Department of Communities and Justice & Bamfield
[2021] FedCFamC1F 263
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Department of Communities and Justice & Bamfield [2021] FedCFamC1F 263
File number(s): SYC 1833 of 2021 Judgment of: BENNETT J Date of judgment: 8 December 2021 Catchwords: FAMILY LAW – CHILD ABDUCTION Legislation: Family Law Act 1975 (Cth)
Family Law (Child Abduction Convention) Regulations 1986 (Cth)
1996 Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children
Convention of 25 October 1980 on the Civil Aspects of International Child Abduction
European Convention for the Protection of Human Rights and Fundamental Freedoms
United Nations Convention on the Rights of the ChildCases cited: Attorney-General (Cth) v Queensland [1990] FCA 358
B v H (Habitual residence: Wardship) [2002] 1 FLR 388
EM (Lebanon) v Secretary of State for the Home Department [2008] UKHL 64
In Re D (A Child)(Abduction: Custody Rights) [2006] UKHL 51
LK v Director General, Department of Community Services (2009) 237 CLR 582
Love v Commonwealth of Australia;Thoms v Commonwealth of Australia [2020] HCA 3
Mabo [No. 2] (1992) 175 CLR 1
McCarthy v McCarthy (1994) SLT 743
Re HB (Abduction: Children’s Objections) [1997] 1 FLR 392
TB v JB (Abduction: Grave Risk of Harm) [2001] 2 FLR 515
Zafiropoulos & State Central Authority (2006) FLC 93-264
Zotkiewicz & Commission of Police (No2) [2011] FamCAFC 147Australian Human Rights Commission, Bringing them Home: National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families report
Australian Law Reform Commission, The Recognition of Aboriginal Customary Laws, Report 31Number of paragraphs: 243 Date of hearing: 22, 23 & 27 July 2021 Place: Melbourne Counsel for the Applicant: Ms Harstein Solicitor for the Applicant: DCJ Legal, Department of Communities And Justice Counsel for the Respondent: Mr Coleman SC Solicitor for the Respondent: Hague Convention Legal Practice Counsel for the Independent Children’s Lawyer: Mr Harris Solicitor for the Independent Children’s Lawyer: Legal Aid New South Wales ORDERS
SYC 1833 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: DEPARTMENT OF COMMUNITIES & JUSTICE
Applicant
AND: MS BAMFIELD
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
BENNETT J
DATE OF ORDER:
8 DECEMBER 2021
THE COURT ORDERS THAT:
1.The application filed by the NSW Department of Communities and Justice (“the applicant”) on 16 March 2021 be granted, and the child, X born in 2020 (“the child”) be returned to Belgium, as soon as practicable, pursuant to Regulation 16(1) of the Family Law (Child Abduction Convention) Regulations 1986.
2.Within 24 hours, the mother advise the applicant in writing of whether she wishes to accompany the child back to Belgium and, if so, whether she is fully vaccinated for the COVID-19 virus.
3.If the mother is fully vaccinated, she produce a copy of her Australian Government COVID-19 digital certificate to the applicant State Central Authority.
4.If the mother is not fully vaccinated, she inform the applicant State Central Authority of the dates of appointments made for her to be vaccinated, together with the name and address of the clinician who will vaccinate the mother.
5.In the event that the mother proposes to travel with the child, she do all acts and things to obtain an International COVID-19 Vaccination Certificate as proof of her vaccination status as a fully vaccinated person.
6.Pending the return all injunctions remain in full force and until further order.
7.This matter be set down for hearing before me on 14 December 2021 at 4:30pm (Melbourne time) for the purpose of making specific orders for return and conditions to return (“the adjourned date”).
8.Liberty be reserved to the parties to approach my Chambers email … to secure an alternative date to which they all agree in substitution for the adjourned date, provided that one party only speaks for all parties.
9.Each party forthwith communicate with all other parties and my Chambers to advise whether he/she/they consents to direct judicial communication between myself or Hon. Justice Williams and the judge designated for Belgium to the International Hague Network of Judges on the issue of the simple and rapid procedure in Belgium for a declaration of enforceability or registration of orders made in this court providing conditions to return and any restrictions on the substance of orders that can be made enforceable under Chapter IV of the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children.
10.For the avoidance of doubt, the applicant be at liberty to provide these reasons to the requesting parent and the Central Authority for Belgium.
11.The parties have liberty to apply in relation to the implementation of this Order to do so urgently by contacting my Associate - email [email protected].
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Bamfield is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
By an application filed 16 March 2021, the State Central Authority of New South Wales, being the Department of Communities and Justice, (“State Central Authority”, “SCA” or “the applicant”) seeks the return of the child, X, born in 2020 and aged 1 to Belgium pursuant to reg 14 of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”).
The Regulations give effect to Australia’s obligations under the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (“the 1980 Convention”) which entered into force between Australia and Belgium on 1 May 1999.
The application was made at the behest of the father, Mr Q (“father” or “requesting parent”) who lives in Belgium against the respondent mother, Ms Bamfield (“mother” or “respondent”). The mother and the father are jointly referred to as “the parents”. The requesting parent is not a party to the application but was a witness in the proceedings and observed most of the proceeding.
On 19 July 2021, I requested that an Independent Children's Lawyer (“ICL") be appointed to represent the child’s interests. In due course, Ms Kerri Phillips, solicitor from Legal Aid New South Wales, was appointed. Ms Philips represented the child’s interests well.
The matter proceeded over three days on the Court’s Microsoft Teams platform. There was cross examination of witnesses including the mother as well as the father from Belgium, for whose evidence we sat extended hours to receive at a time which was reasonable for him.
On 17 September 2020 the mother brought X to Australia with the consent of the father having agreed with the father that she and X would spend two months in Australia and return to Belgium on flights leaving Australia on 20 November 2020. X was seven and a half months old when she arrived in Australia having been born, and spent all her life, in Belgium. On 12 November 2020, the mother informed the father she and X would not be returning to Belgium. The mother resists the application for return of X to Belgium under the Regulations on the basis that X was not habitually resident in Belgium as at 12 November 2020. If the SCA fails to establish on the balance of probabilities that X was habitually resident in Belgium, the return application must fail. If I conclude that X was habitually resident in Belgium, the mother’s retention will be wrongful within the meaning of reg.16(A) of the Regulations and the return of X to Belgium is mandatory unless one of the exceptions to return is satisfied. The mother asserts that a return of X to Belgium will place X in an intolerable situation within the meaning of reg.16(3)(b), in short, because the courts in Belgium are less able than this court to deal with X’s status as a First Nations Australian. If I am satisfied that is so, I would have a discretion to refuse return and the mother seeks that I exercise that discretion to allow X to remain in Australia and dismiss the application of the State Central Authority.
For the reasons which follow I have decided that X was habitually resident in Belgium at the relevant time and that her return to Belgium will not place her in an intolerable situation.
RELEVANT LEGAL PRINCIPLES
It is the Regulations, rather than the 1980 Convention, that has force of law in Australia.
The retention of a child occurs when the child is taken out of one contracting state, in this case Belgium, and into another contracting state, in this case Australia, by agreement of a person with rights of custody over the child (the father) and is not returned as and when agreed. Here the mother had agreed to return by 30 November 2020 but said on 12 November 2020 that she would not return to Belgium with X. It is agreed that the mother repudiated the agreement to return on 12 November 2020 and the retention dates from then.
Not every retention of a child across international borders qualifies for a return of the child under the Regulations. The Regulations apply only to a retention that is wrongful within the meaning of reg 16(1A). The pre-requisites to a finding that the retention was wrongful,[1] are that:
(a)the child is under 16 years (regulation 16(1A)(a); Article 4);
(b)the child was habitually resided in the country they were removed from immediately prior to their removal (regulation 16(1A)(b); Article 4);
(c)immediately prior to the retention, the left-behind parent had rights of custody in relation to the child under the law of the country of habitual residence (reg 16(1A)(c); art 3). Rights of custody is defined by reg 4 and includes rights relating to the care of the person of the child and, in particular, the right to determine the place of residence of the child;
(d)the retention of the child was in breach of the left-behind parent’s rights of custody (reg 16(1A)(d); art 3(a)); and
(e)at the time of the retention the left-behind parent was actually exercising the rights of custody (either jointly or alone) or would have exercised those rights had the child not been retained (reg 16(1A)(e); art 3(b)).
[1]Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, art 35.
The above are pre-requisites to a return order are also referred to as jurisdictional facts. The mother concedes that the father has necessary rights of custody but contends that that X was not habitually resident in Belgium immediately prior to 12 November 2020.
This application was filed on 16 March 2021 which is within 12 months of the date of the alleged wrongful retention so it is an application to which reg.16(1) applies. Accordingly, if X is wrongfully retained, the Court must order that she be returned promptly to Belgium unless one of the five exceptions to return are made out.
The five exceptions to return can be briefly described as:
(a)the person seeking return was not actually exercising rights of custody when the child was removed to, or first retained in, Australia and the rights of custody would not have been exercised if the child had not been removed or retained (reg 16(3)(a)(i));
(b)consent or acquiescence on the part of the left behind parent (reg 16(3)(a)(ii));
(c)there is a grave risk that the return of the child under the Regulations would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation (reg 16(3)(b));
(d)the child objects to return (reg 16(3)(c)), and
(e)the return would not be permitted by the fundamental principles of Australia relating to the protection of human rights and fundamental freedoms (reg 16(3)(d)).
If one or more of the exceptions to return are made out, the Court has a discretion to refuse to return the child. The welfare of the child is relevant to the exercise of a discretion to return.
ISSUES TO BE DETERMINED
The mother’s answer and cross application filed 25 May 2021 opposed return on the basis of X being habitually resident in Australia or in the alternative not habitually resident in Belgium at all relevant times. Further, that the return would expose X to a grave risk of physical or psychological harm or otherwise place her in an intolerable situation. Finally, that the return would not be permitted by the fundamental principles of Australia relating to the protection of human rights and fundamental freedoms. By the time we came to closing submissions, counsel for the respondent mother had abandoned all but the grave risk exception and then only to allege that the return would place X in an intolerable situation. Accordingly, the following issues fall for determination by the Court:
(a)Where X was habitually resident at the date of wrongful retention, namely 12 November 2020, within the meaning of reg 16(1A)(b)?;
(b)Would the return of X to Belgium place her in an intolerable situation within the meaning of reg 16(3)(b)?;
(c)If the exception to return is made out, should I exercise my discretion to refuse return?
ONUS OF PROOF
The applicant SCA bears the onus of proving that X was habitually resident in Belgium.
The onus of establishing that the return will place X in an intolerable situation rests with the respondent mother.
STANDARD OF PROOF
As required by section 140 of the Evidence Act 1995 (Cth), I will apply the balance of probabilities as the standard of proof.
FINDINGS OF FACT
In these reasons, a statement of fact is a finding of fact.
DOCUMENTS RELIED UPON
The SCA filed the following material:
(a)Form 2 Initiating Application filed 16 March 2021;
(b)Affidavit of Ms F affirmed 15 June 2021;
(c)Affidavit of Ms P affirmed 18 June 2021;
(d)Affidavit of Ms R affirmed 23 June 2021;
(e)Affidavit of Ms P affirmed 24 June 2021;
(f)Applicants submissions in reply filed 13 June 2021; and
(g)Applicant’s Amended Case Outline filed on 20 July 2021.
The respondent mother relies on the following:
(a)Form 2A response filed 25 May 2021;
(b)Respondent’s Case Outline filed 2 July 2021;
(c)Affidavit of Ms Bamfield filed 25 May 2021
(d)Affidavit of Ms G filed 25 May 2021
(e)Affidavit of Dr H filed 2 July 2021;
(f)Affidavit of Ms D filed 15 July 2021;
(g)Further Affidavit of Ms Bamfield filed 12 July 2021; and
(h)Affidavit of Mr N filed 15 July 2021.
There were a number of exhibits.
CREDIT AND IMPRESSION OF THE WITNESSES
The father
I consider that the father was a reliable witness. He gave his evidence in a considered way. The father was amenable to the mother’s conditions if a return order were made and she were to accompany X to Belgium. Although the father questioned the necessity of some of the mother’s conditions, he agreed to finance the mother and X to return and live in Belgium. There was something of a double standard inherent in the father’s evidence regarding the mother’s use of a car in Belgium if a return order were made. The father questioned the mother’s need for a car having simultaneously given evidence about the high standard of public transport system in Belgium, despite admitting he uses a car as his main mode of transport.
The father was forthcoming about the fact that his and the mother’s relationship was fraught at times, given the long distance and particularly following their return to Belgium in November 2019. The father admitted to having thrown a suitcase in frustration during an argument with the mother, albeit not at the mother, and sleeping in separate rooms of his parents’ home. The father vehemently denied behaving in a way that was coercive controlling or ever being rough with X. On his version of events he had made it clear to the mother that living in Australia was a trial and expressed doubts as to the financial viability of remaining long-term in Australia. He gave evidence of the mother frequently changing her mind and going back on what appeared to the father to be a joint intention to live in Belgium for at least the first few years of their lives.
I regarded him as a truthful and frank witness.
The mother
I found the mother’s evidence to be exaggerated in accordance with her desire that she and X remain in Australia. She made a number of complaints of the father that were not in her extensive affidavit material or were otherwise contradictive of it. For example, the mother’s evidence regarding the caveats on the parents’ return to Belgium. The mother deposed to there being an understanding between the parties that upon their return to Belgium and after the birth the father would apply for a spouse visa and they would return to live in Australia. The mother concurrently deposes to the father having promised to “immediately rent separate accommodation for [them] and get [their] own place within 12 months”. The mother conceded under cross examination that it was in fact her intention that the parties would purchase a home together in Belgium after 12 months.
The mother also gave evidence of there having been occasions whereby the father was rough with X, with particular reference to an incident where X was “shaken [and] slammed on the ground”[2]. The mother agreed with my description of the action which caused the injury was a “slam” within the “wrestling sense”[3]. The mother’s evidence surrounding the degree of injury to X is difficult to accept considering she did not seek medical attention nor make a report to police. Allegations of this nature against the father did not appear in the mother’s affidavit material and only appeared for the first time in the mother’s document entitled “List for Discussion” in relation to conditions to return.
[2] Exhibit “M2”.
[3] Transcript, 23 July 2021, p. 199, lines 35-37.
The mother made repeated reference to her poor recollection of important dates and having to refer to notes she had prepared, she claimed to refresh her memory. My impression is that the mother had prepared herself for cross examination but was nonetheless nervous.
The mother was initially adamant that she was coerced by the father to give birth and remain in Belgium and that it was always the parents’ intention to live in Australia long term. The mother made concessions in the face of evidence which proved to be contrary, namely text messages the mother had sent to the father indicating an intention to live Belgium as well as evidence of her attempts to obtain Belgium residency. The mother retrospectively claims to have been appeasing the father for fear of what he may do or say when angered and that living in Belgium was a short term trial. My impression was that the mother was attempting to rewrite history. In this respect I found her to be an unreliable witness.
Counsel for the mother submitted that to the extent that the mother’s evidence was unreliable, that it was not indicative of dishonesty or a lack of candour. Mr Coleman addressed me in terms of the proceedings being highly emotional for both parties with attendant consequences on their testimony “particularly in the cauldron of cross examination”. Mr Coleman ran his client’s case in a restrained and skilful manner but my impression of the mother in the witness box is that she was prepared to exaggerate and concoct evidence when she perceived it would be in her interest to do so.
Dr H
Dr H’s evidence was interspersed with the father’s on the first day of the hearing. She is an anaesthetist and was cross examined on the evidence which she gave about hemangiomas generally and specifically in relation to X. Notably, Dr H had not examined X. Dr H impressed me as a competent professional witness. She was frank in her evidence to the court, not claiming to be an expert in hemangiomas. She was forthcoming about the fact that she had limited experience in the surgical treatment of hemangioma, even less so in the case of children and infants. She was also candid about the fact that the respondent’s sister, Ms B, being her colleague was the person who asked her to prepare a report for use in these proceedings. Dr H made a number of concessions under cross examination regarding the clinical opinion arrived at in her report, the summary of which was that “given the type of tumour that X has and its location it would be prone to sudden and catastrophic rupture and haemorrhage” and “may be life threatening”[4]. Dr H conceded that her conclusions were informed mainly by her clinical practice in adults, bearing in mind the difference between adults and infants. Dr H accepted that a Belgium paediatrician or paediatric dermatologist would be equally placed to treat a hemangioma of infancy compared to an Australian paediatrician or paediatric dermatologist. On the basis of Dr H’s evidence, the mother withdrew reliance on X’s medical condition as founding an exception to return.
[4] Affidavit of Dr H filed 15 July 2021, paragraphs 13-14.
RELEVANT HISTORY
It is necessary to set out a history of the parents’ relationship and their comings and goings in order to give context to the mother’s case about habitual residence.
The mother was born in Australia and is 38 years of age and lives in Suburb S, New South Wales. The mother identifies as a member of Australia’s First Nations People and a member of the T Tribe. She is employed as an educator at V Organisation.
The father was born in Belgium and is 37 years old. The father lives in Belgium and is employed as a civil servant with the Belgium government.
The parents met online and began corresponding on 7 February 2015. The mother met the father for the first time in person whilst holidaying with her sister, Ms B, in Europe in December 2015. The parents developed a relationship during this time following which the mother returned home to Australia and the father returned to Belgium but the parties remained in contact.
On 24 August 2016 the mother returned to Belgium on a three month visa which was extended until 12 February 2017. The mother claims she applied for residency which required her to remain in Belgium for a minimum of six months and enrolled in a short course in W City through Y University. The mother claims a local counsel officer in Belgium advised her that the government could terminate her residency if she left Belgium before the mandatory six months expired. The mother claims part of the purpose of the trip was to “investigate” her relationship with the father.
The mother returned to Australia in November 2016 notwithstanding what she claims were the risks to her residency status. On her departure the mother claims to have told the father words to the effect that “I am not prepared to live in Belgium, if you want a relationship with me you will have to live in Australia”.
On 19 November 2016 the father attended an interview with Belgium local police who were investigating whether his relationship with the mother was a cohabitation of convenience. The father claims that on the same day an interview was conducted with the mother where she spoke of her plans to learn Dutch as well as her and the father’s intention to live in Australia after spending the first few years together in Belgium.
The father claims that on 14 December 2016 the mother left Belgium for a holiday in Australia.
On 16 December 2016 the father updated his Facebook status on the way to Australia to say “checking out a possible future”. The father joined the mother in Australia on 18 December 2016 and stayed until 27 January 2017 when he returned to Belgium.
In March 2017 the mother obtained her current employment at V Organisation.
On 26 April 2017 the mother returned to Belgium and was permitted under her visa to stay until 24 July 2017.
On 12 May 2017 the father and the mother signed a Declaration of Legal Cohabitation whereby a Certificate of Immatriculation (Enrolment) in the Municipality of Z City was issued. The mother claims the purpose of the document was to assist with the father’s eventual visa application in Australia.
The father alleges to have signed a certificate on 18 May 2017 registering the mother, who at this time was considered a foreign national, as a dependent upon him for the purposes of obtaining health insurance.
On 24 July 2017 the mother returned to Australia. In August 2017 the father travelled to Australia and stayed for 3 or 4 weeks before returning to Belgium.
On 17 December 2017 the mother signed and acknowledged that she had postponed signing a civic integration contact and that she had until 9 January 2018 to sign it. By singing the contract the mother acknowledged the sanctions which may be imposed on her if she did not sign before the due date. On 8 January 2018 the mother signed the civic integration contract.
In January 2018 the mother travelled to Belgium and proceeded to travel around Europe for approximately 5 months. Whilst in Belgium the mother completed a Dutch language course.
On 5 June 2018 the mother obtained a certificate of integration showing that she had successfully completed the integration programme by passing the social integration course, that is Dutch level A1 and A2.
Sometime in July 2018 the mother returned to Australia. It is at this time the mother claims to have told the father that she was no longer willing to engage in a long-distance relationship and that the father would have to commit to living in Australia if the relationship was going to continue.
On 30 December 2018 in a message to the father the mother claims to have been “heart broken” that the father was not “excited” about a trial living in Australia.[5]
[5] Affidavit of Ms P, filed 18 June 2021, p. 226.
Between 11 and 13 January 2019 the following exchange took place between the parties whereby the mother indicates an intention to move to Belgium if the parties married[6]:
[6] Affidavit of Ms P, filed 18 June 2021, p. 228-232.
Mother on 11/1/19 at 12:53pm: I just want you to propose. And impregnate me. And buy a house with me.
Father on 12/1/19 at 16:13pm: By the way, I need to know whether you are coming or not, I still have a bunch of tickets, hotels, 21 pilots,… I need to know.
Mother on 12/1/19 at 22:47pm: You know how to get me there…
[…]
Father on 13/1/19 at 00:27am: I don’t respond well to ultimatums. Then I’ll try to sell the tickets.
Mother on 13/1/19 at 3:20pm: I don’t see it as an ultimatum.
[…]
Father on 13/1/19 at 12:20pm: Don’t be like that, you act as if I don’t want to marry you, that is not the case. I just don’t like you telling me that I have to marry you for you to come to Belgium, that is manipulative and has the opposite effect on me.
Mother on 13/1/19 at 12:24pm: It’s not manipulative.
In early February 2019 the father detailed his plan to propose to the mother in a number of messages to the mother’s sister, Ms D, including saying that he did not want to overspend on an engagement ring. The mother relies on these messages as evidence of his intention to live in Australia. The father wrote[7]:
I don’t take decisions like that lightly, especially with the uncertainties that lay ahead in the context of me moving to Australia. However, I do love her and can’t see a future without her, on top of that I know that this would make her happy, and therefore I am willing to ask her. By her pushing me to ask her, I feel like she took the surprise and “magic of the moment away a bit. Therefore, I have tried to throw her off track a bit in our conversations in the last couple of months…
[…]
I hope I don’t come across as cheap, but I’m looking at big costs in the near future by moving to Australia (visa, house, plane tickets, transferring my money, wedding…), not knowing when I will find a job over there and having an income.
[7] Affidavit of Ms Bamfield, filed 25 May 2021, annexure B-04.
On 6 February 2019 the father travelled to Australia to propose marriage to the mother. He stayed until 7 or 8 March 2019 when he returned to Belgium.
On 10 March 2019 the mother tells the father via message “wherever you are is my home” and that she “misses Europe” (Belgium).[8]
[8] Affidavit of Ms P, filed 18 June 2021, p. 233-235.
On 3 April 2019 the mother indicated to the father that living in Australia together would be a trial and assured the father they could return to Belgium in the event the trial was unsuccessful. The following exchange occurred[9]:
[9] Affidavit of Ms P, filed 18 June 2021, p. 234- 239.
Mother on 3/4/19 at 14:04: I want you to be my forever.
Father on 3/4/19 at 14:05 I want that too…
[…]
Father on 3/4/19 at 14:09: I can only see Australia as a problem.
[…]
Mother on 3/4/19 at 14:10: Well, if we need to move to the French part of Belgium for a few years… That’s okay.
I will just have babies, run a b&b, sew, and paint, and study.
[…]
Father on 3/4/19 at 14:11: I’m thinking about economical reasons.
[…]
Mother on 3/4/19 at 14:12: I like making cash on the side.
Mother on 3/4/19 at 14:13: I think a few years would be nice. Maybe five.
Father on 3/4/19 at 14:15: [Ms Bamfield], if Australia is a problem, it is because I can’t find work that I like there. You don’t solve that with a few years Belgium.
[…]
Mother on 3/4/19 at 14:48: I know.
Mother on 2/4/19 at 14:48: But it might be that you want to return for your grandparents too.
Mother on 3/4/19 at 14:49: I know this is a trial. But it’s not a relationship trial.
On 5 April 2019 the mother told the father of her intention to purchase a house in Australia as soon as possible while the “market is down”.[10]
[10] Affidavit of Ms P filed 18 June 2021, p. 240.
In April 2019 the father took 12 months leave from his employment. The mother claims that the father took leave rather than resigned in order to maximise the benefits owing to him before he eventually resigned and moved to Australia. The mother claims that the father had two farewell parties from his work. The father claims he intended to merely trial living in Australia and took long service leave, giving him the option of returning to his old job if he wished to. The father acknowledges having sold his car to his parents, he claims with the intention that he could purchase it back off them if the trial run in Australia was unsuccessful.
On 9 April 2019 the father informs the mother he “said goodbye” to his colleagues after leaving his job in Belgium to trial living in Australia. The mother assured the father that they could return to Belgium “after the year” if their trial in Australia was unsuccessful and on the basis that they would acquire their own place to live and did not return to live with the father’s parents. The mother told the father “You are my main happiness”.[11]
[11] Affidavit of Ms P filed 18 June 2021, p. 241-243.
On 18 April 2019 an email is sent from the father’s email address to a builder in Australia enquiring regarding an estimation of renovation costs to the home in AA City, Australia.[12] The correspondence indicates that the email is written in the voice of the mother but signed off by the father.
[12] Affidavit of Ms Bamfield filed 25 May 2021, p. 64.
On 29 April 2019 the father contributed $109,717.27 AUD towards the purchase of the mother’s home at BB Street, Suburb S, New South Wales (“NSW property”). The home is in the mother’s name and where she and X reside when they are not staying with the mother’s parents.
On 7 May 2019 the mother returned to Belgium. In2019 the father and the mother marry in Belgium in a civil ceremony.
The father and the mother returned to Australia sometime between 2 and 5 June 2019 and moved into the newly purchased NSW property. The father’s parent’s comment on a photo posted to the mother’s Facebook profile of the view from the home in NSW, sending their “congratulations” and wishing the parties “both good luck in that beautiful country”. The father claims that around this time he and the mother purchased airline tickets for them to return to Belgium on 13 November 2019.
In mid-2019 the mother discovered she was pregnant. As a result the mother claims to have become hypersensitive to smells, requiring her and the father to move into the home of the maternal grandparents. The mother continued to commute to her job at V Organisation.
In 2019 after discovering she was pregnant and in the process of the parties deciding whether to return to Belgium or remain in Australia, the mother sent the father a link to an advertisement for an oven, accompanied by the message “Can we have an oven like that when we back to Belgium?” and “I love you”. The mother followed up with the qualification “*If we move”.[13]
[13] Affidavit of Ms P, filed 18 June 2021, p. 244.
On 1 July 2019 the mother informs the father that she had spoken to her sister, Ms D and her mother about returning to Belgium. She indicated that her sister was “very understanding”. [14]
[14] Affidavit of Ms P, filed 18 June 2021, p. 245.
On 6 July 2019 the mother informed the father her application to work at CC School was unsuccessful and that she intends to “apply for other jobs” in Belgium.[15]
[15] Affidavit of Ms P, filed 18 June 2021, p. 246.
The father travelled to Singapore from 10 August 2019 to 20 August 2019 on the basis he was in Australia on a tourist visa and was unable to remain in Australia for longer than three months at a time without leaving the country. The father claims the plan had been for the mother and her sister Ms D would accompany the father to Singapore and that the mother changed her mind last minute. The mother indicated her intention that the parties’ return to Belgium in the following message exchange on 8 and 9 July 2019[16]:
Mother on 8/7/21 at 21:34: And we are already bailing on Ms D by moving back to Europe.
Mother on 9/7/21 at 21:34: You know, another reason why Singapore is stupid in August, is that a month later, we will be flying past the exact place.
So, it would make more sense to stop there together on our way to Europe.
[…]
And, between the 30th of September and the and [sic] 14th of October, Ms D has holidays, and could join us without it affecting her studies.
[…]
I request that you reschedule the flights, and hotels. If you simply reschedule and upgrade, you will not incur cancellation fees.
We can all (five of us) leave between the 29th of September, and the 2nd of October. Whatever is cheaper.
[16] Affidavit of Ms P, filed 18 June 2021, p. 247-249.
On 22 July 2019 the mother messaged the father in regards to obtaining her Belgium driver’s license.[17]
[17] Affidavit of Ms P, filed 18 June 2021, p. 250.
On 3 August 2019 the mother sends the father a link to a Facebook post favourable to Belgium with the caption “Why I will be okay in Belgium.”
On 11 August 2019 the father indicated by a message to the mother an understanding between the parties that they would be moving back to Belgium by reference to the “little time [they] will be in Australia.”
On 22 August 2019 the mother sent the father a link to airline tickets departing Australia for Belgium on 15 October 2019 so that the mother could attend her younger sister’s birthday in Australia which on the father’s evidence diverted from their original plan to fly back with the paternal grandparents.
On 25 August 2019 the father became frustrated with the mother for not committing to the purchase of airline tickets to return to Belgium. The mother indicated she was reluctant to leave her family and return to Belgium however resolved herself to the idea by the end of the following exchange:[18]
[18] Affidavit of Ms P, filed 18 June 2021, p. 258- 260.
Father on 25/8/19 at 9:33: You always do this. First it was around 30 september because of the baby, so I tell everybody begin October. Now it is half October because of birthday. I don’t care about a birthday, I care about the wellbeing of my child.
Fact is that we are about to leave, but still haven’t any tickets.
I was to arrange things. You [cause] me stress.
Mother on 2/8/19 at 9:37: Yes I really want to buy tickets.
[…]
Mother on 25/8/19 at 9:39: This is it. I’m leaving my family.
I would like one more family dinner.
[…]
A chance to say goodbye.
In a message to the mother on 26 August 2019 the father expresses his anger of feeling as though his “life is on hold” in Australia. The mother reassures the father that they “will be back in Belgium soon” and that she is “so ready ti (sic) go back to clean Belgium”.[19]
[19] Affidavit of Ms P, filed 18 June 2021, p. 262-263.
In September 2019 the paternal grandparents arrived in Australia and remained for approximately four weeks.
A wedding ceremony for the mother and father took place in September 2019 at DD Recreational park.
On 12 September 2019 the mother discusses with the father the possibility that a portion of the money loaned by father for the deposit of the NSW property could be applied towards purchasing a house in Belgium.[20]
[20] Affidavit of Ms P, filed 18 June 2021, p. 264.
On 18 September 2019 the father informed the mother that he purchased a one-way airline ticket to Belgium with a stopover in Singapore departing 15 October 2019, being a date the mother had earlier proposed.[21] The mother took issue with the fact the father had not consulted her prior to purchasing the tickets. The father claims the mother was concerned about the repercussions relating to stamp duty if she left Australia within the 6 months of purchasing her home in NSW. The airline tickets purchased by the father to depart Australia on 15 October 2019 were not used.
[21] Affidavit of Ms P, filed 18 June 2021, p. 265- 271.
The mother claims that following the wedding and in September 2019 the father threatened divorce if the mother did not return to Belgium for the birth of their child. The mother alleges the father promised that if they returned to Belgium that they would move into separate accommodation and purchase their own home within 12 months. She alleges the father to also have promised that they would return to Australia in the event the mother decides she is not happy in Belgium and if the mother is not able to have a water birth.
On 16 October 2019 the mother and father considered their options in regards to renting the home in AA City to exchange students through the system of Accomodation service, organized by V Organisation.[22] Further conversations regarding renting the home, listing the home on Accomodation service, and preparing for inspections by a representative of Accomodation service are had on 20 October 2019[23] and 6 November 2019.[24]
[22] Affidavit of Ms P, filed 18 June 2021, p. 272 -274
[23] Affidavit of Ms P, filed 18 June 2021, p. 276.
[24] Affidavit of Ms P, filed 18 June 2021, p. 277.
The father claims that in the week prior to their departure from Australia, the mother had briefly changed her mind again about going to Belgium but subsequently agreed.[25]
[25] Affidavit of Ms P, filed 18 June 2021, p. 278.
On 12 November 2019 the mother and father departed Australia to Belgium. The mother deposes to an incident occurring at the airport whereby she was reluctant to board the plane and the father pressured her, stating[26]:
82. … Mr Q said to me “if you don’t come back to Belgium, I will divorce you.” He said this a number of times, but he repeated it quite forcefully at the airport when I was quite upset and was hesitating about boarding the flight.
83. I recall that I was standing at the entrance of the plane trying to think of a way to escape. I was having contractions. The airline host saw my distress and asked me “should I get your bags off the plane?’. Mr Q said, “Give me a moment please”.
84. Mr Q then took me aside and said “You are an embarrassment. You are inconveniencing everyone. That is my child in your worm, so it’s not just your choice and if you do not get on this plane, I will divorce you’.
[26] Affidavit of Ms Bamfield filed 25 May 2021, p. 9.
Upon arrival and after 12 November 2019, the mother and father moved into the paternal grandparents’ attic where the father slept outside the room and the mother slept inside the room. The mother claims to have realised at this time that the relationship was not improving and informed the father that she wished to go back to Australia and could not have a water birth in Belgium. The mother claims from the time of their departure from Australia the marriage was over. The father acknowledged that the mother was apprehensive about giving birth without her mother and had asked to return to Australia to give birth and then return to Belgium afterwards. The father recalls being understanding but that it was not feasible given he was returning to his job, the cost already incurred in flights, and having regard to the late stage of the mother’s pregnancy.[27] The mother claims the father locked her in the attic and made comments such as “I wonder if they will already consider it kidnapping” and “you’re a flight risk. Do I need to keep you locked up?”[28]
[27] Affidavit of Ms P, filed 18 June 2021, p. 278.
[28] Affidavit of Ms Bamfield, filed 25 May 2021, paragraph 90.
On 26 November 2019 the mother expressed via message to the father a desire to return to give birth in Australia, stating[29]:
[29] Affidavit of Ms P, filed 18 June 2021, p. 279.
I need to be where I feel comfortable to give birth. I really want you there. I really want a water birth.
[…]
Also, you can’t start work until February or March anyhow. So, why can’t we be in Australia for the birth? And then return after?
[…]
I know this is not what we planned. And I’m sorry.
I am feeling physically rested here, and I’m feeling loved and cared for by you. Especially that you bring me so much food.
But, being confined to a room isn’t healthy for me.
I really think it will be healthier for me to return to give birth in Australia. I want you with me. I need you to support me. To be my strength.
I have tried for you, but, I just don’t feel great here.
Please take me home for the birth.
On 1 December 2019 the mother purchased a one-way flight to return to Australia to give birth. She purchased multiple shorter flights rather than one direct flight given that she was in a late stage of her pregnancy.
The mother claims that on 2 December 2019 she informed the father of her flight to Australia. The mother alleges that the father became angered, threw a suitcase at her and punched the pillow next to her head. The father concedes that he threw the suitcase but that he did not throw it at or in the direction of the mother but rather across the room. The mother deposes to the father having said “I don’t care what happens to you. I will drop you somewhere and let [someone] rape you.”[30] The father vehemently denies this. Later the same day the mother began experiencing painful contractions.[31]
[30] Affidavit of Ms Bamfield, filed 25 May 2021, p. 10.
[31] Affidavit of Ms Bamfield, filed 25 May 2021, p. 11.
On 3 December 2019 the mother began bleeding and experiencing increasingly painful contractions.
On either 3 or 4 December 2019 the mother attended the local hospital in Belgium and was placed on bed rest and informed she would not be permitted to travel. The mother informed her sister, Ms EE, over Facebook messenger that she was unable to fly due to bleeding.[32]
[32] Affidavit of Ms Bamfield, filed 25 May 2021, annexure B-10.
The child, X, was born in 2020 in Belgium. The mother alleges that during labour the father was “unsupportive” and attempted to “undermine her” using harsh comments. She deposes to the father having said, among other things “you’re being dramatic! What’s wrong with you.”[33]
[33] Affidavit of Ms Bamfield, filed 25 May 2021, p. 11.
Following X’s birth and in February 2020 the mother claims the father made threatening comments to her. She alleged that on returning home from hospital the father slept outside the door in the outer attic room and questioned the mother on who will get her money if she dies.[34] The mother claims the father’s comments included him saying “I don’t care about you” and “I’m only looking after you because X needs you. As soon as she doesn’t need you, you are gone.”[35]
[34] Affidavit of Ms Bamfield, filed 25 May 2021, p. 12.
[35] Affidavit of Ms Bamfield, filed 25 May 2021, p. 11.
In June 2020 a branch fell off a tree and fell on the mother, injuring her shoulder. The mother claims the father made a comment to the effect of “it’s a pity it [the branch] didn’t do a better job. It would have fixed by Australian problem.”[36] The father denies making this comment and claims the mother “came inside laughing” and that his initial response was to check “whether she needed a doctor”.[37]
[36] Affidavit of Ms Bamfield, filed 25 May 2021, paragraph 115.
[37] Transcript, 22 July 2021, p.49, line 18-19.
Following her birth and in June 2020, X was registered as an Australian citizen and obtained an Australian passport.
In the months spanning June to August 2020 the mother and father looked for homes to purchase in Belgium.
In August 2020 the father signed a parental authorisation for a stay abroad consenting to their child, X, travelling to Australia for a period of 2 months from 16 September 2020 to 30 November 2020.
On 17 August 2020 the mother and child, with the prior consent of the father, travelled to Australia.
On 6 September 2020 the mother posted a father’s day message to the father on Facebook with a picture of him and X with a rainbow in the background.
On 20 September 2020 the father wrote to the mother indicating how he felt their trial in Australia “didn’t work” and that he believes they should live in Belgium. The father seemingly does not disregard Australia as an option on the basis he does not “know what the future holds”[38].
[38] Affidavit of Ms P, filed 18 June 2021, p.281.
On 20 September 2020 the mother wrote to the father saying[39]:
[39] Affidavit of Ms P filed 18 June 2021, p. 282.
I do really love you. You know I do. I have a deep love for you like I have never loved anyone before.
[..]
I could say: ‘If you really loved me’ you would know how unhappy I have been in Belgium, and you would see that it’s taken all my strength to be happy for [X].
So, because you want me to happy (because you love me), and you know the importance of a little girl having a happy and empowered mother, you would put fear of the unknown aside (because you love me) and make the bold decision to move to Australia.
It doesn’t have to be tomorrow. But I need to know it will be soon.
[…]
We both come from countries that have amazing qualities, and I wish I could mix the two together.
While we can mix our cultures together in our home, we can’t mix countries. We need to pick one.
My vote is for Australia.
On 12 October 2020 the mother signed over power of attorney empowering the father to act on her behalf for the purpose of purchasing a home together in Belgium.
The father alleges that on 12 November 2020 the mother informed him that she and the child, X, would not be returning to Belgium. On the same day the mother, in a lengthy message to the father, canvasses the reasons why she would not be returning to Belgium[40]:
[40] Affidavit of Ms P, filed 18 June 2021, p. 291- 294.
… I needed to see my family, and I needed a break from your family, but mainly because it has meant that X is safe from the COVID. […]
Please know that I love you. That I miss you. […]
To be fair, I had made it really clear that I only wanted to live in Australia before I married you. […]
It was my adaptability and my love for you that resulted in us going to Belgium for the birth. I was being adaptable for you because I love you. You were falling apart. You even asked me ‘if it was too late for an abortion’. I wanted to make you happy. I wanted you to be emotionally stable. So, I left my homeland, my happiness, my support networks, and my family, for you. I was heartbroken. I still feel grief because of that decision. But, in the end, I left for Belgium because you threatened that our marriage was over if I didn’t go to Belgium with you. […]
You were my biggest stress. Your regular yelling was triggering my contractions. […]
… I abandoned my dream of an Australian birth, and my need of having a family and friends around supporting me- for you, and for perceived financial security. I was stuck in a room, in a county where it was too cold to go outside in. And, in a place where I had to fight just to get a change table for my baby. I felt even more stressed, unsupported, and sick. None of this was good for me, or [X].
You also promised our own place quickly. This didn’t happen. You are still living in your parent’s attic. […]
The decision to go to Belgium was made under stress. […]
You can’t deny COVID is a serious threat to our health. Even the doctor in Belgium told me that if we (you, [X], and I) can get to Australia, we should. […]
It was you who told me that many of the children who catch the virus have 10% less breathing capacity for the rest of their lives. […] I do not want to put [X] in unnecessary danger. […] I honestly believe that it is too dangerous to be in Belgium given the current rates of COVID.
The relevant parts of the father’s reply to the mother on 12 November 2020 are recorded as the following[41]:
[41] Affidavit of Ms P, filed 18 June 2021, p. 283-294.
…what you read is an exaggeration of the situation, possibly to enforce people to stay inside… I believe that halfway through next year much will be back to normal because of the vaccinations.
[…]
I know you will claim that I made the decision to goback (sic) yo (sic) Belgium, and that I forced you, but if you are honest with yourself, you know that isn’t true…
[…]
I just want to set some things straight, what you call yelling isn’t always yelling, most of the time it was me not agreeing with you about the same topic over and over again, which I sometimes did with an elevated voice of annoyance, because you were not open to reason or logic.
[…]
You always talk about things I have to work on, that I have angry dragons to slay (I never laid a hand on you, and I never will, I do recall moments where you hit me though). It is always me who has to change, you are always perfect without flaws, and I think that is the very problem of our relationship, you are so damaged of the men that came before me, you are not letting any man tell you what to do anymore… As long as you can’t see your own faults, there will never be hope for a healthy relationship with me or anyone else for that matter.
[…]
You say you have no privacy here, that you need a break from my family, that everyone knows what you are doing if you come downstairs. How us (sic) that a problem, and how id (sic) that different from your parents’ house…
[…]
As you can see are the numbers going down again and we are in the better area with 199 infected in [Z] City in the past two weeks.
On 25 November 2020 the mother wrote to the father saying the following[42]:
[42] Affidavit of Ms P filed 18 June 2021, p. 307- 309.
Did you understand my pain when you threatened divorce if I didn’t hop on the plane with you?... I married you believing that you wanted to build a life in Australia with me.
…I had to fight for a change table… This, after you promised that I would have all I needed if I went to Belgium. I didn’t… I didn’t have a baby nursery to set up… you wouldn’t even let me set up the attic properly… You just yelled at my every time I asked.
[…]
Do you understand the pain and trauma I experienced giving birth away from my homeland? My only ‘support’ was a man who spent all the time either on his phone, or criticising me, my family, or Australia, yelling at me, telling me I was stupid, mocking the cards I had made for him, and eating my food (even though I was tired hungry and exhausted)?
[…]
My dream was to give birth surrounded by eucalyptus leaves and trees. This is what I should have had. That is what I needed.
[…]
Furthermore, I have come to realise that COVID aside, it just isn’t safe for me to continue to live in a situation where our relationship is constantly threatened. Where I am so often yelled at. Where I have no freedom or independence. Where jokes about me dying are made by you. In a situation where you could again throw a suitcase across the room and tell me to fo to a hotel and that you don’t care what happens to me.
[…]
I know that you said that you shouldn’t have threatened divorce so much- I appreciate that acknowledgment. But, do you realise that you acknowledged it, and said you shouldn’t, and then you did it again…. It really seems you are planning divorce… I wasn’t keen on marriage. You asked me. You said it would make moving to Australia easier.
[…]
I have slight asthma. I need to protect my lungs too.
The father replied to the mother on 25 November 2020 the relevant parts of which include[43]:
[43] Affidavit of Ms P, filed 18 June 2021, p. 303-306.
In response to the mother saying ‘Do you understand my pain and feelings of betrayal when you asked if it was too late to have an abortion?’:
I do … you can’t keep throwing this in my face... It came from a desperate man who tried absolutely everything to make sure you I could live a normal life together with the two of us.
In response to the mother saying ‘Do you understand the pain of this betrayal, as I married you believing that you wanted to build a life in Australia with me.:
This is the version you made of it... I came to Australia to live there, but the pregnancy changed that, and you, and you alone decided to go with the Belgium option, no threats from me, I even asked you several times whether you were sure. One of your arguments was even that you considered yourself an adventurer and that you wouldn’t be that if you didn’t do the Belgium option that made the most sense. I even asked you before I moved to Australia, ‘what if I can’t find my way there, what if I’m not happy there’, not thinking that would actually be the case, you said that you would come back to Belgium if that would be the case…. I can’t count the amount of times anymore that you have come back on decisions you or we made.
In response to mother saying ‘Do you understand my pain my pain because I had to fight for a change table? This, after you promised that I would have all I needed if I went to Belgium…. You wouldn’t even let me set up the attic property’:
I didn’t want it [the change table] at first because we had the necessary equipment to change [X] without a specific table for it. Stop calling it an attic, it is a better room than any room in your parents’ house…
In response to ‘Do you understand the pain and trauma I experienced giving birth away from my homeland’:
I know it must have been hard to give birth in Belgium away from your family.
In response to the mother saying ‘My dream was to give birth surrounded by eucalyptus leaves and trees’:
.. you decided to come back, and it was the best choice, that way I could take care of you.
In response to the mother saying ‘you are unpredictable’:
I am by far the most predictable of the two of us, it is you who keeps changing her mind and keeps coming back on her decisions.
The mother wrote to the father on 26 November 2020 saying[44]:
It is reasonable to say that we decided on Australia. We promised Australia when marriage was decided. While sick, worried about money, and worried about you, I made a poor decision to go back on our well thought our decision, and go to Belgium. Before leaving I realised it was a bad decision, but you threatened to divorce me if I didn’t go with you.
[44] Affidavit of Ms P, filed 18 June 2021, p. 296.
In December 2020 the mother attended upon a physician after noticing a swelling on X’s shoulder. The physician diagnosed the lump as being a haemangioma.
On 25 January 2021 court proceedings were commenced by the father in Belgium. As a result of the hearing parenting orders were served on the mother in Australia.
The mother claims that on 26 January 2021 she was served with documents from the father at his address in Belgium as well as by email. The documents were in Dutch.
On 16 March 2021 an application for return was filed by the Applicant SCA.
On 25 March 2021 the Hon. Justice Williams of the Family Court of Australia, as it was then known, made ex-parte orders restraining the mother from leaving the Commonwealth of Australia, placing her and X on the Airport Watch List and requiring their passports to be surrendered.
On 25 May 2021 the mother engaged a Belgium lawyer, Ms FFMs FF to respond to the Belgium proceedings and file documents setting out the mother’s continuing links to Australia. The mother, or Ms FF on behalf of the mother, filed her response to the application before the Belgium Family Courts in which she accepted the jurisdiction of the court in relation to both the divorce and parenting orders. In doing so the mother accepted that the habitual residence of the child was in Belgium. The mother then sought relocation orders in the Belgium court.
On 31 May 2021 the father entered into a deed of sale to complete the purchase of a home in Belgium.
The final hearing date for the proceedings in the Family Court of Australia (as it was then known) set for 1 and 2 July 2021 was vacated by an order of Justice Williams on 29 June 2021.
The matter was reallocated before me whereby a request was made for the appointment of an Independent Children’s Lawyer to represent the child’s interests as per an order made on 19 July 2021. The matter proceeded for final hearing on 22 July 2021 before me in the Family Court of Australia (as it was then known). The hearing was by Microsoft Teams.
HABITUAL RESIDENCE
The law in Australia as it relates to habitual residence was authoritatively settled by the High Court in LK v Director General, Department of Community Services (2009) 237 CLR 582 (“LK”). French CJ, Gummow, Hayne, Heydon and Kiefell JJ in LK said:
[23]…First, application of the expression "habitual residence" permits consideration of a wide variety of circumstances that bear upon where a person is said to reside and whether that residence is to be described as habitual. Secondly, the past and present intentions of the person under consideration will often bear upon the significance that is to be attached to particular circumstances like the duration of a person's connections with a particular place of residence.
[25]… it may be accepted that "[h]abitual residence, consistent with the purpose of its use, identifies the centre of a person's personal and family life as disclosed by the facts of the individual's activities". Accordingly, it is unlikely, although it is not necessary to exclude the possibility, that a person will be found to be habitually resident in more than one place at the one time. But even if place of habitual residence is necessarily singular, that does not entail that a person must always be so connected with one place that it is to be identified as that person's place of habitual residence. So, for example, a person may abandon a place as the place of that person's habitual residence without at once becoming habitually resident in some other place; a person may lead such a nomadic life as not to have a place of habitual residence.
[…]
[27] When speaking of the habitual residence of a child it will usually be very important to examine where the person or persons who are caring for the child live – where those persons have their habitual residence. The younger the child, the less sensible it is to speak of the place of habitual residence of the child as distinct from the place of habitual residence of the person or persons upon whom the child is immediately dependent for care and housing. But if, as the writings about the Abduction Convention and like instruments repeatedly urge, the question of habitual residence of a child is one of fact, it is important not to elevate the observation that a child looks to others for care and housing to some principle of law like the (former) law of dependent domicile of a married woman.
[28]… 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.
[…]
[34]… when considering where a child is habitually resident, attention cannot be confined to the intentions of the parent who in fact has the day-to-day care of the child. It will usually be necessary to consider what each parent intends for the child. When parents are living together, young children will have the same habitual residence as their parents. No less importantly, it may be accepted that the general rule is that neither parent can unilaterally change that place of habitual residence. The assent of the other parent (or a court order) would be necessary. But again, if it becomes necessary to examine the intentions of the parents, the possibility of ambiguity or uncertainty on the part of one or both of them must be acknowledged.
[35] It follows … that to seek to identify a set list of criteria that bear upon where a child is habitually resident, or to attempt to organise the list of possible matters that might bear upon the question according to some predetermined hierarchy of importance, would deny the simple observation that the question of habitual residence will fall for decision in a very wide range of circumstances. And examination of decided cases in the area does not require the identification of a closed set of criteria, or the attribution of predetermined weighting between them.
In the course of the hearing, counsel for the respondent submitted that the father’s actions were consistent with an intention to be habitually resident in Australia by reference to the following:
(a)A message exchange between the father and the mother’s sister whereby the father references ‘looking at the big costs in the near future by moving to Australia’[45];
(b)The loan agreement entered into between the father and the mother for the purchase of the home in NSW in which the purpose of the loan was said to be for ‘purchasing their first home together’.[46] At paragraph 1.4 of the loan agreement the father also acknowledges his intention to take title as to the property. Cross examination of the father revealed he was either a party to the authorship of the loan agreement, if not the sole author;
(c)An email from the father to a builder in which the father enquires about making improvements to the property in NSW, Australia[47];
(d)The paternal grandfather’s comment on a photo posted to the mother’s Facebook page of the view from her home in NSW stating ‘this is your new home’, ‘congratulations to you and wish you both luck in that beautiful country’[48]; and
(e)The father having “terminated” his employment and selling his car in Belgium prior to visiting Australia. The father had, in fact, taken leave from his employment and transferred his car to his parents, he said, on the basis that they would sell it back to him if he returned. This is the car the father is driving now.
[45] Affidavit of Ms Bamfield, p. 58.
[46] Affidavit of Ms P, pp 315-319
[47] Affidavit of Ms Bamfield, p. 64.
[48] Affidavit of Ms Bamfield, p. 72.
However, in final addresses, counsel for the mother submitted that the totality of evidence precluded either party from establishing that throughout the relationship the mother was habitually resident anywhere other than Australia and that the father was habitually resident anywhere other than Belgium.
Counsel for the mother relied on the following as evidence of the mother’s continued habitual residence in Australia:
(a)The mother’s continuous employment by V Organisation since 2017;
(b)The mother’s return to Australia in November 2016, despite potential implications for her visa to remain in Belgium for up to four years;
(c)Registering X as an Australian Citizen;
(d)The mother’s reasons for studying the Dutch language, she says to be able to communicate with the father in his native language while living in Australia; and
(e)The mother’s effort in acquiring a home in Australia.
I do not regard any of the above matters as determinative of the mother’s habitual residence in Australia. Indeed, all were done in the course of her open discussions with the father about residing in Belgium.
The mother alleges that her decision to reside in Belgium in 2019 was a result of coercion by the father or, otherwise, an attempt by the mother to appease the father. The mother deposed to the alleged coercive behaviour around her departure from Australia in 2019 from which it is to be inferred resulted in her giving birth in Belgium, stating[49]:
75. [Mr Q] kept trying to persuade me and he said that we would only be in Belgium for the birth and that he would apply for his spouse visa from Belgium so that we could then travel back to start life in Australia.
76. I was continuing to be quite ill from the pregnancy and with the added stress of [Mr Q's] aggressive behaviour I eventually agreed to return to Belgium on condition that if I could not have a water birth or was not comfortable or happy there, [Mr Q] would support me returning to Australia.
[…]
78. Under the threat of imminent divorce I bought fully refundable tickets. I did not buy return tickets because I was really hoping that I would not need to use the tickets at all because I needed medical permission to travel, and I thought permission would be refused. I was highly stressed, conflicted about my marriage, physically unwell and having regular contractions. I did not feel I had the strength to stand up to [Mr Q] directly.
[…]
82. I knew that it was a mistake, but I felt powerless to resist the move because of my physical condition and because [Mr Q] said to me "If you don't come back to Belgium, I will divorce you." He said this a number of times, but he repeated it quite forcefully at the airport when I was quite upset and was hesitating about boarding the flight.
83. I recall that I was standing at the entrance of the plane trying to think of a way to escape. I was having contractions. The airline host saw my distress and asked me "should I get your bags off the plane?'. [Mr Q] said, "Give me a moment please".
84. [Mr Q] then took me aside and said "You are an embarrassment. You are inconveniencing everyone. That is my child in your womb, so it's not just your choice and if you do not get on this plane, I will divorce you."
[49] Affidavit of Ms Bamfield, pp. 8-9.
The father denies that he coerced the mother into returning to Belgium to give birth or threatened her in the event she did not comply and maintains that the decision to return was by way of mutual agreement. He however acknowledged under cross examination that the mother was reluctant and anxious about returning to Belgium and that relations between the parties were “difficult” following their return.[50] The father also gave evidence that the parties had some good times after their return to Belgium.
[50] Transcript, 22 July 2021, p. 100 lines 1-2.
The mother gave evidence that, as at 27 November 2019, it was her intention to return to Australia to give birth, evidenced by her purchasing an airline ticket. The mother claims the father became “angry” when told of her plans to return to Australia to give birth.[51] In any event due to complications in her pregnancy the mother was physically unable to return to Australia by 3 December 2019.
[51] Affidavit of Ms Bamfield filed 25 May 2021, p. 10 a, paragraph 89.
The mother’s case is that from on or about 27 November 2019 she was residing in Belgium involuntarily and that the marriage was “over” from the time the parties left Australia on 12 November 2019. The mother relies on a summons in divorce prepared by the father’s solicitor and dated 25 January 2021 as the father’s express acknowledgement of the marriage having ended on 25 July 2020 because the grounds relied upon by the parents and confirmed at the hearing on 27 May 2021 was an irretrievable breakdown of the marriage and that the parties had been living separately for more than 6 months[52]. Counsel for the applicant submitted that when one reads the father’s petition in its entirety it is apparent that the reference to “living separately for more than 6 months” was made by the father selecting an option which most closely matched his circumstances but which was not accurate. In the balance of the petition, the father states the mother travelled to Australia on 17 September 2020 and on 12 November 2020 told the father that she would not return to Belgium. The summons states that “[in] view of the attitude of the Respondent, the marriage between the Parties has irretrievably broken down and in view of her stay in Australia and refusal to return she makes it impossible to continue the marriage so that the proof of irretrievable breakdown is furnished hereby and the Decree should be pronounced …”. It was submitted that it was obvious that the father was representing in the summons for divorce that the marriage broke down when the mother refused to return to Belgium, on 12 November 2020. The applicant relied on the evidence of the father’s attorney, Ms GG and in particular her statement which is Annexure B to the affidavit of Ms P sworn 18 June 2021 where she says “Concerning the divorce, both spouses agreed at the hearing of 27 May 2021 that their marriage had broken down irretrievable under article 229(2) of the Civil Code”.
[52] Affidavit of Ms P, filed 18 June 2021, p. 4-10.
It is not necessary for the purpose of these return proceedings that I find when the parents considered the marriage to have broken down. I cannot plumb the inner most thoughts of the mother. It is sufficient for me to say that the mother’s assertion that the marriage ended when she left Australia on 12 November 2019 is very difficult to reconcile with her further evidence that she boarded the flight because the father threatened to end the marriage if she did not board the flight. It may be that the mother reached some conclusion about the future viability of the marriage on 12 November 2019 but, if she did, she did not communicate the conclusion the father. The father acknowledged that the mother was upset as she boarded the flight. In cross examination counsel for the mother asked “I want to suggest that the relationship ended when you left to go back to Belgium.” To which the father responded “No…we had difficult times but we also had a lot of good moments, more good moments than bad.”[53] The father conceded that he and the wife slept in separate rooms upon their arrival in Belgium. However, later in his evidence the father explained that the mother chose to sleep upstairs rather than in a “perfectly fine” room downstairs next to a bathroom. After the birth of X, the mother wanted the baby to sleep with her and there was no room for the father.
[53] Transcript, 22 July 2021, p.100, lines 5-8.
The applicant relies on the following text sent after the mother and X were in Australia wherein the mother tells the father:
Mother on 20/09/2020: I do really love you. You know I do. I have a deep love for you like I have never loved anyone before.
[…]
Please know that I love you. I miss you.
[…]
… So, because you want me to happy (because you love me), and you know the importance of a little girl having a happy and empowered mother, you would put fear of the unknown aside (because you love me) and make the bold decision to move to Australia.
I do not accept the mother’s contention that the father stated that separation occurred on 25 July 2019. His explanation of the breakdown of the marriage puts it at 12 November 2020. To the extent of the inconsistency I accept that the summons is, in part, incorrectly drawn.
The parents have very different personalities. My impression is that the father thinks things through and expresses himself openly to the point of being blunt. That is not to say that he lacks sensitivity but he appears to be a person who values personal responsibility, particularly his own. In contrast, my impression of the mother is that she is emotionally needy. She operates on a number of levels contemporaneously and what she says may not be what she thinks. She thinks in a calculating manner. My impression is that she was overly confident about being able to change the father’s mind and bend him to her will. Therefore, she boarded the flight to Belgium on 12 November 2019 on the basis that she wanted to keep the marriage intact but believing that she and the father would return to Australia before the birth of the baby if she could not have a water birth in Belgium or was not happy.
The mother detailed the conduct of the father that caused her to remain in Belgium and fear returning to Australia following the birth of X in February 2020 to include:
(a)sleeping outside her room;
(b)locking her in her room;
(c)throwing a suitcase at her;
(d)punching the pillow next to her head;
(e)commenting that her death would solve his "Australian problem"; and
(f)regularly questioning her about who will get her money when she dies.
The father described that the rooms in the attic were joined. He was not sleeping outside the room occupied by the mother to keep guard. He was sleeping in the room onto which the mother’s bedroom door opened. The baby was sleeping in the mother’s bed. He otherwise denied the above allegations. Those denials were not shaken in cross examination.
Initially the mother’s case was that “at all relevant times [X was] habitually resident in Australia or in the alternative was not habitually resident in Belgium.”[54] In final submissions, counsel for the mother submitted that X did not have a habitual residence immediately prior to the retention on 12 November 2020. The mother alleges that:
(a)The father forced her to go the Belgium on 12 November 2020 (under threat that he would end the marriage if she did not do so);
(b)The marriage relationship ended when the parents left Australia on 12 November 2020;
(c)Once in Belgium, she wanted to return to Australia;
(d)Her arrangements to return to Australia for the birth of X were frustrated by her health;
(e)Her presence in Belgium until 17 September 2020, when she and X left Belgium with the father’s consent for them to visit Australia for two months, was involuntary.
[54] Mother’s Answer filed 25 May 2021.
Counsel for the SCA accepted that prior to X’s birth and at intervals of time between 2016 and 2019 the parent’s trialled and experimented living in each other’s respective countries. Notwithstanding this, the SCA assert that the mother went further and took what they describe as significant steps to obtain permanent residency and “put roots down” in Belgium by:
(a)learning Dutch;
(b)taking a cultural integration course;
(c)signing cohabitation declarations; and
(d)informing local authorities in Belgium that she and the father intended to live and work in Belgium.
I do not regard any of the above as conclusive of the mother forming an intention to live in Belgium.
In an interview with Belgium local police on 19 November 2016 the mother was recorded as having said “we are planning to spend the first years in Belgium, although the aim is to move with [Mr Q] to Australia and build further on our future there”. The mother however deposes that she left “Belgium in November 2016 after about four months because [she] realised that [she] wanted to keep living in Australia.” The SCA note this is at odds with her intention a matter of weeks prior to the local authorities. The mother proffered little to no explanation under cross examination as to why she told the Belgium authorities that she intended to live in Belgium for at least the first few years, beyond that “she didn’t mean that at the time” and having come to the realisation she “could not live long-term in Belgium”.
The mother deposes to having told the father towards the end of 2016 words to the effect of “I’m not prepared to live in Belgium. If you have a relationship with me, we will have to live in Australia”. The father denies that this occurred. The SCA assert that the mother’s intention as deposed to does not align with her actions in returning to Belgium in 2017 and completing a declaration of legal cohabitation to declare she was living with the father in Belgium. The mother attempted to explain the inconsistencies by claiming it was translated to her that the signing of the cohabitation declaration was for the purpose of making the father’s application for residency in Australia more credible. The mother’s explanation is difficult to accept. Her actions are consistent with allowing the father to believe that Belgium could be their home for the foreseeable future.
Further, the mother met with a Belgium government employee in July 2017 to discuss, what the SCA claim were the course requirements for obtaining an immigration certificate in Belgium. In an email to the government employee the mother queried what were “the upcoming dates and hours of the culture and history course that I need to complete”. In a subsequent email the mother stated to be “looking forward to completing this course”. The mother alleged that her reason for completing the language course was so that when the parties moved to Australia she could communicate with the father in Dutch and that their children could grow up hearing the Dutch language be used in their home. Further, the mother’s participation in the cultural integration course was allegedly so that she could construct a deeper understanding of the father’s culture. The mother made reliance on the fact that she did not go further than completing the “elementary” level of the language course, noting that she “could have” if she had the intention to live in Belgium. This is notwithstanding the fact that successful completion of the Dutch language course and the cultural integration course are relevant components in the acquisition of residency status in Belgium, a fact which the mother conceded to under cross examination. The mother’s explanation does not ring true. I am satisfied that the mother took the course as a step to making Belgium her place of residence or at least to satisfying the father that that was what she was doing.
On the evidence before me, I do not accept that the mother was forced or coerced to go to Belgium on 12 November 2020. I am satisfied that the mother was prepared to give birth in Belgium if she could secure a water birth. I accept that the mother had misgivings about living in Belgium after the birth and for the foreseeable future but that she chose to go to Belgium at that time in preference to the father returning without her and leaving her alone in Australia. There is support for the mother having decided to go back to Belgium, unforced and without coercion, in the mother’s message to the father on 26 November 2020:
We promised Australia when marriage was decided. While sick, worried about money, and worried about you, I made a poor decision to go back on our well thought our (sic) decision, and go to Belgium.
I am satisfied that the mother did not embrace Belgium as her residence after her arrival and did want to return to Australia for the birth of the baby. Her plans in that respect were thwarted by her inability to fly due to her physical condition. X was born in 2020. The mother and X did not leave Belgium until 17 September 2020 by which time X was seven months old. The mother’s evidence about being kept locked in her room, being treated cruelly by the father, in terms of the branch incident and talk about beneficiaries for her life insurance, does not sit comfortably with the father consenting to X travelling to Australia with the mother for a period of two months in September 2020. In particular, if life was as wretched in Belgium as the mother alleges, I would have expected the mother to seek to leave with the child at an earlier time. Furthermore, if the father’s treatment of her was as brutal as she alleges, the father would have been unlikely to have consented to the child leaving Belgium and/or to expect the mother to return at the expiration of two months. Relevantly, the mother’s evidence (which the father denied) indicated that the father had some knowledge of remedies for international parental child abduction. In her affidavit filed 25 May 2021, the mother deposed:
88. Approximately two weeks after I arrived in Belgium I said to [Mr Q] “I need to go back to Australia. I can’t give birth here I don’t feel well here.”
89. [Mr Q] became very angry and I recall he said, “I wonder if they will already consider it kidnapping”. He stormed out and as he left he locked the bedroom door.
90. I was locked in the room for a substantial period of time. I remember sitting on the bed and crying. When he returned, he said, “You’re a flight risk. Do I need to keep you locked up?”
I am not satisfied that the totality of the mother’s presence in Belgium was “involuntary” particularly after X’s birth up until 17 September 2020. However, the burden of establishing on a balance of probabilities that X was habitually resident in Belgium immediately prior to 12 November 2020 rests with the Applicant State Central Authority. The mother remained in Belgium for seven months after X’s birth. Habitual residence requires more than physical presence in a state. At best, the mother’s intention to make Belgium her home cannot, on the evidence, be regarded as higher than ambiguous.
Characterisation of X as an Aboriginal child according to the FLA is not determinative of anything. It would be for the parties, or one of them, to put relevant evidence before the court for the court to consider.
I am satisfied that X’s status as a First Nations Australian is a matter of importance for the mother. In cross examination, the father was asked “And you through no fault of yours are not in a position to do anything to advance your daughter’s knowledge of her Aboriginal culture, are you? He responded “‑‑‑I can do research about that and teach her about that but Ms Bamfield is probably more aware of that topic.” The appreciation and enjoyment of the culture of First Nations Australians may well be something for which the mother is primarily responsible but it does not follow that their culture can only be promoted in Australia and will be thwarted by X being returned to Belgium pursuant to the Regulations.
There may be a narrow band of cases where it would be appropriate to consider the expertise of an Australian court in dealing with issues relating to First Nations Australians, for instance, where a court is satisfied that an exception to return is made out and has a discretion to refuse return. However, this is not such a case. Within the context of r.16(3)(b), I am not persuaded that X will be placed in an intolerable situation by being returned to Belgium and the mother’s case in that respect fails.
DISCRETION TO RETURN
Had I been satisfied that the exception to return had been made out (which I am not), I would have a discretion to refuse return. Whilst r.16(3) is silent on the matters which inform the exercise of the Court’s discretion to refuse return, the Court must exercise its discretion judicially and consistently with the judicial process. A variety of matters may be relevant and inform the exercise of discretion but extraneous matters ought not be taken into account. Amongst other things, the best interests of X would have been a relevant, but not necessarily determinative, consideration.
In TB v JB (Abduction: Grave Risk of Harm) [2001] 2 FLR 515 (“TB v JB”) Hale LJ (as she then was), in her dissenting judgment, accepted and applied the following list of factors to be considered on the exercise of the discretion to refuse return:
(a)the comparative suitability of the forum to determine the child's future in the substantive proceedings;
(b)the likely outcome (in whichever forum) of the substantive proceedings;
(c)the consequences of the acquiescence;
(d)the situation which would await the absconding parent and the child if compelled to return;
(e)the anticipated emotional effect upon the child of an immediate return (a factor which is to be treated as significant but not paramount); and
(f)the extent to which the purpose and underlying philosophy of the Hague Convention would be at risk of frustration if a return order were to be refused.
The Full Court of this Court, in Zafiropoulos & State Central Authority (2006) FLC 93-264 (“Zafiropoulos & State Central Authority”), adopted this list of relevant factors in TB v JB. I would add to the above list a consideration of whether the laws of the state of habitual residence permit international relocation of children.
On the facts of this case, if I have had a discretion to refuse return I would not have exercised it in favour of allowing X to remain in Australia. This is a blatant case of repudiatory retention. X should be returned to Belgium where her parenting arrangements may be resolved either by court process or out-of-court. Whilst there will be difficulties and hardships faced by the mother and, through the mother, by X, these are difficulties which flow from the wrongful retention rather than the return. Most return cases which come before this court are difficult and sad in personal terms. This case is no exception. My impression is that the mother is desperate to stay in Australia and, in that desperation, may make X’s return to Belgium more difficult than it needs to be for either of them. It is difficult not to feel sympathy for both of the parents. It would, however, be contrary to the purpose and underlying philosophy of the 1980 Convention to refuse return.
In the circumstances of this case and I would not have been persuaded by any of the countervailing factors, including the appropriateness of forum and the anticipated emotional impact on child and mother of return, to exercise a discretion to refuse return. The respondent mother led no evidence in relation to the likely outcome in either forum of an application for the mother to relocate X’s residence to Australia permanently but, in the scheme of things, I do not see that that omission was to her detriment.
CONDITIONS TO RETURN
Regulation 15(1)(b) and (c) provides that the Court may, if satisfied that it is desirable to do and when appropriate to give effect to the Convention, impose conditions on return orders. These arrangements are often called “safe harbour orders” or “safe harbour arrangements”. Safe harbour orders typically set up conditions in the child’s country of habitual residence to safeguard the child upon their return and until the parenting arrangements or a court of appropriate jurisdiction becomes seized of the matter.
Conditions for return can be imposed independently of the exceptions to return being argued or found to apply. All conditions are directed to making the return of X and the mother to Belgium as smooth as possible. It is not practicable to specify all conditions at this stage because I do not know, for instance, the mechanics of return including the availability of flights, whether the mother still proposes to accompany the child and, if so, whether the mother has been vaccinated. The parties have not been required to attend for judgment to be handed down. I will reconvene the court on 14 December at 4:30 p.m. (which is 6:30 a.m. in Belgium) or such other date and time as is suitable to counsel and agreed to be sought from my Chambers. We have some flexibility. I would allow up to 2 hours for the hearing but it may be considerably shorter. The father should join and, if possible, have his solicitor with him. I will determine any outstanding issues on the mechanics and conditions of return at that time. In the meantime, I set out below my impressions on the evidence as far as the return is concerned.
In formulating conditions to return, it is not my intention to usurp or encroach on the jurisdiction of the courts in Belgium to make orders in relation to X. The conditions I discuss below will be intended to last for three or four months or until such earlier time as the courts of competent jurisdiction in Belgium become seized of the matter and make other orders.
The Independent Children’s Lawyer drafted a minute of proposed final orders which is exhibit “ICL7”. Under direction, the mother provided minutes of proposed orders sought by her in the event that X is not returned to Belgium, which was exhibit “M4”. Under direction, the mother also provided a minute of order for return if X is required. That is exhibit “M3”. That minute is provided without prejudice to the respondent’s case that return should be refused.
I regard conditions to return to be measures taken under Article 11 of the 1996 Convention. As such, any orders made in Belgium to implement the conditions can be cancelled by the court in Belgium because it will have primary jurisdiction under Article 5 of the 1996 Convention.
Date of return
X should be returned to Belgium as soon as practicable. There may, however, be obstacles to do with the pandemic. I am satisfied that X should travel with a parent who is vaccinated against COVID-19. I am not including other strains of the virus because the pandemic is dynamic and the return could be delayed interminably if the mother (or father) has to take precautions in relation to all new strains. At the hearing, the mother said that she had not been vaccinated against COVID-19. If that is still the case but the mother confirms that she will now be vaccinated, the return of X should be delayed for sufficient time to allow the mother to have the opportunity to be vaccinated provided that she informs the applicant SCA within 24 hours of these reasons being published that she will be vaccinated and takes immediate steps to secure the earliest possible vaccination and advises the applicant SCA of dates for the vaccinations. If the mother says that she will be vaccinated but fails or neglect to be vaccinated within the reasonable time period set, the child will be returned to Belgium in the care of the father. If the mother has been vaccinated but is now eligible for a booster shot, she should be permitted to remain in Australia to have the booster shot immediately and then wait for any period specified by the appropriate authorities as to the time it takes for the booster shot to become effective.
Health insurance and expenses
The mother sought that for so long as she and X are required to remain in Belgium, the father pay the cost of hospital, surgical, medical, dental, pharmaceutical, psychological and ancillary care for herself and X and the cost of all insurances or other expenses associated with that care. In support, the mother provided written submissions which, relevantly, included the following particulars:
Weekly Chiropractic or Osteopath appointments for my back and shoulder. [My shoulder was damaged when the tree branch (about five meters long) fell on X and me in Belgium. I need it to be taped every week as it keeps slipping out of place. It is a weekly reminder of Mr Q’s death threats.]
Being deported to Belgium will be triggering for X and me. The psychologist I am seeing has given me strategies to help me deal with X's trauma responses. I will need continued help if X is placed in an environment where she is reminded of her triggers. One trigger is the Dutch language (I assume this is because it is the language she heard while being shaken, slammed on the ground, and yelled at in).
The father asserts the mother is still covered under his health insurance in Belgium until the beginning of next year which the father indicated he would be content on renewing for another year. X is covered regardless under the father’s health insurance scheme. The father claims that X’s treatment for her hemangioma, and if necessary the mother’s chiropractic and osteopath appointments would all be covered by the father’s health insurance.
There should be provision for the father to do all acts and things necessary to provide the mother and X with health insurance cover until the end of 2022. Additionally, the father should be responsible for the reasonable costs of treatment for X’s hemangioma which are not covered by health insurance. The mother should be responsible for the cost of her chiropractic and osteopathic treatments in excess of what is covered by the father’s health insurance.
Housing requirements
The mother sought that, for as long as she and X are required to be in Belgium, the father pay the cost of acquisition, rental, utilities, and ancillary outgoings for a two-bedroom apartment with a backyard, such accommodation to be selected by the mother, and be within a radius of 15 km of the usual place of residence of the father unless the parties otherwise agree in writing. The mother also sought a lump sum payment of €7000 to enable her to purchase furniture, kitchen appliances, toys and play equipment and reasonable necessities for their accommodation.
The father was prepared to provide the mother “€1,000 a month or more” by way of an accommodation and living allowance. This was based on the father’s calculation of approximately €600 in month rent (excluding utilities) and €100 a week in food and groceries. The father subsequently agreed (to my suggestion) that the mother and child move into his home in Belgium and that he would move out to reside at his parents’ home.
Neither party was enthused about the mother and X taking up occupation of their dwelling in Belgium. However, in my view it is eminently sensible to use this as temporary accommodation for the mother and X until the mother is able to relocate elsewhere. Renting and provisioning alternative premises is too problematic and likely to cause friction between the parents. The father will leave the dwelling fully provisioned for the mother and X, with cutlery, crockery, bedclothes, electronics including television and the like. The mother wanted a backyard in which X can play and this property has a backyard. The mother also sought play equipment, swings and slippery dips. The mother will be required to keep the dwelling in a reasonable state until she vacates the dwelling in, say, four months after her arrival in Belgium by which time she will have independent accommodation for which she is solely responsible.
During the mother’s occupation of the property, the father is to be responsible for payment of outgoings such as gas, electricity, rates and taxes. There will need to be an arrangement for the mother to collect the keys or to be met upon arrival.
Living allowance/maintenance
The mother sought that the father pay €1,500 per month, in advance, for her support and the support of X.
I would order that over and above whatever child support is payable by the father to the mother in Belgium and provision of housing and utilities, the father pay the mother €100 per week for the first three months after X is returned. I have adopted the allowance which the father suggested was a component of accommodation and living costs if alternate rental accommodation was to be obtained.
This €100 per week on top of accommodation and child support is, in my opinion, quite generous having regard to the father’s other obligations. It is not my intention that this create a benchmark for an award in favour of the mother in Belgium. This supplementary payment is simply to ease the mother’s return to Belgium and give her a modest amount of shopping money for food each week, for the first three months. The mother is employed in Australia and has been in a position to manage her finances so that she should be self-supporting when she gets to Belgium before she obtains employment (if any). I did not conduct a financial hearing between the parties. Any orders I make or any matters that have been agreed to by the father should not be construed by the mother or, most respectfully, by the courts in Belgium, as an admission of the father’s ability to pay these sums personally. He is a public servant. It was clear to me that the father would do whatever was necessary to secure the return of their daughter to Belgium and to make the mother and child reasonably comfortable but that he will be relying on his parents’ financial support to be able to do so.
I do not regard it is reasonable that father pay the €7000 sought by the mother to set up a house and make no provision in that regard.
Car
The mother sought that, for so long as she and the child are required to remain in Belgium, the father provide her with a fully insured motor vehicle of comparable size and age to the motor vehicle driven by him and pay for reasonable maintenance and repairs and any other expenses required by the laws of Belgium in order that the vehicle may be lawfully and safely operated.
In cross examination, the father agreed to an arrangement whereby whichever parent had care of X at a given time would have access to and use of his car. This is the car which he sold to his parents before going to Australia.
The car should be returned to the other parent with at least one half tank of fuel. The father is responsible for the costs of registering and maintaining the car. This arrangement would only pertain if the mother has a driver’s license which is valid in Belgium and, in any event, not for longer than three months after X is returned to Belgium.
Travel costs
The father agreed to pay for the airfares of both the mother and X to fly economy to Belgium. The father did not agree to pay for the mother’s dog, ZZ to be transported to Belgium. The father does not accept the mother’s evidence that X is “very attached” to ZZ. I would not impose any obligation on the father to pay for ZZ to travel to Belgium. The mother and X have their own accommodation in Australia and ZZ lives with the mother’s parents rather than with the mother and X. X sees ZZ when she goes to her grandparents’ home. It is reasonable, in my view, that the father secure airfares for the mother and X which entitled each to take 30 kg of luggage. I am mindful that the mother and X will be travelling into winter with bulkier clothes and it is reasonable that X has capacity to take toys and keepsakes.
Safety requirements
The father’s evidence was that he was not aware of which of his uncles the mother describes as “the local groomer and paedophile” and maintains that he never said anything to the mother that would suggest one of his uncles, or anyone in his family, was a groomer or paedophile. I would make no provision in this regard.
The mother sought an order that the father not approach and shall remain within 100 m of any place of residence of the respondent or X. In my view 100 meters is too far away.
I would order that the parents not approach within 50 metres of the other parent’s residence without an invitation to do so or unless it is to collect or return X to the other parent in accordance with the parenting arrangement. Similarly, neither parent should approach within 50 meters of the other parents’ place of employment or education.
Parenting orders
The mother sought that until the Belgium court orders otherwise, X spend time with the father:
(a)on each alternate day commencing on the day after X has returned to Belgium, X will spend up to 1 hour with the father at a public place such as a forecourt of the local zoo; and
(b)such other or alternate time as may be agreed between the mother and father.
The mother sought there be a supervision of the father’s face to face time with X in Australia and that the supervisors be one of her two brothers. In her minute or order, the mother did not seek any supervision of the father’s time with X in Belgium. The mother then said that there should be supervision of the father’s time and considered an external and independent supervisor to be suitable although conceded she had not made inquiries of any such organisation in Belgium. The mother opposed to any member of the father’s family acting as supervisor.
I was not specifically addressed on the need for supervision. However, I assume that it is to protect X from the kind of violence of which the mother complained including shaking X and slamming her to the ground. I have not conducted a parenting hearing. These are forum selection proceedings. However, my impression is that the mother and child are not at risk of physical violence, or other family violence, from the father.
I agree that the child’s time with the father should be frequent and that each alternate day is appropriate. The father’s access should commence on the day after X arrives in Belgium. It should be for one hour. The next period of access should be for one and a half hours. For the next four weeks, the access can be of 2 ½ hours duration on each occasion. In the following month the father’s time should increase to 3 ½ hours each alternate day.
I would not impose a requirement for supervision on the father’s access or time with X because I do not believe, on what I have seen in the evidence, that X is at risk in the father’s care. That said, the father would be well advised to have someone with him to assist with some tasks. X is a young child. It is important that the father give her his undivided attention and that may require the support of another person to fetch and carry her and clean up.
Parenting responsibility would otherwise be joint. Neither parent should be able to remove X from Belgium without the consent in writing of the other parent.
Registration and enforcement of orders
The mother sought that any orders which are required to ensure compliance with the conditions for return be made in Belgium before she is required to return X to that country. I do not understand the applicant to oppose enforceable orders being made in Belgium as a condition precedent to X’s return. As I have said, alternative orders can be made by the court in Belgium at any time.
Article 23(1) of the 1996 Convention provides that measures taken by courts of a contracting state shall be recognised by operation of law in all other contracting states. That does not mean they are enforceable. Article 26 of the 1996 Convention provides that orders between contracting states can be made enforceable. Article 28 of the 1996 Convention provides that measures taken in one contracting state and declared enforceable, or registered for the purpose of enforcement, in another contracting state shall be enforced in the latter state as if they had been taken by the authorities of that state (ie the courts). Enforcement takes place in accordance with the law of the requested state to the extent provided by such law, taking into consideration of the best interests of the child. Article 26 (2) provides that each contracting state shall apply to the declaration of enforceability or registration process a “simple and rapid procedure”.
I invite the parties to request that I contact the judge designated for Belgium to the International Hague network of judges to ascertain what needs to be done to obtain enforceable orders in Belgium.
Mediation
I did not raise a further mediation with the parents or the State Central Authority or the Independent Children’s Lawyer. However, there is a high degree of parental conflict in this case. X will inevitably be affected by the conflict. My strong recommendation is that the parties consider mediation in relation to how they will deal with one another after X’s return to Belgium. Mediation is not an opportunity to revisit this decision or open negotiations on an alternative outcome. It would be to set the guidelines and parameters within which the parents will operate once the mother and X return to Belgium. It would be a structured and facilitated discussion following hard fought proceedings in which each gave fairly extensive evidence. It would not be prudent for either to assume that they will be able to establish a cooperative and constructive parenting relationship without some professional guidance.
Mediation is not something I will impose but I consider that it would be constructive at this time. I request that the Independent Children’s Lawyer ascertain whether the parents are amenable to mediation through an organisation such as XX Organisation and, if they are, arrange it for them.
CONCLUSION
This case has some interesting elements but it is a clear instance of wrongful retention of a young child by a mother who wants to reside in her country of origin rather than in Belgium where I find that the child was habitually resident.
I have not specified all of the conditions to return and liberty to apply is reserved to the parties.
For the above reasons, I make the Order set out at the beginning of this document.
I certify that the preceding two hundred and forty-three (243) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bennett. Associate:
Dated: 8 December 2021
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