Department of Child Safety and Veivers

[2008] FamCA 440

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF CHILD SAFETY & VEIVERS [2008]FamCA 440

FAMILY LAW – CHILD ABDUCTION – Hague Convention – children 4 yo & 2 yo – retained in Australia by mother – habitually resident in France – retained without father’s consent – order for return

APPLICANT: DIRECTOR-GENERAL, DEPARTMENT OF CHILD SAFETY

RESPONDENT: MS VEIVERS

FILE NUMBER: BRC 1534 of 2008

DATE DELIVERED: 28 May 2008

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: The Honourable Justice Jordan

HEARING DATE: 27 May 2008

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Parrott, instructed by C W Lohe,
Crown Solicitor

COUNSEL FOR THE RESPONDENT: Mr Cochrane

SOLICITOR FOR THE RESPONDENT: Robinson & Robinson

ORDERS

1. That the children, D born … February 2004 and M born … November 2005, be returned to the country of France and for the purposes of giving effect to this order:-

a.That the said children leave the Commonwealth of Australia on or before 19 June 2008;

b.That pending the said children, D born … February 2004 and M born … November 2005, returning to France, the Respondent mother, Ms Veivers, continue to be restrained and an injunction is hereby issued, restraining her from removing or attempting to remove the said children from the Commonwealth of Australia;

c.That pending the return of the said children, D born … February 2004 and M born … November 2005 to France, the Respondent mother, born … September 1977, continue to be restrained and an injunction is hereby issued, restraining her from changing the residence of the said children, D born … February 2004 and M born … November 2005, from the premises where THE MOTHER and the said children are currently residing namely, …, QLD;

d.That until further order, the Respondent mother born … September 1977 surrender forthwith to the Registrar of this Honourable Court all current passports relating to herself and the said children, D born … February 2004 and M born … November 2005.

e.That pending the return of the children D born … February 2004 and M born … November 2005, the said children live with a person or persons nominated from time to time by the Applicant or an officer of the Department of Child Safety and the nominated person or persons have responsibility for the day to day care, welfare and development of the said children;

f.That subject to sub-paragraph (g) below, the Commissioner of the Australian Federal Police and all Federal Agents of the Australian Federal Police retain the names of the Respondent mother, born … September 1977 and the said children, D born … February 2004 and M born .. November 2005, on the All Ports Watch Alert System at all international departure points in Australia;

g.That the said children, D born … February 2004 and M born … November 2005, and the Respondent mother, born … September 1977, be removed from the PACE Alert System by officers/agents of the Australian Federal Police upon receipt of a letter from an officer of the Department of Child Safety advising of the travel arrangements made for the said children to return to France, from 12.00am on the date nominated for the said travel in the letter;

h.That the Marshal of the Family Court of Australia and the Commissioner and all Federal Agents of the Australian Federal Police and Officers of the Police Forces and Services of the various States and Territories are required and empowered to take all necessary steps to give effect to these orders;

i.That to facilitate the return of the said children, D born … February 2004 and M born … November 2005 to France, the Registrar of the Family Court shall, upon receipt of a letter from an officer of the Department of Child Safety advising of the travel arrangements made for the said children to return to France, release to the person nominated in the letter, all current passports relating to the children for the purposes of the said children's return to France; and release the Respondent mother’s passport to her or her nominee upon request.

j.That paragraph 1, 2, and 4 of the orders of Warnick J made 5 March 2008 be discharged forthwith.

1. That all other Applications be dismissed.

1. That there be liberty to apply.

IT IS NOTED that publication of this judgment under the pseudonym Department of Child Safety & Veivers is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 1534 of 2008

DIRECTOR-GENERAL, DEPARTMENT OF CHILD SAFETY

Applicant

And

MS VEIVERS

Respondent

REASONS FOR JUDGMENT

1. This is an application by the Central Authority seeking the return of children, D, born in February 2004, and M, born in November 2005, to the country of France.  The Central Authority asserts that the children were habitually resident in France immediately prior to their wrongful removal from that country or retention in Australia and that they had been wrongfully retained in Australia by the mother without the consent of the father and inconsistent with his rights for custody.

2. The respondent mother, who is currently in Australia with the children, does not dispute that, should the Court determine that the children were habitually resident in France at the time of the children's removal to Australia, the father should be determined by the Court to have had rights of custody in that country. 

3. The respondent mother argues through her counsel that there are four aspects to her case requiring consideration by the Court:  one, that the children were not habitually resident in Europe as at the date of retention; two, if they were habitually resident in Europe, it was Switzerland and not France; three, if the children were habitually resident in Switzerland at the time of retention, the father did not have any rights of custody under Swiss law capable of attracting the remedies under the Hague Convention; and four, if the Court finds that the children were habitually resident in France and subject to the father's rights of custody which enliven the provisions of the Hague Convention, the Court should decline to return the children to France on the grounds prescribed under Reg 16(3)(b), that is, that there is a grave risk that the return of the children under the Convention would be to expose them to physical or psychological harm or otherwise place the children in an intolerable situation.

4. The background to the matter includes observing that the father is 34 years of age and was born in Switzerland, in 1973.  The mother is 30 years of age and she was born in Australia, in 1977.  In November of 2002, the mother was working in Switzerland.  She met the father and they commenced a relationship without, at that time, cohabiting.  In June of 2003, the mother discovered she was pregnant with the first child, D.  In July of 2003, the parties commenced to reside together and the mother formed an intention to keep her unborn child and she says that the father was uncertain, at that time, whether he could commit to the relationship or to the unborn child.

5. The mother asserts that in August of 2003, it was agreed between the parties that she should return to Australia to have her baby.  She says that in November of 2003, the father contacted her and confirmed that he wanted to be involved in the life of the child to be born.  He travelled to Australia for a two-week visit when, amongst other things, the parties discussed the prospect of each of them moving permanently to Australia.  The father returned to Switzerland and that option continued to be discussed between the parties.  The mother asserts that, at that time, the father, in fact, agreed to move to Australia.  She acknowledged, however, that the father continued to delay any implementation of such a plan.  In March of 2004, the mother returned to Geneva with D, she says with the expectation that all three would return to Australia at some time in the future. 

6. The mother asserts that the relationship began to deteriorate, but in early 2005 she discovered that she was again pregnant.  The mother says that in July of 2005, there was a serious altercation between the parties and that, as a consequence, she returned to Australia and the father followed her two weeks later.  Some counselling took place in August of 2005 and the mother and the counsellor assert that an agreement was reached between the parties, whereby the mother was to return to Switzerland to have the baby and that subsequently the family would return to Australia in the New Year.  The mother says that between August of 2005 and January of 2006, she set about organising the visa but that the father continued to prevaricate and that the formalities were never attended to.

7. It is apparent that towards the end of 2006, the parties agreed to purchase a home in France, at a town near the border between France and Switzerland.  In December, they jointly signed a contract for that purchase and secured a joint loan.  The settlement on that property was effected in March of 2007, at which time the parties took up occupation. 

8. The mother says that the relationship continued to deteriorate during the first half of 2007.  The father says that, although there were difficulties in the relationship, he thought that they were working their way through those difficulties.  The mother asserts that the relationship, in fact, had broken down by June of 2007 and that, as a consequence, she attempted to leave France and return to Australia.  She acknowledges that, when the father became aware of that attempt, he intercepted the mother and the children, prevented the children's departure and confiscated their passports.

9. The mother says that, to the extent that they thereafter continued to occupy the home in France, they were, in fact, separated under one roof and the mother says that she spent significant periods thereafter in Switzerland.  In July of 2007, the parties embraced some intensive counselling and it is said by the mother that an agreement was reached between the parties, reduced to writing and signed by them.  That agreement is TV1 to the mother's affidavit and it refers to an agreement by the father to "buy return tickets for me (the mother) & the kids for 1 mths time that are changeable & give them & the passports to the counceler”, and otherwise “[the mother] puts all the effort into the relations for the next mth."

10. At about the same time, the mother's brother was intending to marry in Australia and the mother wanted to attend the wedding and take the children with her.  In August of 2007, the father outlaid over $3000 and the mother paid $2000 for return airfare tickets between Australia and France.  On 7 September 2007, the father drove the mother and children to the airport and they flew to Australia.  It is agreed that the return airfare provided for the mother and children to return from Australia on 24 September. 

11. On 14 September, the mother rang the father from Australia and informed him that she and the children would not be returning.  In paragraph 99 of the mother's affidavit, she says as follows:

    It was necessary for me to give [the father] the impression that I would be returning to Switzerland as it was the only way I believed that the children and myself could leave the country safely given that he had taken the children's passports previously. 

12. As soon as the father was advised of the mother's intention, he made it clear to her that they were not being retained with his consent and he has pursued his rights to have the children returned to France under the Hague Convention.  Proceedings were commenced in Australia by the Central Authority on 5 March 2008.  Those proceedings have been contested on the basis of the parameters outlined by me at the commencement of this judgment. 

13. In the Form 2 application, the Central Authority pleads that:

    (1)The habitual place of residence of the children immediately prior to their retention was France.

    (2)The children have been wrongfully retained.

    (3)The father has rights of custody in respect of the children; and

    (4)The children were retained without the consent of the father in breach of his rights of custody which he was exercising at that time, or would have been exercising but for the retention.

14. In her Form 2A response, the mother pleads, amongst other things, that:

    (1)At all material times to the application, the children were habitually resident in Switzerland.

    (2)The children slept for the majority of the time in France for a period of five months from April to August of 2007.

    (3)The children remained at all times residents of Switzerland.

    (4)At all material times to the application, the respondent mother had separated from the father.

    (5)At all material times, the respondent mother had rights of custody.

    (6)At all material times, the respondent mother did not remove or retain the children either wrongfully or impugn upon the rights of the father in any way.

    (7)Further, or in the alternative, the father has by his actions consented or acquiesced to the children remaining in Australia; and

    (8)The return of the children to France would expose them to a grave risk of physical and/or psychological harm and would place the children in an intolerable situation.

15. On 16 April 2008, the mother swore to the truth of the above matters set out in her response, and on 8 May the mother swore an affidavit which included the following statements:

    The children were not habitually resident in France due to the house in France being effectively only for sleeping.

    And further:

    At all material times the children whilst overseas were always legally residents of Switzerland.

    And:

    At no time did the children become habitually resident in France because our life was always centred in Switzerland in relation to both work and socialising.

16. Despite those sworn statements, the mother also wishes to argue that the children were not, in fact, habitually resident in Switzerland, and that they had not, in fact, acquired any habitual residence as at September of 2007 because she was at all material times only temporarily and conditionally resident in Europe pending the parties' return to Australia in accordance with the father's various promises to move to Australia and to take up residence as a family.

17. The primary issues between the applicant Central Authority and the respondent mother relate to questions of rights of custody and the habitual place of residence of the children at the material times.  As I have outlined, there are supplementary issues raised by the mother relating to acquiescence and risk of harm.  These supplementary issues were not pursued in argument with any vigour and, in my view, can be readily disposed of on the evidence. 

18. On the risk of harm issue, the sole proposition raised on the evidence by the mother relates to D’s welfare.  She says that he has severe speech problems with a language level of a child 18 months to two years and not that of a four-year-old boy.  In paragraphs 114 to 122 of her affidavit, she makes the following assertions:

    Given the multiplicity of languages in Switzerland and the absence of domestic stability until now, it has been very difficult in my belief for [D] to maintain a proper developmental speech pattern. 

    Because Switzerland is made up of persons who speak German, French, Italian, then my children have had real difficulty in coping with the ability to engage in one particular language.  I found it very difficult to learn the language and upon returning to Australia my child [D] has been evaluated and placed on a special program which is necessary for him to properly develop his speech.

    I am unaware of any program that operates within Switzerland that would benefit [D] in the same manner as contained within Australia.

    A stable education environment is mandatory (for [D]) to overcome the difficulties with his speech which I attribute to him living in Switzerland which was a country where persons spoke a language that would be derived of German, French or Italian depending upon what region of Switzerland they came from.

19. My first observation is that, of course, the mother does not possess any appropriate qualifications which enable her to properly evaluate the extent of any developmental disability or to identify the cause or causes of such disability and to proffer any prognosis.  Secondly, the evidence in fact produced by the mother from duly qualified witnesses contradicts the very proposition advanced by the mother.  It is specifically observed in the reported assessments of governmental officers, including a speech language pathologist and a medical officer, that D’s communication impairments and language delay could not be attributed to his multi-lingual background. 

20. Finally, and in any event, the mother does not produce any probative evidence capable of satisfying the Court that there are not available in France and/or Switzerland therapy programs capable of addressing D’s problems.  The bald assertion by a lay deponent that she is unaware of the availability of such programs in Europe to support an inherently improbable proposition that such progress may not be available to children in those countries cannot be enough.  That aspect of the mother's case is simply not made out.

21. In my view, the mother's case on consent or acquiescence is equally readily disposed of on the mother's own material.  Of course, the relevant time to consider consent is the time of wrongful removal or retention.  Past consent cannot be enough, and it is obviously necessary to examine the intentions, agreements and attitudes of the parties at the time of the removal or retention.  To proceed otherwise would be both illogical and contrary to the realities of the exigencies of life, which result in families continually reassessing their options and decisions as their circumstances invariably change.  Whatever may have been the intentions, aspirations and agreements of the parties before the birth of M, it is clear that there have been many fundamental changes leading up to September of 2007. 

22. Further, the mother herself asserts that the common intention of all agreements between the parties was to return to Australia as a couple - as a family.  It is common ground that the fundamentals had changed in June of 2007, at least on the mother's case, in that the relationship had ended.  Counselling and efforts at a reconciliation had failed.  By then, the parties also had the responsibility of a jointly owned house in France and the associated large mortgage.  Perhaps the best evidence of the change of circumstances is that, in furtherance of the asserted separation, the mother attempted to surreptitiously return to Australia in June of 2007 without the father's knowledge or consent.  When the father discovered this fact, he physically intercepted the children, prevented their departure and confiscated the children's passports.  It is very difficult to imagine a clearer illustration of a lack of consent or acquiescence to a move to Australia from June of 2007.

23. The mother's assertion that during subsequent counselling the father agreed that the mother could permanently return to Australia within a month if counselling was unsuccessful, is simply refuted by a copy of the very written agreement attached to her own affidavit in TV1, which refers only to an agreement to buy return (my emphasis) air tickets.  Indeed, the very best evidence on this point comes from the mother herself in paragraph 99, wherein she acknowledges that the only way she could secure the departure of the children from France was to engage in a deception, knowing that to do otherwise the father would not agree with the children being removed.  That is the mother's own case.  There was never an agreement that the children could live separated from one of their parents in a separate country.  The case of consent or acquiescence is clearly not made out on the evidence.

1. I now turn to the two primary issues of habitual residency and rights of custody.  It is agreed, as I say, that if I find the habitual place of residence of the parties and their children at the relevant times was France, then it is conceded that the father did have rights of custody.

2. Given I have already rejected the mother's arguments relating to consent or acquiescence, other consequences will follow.  If I find that the parties and their children were habitually resident in Switzerland at the relevant time, there is a live argument on the proposition that the father did not have rights of custody in that country, which may need to be the subject of further evidence and further submissions. 

3. It is agreed between the parties that I should proceed to deal with the issue of habitual residence as a discrete matter and that my determinations on that question will necessarily dictate whether it remains necessary to consider the father's rights of custody in Switzerland as at September of 2007.

4. Mr Parrott, the solicitor appearing for the Central Authority, and Mr Cochrane, counsel for the respondent mother, each submitted that the following propositions adequately summarise the applicable principles when determining the question of habitual residency of children.  They include the following:

   (1)The expression "habitual residence" is not to be treated as a term of art with some special meaning, but rather is to be understood according to the ordinary, literal meaning of the two words;

   (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;

   (3)The habitual residence of a child whose parents reside together is the habitual residence of those parents;

   (4)It is not possible for one parent to unilaterally determine a child's habitual residence by removing that child;

   (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; and

   (6)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.

5. To determine the questions of fact identified in that summary, it is necessary for the Court to examine all of the admissible and relevant evidence produced on the subject.  What emerges from the material is quite a deal of common ground and also quite a deal of conflict.  As to the common ground on the material, it is agreed that the circumstances of the parties enable the Court to conclude that, from the date of the relationship in November of 2002 to the date of a removal of the children in September of 2007, the parties resided in Europe, predominantly in Switzerland - apart from some relatively short visits to Australia to which I have referred - and from March of 2007 to September of 2007, in France.  Secondly, that until the date of removal, the children also spent all of their lives in Europe, save for some few weeks in Australia by D, and that, like their parents the bulk of the initial period was in Switzerland and the latter period in France. 

6. It is common ground that the parties acquired a residence in France, and that that residence was jointly owned and the subject of a joint debt; that the contract for that acquisition was entered into jointly by the parties in December; that settlement was in March; and that the parties took up occupation with their children in March of 2004. 

7. It is common ground that the father continued to work in Switzerland, which was only some 10 minutes or so from the parties' home, and he asserts that that was a very common practice in that region. 

8. It emerges from the material that, after the move to France, the parties maintained records and accounts - both business and private and banking - in both Switzerland and France. 

9. It is also common ground that as at March of 2007, the parties were still residing together as a couple, it being contended by the mother that they did not separate and commence living separated under one roof until June of 2007.

10. Having highlighted the common ground, I now must address my attention to the areas where the parties differ.  What emerges from the common ground and the mother's express sworn testimony on this point, is that each of the parties asserts that, prior to March of 2004, the children's habitual place of residence was Switzerland. The issue for the Court in considering the competing evidence of the parties is one which requires the Court to determine whether the habitual residence of the children's parents changed from Switzerland to France prior to September of 2007.  That is, did France become the habitual abode adopted voluntarily by the parties for settled purposes as part of the regular order of their lives.

11. The mother asserts that the habitual place of residence of the children - and therefore their parents - remained in Switzerland.  She asserts that the house in France was only for sleeping purposes.  The father says that the parties made a joint decision to acquire property in France and that they did so for a variety of reasons, including financial and lifestyle, and that they planned to live in France for at least five years and to live their lives predominantly in France. 

12. On the evidence on these issues, the mother points to the fact that the children were registered in Switzerland as residents prior to March of 2007 and that they remained on that register after 2007 and at all material times up to their departure.  She points to the fact that the parties continued to use some childminding source from Switzerland; that the husband's employment was in Switzerland.  She asserts that the family's friends and activities were predominantly in Switzerland and, as I say, referred to the fact that the parties' loan and other bank accounts were retained in Switzerland, that they did half their shopping in Switzerland and that they accessed medical practitioners from Switzerland.  She also attests to the fact that D was eventually enrolled at a multi-lingual school in Switzerland.

13. In support of her case, the mother also files affidavit material from a multitude of witnesses who attest in part to conversations they had principally with the mother, but at times also with the father, wherein there were discussions about the intention to move to Australia.  I should observe that most of that evidence is inadmissible and what remains, in light of my earlier ruling, is largely irrelevant.  As I have said earlier, such stated intentions or future plans to move do not change a couple's habitual place of residence or their children's.  To effect such a change, the parties must act upon such stated intentions.  It is common ground that the father never did.  Further, a matter which appears to be overlooked is that, even on the mother's case, the only agreement was, at its highest, that at some stage in the future the entire family would settle in Australia.  The vast bulk of the evidence the mother relies upon does not assist on this question of habitual place of residence.

14. Turning to the father's material, he asserts that, in fact, the acquisition of the property in France was at the mother's insistence;  that he was initially reluctant to move because of his connection with Switzerland and, consistently, because of his concern about the very significant cost and commitment the parties would assume by moving to a property in France.  He asserts that the mother did much of the research to locate the property in France and he asserts that, once the parties moved, they each embraced the local community, as did their children.  He says that the mother herself made inquiries of the local school.  He says that he notified the Swiss Population Registrar of his change of residence and endeavoured to change the children's registration, only to be told that this would have to be attended to by the children's mother.  He asserts that most of the shopping undertaken by the parties was local.  He refers to regular local outings and inviting friends over for barbeques every second weekend. 

15. As to the mother's intention and understanding, he refers to notes the mother made, apparently in about April of 2007, in anticipation of a housewarming party, and he has attached that note which the mother has subsequently acknowledged is, in fact, her note in her hand, and it reads as follows:

    [The mother], [the father], [D] and [M] have finally moved into their dream home in France, just 20 minutes from downtown Geneva.  Plenty of space and fantastic views.  Come and join in our celebration.

16. On the day of the hearing yesterday, the mother was given leave to file a reply.  It needs to be observed that I gave that leave to file that affidavit so late in time, notwithstanding that on the face of it, it was inconsistent with the letter and spirit of directions made by Warnick J.  I took the view that it was prudent to allow the mother to file that affidavit but, as was conceded by her own counsel, the father had not had the opportunity to deal with the issues raised by the mother and that all of those considerations necessarily would have some impact upon the weight which could be given to such material. 

17. Nevertheless, as I say, I have allowed that affidavit to be read and it is appropriate, then, that I highlight some of the more significant matters set out in that affidavit.  Interestingly, in response to the father's assertion that he was somewhat reluctant to acquire a property in France and move to that property, the mother makes the following response in paragraph 9:

    We decided that it was best to move to France as we would get more for our money and it would be a good investment as there would be growth in that area eg new shopping centre, train station and this would raise the value of the property for resale.

    The [French] house is five minutes drive to Geneva.  I did visit the local primary school but they had nothing in the way of English or a system to help the kids with special needs like [D’s], so this school which was a possible second choice was ruled out.

18. In paragraphs 21 and 22, the mother acknowledged that the parties did, in fact, engage two local nannies for a month and a half. 

19. In paragraph 29, she acknowledged that Exhibit FAF4, the notes in relation to the housewarming, were hers, and that the party did, in fact, subsequently take place. 

20. The father filed multiple affidavits from witnesses who provided corroboration of his testimony on key issues relating to at least the external appearances of the parties having set up home in France and of their regularly having visits, and as to the extent of the time the children spent in their French home. 

21. To return to the key propositions in light of the above review of the evidence and, in particular, in the context of determining whether the acquisition of a property in France was voluntary for a settled purpose and as part of the regular order of life, I make the following observations.

22. Firstly, there can be no doubt that the acquisition was voluntary.  Indeed, again, the very best evidence on that point is the mother's own evidence that the parties decided to acquire a property in France for the variety of advantages identified by her in paragraph 9.  It is further evidenced by the testimony of the father relating to the large home and larger yard.  There is no suggestion that the mother did anything other than voluntarily sign the contract and the associated finance documents.  It is clear that the parties voluntarily took up occupation in March. 

23. On the issue of whether I should view that acquisition as being for a settled purpose, I again note that the subject property was jointly acquired.  I accept on the evidence of the father, not refuted by the mother, that this acquisition represented a very substantial financial commitment and left the parties jointly with a very substantial debt.  I conclude that they did so as they perceived it gave advantages to them and their family and was to be preferred over apartment living in Switzerland.  I find that the acquisition provided the parties and their children with a larger property and a larger yard and, as the wife herself said, gave them the opportunity to enjoy the benefits of a good investment.

24. On the final proposition in terms of whether there is sufficient evidence to find that this move should be seen "as part of the regular order of life", I review the actual and inferred intentions of the parties.  As I say, the move represented a substantial commitment and tends to reinforce the father's assertion that it was a long-term commitment.  There were clearly lifestyle considerations identified by each of the parties and perceived advantages for each of the parties and their children.  Such a substantial commitment to acquire a home merely as a place to sleep as asserted by the mother is a more inherently improbable proposition. 

25. In any event, what, in my view, is the most telling and best evidence of the intention of the parties and the state of mind of the mother is what fell from her own hand in her own notes shortly after the parties took up occupation, and that is that this property was not acquired as a sleep-out, but rather as a "dream home".  That assertion is entirely consistent with the father's evidence.  Such a description is inconsistent with the mother's more inherently improbable assertions that the property was acquired for the purpose of sleeping in France while they continued to "reside" in Switzerland. 

26. I find the acquisition of the property in France was a joint decision, which included a joint decision to change their place of residence from Switzerland to France to the mutual benefit of themselves and their children, with a view of establishing a home in France which would enable them to embrace the advantages that were available by living in France and accessing what each of the neighbouring countries had to offer the parties and their family. 

27. I therefore conclude that, by their joint, voluntary decision made at the end of 2006 and the beginning of 2007, the parties formed the intention to make a move which would have the effect of changing the family's residence from Switzerland to France, and that in December, by executing the contract, and in March by proceeding with the settlement and moving into the premises in Switzerland, they gave effect to that joint, voluntary intention, and that between March and September of 2007 the habitual place of residence of the parties and their children had become France. 

28. As I noted earlier, at law, the mother cannot unilaterally change the habitual place of residence by removing or retaining children elsewhere. 

29. I therefore find that the mother removed the children from France and retained them in Australia by engaging in a deception of the father and that he at no stage consented to such retention. 

30. I find that:

    (1)The habitual residence of the children immediately prior to their retention was France, a Convention country.

    (2)The children have been wrongfully retained from the country referred to, being France; and

    (3)In the circumstances, the children should be returned to that country, which will be charged with the responsibility of determining as between these parties where and with whom the children should reside in the longer term.

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Jordan

Associate:

Date: