Department of Communities and Helscher

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF COMMUNITIES & HELSCHER

[2010] FamCA 703

FAMILY LAW – CHILD ABDUCTION – HAGUE CONVENTION – Application by Central Authority for return of child to the United States – Habitual residence – Child’s habitual residence ceased to be the United States – Application dismissed

Family Law (Child Abduction Convention) Regulations 1986 (Cth) Regs 16(1A), 16(3)(a)(ii)

De L v Director-General, NSW Department of Community Services (1996) 187 CLR 640
In reF (A Minor) (Child Abduction) [1992] 1 FLR 548
In reF (A Minor) (Child Abduction): (Custody Rights Abroad) [1995] Fam 224, 232
In reP (A Child) (Abduction: Custody Rights) (2004) EWCA Civ 971; 2004 All ER (D) 520; 2005 Fam 293
LK v Director-General, Department of Community Services (2009) HCA9 237 CLR 582
Panayotides and Panayotides (1997) FLC 92-733
MW & Director General, Department of Community Services [2008] HCA 12

APPLICANT:

Director-General, Department of Communities as State Central Authority

RESPONDENT:

Ms Helscher

FILE NUMBER:

BRC

3154

2010

DATE DELIVERED:

27 July 2010

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

O’Reilly J

HEARING DATE:

23 July 2010

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr Parrott

Crown Law

COUNSEL FOR THE RESPONDENT:

Mr Andrew

SOLICITOR FOR THE RESPONDENT:

Legal Aid Queensland

Orders

IT IS ORDERED

The application by the Central Authority for the return of the child E born … August 2003 to the United States of America is dismissed.
Ms T, Department of Communities, or her nominee release all current passports held relating to the child and the mother to the mother or her nominee.
Paragraphs 1, 2, 4 and 5 of the orders made by the Honourable Justice Murphy on 13 April 2010 are discharged.
All other applications in the matter are dismissed.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 3154 of 2010

DIRECTOR – GENERAL, DEPARTMENT OF COMMUNITIES

Applicant

and

MS HELSCHER

Respondent

REASONS FOR JUDGMENT

Application

This is an application by the Director-General, Department of Communities under the Family Law (Child Abduction Convention) Regulations 1986 (Cth) made pursuant to the Hague Convention for an order pursuant to Reg 15 of the Regulations that the child E born in August 2003, who is nearly seven years, be returned into the United States of America.

Basis of application

The Central Authority on behalf of the father, Mr Helscher, presents the case that the child was wrongfully retained in Australia by the mother, Ms Helscher, on 13 August 2009 or alternatively 12 December 2009.

Issues

The Central Authority and the mother agreed that:
a.the child is under 16 years (Reg 16(1A)(a))
b.the mother retained the child in Australia
c.
the father had rights of custody under Californian law

(Reg 16 (1A)(c))
d.at the time of the retention the father was actually exercising or but for the retention would have exercised rights of custody (Reg 16(1A)(e)).
The mother submitted that the retention on 13 August 2009 or alternatively 12 December 2009 was not wrongful because on those dates the child’s habitual residence was not the United States because there was a settled intention of the parents to relocate the child’s habitual residence to Australia with effect that the provisions of the Convention do not apply.
The mother submitted in the alternative that if I should determine the child’s habitual residence was the United States on either of 13 August 2009 or 12 December 2009 I should find that the father consented to the retention so as to enliven the discretion not to return the child (Reg 16(3)(a)(ii)).

The structure of the Regulations

Regulation 16(1) provides that if the Central Authority satisfies the Court that a child’s removal was wrongful the Court must, subject to Reg 16(3), order the child’s return.
Regulation 16(1A) provides that a removal is wrongful if each of the matters referred to in Reg 16(1A)(a) to (e) is established. The Central Authority carries the onus of proof in relation to the matters referred to in Reg 16(1A).
Regulation 16(3) provides a discretion pursuant to which the Court may refuse to order the return of the children if the mother establishes a matter in Reg 16(3), relevantly in this case Reg 16(3)(a)(ii). The mother carries the onus of proof in relation to those matters.
However, proof of a matter under Reg 16(3) does not have the effect that, without more, the Court will refuse to order the child’s return. The discretion in Reg 16(3) is “unconfined except in so far as the subject matter and the scope and purpose of the [Regulations] enable it to be said that a particular consideration is extraneous”. De L v Director-General, NSW Department of Community Services (1996) 187 CLR 640 at 661, per the majority.
Regulation 16(5) provides what is sometimes called the “residual discretion”, namely that the Court is not precluded from making an order for the child’s return only because a matter in Reg 16(3) is established by the mother.
Thus, Reg 16(5) makes clear that, even if the mother discharges the onus on her to prove (relevantly) one of the matters in Reg 16(3), it is open to the Court nonetheless to order the child’s return.

Background facts

The father and the mother married in February 2003 in California. The mother at that time was a few months pregnant with E. The mother spent some of her pre birth time in Australia. The father joined her here for the birth in August 2003.
The father is a United States citizen. The mother is an Australian citizen. The material includes a United States Consular Report of Birth Abroad certifying that the child acquired United States citizenship at birth.
The father is 39 years and the mother 36 years. The mother has two children in Australia by a prior relationship, B born in September 2008 nearly 12 years and H born in January 2001 nine and a half years who live with their father Mr W in Brisbane.
The father is a public servant with the Californian government. The mother and the father met in Brisbane in 2002 while the father was living here. The father returned to the United States in February 2003. Upon the discovery of the pregnancy however the mother joined him in the United States and the marriage took place. After E’s birth the parents and the child travelled back and forth between the United States and Australia during 2003 and 2004, considering in which country to live. By October 2004 they had decided to make their home in California.
Thus, between October 2004 and June 2009 although there had been trips to Australia the family unit resided in California. B and H lived with the father, the mother and E in California between 2005 and August 2007. Court proceedings resolved in an agreement without the need for a hearing that B and H return to live with their father in Brisbane which they did in August 2007. Since then B and H have had holiday visits to California.
The mother and E travelled from the United States to Australia on 12 June 2009 by way of a Qantas Airways ticket with the allocated return date 18 December 2009.
On 13 August 2009 the father told the mother the marriage was over. He commenced divorce proceedings in California on 15 September 2009.
The mother and E have lived in Australia since June 2009.
The mother has a medical condition described by Dr R, psychiatrist, in his report dated 12 May 2010, as follows:
[The mother] presented with a history of Bipolar Affective Disorder first diagnosed in [California] in 2004 when she was admitted to [a Psychiatric Hospital]. Medical records obtained from the […] Psychiatric Hospital on the 22^nd April 2010 revealed a diagnosis of Mood Disorder Not Otherwise Specific along with Cluster B Traits in her personality, including Borderline Personality Disorder and Histrionic Personality Disorder.
…
Her diagnosis is that of Bipolar Affective Disorder Type II for which I have commenced her on Quilonum 450 mg per day and Seroquel 25 mg bd a major tranquilising agent.
…
With respect to an opinion regarding [the mother], it is my opinion she suffers from a Bipolar Affective Disorder for which she is requiring regular stabilizing medicines in the form of Quilonum 450 mg per day and a major tranquilising agent Seroquel 25 mg bd.

Habitual residence

The affidavit and oral evidence

The mother says that she and the father talked “on and off” since August 2007 when B and H moved back to Australia about moving to Australia to live permanently. She said that she and the father intended to move back to Australia as a family in 2008, primarily so that E could have the advantage of living closer to B and H and “grow up with her older brother and sister” and that she also was finding it difficult to live so far away from B and H. She says that together they planned that she and E would travel to Australia first and “set everything up” such as a house and school for E and that the father was to follow in December 2009 or January 2010 “once he tied up loose ends and gave notice at work.” He was to pay off credit cards and sell their motor vehicles and also he wanted to sit for a test in August 2009 to “get extra training” before moving to Australia. The mother’s affidavit includes reference to the possibility of the father working with the Queensland Public Service or the Australian Public Service and that inquiries had revealed that he needed only to be a citizen to join the Queensland Public Service but that the Australian Public Service required him to be a resident, and further that if the father did not work with the Public Service he was looking at opening a martial arts school or juice business.
On arrival in Australia in June 2009 the mother with the assistance of her stepfather Mr L and mother Mrs L arranged housing in Brisbane and E commenced school at a Catholic primary school. The mother says that before she and E left, she and the father had a garage sale and that when she left all or most of their belongings including a full bedroom suite and 54 packing cartons were shipped to Australia including photo albums, the father’s baby photographs, graduation photograph and other such personal items leaving behind only the father’s personal items which he would need until he joined the mother and E and items which he was to sell.
The mother not only set up house in Australia but purchased a car, was planning to attend courses and was arranging employment. The mother said that the reason she purchased return air tickets for herself and E rather than one way tickets was because Qantas was having a summer sale and the one way tickets would have been USD900-1000 more expensive per person than purchasing the summer sale return tickets. Also, she said that she had planned to use the return leg of the tickets to travel to California with E to visit for Christmas 2009 (plainly, part of the travel) if the father had not moved to Australia by then.
The father says that the purpose of the “trip” by the mother and E was to “explore the option” of relocating the family to Australia. He said he and the mother had been having “serious marital problems” for some time and that he agreed to consider “the option” of moving to Australia “as a final effort to keep the family together for [E’s] sake.” He said that prior to the “trip” the mother had been suffering from “many physical and mental ailments” and had been “very unhappy because two children from a prior relationship were living with their father in Australia.” He said that because of the mother’s “severe mental illness” and “personality disorders” her “behaviour is often erratic and compulsive” and that “knowing this” before he agreed to “let her take [E] with her” he and she made “several agreements and some ground rules” before her departure. These are set out in the father’s principal affidavit as follows (using the father’s words):
·The mother and E would go to Australia for up to six months to test the waters, less if necessary.
·He and the mother would ship back personal effects to make her stay easier and more comfortable.
·They discussed his visiting during that six month period because it was such a long time for the family to be apart.
·After six months, regardless of how things were going, the mother and E would return to the United States and then they would decide whether or not to move the entire family.
·If Australia was not to the mother’s liking, if it was not to his liking or if it was financially not feasible they simply would not do it.
·While the mother was in Australia, she would prepare and submit immigration paperwork in case they decided to move.
·They knew that emigrating to another country is difficult and there could be complications, and if it took too long or if it was cost prohibitive or if it just became too convoluted and difficult they would not do it.
·He told the mother that if she went off her medication the relationship would be over and he would not even consider moving.
·The mother swore that she would take her medications and agreed to everything he has stated.
·The mother’s family in Australia agreed that they would help the mother look after E and promised not to assist the mother in doing anything rash or crazy.
The father said he loves his daughter and would never have agreed to the mother “taking [E] away and simply keeping her”. He said that upon the mother’s and E’s arrival in Australia he commenced to make regular deposits of money to the mother’s bank account so that she could pay rent and other expenses for herself, E and the mother’s other two children. He said the mother told him after a few weeks in Australia that she was no longer ill and that she did not need and would stop taking her medication, that she thought “attempting to go to Australia” was a mistake and she wanted to return to the United States with all her children. He said that on 13 August 2009 he and the mother had a telephone conversation during which she told him she planned to make false allegations against Mr W so that she could obtain custody of B and H and bring them to the United States again and “asked me to assist with that plan”. He said he told her he would not assist her to make false claims. Later that day they had another talk during which he told her he had decided he would not consider relocating to Australia, she had failed to assist him by initiating proceedings for him to immigrate to Australia and asked her to “bring [E] home to [California]”. She said she would not return to the United States. He told her he would initiate divorce proceedings and that we “needed to make a plan about [E]” to which she responded she would not share E with him nor allow her to return home to the United States.
On 15 September 2009, as mentioned, he initiated divorce proceedings in California.
The mother denies that her move with E to Australia in June 2009 was merely to “explore the possibility” of a permanent move to Australia, but rather was the implementation of a decision jointly made between herself and the father to move permanently to Australia as a family unit, she and E in June 2009 and the father, as explained, by December 2009 or January 2010. She denies there was any discussion as to any condition concerning her medication and that discussion of her staying on it or not arose only after she and E had settled in Australia. Indeed, as at 20 July 2009, she had discussed with him by email obtaining the medication from her medical practitioner in California because she had the advantage still of health insurance there but not yet in Australia. She said that she had put in place steps in relation to the father’s immigration which she sets out in her affidavit. The mother reiterated that the plan to relocate the family unit permanently from the United States to Australia was the result of serious discussions as early as mid 2008 and that in essence the firm decision was made by late 2008, although there were delays in implementing it until June 2009. The mother said that the father had detailed discussions with Mr L, her stepfather, about arrangements for the move including in relation to financial matters in respect of which Mr L agreed to give financial assistance for the move and resettling which ultimately amounted to about $60,000 and that they “would not have done this if it was for six months”. She said she and the father had about three garage sales to sell what they would not require in Australia and had agreed that what was not sold would be given to charity. She said she would not have agreed to “go through the burden of uprooting [E] and my lives (sic) for six months”. She denies asking the father to assist her to make false allegations against Mr W. She said that when he told her he would apply for a divorce they had a discussion about living and parenting issues concerning E, and that he had said “send her back”, but that she was not prepared “to just send [E] back to the United States” making clear she was happy to work out something legally that would suit them both but the father hung up on her.
The father relied on six affidavits additional to his primary affidavit, which additional affidavits largely are repetitive of his primary affidavit expansive of it or responsive to the mother’s two affidavits and those of Mr and Mrs L, to which I have yet to refer, and otherwise are argumentative. These affidavits also annexe several documents including contemporaneous emails between himself and the mother.
The Central Authority provided an affidavit by Ms T, a Team Leader with the Department of Communities, annexing several documents including contemporaneous emails between the mother and the father between July 2006 and March 2010; an affidavit by Ms Y who is a friend of Mr W, deposing to many matters; and affidavits by four United States persons who are friendly with the father and knew the mother through him, Mr S, Ms M, Mr U (two affidavits) and Mrs U, the collective effect of which is evidence as to statements attributed to the mother before departing the United States in June 2009 to the effect that the move to Australia may not be permanent and that depending on how things worked out she and E might come back to the United States, that there were “a lot of speculations on the family’s move to Australia” and that the “permanency” of the move by the mother and E would depend on the father being able to migrate to Australia and his ability to obtain employment there. However, whilst these deponents (who also expressed many opinions in the father’s favour against any intended “permanency” of the intended move to Australia, but not with knowledge of all of the evidence) all refer to conversations “prior to June 2009”, they are not date specific and may well have referred to conversations or statements in 2007 or 2008 at times when the mother acknowledges she and the father were having “on and off” talks about moving.
In his several additional affidavits, amongst other matters, the father says that in his view the mother did not “fully commit” to making a permanent move to Australia until he told her he would file for a divorce, and that pursuant to the agreement between them the mother was “obligated” “pursuant to our oral agreement” to “bring [E] home to the United States”. As mentioned, the additional affidavits largely are repetitive or expansive and it is thus not necessary for me to refer to them now in further detail.
In a detailed chronology attached to one of those additional affidavits, however, the chronology extending 1 March 2002 to August 2009, the father said:
June 2009 – [the mother] and [E] travel to Australia
·As a last effort to keep the family together, [the mother] went to Australia to explore the possibility of moving there.
·I gave permission for [E] to go with [the mother] for up to six months so that she could visit family there.
·After only two months, [the mother’s] ongoing destructive behaviour led me to conclude our marriage was over and that moving to Australia was not a viable option.
·[The mother] kept [E] in Australia without my permission and over my objection since August 2009.

In relation to some other matters, the father relies upon a Facebook entry by the mother on 17 December 2009:
And to think I should be on my flight to [California] right now with my daughter, instead I’m battling it out with the Xmas shoppers!
The mother explained, however, that her text was sent in the context that she had planned, when she left the United States with E, if the father had not yet arrived in Australia by Christmas 2009 (which he had not), she would have been on the flight to California to spend Christmas there, but the father’s termination of the marriage ended that.
The father said that the 54 packing cartons contained things that he and the mother did not need in the United States and were taken to Australia to be sold, having not been sold in one of the several garage sales, but that the bulk of their furniture and chattels remained in the United States, including some 30 or 40 pictures of pieces of artwork. The mother said however that she and the father had been living in the father’s father’s house, and the furniture in the house and artwork in fact did not belong to them at all but to the father’s father. The father said that the bedroom suite which was shipped was not for his and the mother’s use but that the mother proposed to give to B, a matter which the mother disputes.
These are but some only examples of several matters of dispute between the father and the mother upon which each relies to support his and her case.
Mr L has been married to the mother’s mother Mrs L for about 30 years. They live in Canberra. He is a retired senior Commonwealth Government public servant. He said that from about mid 2008 to the end of 2008 the father would call him to discuss difficulties the mother was experiencing living in the United States which had “come to a head” in mid 2008. He said that in discussions with the father and also the mother “we all concluded” that the best way ahead was for the family to come back to Australia and settle in Brisbane. B and H had returned to Australia in late 2007. He said the father told him he fully supported this course of action and “even commented he thought it was the best that the three children be together and not separated” and he would do “whatever it took” for that to happen including giving up his career in the United States and migrating to Australia.
He said that the mother “waxed and waned,” but the father made a number of telephone calls to him to seek his help to convince the mother that this was the best thing to do and that by the end of 2008 the mother “finally agreed.” He said that between February and May 2009 the mother was “still stalling” and “having second thoughts” about coming back to Australia. He said:
5.It was agreed at the time [end 2008] that [the mother], [E], [B] and [H] would come to Australia in early 2009 [B and H then being on a holiday in the United States] and [the father] would need some time after that to finalise his affairs, process the immigration papers, have them lodged and accepted and that he would come to Australia a few months later. [B] and [H] were spending December 2008 to January 2009 in the USA.
6.[The mother] then said in early 2009 that she would also need some extra time in the US to sort out her affairs. My wife [Mrs L] then went to the US and helped to bring [B] and [H] back to Australia in January 2009.
7.From February to May 2009 [the mother] was still stalling and having second thoughts about coming back to Australia.
8.It was over this period that [the father] would ring me and urge me to keep [the mother] on track to come out to Australia, reiterating that he was coming out and that he had the immigration papers that he was processing. There was never any doubt up to June 2009 that [the father] was coming out to Australia and that he was fully supportive and approving of [the mother] returning and bringing [E] in advance of his coming out.
9.[The mother] and [E] came out to Brisbane in June 2009 and set up house and prepared for [the father] to come out.
He said further:
10.It was in June 2009 that [the father] rang me and said that he was now having doubts about giving up his career and coming to Australia to an uncertain future with [the mother]. I said if he had made up his mind he needed to tell [the mother].
11.When [the father] told [the mother] it was over, I knew from [the mother] that it was a bolt out of the blue for her, and she was very upset. [The mother] had been preparing for his coming to live with them and was not contemplating a divorce. Over the next month [the mother] pleaded with [the father] to change his mind. [The mother] then encouraged him to visit Australia to see [E] and offered him accommodation. He has so far not taken up this offer.
12.I say it is absurd that [the mother] “abducted” [E] and fled the USA for Australia. [The father] had the immigration papers that he was processing, he told me he willingly agreed for [E] to accompany [the mother] to Australia in June 2009 for the purposes of permanent residency in Australia and he himself at the time was actively moving towards moving to Australia. [The father] also helped [the mother] pack a very large container of household items as part of the return plan.
13.Any talks with [the mother] or [the father] were on the basis that the move to Australia was permanent. There was never talk with me of it being for a fixed time or certain period.
14.I have been read out paragraph 6 (page 6) of the Application filed 31 March 2010 by the mothers (sic) solicitor which alleges the agreement or conditions of the child’s travel to Australia. I have no knowledge of any conditions about the move, and neither [the father] or [the mother] spoke to me of these.
15.There were no discussions between [the father] and I about preventing [the mother] from doing something rash. [The father] did express concern from time to time about [the mother’s] moods and her need to take medication in the 12 month lead up to June 2009. On those occasions, I didn’t know what medicine [the mother] was taking so I didn’t make any comments.
16.I spent a lot of money setting [the mother], [the father] and [E] up in Australia, about $60,000, by transfer into [the mother’s] bank account and payments direct to the various suppliers. This included:
a.   Shipping container of $8,000;
b.   Airfares for [E] and [the mother]. I purchased return flights because it was cheaper, and thought they could go back for a holiday. The tickets were purchased in January 2009, and I had to pay an additional sum of around $400 to extend the tickets to June 2009.
c.   Furniture in the house at [Brisbane];
d.   Living expenses and helping with the odd bit of rent from time to time.
[There is no par 17]
18.I would never have outlaid this money if there was an intention of the family to return to the USA. [The father] knew I was helping out financially and was very appreciative.
Under cross-examination Mr L said that whilst according to his conversations with the father the father’s own move to migrate to Australia was not contingent, he agreed, sensibly enough, that the father’s ability to move to Australia was predicated upon acceptance of a migration application. He said however that he had thought that the father’s immigration papers would take a couple of months and that it was presumed that the father’s immigration application would be accepted and that “we worked on the basis it would be accepted and we didn’t really plan on its non acceptance”.
He said further he would not have spent $60,000 including for the shipping and housing set up costs if, after his discussions with the father, there had not been the father’s agreement to a permanent move to Brisbane of the family unit or if it was suggested that it might be only exploratory or temporary.
Mrs L, the mother’s mother, said also that the situation appeared to her an agreed decision between the mother and the father to emigrate to Australia and that the father was staying behind “to finish up his job, sell cars and tie up personal affairs”. She said:
4.   I personally had several phone conversations with [the father] over this period as we all tried to convince [the mother] that this was the best course. [The father] was fully behind this move.
5.   It was agreed that I would go back to the USA in December 2008 to January 2009 to help [the mother] prepare for the move back and to help bring the children out to Australia for the start of the school year. At this time [the mother], the children and I were going to return to Australia with [the father] following a few months later after finalising his work commitments.
6.   During my stay with [the mother] and [the father] from late December 2008 and all of January 2009, I witnessed many conversations where [the father] and [the mother] talked about the move to Australia. I can not recall any particular conversation, it was just common knowledge and spoken of quite freely, such as over dinner. [The father] certainly did not show any doubt about moving to Australia.
Mrs L further said:
15.It was obvious to me that [the mother] came out to Australia with [the father’s] complete approval – and with around 50 moving boxes of household items and clothing in a large shipping container, this was not a short stay or holiday move.
16.My husband and I have spent a considerable portion of our life savings to assist with this move and to set up a family home in Australia. I would not have agreed to spending a large sum if the move was to have only been temporary.

Approach to determining credibility matters in Hague Convention cases

In Panayotides and Panayotides (1997) FLC 92-733 at 83,897 the Full Court of the Family Court of Australia (by implication) approved the following approach, where there is conflict in the evidence in Convention proceedings, and where usually issues must be determined on the papers, namely that it is appropriate (1) to look at the versions of each party; (2) to find the common ground; (3) to note the areas of conflict; (4) to look to the inherent probabilities; and (5) concerning the intent of the parties, where this is a matter of some conjecture, to look at the conduct of the parties and to any documentary or corroborative evidence which may help to determine that issue.
In In reP (A Child) (Abduction: Custody Rights) (2004) EWCA Civ 971; 2004 All ER (D) 520; 2005 Fam 293, the English Court of Appeal said, as to the proper approach in resolving disputed matters of fact in Convention matters:
20 The law is well settled. In In reF (A Minor) (Child Abduction) [1992] 1 FLR 548, 553-554 Butler-Sloss LJ said:
If a judge is faced with irreconcilable affidavit evidence and no oral evidence is available or, as in this case, there was no application to call it, how does the judge resolve the disputed evidence? It may turn out not to be crucial to the decision, thus not requiring a determination. If the issue has to be faced on disputed non-oral evidence, the judge has to look to see if there is independent extraneous evidence in support of one side. That evidence has, in my judgment, to be compelling before the judge is entitled to reject the sworn testimony of a deponent. Alternatively, the evidence contained within the affidavit may in itself be inherently improbable and therefore so unreliable that the judge is entitled to reject it. If, however, there are no grounds for rejecting the written evidence on either side, the applicant will have failed to establish his case. (emphasis added)
In In reF (A Minor) (Child Abduction): (Custody Rights Abroad) [1995] Fam 224, 232 she added:
Admission of oral evidence in Convention cases should be allowed sparingly. If the issues between the parties cannot be resolved on affidavit the article 13(b) criteria will not have been established. The child is returned pursuant to article 12 and it will be for the court of habitual residence to determine the disputed issues with the opportunity to hear oral evidence and the parties cross-examined. (emphasis added)
It is important in this context that the reference to article 13(b) is in relation to matters in respect of which the respondent carries the onus, such that the observation that the child be returned pursuant to article 12 plainly is based upon the assumption that the Central Authority already has proved the matters in article 12.
Since these cases, in MW & Director-General, Department of Community Services [2008] HCA 12; (2008) 244 ALR 205 the High Court per majority (Gummow, Heydon and Crennan JJ) at [36]-[50] made powerful observation as to the task of a judge in determining matters arising under the Convention involving disputed matters of fact. In particular, their Honours said that although the Family Court of Australia, in Hague Convention matters, is required to act promptly “Nevertheless, prompt decision making within 42 days is one thing, and a peremptory decision upon a patently imperfect record would be another”. See at [49]. Their Honours said that although in some past cases the despatch of Hague Convention matters has been described as a “summary procedure”, or to be dealt with “in a summary manner”, such references are “apt to mislead”, and cautioned against “inadequate, albeit prompt, disposition of return applications”. See also at [49]. Specifically, their Honours said that, if necessary, even “at the initiative of the Family Court itself”, proceedings may be required to be adjourned for the “prompt provision of more adequate affidavit evidence”: [44]; and that although cross-examination in interlocutory applications generally is not to be encouraged, an application under Reg 16 is a “special type of proceeding” which is “apt to achieve what in Australia is a final result upon the application for return of a child to another Convention country”: [44]; [46]. Their Honours were critical of any “textual analysis” of affidavit material, at first instance, in cases where adjournment of a matter may allow the provision of more adequate affidavit material, or cross-examination: [44].
In this case, the father, the mother, Mr and Mrs L and Dr R were cross-examined. The father’s cross-examination was conducted by telephone link in California. Although I did not have the advantage of seeing him I had the opportunity nonetheless to hear the cross-examination of him. Although there were critical matters as to credibility in issue between the mother and the father, largely the cross-examination of the father was as to contradictory contemporaneous statements made by him in writing and he was given fair opportunity to refute evidence against him by stating his version of several matters put.
If I had considered that the telephone cross-examination of the father was unfair to him in that the mother and her witnesses were cross-examined in the courtroom I would have said so. I did not form the view, listening carefully to the father’s evidence, that he or the Central Authority’s case were disadvantaged. Plainly the father was emotionally disadvantaged by not being here. However, I am satisfied he was not forensically disadvantaged. If I had formed the contrary view I would have considered adjourning the proceedings and inviting the Central Authority to make arrangement for him to attend to be cross‑examined in person.
I have had advantage therefore of more than textual analysis of the deponents cross-examined by both the Central Authority by Mr Parrott and Mr Andrew of Counsel for the mother.

The documentary evidence

The content of contemporaneous emails between the father and the mother and others are important. Below are extracts.

2008

13 June 2008	Email father to Mr L: “It is our intention to move back within the next year…I feel the only way she will find peace and happiness is by being back there…”
13 June 2008	Email Mr L to father: “We look forward to you all coming back here”.

2009

24 May 2009	Email mother to many United States recipients: “We are having our moving/garage sale tomorrow…”
20 June 2009	Email mother to father: “So whats happening with all the left over garage sale stuff?? The 4 runner??… Oh, another thing, she also suggested you should start with your immigration forms asap as it took her husband 2 years, and they were married…get [E’s] Oz passport too ok?...let me know what you’re doing with all the stuff left over from the yard sale. Try Craigslist? Oh, BTW, stuff here furniture wise is SUPER expensive..wow….so too is homewares..yikes….will explain when we chat…”
21 June 2009	Email father to mother: “The extra stuff in the garage that we r not selling is going to childrens hospital if that’s ok with u. The other stuff I’m gonna try n sell… I have to fix up both cars before I get rid of them. The Honda will go to […] probably in august…The 4 runner I’ll drive untoll I can sell it…I’ve started the immigration paper work but it’s gonna take about a month to put it all together…I can’t wait to get there..”
23 June 2009	Email mother to father: “Let me know what you are doing with the stuff left over from the yard sale. Try Craigslist?”
23 June 2009	Email mother to father (second email of that date): “Can you please tell me if you have the clothes on Craigslist?...I’ll email […] about the clothes rack I want thrown in…I would really like it included as they are super expensive here. Did you end up selling the speakers?”
Undated	Email father to mother: “Fuck this sucks but in the end it will be all worth it. Ok here’s the stuff. I need you to send me….. • 2 passport size pictures of you • 1 certified copy of your birth certificate • 1 - 40 SP form completed by you • 2 - 888 forms completed by two Australian citizens (Must be witnessed.. see guidelines on form) When you finish this stuff just send it back to me. As far as you dad assisting us with a A.O.S form - “Assurance of support” form…we don’t fill one out unless they request one…”
27 June 2009	Email father to Mr L: “I’ve been working on all the immigration stuff and things are progressing…Other than that I’ve been signing up for as much overtime as I can and im gonna stay busy til I can get out there.”
2 July 2009	Email father to mother: “How’s it going at the new place hun? From what you said it sounds great, so warm and cozy. I cant wait to get there. …I sent off that immigration stuff…you should get it real soon… I really love you and just want to get back there.”
9 July 2009	Email Mrs L to father: “You should not postpone appointments especially now you plan to come here … Hope you won’t be too long.”
20 July 2009	Email mother to father: referring to “this whole move.”
18 August 2009	Email mother to father after conversation on 13 August 2009 deposed to by the father quoting him in that conversation (after the words “then you hit me with”): “Out of the blue, you have decided to have the change of heart in not coming here. I was excited in having you come here, living our lives out here etc, then you hit me with ‘I don’t miss you’, ‘I want a divorce’….‘I am not coming out’. What the hell??”

Meaning of habitual residence

In LK v Director-General, Department of Community Services (2009) 237 CLR 582; [2009] HCA 9 the High Court reviewed the expression “habitual residence” as used in the Convention and concluded, amongst other matters, that:
(i)A person’s habitual residence is a question of pure fact [21].
(ii)The expression “habitual residence” permits consideration of a wide variety of circumstances bearing upon where a person resides and whether their residence is habitual [23]; [35].
(iii)The past and present intentions of the person under consideration will often bear upon the significance to be attached to particular circumstances [23].
(iv)Habitual residence identifies the centre of a person’s personal and family life as disclosed by the facts of the individual’s activities [25].
(v)A person may abandon a place as that person’s habitual residence without at once becoming habitually resident in some other place [25].
(vi)A person may cease to reside habitually in one place without acquiring a new place of habitual residence [32].
(vii)Examination of a person’s intentions will usually be relevant to a consideration of where that person habitually resides. Sometimes intention will be very important in answering that question. The example of a person who leaves a jurisdiction intending not to return is one such case. But unlike domicile, considerations relevant to deciding where a person is habitually resident are not necessarily confined to physical presence and intention, and intention is not to be given controlling weight [28].
(viii)Because a person’s intentions may be ambiguous, in asking whether a person has abandoned residence in a place it is necessary to recognise the possibility that the person may not have formed a singular and irrevocable intention not to return, yet properly be described as no longer habitually resident in that place [33].
(ix)When considering where a child is habitually resident, attention cannot be confined to the intentions of the parent who, in fact, has the day to day care of the child. It will usually be necessary to consider what each parent intends for the child. When parents are living together, young children will have the same habitual residence as their parents. No less importantly, it may be accepted that the general rule is that neither parent can unilaterally change that place of habitual residence [34].
(x)It would be wrong for references to “settled purpose” to be seen as importing the old law of domicile by directing an inquiry in cases arising in connection with the Convention into whether the person whose place of residence is in issue is shown to intend to live there permanently or at least indefinitely [40].

Analysis finding conclusion and order

Important matters stated by the High Court relevant to this case include that a person may cease to reside habitually in one place without acquiring a new place of habitual residence [32]; a person may abandon a place as that person’s habitual residence without at once becoming habitually resident in some other place [25]; because a person’s intentions may be ambiguous it is necessary to recognise that a person may not have formed a singular and irrevocable intention not to return yet properly be described as no longer habitually resident in that place [33]; habitual residence identifies the centre of a person’s personal and family life [25]; and that whilst a person’s intentions usually will be relevant they are not of decisive or controlling weight.
It is common ground that between October 2004 and immediately before the mother and E left the United States on 12 June 2009 the child’s habitual residence was the United States.
The sole question to be determined is whether, as contended by the Central Authority, the child’s habitual residence after 12 June 2009 remained the United States, or as contended by Mr Andrew, that the child’s habitual residence in the United States ceased at the moment she left the United States with the mother.
Mr Andrew contended, which is correct, that there is no onus on the mother to prove that after 12 June 2009 the child’s habitual residence became Australia or whether her habitual residence at the dates of alleged wrongful retention had become Australia; nor that at those dates the child had any habitual residence.
In my view, the Central Authority has failed to prove that as at the dates of alleged wrongful retention the child’s habitual residence was the United States, for the following reasons.
First, as to the intentions of the father and the mother, I reject for the want of credibility the father’s evidence that the mother’s and the child’s departure from the United States on 12 June 2009 was merely to explore the possibility of a move to Australia or to test the waters as to such future prospective move, and I reject his evidence that the preparation of his immigration paperwork was only “in case” in the future they decided to move. On the whole of the evidence, these contentions are very much against the weight of probability. In my view, the circumstances of the father stating in the contemporaneous emails such matters as “I can’t wait to get there” and I “just want to get back there” and “in the end it will be all worth it” and stating to the mother on 13 August 2009 to the effect “I’m not coming out” are consistent only with the mother’s case put against the Central Authority that well before June 2009 she and the father had decided to migrate to Australia, that she and E would depart first and the father follow after he had sold the last of their goods and chattels in the United States, that is, those goods and chattels not coming to Australia, with what was not sold to be given to charity, that all happening hopefully by no later than December 2009/January 2010. I reject the father’s evidence that most of his and the mother’s furniture and artwork were still in the United States and accept the mother’s evidence that the furniture and artwork they had been using there belonged to the father’s father and were thus not to be shipped out to Australia. The mother and the father having had a “moving/garage sale” is consistent only with the mother’s evidence and inconsistent with the father’s, as is the circumstance that 54 boxes of the father’s and the mother’s goods and chattels were packed and shipped to Australia including clothing and household goods.
These steps are consistent only with a concerted joint decision to relocate to Australia with the mother and the child to depart first to set up house and await the father’s arrival in about six months time. Whilst often the purchase of return air tickets is indicative of a holiday or trip, I accept the mother’s evidence as to her reason for purchasing return air tickets for herself and the child, namely that Qantas was having a summer sale and she was able to purchase return air fares for much less than the one way prices at the time and further that she had thought that if the father had not arrived in Australia by Christmas 2009 she and the child would use the return leg to spend Christmas with the father. Her Facebook entry 17 December 2009 cannot, in the light of all of the other circumstances, be seen as evidencing an earlier intention to the contrary but rather is to be understood that if the father had not terminated the marriage, and if by December 2009 he had not yet arrived in Australia, then in those circumstances she would have been “on my flight to [California].”
Further, as the contemporaneous email documents show, the father was aware that the mother was arranging housing, had enrolled the child at a new school, purchased a car, was furnishing the new home and arranging study courses and prospective employment. There is not in any of the material the slightest suggestion by the father that she ought not do any of these things on the basis that no decision to relocate permanently had yet been made.
I reject the father’s evidence that a condition of the move was that the mother continue to take her medication, and I accept her evidence that this was not discussed before she left because she was in fact taking it.
Finally, I reject the father’s evidence that he was unaware that Mr L was assisting financially in relation to the relocation set up costs although he might not have realised the extent of his outlays.
Moreover, there are internal inconsistencies in the father’s own evidence. His statement in the sworn chronology for June 2009 “I gave permission for [E] to go with [the mother] for up to six months so that she could visit family there” is inconsistent with his evidence as to an agreement he said he made with the mother and the “conditions” for which he contends; and the notion of the purpose of the mother coming to Australia being merely to “visit family there” belies the evidence as to his own proposed migration for which the paperwork was in the process of being prepared.
There are several other matters of conflict in the material. However, it is neither necessary nor desirable to deal with them all. One such example is the father deposing that the bedroom suite shipped to Australia was for B, the mother’s elder daughter, which the mother refutes.
However, the matters to which I have referred already are sufficient for me to determine without hesitation and find that when the mother and E left the United States such was the implementation of a decision made by the father and the mother to relocate the family unit to Brisbane which entailed not only the physical move but the father migrating to Australia. Part of that decision, as I find, was that the mother and E, for reasons already explained, would precede the father who would follow in about six months.
Secondly, from the time the mother and E arrived in Brisbane, even a cursory reading of the exchange of emails shows that California had ceased to be “the centre of” theirs and the father’s personal and family life and that its focus both then and prospectively was Brisbane as to residence, household, employment, education and immigration. What the father said in his email 2 July 2009 is illustrative:
Hey Honey,
How’s it going at the new place hun? From what you said it sounds great, so warm and cozy. I cant wait to get there.
Thirdly, whilst it is plain that if for any reason the father’s immigration application should have failed the parents and the child could not have lived in Australia as a family unit and would in that circumstance have been forced to make another later decision as to where to live, such does not alter the circumstance of their decision to cease residence in the United States and commence residence in Australia, nor alter or have any affect on their intention at the time of the departure of the mother and the child from the United States. The father, in 2003, when the child was born, had earlier overstayed a visa by a few days. However, then his visa was extended. On all of the evidence, such was not anticipated to present any obstacle to his migration application.
Fourthly, although the marriage had had its difficulties and in particular I would refer to the emails in evidence concerning their difficulties in 2006, the break up of the marriage as at the time of the mother’s and the child’s departure from the United States was not anticipated, and similarly cannot retrospectively alter intention of the father and mother as at the time of the departure of the mother and the child. It appears that the father “changed his mind” about migration based upon two things. First, his evidence that the mother had asked him to make a false declaration in relation to Mr W (which I reject she did) and that the mother had “gone off her medication” which he said was one of the conditions of his support for relocation of the family to Brisbane. I have said already that I reject that the relocation was conditioned upon this or any other matter. Further, the father’s evidence as to this being a condition of relocation is illogical and the father, it would appear, has constructed his case after the event. In this respect, sight must not be lost of the primary motivation for the parties’ move to Australia, namely for the mother to be closer to B and H and for E to grow up with them. It may have been in the father’s mind as at 12 June 2009 that a condition of the continuance of the marriage was that the mother continue her medication, but that does not convert it retrospectively as at 13 August 2009 into a condition of the relocation already implemented in relation to the mother and the child.
Thus, it is not as if the mother unilaterally has purported to change the child’s country of residence. That occurred by the parties’ agreement. Rather, it is the father who unilaterally has purported to renege upon the agreed change of country of residence of the child after that was implemented because subsequently he terminated the marriage.
I reject the father’s case that after he terminated the marriage the mother somehow became “obligated” to uproot the child and return her to the United States, whether by prior agreement or otherwise which, plainly enough, would have involved the mother uprooting her own life to return to the United States with the child as a separated woman, or returning the child to the United States to live with the father as a single parent. None of this was in their contemplation as at 12 June 2009.
I would add, by reference to the authorities of Panayotides and Panayotides (above), and In Re F (A Minor) (Child Abduction) (above), and by all that I have said, the circumstances are such not only that the mother’s case is inherently probable and the father’s case inherently improbable having regard to their conduct and contemporaneous statements, but that their conduct and contemporaneous statements tend to corroborate the mother’s evidence and destroy the father’s evidence. Moreover as Butler-Sloss LJ observed In Re F (A Minor) (Child Abduction) (above), at 554, even if (which is not the case here) there be no grounds for rejecting the written evidence on either side, the Central Authority here still would have failed to establish its case. I have had however the advantage also of cross-examination of the parents and also had the assistance of the contemporaneous emails as independent extraneous evidence.
In all of the circumstances of the case I find that immediately after the mother and the child left the United States on 12 June 2009 the child’s habitual residence ceased to be the United States in that she and the child had ceased to reside there and ceased connection with it in any habitual sense.
It follows that the application of the Central Authority must fail for want of proof that the child’s habitual residence as at the dates of the alleged wrongful retention 13 August 2009 or alternatively 12 December 2009 (being six months after 12 June 2009) was the United States.
It follows further that the mother in no sense has purported unilaterally to decide the child’s place of habitual residence. Probably, on all of the evidence, that has now become Australia. However, it is not necessary for me to decide this to dispose of the application.
In all of the circumstances, it is not necessary to deal with the mother’s alternative case of consent, nor any discretion arising from that, nor the residual discretion. I would observe however that if it had been necessary to deal with the mother’s case of consent, bearing in mind that the consent would have needed to have been proved to the retention as opposed to the relocation, there would have been difficulty because the father complained immediately on the first alleged date of wrongful retention, and from that date onwards did not consent to the mother keeping the child in Australia.
However, plainly, it is not necessary to dispose of the application to deal with any of the Reg 16(3) matters because the Central Authority has failed to prove one of the fundamental Reg 16(1A) matters.
The application by the Central Authority for the return of the child E born in August 2003 to the United States is dismissed.

I certify that the preceding eighty-two (82) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Reilly

Associate:

Date: 13 August 2010

[2010] FamCA 703

27 July 2010

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