Department of Child Safety & Porter

[2008] FamCA 385

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF CHILD SAFETY & PORTER [2008] FamCA 385

FAMILY LAW – CHILD ABDUCTION – Hague Convention – Children brought to Australia – Application by father for return of the children to the United Kingdom – The mother alleged that the father agreed that she bring the children to Australia with the prospect that she and the children remain in Australia and that therefore their retention was not wrongful – The mother alleged that the father acquiesced in the retention of the children in Australia – Whether the father agreed before the departure from the United Kingdom that the mother might stay in Australia with the children – Whether the mother wrongfully retained the children in Australia – Whether the father acquiesced in the retention of the children in Australia – Whether, notwithstanding a finding of acquiescence, an order should be made for the return of the children – Order made to return the children to the United Kingdom

Hague Convention on International Child Abduction, Regulation 16(3)(a)(ii)

In the Department of Health and Community Services v Casse (1995) FLC 92-629

APPLICANT: DIRECTOR GENERAL DEPARTMENT OF CHILD SAFETY

RESPONDENT: MRS PORTER

FILE NUMBER: BRC 960 of 2008

DATE DELIVERED: 5 June 2008

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: WARNICK J

HEARING DATE: 21 May 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Parrott

SOLICITOR FOR THE APPLICANT: Crown Law

COUNSEL FOR THE RESPONDENT: Mr Page SC

SOLICITOR FOR THE RESPONDENT: Wiltshire Lawyers

Orders

(1)That the children, K born … November 1999 and E born … August 2004, be returned to the country of the United Kingdom and for the purposes of giving effect to this order:-

a.That the said children leave the Commonwealth of Australia on or before 26 June 2008;

b.That pending the said children, K born … November 1999 and E born … August 2004, returning to United Kingdom, the Respondent mother, MRS PORTER, 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, K born … November 1999 and E born … August 2004 to United Kingdom, the Respondent mother, MRS PORTER, born … September 1963, continue to be restrained and an injunction is hereby issued, restraining her from changing the residence of the said children, K born … November 1999 and E born .. August 2004, from the premises where THE MOTHER and the said children are currently residing namely, …;

d.That until further order, the Respondent mother MRS PORTER born … September 1963 surrender forthwith to the Registrar of this Honourable Court all current passports relating to herself and the said children, K born … November 1999 and E born … August 2004.

e.That subject to sub-paragraph (f)  below, the Commissioner of the Australian Federal Police and all Federal Agents of the Australian Federal Police retain the names of the Respondent mother, MRS PORTER born … September 1963 and the said children, K born … November 1999 and E born … August 2004, on the PACE Alert System at all international departure points in Australia;

f.That the said children, K born … November 1999 and E born … August 2004, and the Respondent mother, MRS PORTER 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 child to return to the United Kingdom, from 12.00am on the date nominated for the said travel in the letter;

g.That the Marshall 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;

h.That to facilitate the return of the said children, K born … November 1999 and E born … August 2004 to United Kingdom, 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 United Kingdom, 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 United Kingdom; and release the Respondent mother’s passport to her or her nominee upon request.

i.That paragraph 1, 2, and 4 of the orders of Warnick J made 19 February 2008 be discharged forthwith.

(2)That all other Applications be dismissed.

(3)That there be liberty to apply.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 960 of 2008

DIRECTOR GENERAL DEPARTMENT OF CHILD SAFETY

Applicant

And

MRS PORTER

Respondent

REASONS FOR JUDGMENT

1.Mr and Mrs Porter, both British nationals, have two children, each born in the United Kingdom, being K in November 1999 and E in August 2004.  The mother and children entered Australia on 26 July 2007.  They held tickets for a return flight to the UK, on 2 September 2007.  On 1 September 2007, the mother advised the father of an intention to stay here with the children.

2.In this application by the Central Authority for the return of the children to the United Kingdom pursuant to the regulations implementing the Hague Convention on International Child Abduction, there is no issue taken about the habitual residence of the children immediately before they were brought to Australia as being in the United Kingdom, nor is there any question raised about the father’s rights of custody in respect of the children.  Nonetheless, the mother resists an order that the children return to the United Kingdom on two bases:

(1)That, because (as she alleges) the father agreed that the mother bring the children to Australia with the prospect that she and the children remain in Australia, their retention was not wrongful; and

(2)The father acquiesced in the retention of the children here.

3.Mr Page SC, counsel for the mother, also sought to make something of the proposition that even on the father’s case, the “removal” was not wrongful.

Did the father agree before the departure from the United Kingdom that the mother might stay in Australia with the children?

4.I find as a fact that the answer to this question is “no”.  I do so for the following reasons.

5.The father’s contention (as stated in his Sworn Statements filed on 8 May 2008) is:

3.Prior to the Respondent travelling to Australia with our children [K], born [in] November 1999 and [E] born [in] August 2004, we had discussed the possibility of relocating to Australia permanently.  I was in favour of this idea and encouraged the Respondent to look into the logistics of such a move, including whether we would be successful in applying for a permanent visa.

4.The Respondent left the UK with the children on the 23^rd July 2007 and was due to return on the 2^nd September 2007. …

6.There is a marked disparity between what the mother asserts in her answer and affidavit verifying on the one hand, and on the other hand, what appears from email communications by her with the father, from other unchallenged facts and indeed, from the concessions recorded above and made on her behalf.

7.In the answer, she says:

1.The Respondent says that:-

a.the habitual residence of the children [K] born [in] November 1999 and [E] born [in] August 2004:-

i.     ceased to be the United Kingdom as and from 26 July 2007;

ii.    is and has been Australia since 27 July 2007.

…

2.With the shared settled intention of the children’s parents, [MR PORTER] and [MRS PORTER] the children left the United Kingdom and came to Australia for the purposes of making Australia their place of habitual residence.

8.In the affidavit verifying, she said:

2.The Father, [Mr Porter], gave his consent for the children of the marriage to travel with me to Australia with the intention that Australia would become our place of permanent residence and our home.

9.Mr Page also argued that other paragraphs (of which paragraphs were tendered by the Authority and are Exhibit 1 in the proceedings), being 18 to 20 of an affidavit sworn by the mother on 20 May 2008, did not exclude the proposition that, before the departure from England, the father agreed that the mother and children might remain in Australia.  These paragraphs are:

18.Prior to July 2007, [the father] and I agreed to me travelling to Australia with the children for my nieces 21^st birthday.  [The father] and I thought this would be an opportunity for me to make enquiries in relation to our relocating to Australia as a family.

19.Prior to leaving the United Kingdom, [the father] and I discussed at length, the possibility of relocating to Australia permanently.

20.I recall [the father] saying to me before I left the United Kingdom make sure you go to immigration and get what you can to get us into Australia”.

10.I accept that these paragraphs do not exclude the assertion that the father had agreed that the mother and children might remain in Australia.  However, I think it surprising that, if the mother so asserted, she did not expressly say so.  Moreover, I would not draw an inference in favour of that assertion from the context of the paragraphs, which is much more consistent with the father’s contentions.  But, in any event, other facts, either admitted or not contested by the wife exclude the inference of such an assertion.  These include that, as seen earlier, the wife had purchased a return ticket.  She had also enrolled in England in a course due to start around the end of September 2007, and had paid the fees.  The older child was enrolled to start school in England.

11.Also, the content of correspondence, discussed later, is, as suggested earlier, much more consistent with the father’s contentions about the agreed basis of the trip to Australia than with those of the mother about that topic.

Given that the father admits that the mother and children travelled to Australia, albeit for a temporary stay, with his consent, was the removal wrongful?

12.I think it unnecessary to answer the question.  The issues are as to retention and acquiescence.

Did the mother wrongfully retain the children in Australia at the beginning of September 2007?

13.Yes.  This follows from the concessions on her behalf, from my conclusion as to the basis upon which she and the children came to Australia and from her unilateral decision to stay here with the children.

Did the father acquiesce in the retention of the children in Australia?

14.The answer to this question is “yes”, notwithstanding that, within a very short time of acquiescence, he began to have doubts, which he expressed to the mother, about his agreement.  He later, but again within a short time of the retention, opposed the retention unless the mother could demonstrate that she and the children, at least, could obtain permanent residence in Australia.

15.The evidence which leads me to the above conclusions is as follows:

16.The father deposed:

6.I first became aware of the Respondent’s intention to remain in Australia when she told me that she intended to enrol on a hairdressing course which would begin on the 24^th September 2007.  I agree that I was supportive of this idea and in fact encouraged the Respondent to remain in Australia in order to begin the course because, although the Respondent states, in her Affidavit, that the course was for two years, she initially told me that it was of a one year duration and once completed she would be in a position to apply for a skills visa thus enabling myself and the family to remain in Australia permanently.  I have however since discovered that firstly the course was of a two year duration and that once it was completed, the Respondent would have to work in the trade for a minimum of one year prior to being in a position to apply for a skills visa.  I also discovered that an application could not be made for such a visa once the applicant was over 45 years of age.  The Respondent was 44 years of age when she left the UK in 2007.  She would therefore be 47 years of age by the time she was in a position to apply for a skills visa.  In addition, whilst the Respondent was studying, I would only be allowed to work a maximum of 20 hours per week, which would certainly not provide sufficient income for me to support my family.  It therefore appeared that the Respondent was being less than honest with me, and I began to have serious doubts about the feasibility of the proposed move.

7.…The e mails show my reluctant acceptance that the Respondent would remain there for the time being and at first I genuinely believed that this may be the best way of organising our permanent move. …

17.After the mother informed the father that she intended to remain in Australia, and the father agreed, expressing an intention to join her, email correspondence began promptly.  On 3 September 2007, the father wrote that he had reservations about the proposed move, but it is not clear whether these were simply trepidation at the magnitude of it or because of some concerns about legal limitations on future residence.  But the parties’ joint and individual situations obviously rapidly altered.  On 8 September 2007 the father wrote, apparently following a deterioration of the parties’ relationship:

…Lets give ourselves 3 month truce (say to Jan) put the children into their new schools, start you course.  I’ll won’t take any action this end reguarding a lawer.  We both agree a time when we can all see & speak to each other on the web cam. and at least the children have some regular contact with me and more importantly some family time together. If we can agree to this, it is step forward and hopefull in time we can work out our diffrencies.

18.Then, on 13 September 2007 the father wrote, indicating a change of mind about the mother and children staying in Australia:

… [Name] I think we reaching the end of the road. You say you are doing this for the family, [name] there won’t be a family if we can’t resolve our problems.

I think you should do your hairdressing course here, they do one at the local college. then when you pass. We should then apply for Auss, and if accepted, go out there as a whole family.  You can’t expect me to throw everything I have worked for in the hope that, we will be accept in to Auss. [Name] I will not do that, it’s not the action of a sensible parent. and if Auss is more important to you than our marriage, then our marriage was always doomed.

I need you to think this whole thing through, my heart tells me you will stay, and if that is you decision then so be it. God know how that will effect our young [K]. I am just great full [E] is to young to understand. I am hoping you will see how hard it will be for you, to bring up a young family and be in full time study, with out me.

And for me I will just have to get along, as you have said a million times I am a island, I’ll cope.

19.And on September 16:

[Name] we need to resolve this before it’s to late. we are hurting each other and it was only a few weeks go we were both happy, i wonder what the hell went wrong and how it happened so quickly. It easy to blame one another but the biggest losers here are our children.

I want you and our children home.

I beg you to reconsider, your decision, and think what you are throwing away. Yes we do need to change things, we do need to sale up and move, and we did both get stuck in our ways. but I can;t see how we can sort this out when there is 12000 miles between us.

Come home please.

20.By the next email on September 18, the father is firm in his withdrawal of agreement to the mother’s proposed course:

…It also goes without saying, I will fight to get my children back into the U.K, and as their dad I have rights, under English & international law. But before we go down that path, we should try to resolve this, if possible, if not for us, for the sake of our children, and if either parties are not willing to move, than the legal way, it will have too be.

…

You went on Holiday and you told me that there was a way we could immigrate.  You told me, that by doing a year hairdressing course we would be in, but the down side was    you had to start i on Sep 24.

…

21.In the email, the father then set out in terms consistent with the consent of his affidavit, the result of enquiries and his belief about the impossibility of obtaining permanent residence in Australia.  He then said:

…Did you seek advice to confirm what I was telling you?  If you had done so and I was proven wrong I would be half packed up and on my way to you by now.  I am still CONCURNED THAT YOU DO NOT HAVE ALL THE FACTS.  If I am right and after a years study your application is denied, what then, back to the UK. And where do you live?

I beg you to look at all the fact before you take this path.

That was the situation we were in, now we have added a new element

22.On 25 September 2007 the father wrote to the mother, saying that if she could convince him that she would get citizenship then “…I am on your side.”.  The father was still taking a similar approach in his email of 27 September 2007.

23.In a letter she wrote on 5 October 2007, the mother said:

…We left home with your blessing, you told us to stay with your blessing, you told us to cancel our flights and stay a few days later you changed your mind. …

24.Later she said:

…Again I would like to say that the children are here, you gave your blessing and you told us to stay, because you changed your mind, it is not abduction or kidnapping. …

25.On 6 October 2007, the father repeated that he wanted his children home in England and that the mother was acting unlawfully keeping them in Australia.  He said:

…There is still away forward, if your immigration agent/lawyer can convince me that you will get citzenshit to Auss.  Then I would come to Auss for a month in the new Year and again in the summer. but once you course is over you come back to the U.K and await the result of your citizenship (it could take 2 years) and if you obtain it we all move out together. …

26.On 16 October 2007 solicitors for the father wrote to the mother and among other matters, said:

Our client now has serious concerns as to whether you intend to return to the UK and we are therefore instructed to act on our client’s behalf with a view to implementing the immediate return of the children.  Please note that by retaining the children in Australia, you are acting unlawfully due to the fact that our client has parental responsibility for both [K] and [E] and has not given you permission to take the children to Australia on a permanent basis.  We have advised our client that under the Hague Convention, your behaviour constitutes child abduction, and therefore if we do not hear from you within 21 days that you will be returning the children to the United Kingdom, we will advise our client to immediately make an application via the International Child Abduction and Contact Unit under the Hague Convention for the children’s return.

…

We are instructed to inform you that our client has always been open to the possibility of emigrating to Australia and would still view this positively if you could show sufficient evidence that you and our client would be able to obtain citizenship in Australia with the children once your course is finished.  Without such evidence, our client is not prepared to jeopardise his career in the UK or to sell the former matrimonial home with a view to moving to another country when there is no guarantee that citizenship will be obtained.

We would however wish to make it completely clear that our client is totally against you remaining in Australia with the children at this time, without his consent.  We would reinstate the fact that this is unlawful and if we do not hear from you within the stipulated time scale, we will immediately advise our client to continue with his application for the children’s immediate return.

27.On 8 December 2007, the father wrote (to Mr and Mrs B):

…I have said from the very first that if [the mother] can get citizenship in Auss I would be there.

Not once has she explained to me how this was possible.

28.In reaching the conclusion that the father “acquiesced” in the retention of the children in Australia, I am mindful of what Kay J said about “turmoil and confusion” in In the Department of Health and Community Services v Casse (1995) FLC 92-629 at 82,311:

I would adopt the views of the Court of Appeal in Re R. (Child Abduction) (1995) 1 FLR 716 at 727 that there needs to be clear and unequivocal words and conduct which could properly be interpreted as acquiescence on the part of the father. In my view there cannot be true acquiescence where the parties are in a state of confusion and emotional turmoil (as identified by Stewart-Smith L J in Re: A (Abduction: Custody Rights) (1992) Fam 106 at 121.

Being hopeful of a reconciliation in this case the husband was prepared to pamper the wife’s demands over the weeks following 27 March.  The wife’s counsel was unable to point to any conduct on his behalf after that time which could clearly and unequivocally amount to an acquiescence by him. …

29.No doubt recognition of such conditions as “turmoil and confusion” is part of determining the subjective intent of a parent seeking return.  But that is not to say that clear statements may not support a finding that they represented the state of mind of the speaker at the time, notwithstanding contrary statements at differing times and emotional lability and confusion.

30.In this vein, it might well be that, as time passed and the father had difficulty making contact with his children, subsequent actions, such as his statement on 1 December 2007 that he would go to Australia if the mother still wanted him to, would not be regarded as an acquiescence fully voluntarily made.  But that would not affect the acquiescence which I find occurred at the beginning of the retention.

31.The Central Authority contends that the alleged acquiescence was not a true acquiescence because it was founded on a false premise, namely the availability of a course of action leading to permanent residence for the family here.  This is not established, though neither is the converse.

32.Mr Page argues that, once he had acquiesced, the father could not withdraw from that stance.  If that proposition relates to a matter of fact, I reject it.

33.If the proposition is one as to law, I also reject it.  There is nothing in Regulation 16(3)(a)(ii) to support such a proposition.  In any event, I do not see that, at the stage of determination of whether a respondent can rely on the relevant paragraph of the Regulation, whether acquiescence, once given, has been withdrawn or not, makes any difference.  It may well be otherwise when exercising a discretion whether or not to order return, once an acquiescence has been made out.

Should an order be made for the return of the children, notwithstanding the finding of acquiescence?

34.It is accepted that notwithstanding the finding of acquiescence by the father, a discretion arises to order return of the children in any event.  In my view, I ought exercise that discretion to order their return.  I do so for the following reasons.

·No acquiescence by the father provided any significant basis upon which the mother conducted her affairs.  To the contrary, within a matter of days of his first approval, he made his reservations, and then his opposition, known.

·It is still uncertain as to whether the mother is or will become, in a particular set of circumstances, entitled to reside in Australia.

·It is equally uncertain whether the father might successfully apply for permanent residence here.

·If the children return to the United Kingdom the mother will have the choice of returning there also.  If she so chooses, both parents and the children will then be within a jurisdiction which can deal with the appropriate parenting arrangements if the marriage remains broken down.