue of where the parties intended to reside, or actually did reside or whether they were in transition and yet to determine their future habitat.  I carefully make no findings on any of these issues on the material before me and more so in circumstances where the mother has now caused to have issued on her behalf in Poland, return proceedings pursuant to the Hague Convention.

8. The parties stored their furniture in Australia in a shipping container with the intent of forwarding those contents when they were settled in Europe.  They listed their family car for sale.

9. Having arrived in Europe they then travelled to Poland where they stayed for one month.  The family then took steps to organise a Polish passport and citizenship for the father and their son.  These actions remain in progress and the outcome has not been disclosed to the Court.  I have in this regard carefully read and considered paragraphs 32 and 35 of the mother’s affidavit.

10. The parties are somewhat at odds over the circumstances in which the father travelled from Poland to France alone and the mother’s circumstances and lifestyle in Poland until she joined him in France but nevertheless, from mid May the parties agreed that they were living with their son in the rented apartment in the south of France for which they had signed a five month lease and paid in advance the entire rental amount.  It was whilst living in France that the father removed or abducted the child.

11. The mother deposed to the increasingly difficult and unsettled relationship which they experienced in that first week of living in France and leading up to the traumatic separation and the father’s removal of the son from her.

12. The mother provided a level of detail on the child’s removal which the father wholly and deliberately ignored in his conveniently provided instructions for his draft affidavit, and in particular in paragraph 30 thereof.

13. The circumstances leading up to the father’s removal of the child are detailed in paragraphs 42 – 47 (inclusive) of the mother’s affidavit and the background to that removal of the child by the father included the fact that the mother, alerted to developing issues, had hidden the child’s Australian passport, as deposed to in paragraph 45 of her affidavit.

14. The circumstances of the separation and removal are somewhat vividly and substantially described by the mother in paragraphs 48 – 58 (inclusive) of her affidavit.  Significantly, in his limited reply to the mother’s affidavit the father has simply not replied to paragraphs 42 – 49 (inclusive) thereof and in particular I highlight that he has not responded to the circumstances of his removal of the child as outlined in paragraph 48 of her affidavit.

15. The mother deposed therein that:

    48.As we drove to the shopping centre [the father] suggested that we go for a drive to a village … which is located in the mountain area approximately 30 minutes outside of Nice.  When we arrived at the destination [the father] asked me to get out of the car and direct him into the car spot.  I did so and at the time I was just wearing a singlet and light weight jacket made of silk like material.  As soon as I got out of the car [the father] drove off with [the child] in the backseat.  I was in shock and it took some time before it finally hit me that [the father] had abducted [the child] and I was left with no phone or money in a remote area in the rain and cold.

16. The mother subsequently, and with assistance from others, contacted the French police who transported her back to the rented apartment, and formally commenced their investigation.  Thereafter the mother attended at the Australian Consulate in Milan to file a Child Alert Request.  She and the police were able to access information from a government data base used in European countries and identified in the mother’s affidavit as the Schengen Information System (“SIS”).

17. Since the father removed or abducted the child from the mother on 20 May 2012 she has had no contact with her son and has only heard his voice in the background of a short telephone conversation with the father as deposed by her in paragraph 53 of her affidavit.  That is and remains a matter of real significance and cannot be in the best interests of the child.  It is and must be understood to be a matter of priority that the child have the opportunity to talk to his mother and be comforted by her.  This should be seen by the father as a priority and very much in the best interests of the child.

18. As part of the mother’s affidavit she has provided a response to matters raised by the father and I have carefully read paragraph 61 of her affidavit and which paragraph included her evidence that:

    §The father is on heavy medication and going through very stressful times and does not have the capacity to do what is in the best interests of the child;

    §it was the father who made the decision to relocate to Europe due to his dire financial circumstances in Australia;

    §the father is not close to his family and does not get along with them at all and he refers to his brother as his biggest enemy;

    §it was our joint decision to relocate to Poland which we believed would be the best for the child’s future;

    §it has always been the belief of the mother that it is in the child’s best interest to spend substantial and quality time with both sides of his family and that she would never stand in the way of a relationship between the child and his father;

    §the mother has always been the child’s primary carer and he should be forthwith returned to her care.

19. As an overview of other matters or opinion raised by the mother in her affidavit I record without making any findings that:

    §she holds grave concerns as to the father’s current mental health as he is taking a number of different medications for his anxiety and depression and often mixes those medications with alcohol (paragraph 67);

    §the father’s actions in abducting the child show that he is not fit to be making decisions in relation to what are the child’s best interests (paragraph 66);

    §she does not believe that it is the father’s intention to travel directly to Australia if and when an Australian passport for the child is issued and by implication she raised the concern of the ability of the father to take the child to a non-Convention country or beyond the jurisdiction of this or any other Court which ultimately exercises jurisdiction in this child and family matter.

20. I am particularly alert to any possibility that the father, or others on his behalf, could remove the child from a Convention country and travel to or remain in a country that is not a signatory to the Convention.  That is of course contrary to the proposals of the father as supported by his sister Ms D.  Nevertheless, and as far as is reasonably practicable it must be a matter of priority that the child cannot be taken to or retained in a non-Convention country and that is a priority in my approach to determine the orders sought in this hearing.

MOTHER’S LEGAL PROCEEDINGS IN EUROPE

1. The mother has deposed to instructing her Polish lawyers to commence proceedings pursuant to the Hague Convention for the return of the child to Poland and also proceedings for sole custody of the child, and with both applications having been issued in the courts in Poland.  These matters are deposed to in paragraphs 59 and 60 of her affidavit and annexed thereto are certified translated copies of each of the applications filed in the Polish courts.

2. For the purposes of the application for the return of the child pursuant to the Convention the mother has asserted that the place of permanent residency of both herself and the child, and of the father, was the Polish address of her parents.  Whether that was or ever has been the permanent or habitual residence of the child, or his parents, presently remains a matter in dispute between the parties and for appropriate determination at another time by the appropriate court.

3. Likewise the custody application, identified as a motion for termination of parental rights, asserts that the parties and the child had decided to permanently settle in Poland and, as I was informed by the mother’s Counsel in the proceedings, that application is pending.

MOTHER’S SUBMISSIONS RE HABITUAL RESIDENCE

1. Counsel for the respondent mother, Dr Ingleby, referred the Court to the following reported cases:

   §De Lewinski v Department of Community Services (1997) FLC 92-737;

   §LK v Director-General, Department of Community Services (2009) 237 CLR 592;

   §State Central Authority & Weston [2010] FamCA 599;

   §Zotkiewicz v Commissioner of Police (No 2) (2011) FLC 93-472; and

   §State Central Authority v Camden (2012) FLC 93-501.

2. These cases are authority on the meaning of habitual residence for the purpose of the Family Law (Child Abduction Convention) Regulations 1986, which give effect to Australia’s obligations as a signatory to the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction. Dr Ingleby relied on the cases to support his argument that the child was habitually resident in Poland from 15 April 2012 and immediately before his abduction or removal by the father which occurred in France on 20 May 2012.

3. Dr Ingleby specifically highlighted paragraph 22 of the Full Court’s judgment in State Central Authority v Camden (2012) FLC 93-501. That paragraph reads:

   There followed acknowledgement by [the trial judge]…that the determination of habitual residence is a question of fact in each case before she went on to discuss the High Court’s most recent consideration of the process of determining habitual residence in LK v Director-General, Department of Community Services (2009) 237 CLR 592 (“LK”). Her Honour observed that the High Court had confirmed:

   §that the search is for the connection between the child and the requesting state in which it is alleged the child was habitually resident immediately before removal;

   §there is a wide variety of circumstances that bear upon where a child resides and whether that residence is habitual; and

   §the intention of the parents, although not solely determinative, is relevant to the significance to be attached to particular circumstances in each case like the duration of a person’s connections with a particular place of residence.  

4. Dr Ingleby was correct in identifying these cases as important to the question of habitual residence but that is not the primary issue now before me in these urgently listed, but now defended interim proceedings.

5. As I have identified in these reasons for judgment the parties have given very conflicting affidavit evidence as to their intended residence, relocation and future abode.  All of these matters must subsequently be determined whether in proceedings relating to the rights of the child and issues of his custody or residence or otherwise in proceedings under the Hague Convention.  These matters are largely for another day and not questions to be immediately determined by this Court. 

6. Additionally, Dr Ingleby provided the Court with a copy of the text of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction.  He specifically drew the Court’s attention to Article 7 of the Convention, which states:

   Central Authorities shall co-operate with each other and promote co-operation amongst the competent authorities in their respective States to secure the prompt return of children and to achieve the other objects of this Convention…

7. The requirement for co-operation relates largely to proceedings under the Convention.  This Court has not been asked to determine any issues under the Convention, nor has any such application been made in this jurisdiction.  Again, it is a matter largely for another day. 

FATHER’S SUPPORTING WITNESSES

1. On behalf of the father his solicitor has filed affidavits from his sisters Ms D and Ms B.

2. Ms B has deposed that the parties had not made any mention to her of the fact that they would not return to Australia or that they would permanently be living in Poland.  Indeed she deposed that she had been told that the family was travelling to Europe for six weeks and they needed someone to look after their dog for that time.

3. Clearly that information which she was told as to the six week period was incorrect given that the parties had rented the two bedroom apartment near Nice for a period of approximately five months.  Otherwise I make no further finding upon or comment in respect of the affidavit of this witness or upon the annexed document purportedly evidencing the parties intention to develop and live in an apartment site in S, an inner Melbourne suburb.

4. The further affidavit and the annexed email of Ms D is of far more significance given the involvement that she proposed to have with the return of the child to Australia pending further order or determination of the appropriate venue for the continuation of proceedings on child related matters.

5. Ms D is a legal practitioner who holds a Volunteer Practising Certificate.  She describes her occupation as “Lawyer”.

6. She deposed in her affidavit to inquiries that she has made with the Department of Foreign Affairs and Trade and with the International Social Service and, whilst I have read her affidavit I currently do not accept and do not rely upon the matters which she has deposed to in paragraphs 3 – 6 (inclusive) thereof.

7. Ms D spoke to the mother by telephone on 23 May 2012 and otherwise has been in email contact with her and these matters are recorded in paragraph 7 of her affidavit which I have read, including the email annexure.  The contents of that document are a matter to which I will shortly return in these Reasons for Judgment.

8. Ms D deposed that she had no indication from either of the parties before they left Australia that they would not be returning here after their overseas trip or holiday.

9. In paragraph 9 Ms D has extensively outlined her intended involvement in that, subject to the granting of an Order for a passport to issue for the child, she is proposing to travel to Europe to collect the child and to return him to Australia subject to the conditions of any orders of this Court.  She has undertaken to safeguard the welfare and interests of the child of any return flight and to produce him at this Court and to deliver up any replacement passport issued for the child as is ordered by this Court. 

10. On the basis of those promises to the Court as contained in her affidavit I required Ms D to give sworn evidence and to provide an appropriate formal undertaking to the Court with the full knowledge and understanding of the seriousness of that obligation which was carefully explained to her by the Court.  Such undertaking, as has been given to and accepted by the Court includes her obligation to return the child directly to Australia, attend at the Family Court when required and abide by all further orders and directions of the Court.  I have directed that a transcript of her evidence and her undertaking is to be taken out, placed upon the Court file and made available to all parties.

11. As to her annexed email I refer only to the penultimate paragraph and the offer of this witness to pay for the air travel of the mother to Australia, if it is that she elects to return to this country.  Further Ms D had offered accommodation though if that were with the father’s extended family it would be most difficult and highly inappropriate and another arrangement on a short-term basis must be developed that is respectful of the mother, her relationship with her son, her rights and all inter-related issues.

12. On the listing on 1 June 2012 one of the father’s other sisters, Ms B offered up an Undertaking to financially provide for the mother by way of payment of air fares, rental accommodation in Melbourne and other monies.  That Undertaking was given under oath and has been transcribed and placed upon the Court file.  Likewise the evidence of Ms D was transcribed as to her Undertaking, and her understanding thereof and that is also to be transcribed and placed upon the Court file and both transcripts are to be made available to each of the legal practitioners.

OUTCOME

1. I have concluded on the evidence properly before me that it is in the best interests of the child to pronounce an order pursuant to s 11 of the Australian Passports Act2005 (Cth) for a new Australian passport to forthwith issue in the name of the child. In the circumstances it is appropriate that I dispense with any requirement to obtain the consent of the child’s mother for that purpose.

2. I have concluded that it is proper that I request that the child’s passport be issued and be valid for international travel for a period of twenty-one days only.  I have further determined that there should be a requirement for the child to travel directly, by plane, to Australia.  Specifically the child is not to travel to or be taken to any non-Convention country though, understandably, if the direct plane flight were to transit through such a country as part of its normal route that must be understood and could not practically be avoided.

1. I have ordered that the child is to be delivered up into the care of the father’s sister, Ms D, and she is to directly and immediately return the child to Melbourne, Australia.

2. I have concluded that an appropriate order is to restrain the father from travelling internationally with the child pending any further order of this or any other court of proper jurisdiction.

3. Upon the child’s arrival in Australia Ms D is to immediately notify the father’s solicitors who in turn must immediately notify, in writing, the mother’s Australian and Polish firms of solicitors, the Registrar of the Family Court of Australia, Melbourne Registry and the Australian State Central Authority and any other appropriate person or organisation.

4. The Australian passport of the child is to be delivered up by Ms D immediately to the father’s solicitors and they must forthwith lodge that document for safe keeping with the Melbourne Registry, Family Court of Australia.  The intention behind that order is to wholly restrict any other international travel by the child pending further order of this Court or agreement between the parties in any court ordered mediation or other informal discussions between them.

5. I have therefore injuncted the father, his servants or agents, Ms D and generally other members of the father’s family from removing or attempting to remove or permitting the removal of the child from the Commonwealth of Australia.

6. A further interim hearing must be held as a matter of urgency following the child’s return to Australia.  That hearing however must be structured in such a way as to afford procedural fairness to the mother and to accommodate any intention by her to travel to Australia.  That is not a matter upon which I have pronounced any orders.

7. I record the qualification in that if there are proceedings heard and determined pursuant to the application which has been issued by the Polish authorities pursuant to the Hague Convention then any further procedural or court hearing order must then be reconsidered in the light of any further evidence or other orders pronounced or the requirements of that Convention.

8. As the practical implementation of these Orders will most likely bring about a situation that the child is in transit or otherwise in Australia and not in the care or presence of either of his parents, he is to be then cared for by Ms D, assisted by other members of the extended family.  This is strictly an interim arrangement pending the arrival in Australia of one or both of the parents and pending any further interim Orders of this Court.

9. It is appropriate that the mother’s application for a stay of proceedings be dismissed.  That order is necessary to facilitate the interim orders that I have determined are in the best interests of the child.

10. Finally I conclude by reiterating my approach has been to urgently consider and conclude interim orders for the care of the child which are to be wholly reconsidered upon further evidence and facts being presented to the Court and subject to any and all other applications which may be filed or matters which arise under the Convention.

I certify that the preceding One Hundred and Twenty-One (121) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Young delivered on 1 June 2012.

Associate: 

Date: