Department of Communities, Child Safety and Disability Services and Woden

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF COMMUNITIES, CHILD SAFETY AND DISABILITY SERVICES & WODEN

[2017] FamCA 611

FAMILY LAW – Hague Convention – Application under the Hague Convention for the return of the child to the United States of America – Whether the mother acquiesced to the child living permanently in Australia – Whether the child was habitually resident in Australia at the time of retention – Whether the father wrongfully retained the child in Australia – Where the Court finds there was no wrongful retention – Application dismissed.

Family Law (Child Abduction Convention) Regulations 1986 (Cth)

LK v Director-General, Department of Community Services (2009) 237 CLR 582
Punter v Secretary for Justice [2007] 1 NZLR 40

APPLICANT:

Department of Communities, Child Safety and Disability Services

RESPONDENT:

Mr Woden

FILE NUMBER:

BRC

4638

2017

DATE DELIVERED:

17 August 2017

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

12 & 13 July 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Green

SOLICITOR FOR THE APPLICANT:

McInnes Wilson

COUNSEL FOR THE RESPONDENT:

Mr Mason

SOLICITOR FOR THE RESPONDENT:

James McConvill & Associates

Orders

That the Application filed in this Court on 11 May 2017 by the Director-General of the Queensland Department of Communities, Child Safety and Disability Services initiating proceedings under the Family Law (Child Abduction Convention) Regulations 1986 is dismissed.
All previous Orders made in these proceedings are discharged.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Department of Communities, Child Safety And Disability Services & Woden has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 4638 of 2017

Department of Communities, Child Safety and Disability Services

Applicant

And

Mr Woden

Respondent

REASONS FOR JUDGMENT

On 11 May 2017 the Director-General of the Queensland Department of Communities, Child Safety and Disability Services filed an application in this Court initiating proceedings under the Family Law (Child Abduction Convention) Regulations 1986 (“the Hague Regulations”). Those Regulations have been put in place to ensure Australia’s compliance with its obligations taken on by becoming a signatory to the Convention on the Civil Aspects of International Child Abduction signed at The Hague on 25 October 1980. That Convention is more commonly known, at least by family lawyers, as the Hague Convention.
The Director-General is the responsible “Central Authority” in the State of Queensland, as that term is defined in the Hague Regulations.
By this particular application, the State Central Authority applies for orders that the child, B, born in 2013 (“the child”) be returned to the United States of America.

Some Background

The mother, aged 31 years, is a citizen of the United States of America. The father, aged 38 years, is an Australian citizen. The mother and father met in City C, in May 2008 when the father was on a holiday there. In November 2012, after some years of maintaining communication, the mother flew to the United Kingdom, where the father was living and working at the time, to visit him for a short time. In January 2013, the mother left the US and went to the UK to take up cohabitation with the father there as his partner in a relationship.
In mid-February 2013, the mother learned that she was pregnant. It was the father’s child. She and the father married in the UK in 2013. Not long after they married, the mother and father relocated to the USA and moved in to live, temporarily, with the maternal grandmother in D State. Their son, B, was born in 2013 in D State, USA. The child became a citizen of the United States of America on his birth and his citizenship of Australia by descent was formally acknowledged by the Australian Government on 17 June 2016 following application made by at least one of the parents. Apart from a few short holidays to Australia in 2014 and 2015, the family of three lived in D State from the child’s birth until early December 2016. What happened then is a principal matter of contention between them and one of the central factual issues in this case by which the outcome of this application will be determined.
In or around August 2015, the mother, the father and their child moved to live in rental premises in a place called E Town in D State. That was not too far from where the father was working. He had obtained USA Government approval to live and work in that country well before then. The tenancy agreement they entered into was for a twelve month term, expiring in late August 2016, but with provision for a month-to-month tenancy to commence after that. The rental home they moved into had three bedrooms. On moving into that home, the mother began sleeping apart from the father in one bedroom in that home and he began sleeping in another bedroom. The child slept in the third bedroom. In these proceedings, the mother attributed that to unhappiness in the marriage and frequent arguments with the father. The father attributed it to a decision to sleep in separate rooms so that he would not wake the mother when he came home late at night after finishing work.
Whichever was the correct explanation, there was no real dispute between the parties, as I understood all of the evidence, that their relationship unfortunately experienced difficulties in the years since the child was born and that their emotional and physical intimacy had substantially deteriorated over that time. There is also no dispute that the mother suffered from episodes of depression and anxiety during those same years for which she obtained medical treatment and took prescription medication as directed, and that she would often tell the father of her unhappiness in the relationship. Additionally, I am satisfied that the young family experienced financial pressures. This also led to tension, disagreement and arguments between them.
In time, the father began working two jobs at the same time to try and help alleviate the financial pressure on the family. His long absence from the home on a daily basis obliged the mother to devote herself principally to caring for their child and home on her own with little assistance from the father in that respect. This added to the strain on their relationship. Yet, despite this, there was apparent agreement or, at least, acquiescence in the circumstances of continuing to stay living as a family in the same home.
Each of the father and the mother is apparently reasonably close to members of their own family of origin. The father’s parents live in F Town in north Queensland and it was there that the mother and father and child visited on their holidays to Australia. The father’s sister also visited the father and the mother in D State from Australia at one time in 2016. The mother’s parents, though long separated and divorced, both live in D State, in the area that the mother and father were living in. The mother and father regularly visited and spent time with each of them. The mother’s sister also lives in the same area in D State and the mother has a reasonably close relationship with her. It was not a matter of dispute that the mother’s sister and mother had spent a lot of time with the child in his short life until December 2016.
The mother asserts that over the last few years the father often asked her to take their child, on her own, to visit his parents in Australia whilst he would stay in D State and work. She said she never agreed to do that and, further, she said that her unwillingness to agree to do that would make the father “extremely irate”.
On the other hand, the father asserts that they had many conversations from 2014 on about moving to Australia. Although he does not expressly state when it actually happened, the father asserts that they eventually came to an agreement that they would move to Australia as a family to live here. Of course, that assertion carries with it the inference that the mother had never agreed to such a move in all of the many conversations had prior to the ultimate agreement. That inference, at least, is consistent with the mother’s position. Indeed, the mother denies that she ever agreed to move to live in Australia.
The father asserts that he and the mother agreed to start the process of applying to the Australian Government for a permanent residency visa for the mother in April 2016. He asserts that they both “actively participated in preparing this application”. He asserts they were told that it would be a six to eight month wait for the mother’s visa to be granted. He asserts that the mother willingly participated in the procedures that were required in that process, such as health and police checks. He asserts that at some time subsequent to April 2016, they were advised that the time it would take to process the application was “more likely to be 12 months” (making it, at that estimate, to be around April 2017 before it would be processed).
Whilst the mother agrees that she did go on with the visa application after she discovered it had been made and the father told her he would not be able to get the $8,000 back that he had paid for it, she asserts that the father had commenced that application, including paying that $8,000 application fee through a credit card payment, without her knowledge or consent in the first place. She asserts that when she found out that he had commenced the application process on her behalf she nevertheless thought it would be a good idea to have a permanent residency visa for Australia having regard to the number of times the father had threatened her that he would take their child with him to live in Australia without her. She also asserts that the father was solely responsible for applying for and obtaining Australian citizenship for their son in the middle of 2016.
Importantly, it is not in dispute that early in November 2016, the father purchased return airline tickets for himself and their son to fly out of City S International Airport to Brisbane on 4 December 2016 with a return flight from Brisbane to City S booked on 8 February 2017, after just over two months later.
It is also not in dispute that in the afternoon of 20 November 2016, the mother and the father argued at their home and that the mother called the police and reported that an incident had taken place. The records of the G County Sheriff’s Department that were adduced into evidence, reflect that when police arrived and took up with the mother outside the home she told them that she and the father were “in the process of separating” and that they had been arguing about their marriage and the father became “irate” when the mother told him that she did not want to move to Australia. She is reported to have said he then pushed her on the left shoulder with an open hand and she was knocked backwards a step. She is also reported to have said that she then left the residence and called the police. She is said to have reported that she did not have any injuries and the police officer reported not seeing any signs of any.
The same police records reflect that the police officer reported taking up with the father who also told him that he and the mother were having an argument about their marriage when he asked the mother to leave his bedroom so that he could have an afternoon sleep. He is reported to have said that the mother refused to leave and kept arguing with him, prompting him to use his shoulder, hip and body weight to “guide [the mother] out of his bedroom”. He is reported to have said that he then closed the door and denied touching the mother with his hands.
The police records reflect the officer reporting that he spoke again with the mother and that she confirmed that the father had pushed her with one of his hands and that though she was initially unsure, she eventually said she wanted the father to be prosecuted and that she would co-operate with the District Attorney’s Office. The father was handcuffed and taken in the police vehicle to the County Jail where he was charged with battery of a spouse, again saying along the way that he had not touched the mother with his hands during the altercation.
Within a few days of that charge, the father, who had returned to live in the same home with the mother and the child, obtained legal representation through a D State attorney-at-law.
It is not a matter of dispute that the mother then wrote a letter on 22 November 2016 to the District Attorney’s office urging the DA to drop the charge against the father for the assault, saying in the letter that at the time of the incident they were “coordinating a move to a more manageable location” and that it was their intention to “move back to Australia to live” with the father’s family. She also finished that letter by saying that they had “every intention of trying to better [their] methods of communicating with the help of counselling and a less stressful life in Australia.”
The evidence also established that on or just prior to 24 November 2016, the father posted on his Facebook page the following message:
Dear Australia, please be advised that there is going to be a population increase by three very soon, plus one canine, also known as the child’s best furry bud, [H] the Dog. See you in a few weeks.
The evidence also established that on 24 November 2016, the mother posted a comment to the father’s posted Facebook message. It read:
That’s quite a population increase for Oz!!! I’m sure they are all just thrilled to gain an American and a half.
Although it is not clear as to exactly when it was done, at a time later than the original purchase of airline tickets for the father and the child, a ticket was also purchased for the mother, with seats being booked on the same flight from City S that the father and the child were booked on and on the same return flight from Brisbane to City S that the father and the child were booked on, returning 8 February 2017.
It is not in dispute that the father sold his car in D State at this time, that they surrendered their tenancy in the home they had been renting and that they vacated that home just before flying to Australia. It is also not in dispute that they stored personal possessions and furniture in a commercial storage facility and left their pet dog in the care of the mother’s sister. They also left the mother’s car, still under finance, in storage and they flew out of City S on 4 December 2016.
The mother did not have a permanent residency visa for Australia when she travelled in December 2016. She entered Australia on a tourist visa.
There are incoming passenger cards that were completed for the father, the mother and the child on their arrival in Australia on 6 December 2016. There is no dispute that the father actually filled all three cards out for the three of them. His signature is on his card and the child’s. He says the mother signed her card but she denies it is her signature. She says the father signed her name for her.
The father’s completed card has him correctly asserting that he was an Australian resident returning to Australia. The child’s card and the mother’s card both record that they are visitors or temporary entrants coming to Australia to visit friends or relatives, intending to stay for two months.
When the family arrived in Brisbane, they flew to J Town and then went to live at the father’s parents’ caravan park. A few days later, on 9 December 2016, the mother wrote an email to their former landlord in D State in which she said:
We just wanted to check in to make sure you got all of the keys and remotes. I should have checked with you sooner but we are just getting settled into our place in Australia. …
On 16 December 2016, both the mother and the father signed a comprehensive enrolment form for the child to attend at a childcare centre/kindergarten in F Town, though one part that was not completed was the date of his anticipated first attendance at the centre. Attendance records reflect that his first apparent attendance at the centre was Friday, 27 January 2017 and that he was booked in to attend on Thursday and Friday of each week from that time on.
It is not in dispute that the mother and the father argued again on 8 January 2017 and that the mother told the father on that day that she wanted to go back to D State. On 10 January 2017, the mother changed the date of her return flight to the USA to 16 January 2017. She did not change the child’s return flight booking from 8 February though.
Within a few days of this argument, the father went to the mother’s suitcase and removed their child’s passport and locked it away in a cabinet in his parents’ home. He did this so that the mother could not take the child from the country with her without his permission. Discovering this, the mother confronted the father about his actions. He told her he had taken it because he was afraid that she would try to leave the country with the child. In this conversation, or around this time, the father informed the mother that neither he nor the child was going to fly back to the USA on the return flight booked for 8 February.
On or around 12 January 2017, advice was received from the Australian Government that the mother’s permanent residence visa had been approved but that the mother would have to leave the country to collect her visa in another country. The mother then changed the booking for her return flight to the USA and rebooked it for 1 May 2017 and then booked return flights to Country R for herself later in January so that she could leave Australia and then come back into Australia as required to secure her permanent residency visa.
On 21 January 2017, upon returning by herself to Australia from Country R, the mother completed and signed her own incoming passenger card. She completed it claiming to be migrating permanently to Australia and saying that she intended to live in Australia for at least the next 12 months. She listed the father as her emergency contact person.
The mother then obtained a Queensland Driver’s Licence and began applying for jobs.
On 27 January, the father’s parents made an offer to purchase a house in F Town for the father, the mother and the child to live in. The mother was involved in conversations about renovating the house. The contract of sale was exchanged in early February.
Relationships deteriorated even further around this time and each of the parties obtained legal advice. Family Dispute Resolution mediation was arranged.
The father and the child did not return to the USA on 8 February 2017. Prior to that date, the father had already rebooked the return leg of the flights to later in the first half of the year.
On 9 February 2017, the mother obtained advice from a solicitor in J Town. She asserts she learned that as there were no Court orders in place, she could return with the child to D State but that this would require her to have the child’s passport in her possession. The mother also obtained advice from a D State attorney who advised her that she “needed to be strategic about getting possession of [her] son’s passport again”.
The mother obtained the child’s passport from the father in early March by telling him that she needed it for Centrelink purposes.
On Friday 10 March, the mother told the father that she would pick the child up from day care that day. She picked him up earlier than the usual time, drove to K Town airport, flew to Brisbane with the child and then attempted to leave at the international airport in Brisbane on Saturday 11 March.

On the evening of Friday 10 March, the father, worried about the mother’s intentions, obtained ex parte orders from the Federal Circuit Court that placed the child’s name on the Federal Police Airport family law watch list. When the mother attempted to leave Australia with the child on Saturday morning 11 March, she was stopped at the barrier and not permitted to take the child on the plane. She did not board the plane herself either.
The child lived with the mother in Brisbane from that day until 4 June 2017 when he travelled to J Town to spend some time with his father. On 6 June, the mother flew back to D State. She returned to Australia in early July and was present in Court for the hearing of this application. The Court was told that she would be returning to D State at the end of July.

The relevant principles by which the application is to be determined

Where an application for an order that a child be returned to another State that is a signatory to the Hague Convention is made within one year of the child’s removal from that country, or retention away from that country, and the State Central Authority satisfies the Court that the child’s removal or retention was wrongful, the Court must, subject to certain exceptions, make the return order.
A child’s removal to, or retention in, Australia is “wrongful” within the meaning of that word as set out in the Regulations if:
(a)The child was under 16; and
(b)The child habitually resided in a convention country immediately before the child’s removal to, or retention in, Australia; and
(c)The parent seeking the return had rights of custody in relation to the child under the law of the country in which the child habitually resided immediately before the child’s removal to, or retention in, Australia; and
(d)The child’s removal to, or retention in, Australia is in breach of those rights of custody; and
(e)At the time of the child’s removal or retention, the person was actually exercising the rights of custody or would have exercised them if the child had not been removed or retained.
The parties agreed that none of the exceptions provided for in the Regulations for the mandatory return of the child to the USA apply if the removal or retention is found by the Court to have been wrongful.

Was there a removal or retention?

The child is under 16. He was brought to Australia on 6 December 2016, by both of his parents. Accordingly, this is not a case of alleged wrongful removal.
There is no dispute that the application is one founded on an alleged wrongful retention of the child in Australia.

A novel but baseless argument

Counsel for the father argued at the hearing that the Court could not, in any event, make a finding that the father had breached the mother’s rights of custody to determine the child’s place of residence as the child had ultimately been stopped at the airport barrier not by the father but rather by force of an order of the Federal Circuit Court. With respect, that ignores the clear reality that it was the father who initiated the process that led to the prevention of the mother taking the child from the country on 10 March 2017 and at any time thereafter. Such a submission simply ignores the personal responsibility of the parent who makes the application for the order that the child’s name be placed on the Airport Watch List. By the initiation of that process, it was the father who prevented the mother from taking the child back to the USA, when she was trying to take him, not the Court that made orders on his application and not the officers of the State who executed the Court’s orders.
If the submission made for the father is correct, any parent who brings a child (who is habitually resident in another Hague Convention signatory State) to Australia for a holiday or temporary stay who unilaterally holds that child over at the end of that stay could simply avoid the mandatory return of the child to its country of habitual residence pursuant to the Convention by applying for, and obtaining, an order that the child’s name be put on the Airport Watch List. Such an outcome would render Australia’s engagement in the Hague Convention processes to be useless, at least in wrongful retention cases. I respectfully reject the submission.
If there was a wrongful retention, it happened, at the very latest, when the mother was stopped from taking the child out of the country at the Brisbane Airport on 10 March. However, depending on my ultimate findings of fact, wrongful retention, if it happened, could have happened even earlier than that.
The parents and the child all had tickets with pre-booked flights returning to the USA on 8 February. There is dispute about whether they were always going to go back to the USA on that date, and, relevantly, as to whether any such return was going to be only temporary or permanent. However that factual dispute is determined, it is not in dispute that the mother informed the father on 8 January that she was intending returning to the USA earlier than previously planned. She also asserts that when she told him that she also told him that she nevertheless acquiesced in the child remaining in Australia with the father until the date of the pre-booked return flights to the USA on 8 February 2017. It is also not in dispute that the father told the mother, either on that same day, or within days thereof, that he had no intention of returning to the USA on 8 February 2017, or of allowing the child to return on that day.
In addition, it is not disputed that around that same time the father covertly took possession of the child’s passport without the mother’s knowledge or consent and hid it away. It is also not in dispute that when the mother discovered the child’s passport was missing, some days later, she confronted the father about that. There is no dispute that the father informed her that he had taken and hidden the child’s passport so that she could not take the child out of the country without his knowledge or consent.
The mother did not assert that after she heard that the father had expressed an intention not to let the child fly back to the USA on 8 February, and after she learned that the father had hidden the child’s passport, that she asked the father for the passport to be returned to her so that she could take the child back herself on that date or even at some time before 8 February. On the other hand though, there is no evidence that the mother ever said to the father that she did not require the child to be returned to the USA on 8 February with or without her.
I am of the view, therefore, that in the absence of a finding of fact that the parties actually agreed before 8 February 2017, that the child was not to return to the USA on 8 February 2017, and in the absence of evidence that the mother positively waived the requirement that the child return to the USA on 8 February, that a “retention” by the father occurred on 8 February 2017, when the child did not return on the pre-booked return flight and the mother’s rights of custody in relation to the child, that included her right to unilaterally determine where he lived, were thereby breached.

Was the retention then “wrongful”?

The real point in issue between the parties in this case that will, in my judgment, determine the application is whether the child was habitually resident in D State when retained by the father in Australia, whether that was on 8 February 2017 at the earliest, or 10 March 2017 at the latest, depending on the ultimate findings, as just discussed.
I am satisfied that that the child’s retention in Australia on the relevant day would be “wrongful”, within the meaning of that term as used in the Regulations, if immediately prior to the retention he habitually resided in the USA.
The applicant’s case, relying on the evidence of the mother, is that the child was retained in Australia by the father in breach of the mother’s rights of custody in relation to the child on 8 February and at that time he habitually resided in D State. Reliance was placed on the mother’s evidence that she, the father and the child only came to Australia in early December 2016 for a temporary visit, that they had not determined to permanently relocate to Australia and intended returning to the USA after two months to continue living in D State. The applicant submitted the child’s habitual place of residence thus remained D State at the time the father did not permit or cause his return there.
I am quite satisfied that if I accept the mother’s evidence about that as truthful and correct that the applicant will have made out that case.
Apart from the submission I have already rejected, the father’s case in response was that the child no longer habitually resided in the USA as at the relevant retention date, whichever that was. The father’s evidence was that he, the mother and the child had relocated to live in Australia when they came here in in early December 2016. For the father, it was argued that the child thus ceased to habitually reside in the USA when they left D State at that time.
I am also quite satisfied that if the child had ceased to habitually reside in the USA when they left D State in early December 2016, that the application must fail.

What is the law on determining habitual residence of a child?

The law in this country concerning the process by which a child’s place of habitual residence is determined has been authoritatively settled by the High Court in LK v Director-General, Department of Community Services[1](“LK”).
[1] (2009) 237 CLR 582
In the joint decision of five of the judges of the High Court (French CJ, Gummow, Hayne, Heydon & Kiefel JJ), in that case, their Honours accepted that the inquiry into “habitual residence” is a broad one. At [22] their Honours said:
To approach the term [“habitual residence”] only from a standpoint which describes it as presenting a question of fact has evident limitations. The identification of what is or may be relevant to the inquiry is not to be masked by stopping at the point of describing the inquiry as one of fact. If the term “habitual residence” is to be given meaning, some criteria must be engaged at some point in the inquiry and they are to be found in the ordinary meaning of the composite expression. The search must be for where a person resides and whether residence at that place can be described as habitual.
In their discussion on the nature of the inquiry, their Honours approved the following passage from the decision of the New Zealand Court of Appeal in Punter v Secretary for Justice [2007] 1 NZLR 40:
Such an inquiry should take into account all relevant factors, including settled purpose, the actual and intended length of stay in a state, the purpose of the stay, the strength of ties to the state and to any other state (both in the past and currently), the degree of assimilation into the state, including living and schooling arrangements, and cultural, social and economic integration. In this catalogue, SK v KP [2005] 3 NZLR 590 held that settled purpose (and with young children the settled purpose of the parents) is important but not necessarily decisive. It should not in itself override … the underlying reality of the connection between the child and the particular state.

Their Honours appropriately observed that when determining the issue 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”.[2] Relevantly, as their approval of the quoted passage from Punter demonstrates, their Honours also made it clear that determining the settled purpose of the parents is important in the process but not necessarily decisive.[3] Their Honours explained this by acknowledging that individuals do not always act “with a clearly formed and singular view of what is intended (or hoped) that the future will hold”.[4] They also acknowledged, importantly, that 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”.[5] Their Honours went on to say, in this regard:
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.
[2]          At [27]
[3]          At [24] and, more particularly, at [28]
[4]          At [29]
[5]          At [34]
Their Honours also said:
23.Having regard, however, to the stated determination to eschew definition of the expression in its use in the Abduction Convention, and other instruments derived from the work of the Hague Conference, it would be wrong to attempt in these reasons to devise some further definition of the term intended to be capable of universal application. Rather, it is sufficient for present purposes to make two points. 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.
…
27.… 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.
Purpose and intention
28.Although intention is a necessary element in deciding domicile of choice, and "habitual residence" is chosen as a connecting factor in preference to domicile, 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.
…
35.… 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.
(emphasis added)
With further reference to the New Zealand decision in Punter, their Honours also said:
44.… As the plurality rightly said, the search is for the connection between the child and the particular state. That being the nature of the search the plurality's references to settled purpose are to be read as directing attention to the intentions of the parents. But as explained earlier in these reasons, the relevant criterion is a shared intention that the children live in a particular place with a sufficient degree of continuity to be properly described as settled.
45.Moreover, the approach described in Punter accords with the general tenor of decisions in the United States of America. It may be observed of those decisions that there is seen to have been a division between the Circuit Courts of Appeals about the relevance of the parents' subjective intentions for the child or children concerned. When it is also observed, however, that the resolution of the competing approaches has been to invite attention to whether presence at a place has a "degree of settled purpose from the child's perspective" (emphasis added), the difference in expression of the relevant considerations may not be great. At all events, a thread common to the leading decisions in the United States remains the need to look at all of the circumstances of the case. And it is that approach, as described in Punter, which should be followed.
(footnotes omitted)

Where then did the child habitually reside?

I have absolutely no difficulty deciding that the child, along with his mother and his father, habitually resided in D State just prior to the moment when they all left there on 4 December 2016. The child had lived all of his very short life there until that point in time, with but a few holidays of relatively short duration in Australia along the way.
Whilst acknowledging that settled intention is not solely determinative of the question as to where a child habitually resides, it is in my judgment, a matter in this case that will be very weighty in the process of determining that question. If it is that the parents had a settled intention, as the mother asserts they did, when they left D State, to only go to Australia for a temporary stay and to return to their place of habitual residence in D State at the end of that stay, it would be difficult, in my judgment, absent a finding of clear parental agreement to subsequently change plans and to remain permanently in Australia, to find that the child was not still habitually resident in D State on 8 February 2017 or 10 March 2017, whichever of those dates is the relevant first one.
On the other hand, if it is that the parents had a settled intention, as the father asserts they did, when they left D State, to be moving to live in Australia, only to be interrupted by a short return visit to D State if it was necessary, then it is, in my judgment, difficult to consider that the child was not already habitually residing in Australia by the time the mother said in January, albeit only one month after their arrival here, that she wanted to go back to the USA.
Accordingly, in my judgment, considering the evidence of the parents and making findings about the factual matters in dispute is now critical to the determination of this application.

The Mother’s evidence

In her first affidavit of evidence, the mother asserted that in November 2016, she and the father had “a civil conversation” in which they concluded that they would “discontinue” their marriage but that they would do the best to stick close together as a family for their son’s sake. She said they agreed that if they were to get to a point where they could no longer live together in the same home, they would “fairly split custody” of their son.
The mother said that shortly after that agreement had been reached, the father told her that he was going to take a few months off work and travel to Australia to visit his parents. She said that he told her he wanted to take their child with him “to get away from all the pressure he was feeling at home”.
The mother said that she was not comfortable with the father and their child going on their own so she decided to book an air fare that “coincided with the dates” the father had already booked for himself and their son.

The mother said that “to [her] knowledge” the father had told his employers he was going to Australia for two months and would be back to resume his employment with them. She did not say where that knowledge came from though.
The mother said that when the father was released by the Police on 20 November 2016, he called her and begged for forgiveness and cried and manipulated her with guilt. She said she decided to let the matter go and to “continue on with [the] planned trip to Australia”.
She said the father was worried that he would lose his permanent residency status in the USA if he was “charged to the full extent with Domestic Violence” so he obtained a defence attorney. She said that the attorney “advised [her] to write a letter to the District Attorney down-playing the incident”. She said that although she understood that they were only going to Australia on “a short term basis” she complied with the defence attorney’s suggestions, including even to the extent of telling the District Attorney that they were going to Australia permanently, such as to convince the DA that they had left the country so that he would drop the charges against the father.
She said that she wanted to do everything she could to stop this incident from jeopardising the father’s access to their child in the USA. She said she did not want him to have his residency status revoked given their planned return to the USA on 8 February 2017. That was the reason why she wrote the letter and included assertions of fact that she says she knew were not true.
She said she asked the father many times to promise her that they would return to the USA and that he did promise every time she asked him. She said that she even asked for him to give her that promise in writing but that he said he did not need to, and she then decided to trust him.
The mother said that they put their furniture and belongings in a self-storage unit and changed their “permanent address” to the place they would be living in on return to D State. She said they stored her vehicle which was still under finance for a few more years.
She said she still kept a cheque account with an American bank in D State.
She said they left their family dog in the care of her sister to look after for two months whilst they were away.
She said that by early January it became obvious that the father was making more permanent plans to stay in Australia as he was looking for work and “wanting to put [the child] in a day care”. She said that she was “supportive” of the child having the chance to socialise with other children his age, but that she saw it as temporary only.
She said that shortly after the father told her that he would not be returning to the USA, his parents proposed the idea of them buying a house for the father, mother and their child to live in. She said she agreed with her mother-in-law that she would co-ordinate renovations to the place but said that she told her mother-in-law that she was still planning on returning to D State.
The mother said that she tried to “plea” with the father to let her and the child return home to D State. He suggested a parenting plan be negotiated between them before he would let the child go, she said. They attempted mediation at the Family Relationship Centre in J Town but it was to no avail.
She said that the father told her he would only let the child go back to D State for three weeks each year to spend time with the mother there.
The mother said that she sought advice from a solicitor, Ms L, in J Town and that she spoke with her on 9 March.
The mother swore another affidavit on 5 April 2017 that was filed in the proceedings. In that she specifically addressed the letter that she wrote to the DA in relation to the father’s charge.
She said that a “convincing letter to the District Attorney was dictated” by the defence attorney. Again, she said that she wrote the letter as she did because she feared that the father would not be allowed back into the USA on their return from Australia.
The mother also said that in the conversation she had with the father on 8 January, the father had said that he would not return to the USA until the charge against him was dropped. She said that he said that the planned return on 8 February was too risky for him having regard to the outstanding charge.
As it turned out, the charge was dropped and the father was notified of that by letter in late January 2017.
Another affidavit of the mother was filed in the proceedings on 5 July 2017. In that one, the mother said that she and the father had a discussion in November 2016 about the fact that their debt had “gotten out of control” and that their landlords had been waiting for them to let the landlords know when they would be moving out of the home they were occupying as “they were eager to sell the property”. She said the father suggested that they go to Australia for a few months with a view to staying at his parents’ caravan park at no charge and work there for wages. The mother said although she had reservations about being away from home for so long, she agreed to the proposal. She said that the father said he was exhausted from working so much and expressed regret at missing out on so much time with their son. She said she respected those feelings and was supportive of his proposal to deal with this.
She said that the father immediately started preparing for the trip after that discussion. He booked flights right away and organised to have all of their belongings moved in to storage. She said they sold a few items that they would have sold regardless of their living circumstances. She said their furniture, home décor and all of the child’s toys were put into storage. She said they told their neighbours they were moving out of their home so the landlords could sell it and that they were going to Australia for two months to visit and to “dig [their] way out of debt.”
The mother said in that affidavit that in the argument they had on 20 November 2017, she had said that she was “fine going with the expectations of gaining control over [their] finances and him having the opportunity to spend quality time with his family and [their] son”, yet she said that she told the father that she wanted to be clear that she thought there was little prospect of repairing their relationship.
She said that after he was released by the police he apologised profusely and cried and said he really wanted to try to fix their relationship. She said that he convinced her that the time in Australia would be their chance to get “back on track”, financially as well as emotionally and romantically.
She said that she “confronted” the father in early January about how uncomfortable she was feeling and told him she could not wait to “go home”. She said that he told her she could go home if she wanted but that neither he nor the child would be going with her. He suggested she go home for a few weeks and then return.
The mother said that she got to browse through his phone and read through a long series of messages between the father and his mother. She said that she saw an old message from his mother saying “Do you think you can get custody of the child and bring him here?”
An affidavit of the solicitor who the mother saw in J Town was filed and relied upon by the mother. She deposed to the mother having told her in March that the mother, the father and the child had only come to Australia for a temporary visit and that after they had arrived in Australia the father had told her that he and the boy would not be going back to D State.
The mother attached to her own affidavit letters from her sister and her mother in which both women assert that the mother had told them before leaving D State that the family was only travelling to Australia for a temporary stay.

The Father’s evidence

In his first affidavit filed on 22 June 2017, the father said that he and the mother had agreed, after a lot of discussion, to move to Australia as the move would enable them to clear their debts and “start afresh” in Australia with support from his parents. He said that he did not want to continue working in two jobs and wanted an alternative lifestyle to that for the family.
The father said that the mother’s application in April 2016 for a permanent residency visa for Australia and the application in June 2016 for the child to be granted Australian citizenship were joint efforts and were part of the process of getting ready to move to Australia to live.
He said that although they were told that the visa application would likely take 12 months they continued to make preparations for their move to Australia. He referred to the mother’s comment posted on Facebook on 24 November 2016 that I have already cited earlier in these reasons. He also exhibited a printout of a text exchange between him and the husband of one of the mother’s cousins that took place on 19 November 2016. Relevantly, that said:
Father:   there is so much to do when moving.
Other:     I can’t imagine moving continents
Father: its not too bad. just putting stuff in storage and selling what we    dont need. advertising the [car] on autotrader and craigalist.
(errors in original)
He said that they sold many of their possessions, including the majority of the child’s toys but that they did place “certain keepsakes” in storage.
He said that they had a lease on a car (the mother drove this one) and that it had expired in April 2016 but had a payout figure. They decided to refinance that car at the time rather than try to buy a new car.
He said that in November 2016, although the mother’s visa application had still not been finalised by the Australian Government he and the mother had discussions about the proposed move that resulted in agreement that he and the boy could go to Australia in advance of the mother who would stay behind until her visa was granted. The father then, on 16 November 2016, booked flights for himself and the boy, leaving the USA on 4 December 2016. He said that he booked return tickets and booked the return leg to coincide with the time around which they thought the mother’s visa application might be processed, according to the latest information they had been given by the Australian authorities.
The father said that the mother then decided to fly to Australia with him and their son, even though she had not secured the permanent residency visa at that time. He said that he then booked the mother’s flights, booking her on the same flights that he and the child were already booked on. He said the mother did not make that booking.
He said that prior to leaving for Australia, he resigned from his “primary employment”. He said he wrote a resignation letter telling his employer he was resigning for the purposes of moving to Australia. A copy of that letter was adduced into evidence as exhibit 5 in the proceedings. The letter is dated 10 November 2016. It says:
Hi [Mr M],
Please accept this as notice of my resignation from my position as …. Due to family issues I will be leaving the country. My last day will be Friday 2nd December 2016.
It has been a pleasure working with everyone at [Company N] and it was a tough decision to leave [Company N]. That you again for the opportunity to work at [Company N].
Best Regards,
He said that he told his direct manager at the other business he worked for that he was moving to Australia but did not officially hand in a resignation letter there before he left. He said that was because he would have had to repay the money spent by the business on a training course he had undertaken whilst working there and he could not afford to do that at the time.
He said that they left the mother’s dog with the mother’s sister and they discussed the possibility of bringing the dog to Australia at a later stage. They said that the quarantining of the dog that would be required before it would be allowed into Australia would cost about $5,000 and that they could not afford that. In addition, he said that they still did not know when the mothers’ visa application would be finalised.
The father said that before they left the USA, he enquired about gaining access to his pension account (akin to superannuation as we know it in this country). He said that he was told he could access the money in that once he had left the USA. He said that once he was in Australia he was able to complete an application form and withdraw the total balance of the account. He said that when they were in Australia the mother, “who was the beneficiary of my fund” signed a document stating she agreed to this. He said she was not forced to sign that.
He said that “at no time was the [mother] under the impression that [they] were only going for an eight-week holiday”. He said that she consented to the move.
The father said that upon arriving in Australia, they immediately sought to have the child registered on the father’s Australian Medicare Card. He said they also applied for Childcare Benefit and Family Tax Benefit and contacted the local child care centre and enquired about vacancies. He said it was their intention that he start at the day care centre at the start of the 2017 school year.
The father said that the mother prepared a curriculum vitae in anticipation of looking for work in Australia and gave her Queensland address, though she wanted to wait until she was officially granted her visa before applying for work.
He said that on 8 January, the mother informed him that she no longer wished to be with him and that she wanted them to negotiate an “international custody agreement” for their child. He said she suggested that the child live six months in each country but the father said that he thought a court would not agree to that. He then contacted solicitors to seek advice.
He said that on 10 January the mother changed her flight booking to return alone to the USA on 16 January and then on 12 January notification of the success of the mother’s visa application was received. He said the mother did not return to the USA on 16 January but rather decided to fly to Country R a little later and return from there, as required in order to qualify for her Australian permanent residency visa.
He said after 8 February the mother contacted a mediation centre as an initial step in the negotiation of a parenting agreement. They each went to separate appointments there, but the matter did not proceed to mediation.
The father said that after 8 February he and the mother were involved in choosing colour schemes for the house that his parents purchased for them to live in, as well as buying appliances and furniture.
The father said that when they discussed moving to Australia in November 2016, the mother told him to go ahead and book tickets for himself and the child and that she would stay behind and follow them once she had been granted her visa. The tickets he bought were “open-ended tickets that were valid for a year”. He said that he anticipated that the mother’s visa should be granted by April 2017, and that he and the child could re-join the mother in D State should that be necessary. He said that she then decided to come with them, in any event.
The father said that his attorney did not claim that if the DA was persuaded that they were leaving the country that he would not continue with a prosecution of the father. He said that he was informed in late January early February by the DA that the charge was dropped.
The father said that the address the mother referred to as their new permanent address in D State was the address of the residence of the mother’s sister and her boyfriend. He said that the mother’s sister had agreed to them using her address as their mailing address in D State. He said that they never discussed moving in and living there permanently on a return to D State.
He said that the decision to enrol the child in a day care centre after arriving in Australia was a joint one, after the mother had said that she needed some time to herself in order to look for work in Australia.
The father said that in their conversation on 8 January 2017, the mother told him that she wanted to go back to D State and that he said to her “you’re homesick. Why don’t you go for a bit and come back?” He said that she then told him she would stay.
He said that they were both involved in the renovations for the property purchased by his parents. They both selected colour schemes and went together to purchase kitchen appliances and furniture. He said the mother did not say to his mother that she was returning to D State.
The father attached a letter from his former supervisor at the business that he left in December without formally providing a written letter of resignation. In that letter the supervisor said that the father had told him in early December that he would be returning to Australia with his family and that he would not be returning to the US. He said that in January he was asked by upper management to get a formal letter of resignation from the father.
The father also attached a letter from an Australian woman who said she had met the mother in early March 2017, on a couple of occasions. She essentially said that in their conversations the mother had talked about having moved to Australia as a family as a last ditch effort to try and save her marriage and that she was struggling with that decision since she had been in Australia.
The father also attached a document written by his D State defence attorney. The document purported to be declared “under penalty of perjury” to be true and correct. The attorney said that he met with the father and the mother at his office on 22 November 2016. He said that he was advised by both of them that they were planning to move to Australia and were in fact in the process of moving out of their home when the argument took place on 20 November. He said that they spoke at length about their plans to relocate to Australia. He said the mother explained that they were suffering financial hardship and the move to Australia promised to bring financial relief due to the help of the father’s family. He said that his secretary and business partner were also present in the office waiting area and that they had group conversations about the mother making the transition from life in D State to life in Australia.
The D State attorney denied ever encouraging the mother to make any misrepresentations to the DA regarding her plans to stay in Australia. He said that she did provide his office a copy of the letter she drafted and that the letter was not edited or reviewed in advance or altered in advance by him or anyone in his office.
He said that he is a former Deputy DA and has practised in criminal law for 13 years. He said that the move to Australia would have no bearing on whether the father would be prosecuted for a crime in D State or not. He denied giving any advice that a move to Australia would gain legal advantage or frustrate prosecution.

The Mother’s response

The mother said in response to the father’s evidence that they had an agreement, prior to leaving for Australia, that they “were to gain some financial stability” whilst in Australia, as they would not be paying rent and the father would be earning some money working for his parents.
She said that they did not sell all of their possessions as they intended returning to live in D State. In fact, she said they did not sell many of their possessions. She said they still had 3 beds, 2 sofas, a dining room table and chairs, 3 televisions, all kitchen items and utensils, linens, curtains, home décor, rugs, bicycles and the child’s toys. She said there was no agreement to return to D State just to sell these.
The mother said the comment that the father attributed to her on his Facebook page in late November 2016 “must have been altered as that was pertaining to a joke made by an acquaintance of the [the father] after a visit in 2014”.
She also said that the text exchange the father had deposed to was with a man she described as “the partner of a relative that [she does] not communicate with.” She said that she had never been close with this man or conversed with him enough to discuss their intentions of where they would live.

The mother said that they kept the car when they left as they intended to use it again on their return to D State.
The mother said that the booking of return flights on 8 February had nothing to do with the timing of the expected granting of the mother’s visa.
She said that the travel insurance they took out only covered them for the two months that they expected to be in Australia.
She agreed that she did sign a document allowing the father to access his American superannuation but that this happened in Australia after he told her he was not going to return to the US.
She agreed that they did put the child on the father’s Medicare card on arrival in Australia but said this was so the boy could have grommets removed from his ears whilst in Australia and because this would not be covered by the travel insurance.
The mother agreed she edited a previously prepared CV but said she did this after her visa had been approved in January when she did start looking for work.
She agreed that she had proposed that they enter into an international custody agreement, hoping that they might enter into a mutually agreeable arrangement that allowed her to return to D State. She said the father told her he would talk to a lawyer first. She said that any time it was brought up after that, the father told her that the child would remain living in Australia and would visit the mother in D State for three weeks each year.
As for the completion of the Incoming Passenger Card on her return to Australia from Country R, the mother agrees that she said that she was migrating permanently to Australia and intending to live in Australia for the next 12 months. She attributed that to having an impression that she had to say that because she intended to work to support herself through the court proceedings that would be occurring in respect of the “custody” of the child. She said that she was worried that saying anything else would affect her eligibility to work.
The mother said that she was asked her opinion about proposed colour schemes for the newly purchased house, but denied that she was involved in much else to do with that property after that.
The mother again asserted that the letter she wrote to the DA in D State contained statements that the defence attorney advised her to write and that they were not true. She said that the attorney asked her to send him the draft letter for his review and told her that he would contact her if he thought anything needed to be changed or rewritten. She attached a copy of an email she wrote to the attorney on 22 November 2016 attaching her draft of the letter to the DA. Her email said:
I typed this up on my phone for your review. I don’t have word on my computer but if for some reason you are unable to open the file, let me know and I will figure out an alternative method of getting it to you. Please review and advise if you think it should be changed at all before I have it notarized.
The mother said, effectively, that she deliberately pretended to the father after the argument of 8 January that she wanted to stay in Australia. She said that there “was an incredible amount of miscommunication during this time and mostly intentionally on [her] part.” She said that generally she did “pretend to go with the flow” until she was able to see a solicitor.
The mother attached photographs to her affidavit evidence that were of things in storage in D State. Those included a folder of photographs, a bag containing a child’s footwear and some toys, another box of toys, a box of household cleaning products, miscellaneous things such as a lamp, a child’s chair, pillows, bicycles and a child’s toy ride around car.
The mother attached a letter from a woman who said she was a neighbour of the couple in D State and that the mother had told her before they left for Australia that they were going for a few months and would be back in early February.

More from the Father

The father filed another affidavit on 15 June 2017. He deposed to having had a visit in D State just before their departure to Australia from the mother’s father and step-mother during which their plans were discussed and he attached a letter from the step-mother in which she talks of that event.
The mother’s step-mother, Ms O, said in her letter that she and her husband (the mother’s father) visited the mother, the father and their child in December 2016, just before they left for Australia, for an early exchange of Christmas gifts. She referred to the trip to Australia as a “move” to Australia.
She said they set up “What’s App” on their phones so that they could communicate more readily with the mother and the father when they were living in Australia. She said there was talk about the mother returning to the USA after a few months to make arrangements to be able to take her dog to Australia with the rest of their belongings. She said the father encouraged the mother to get onto the arrangements for the dog’s move and that the mother said that she had already started the process.
She said that they discussed the possibility of the mother’s father and her visiting the mother and the father and their child in Australia during 2017 and staying at the father’s parents’ caravan park where she understood the mother and the father and the child would be living.
She said that there was no mention of the trip only being a holiday. She said that she understood that the mother and the father and their child were moving to Australia permanently.
The father filed another affidavit on 11 July. He denied that there was ever a text communication between him and his mother where his mother asked him about the chances of him getting custody of the child and taking him to Australia.
He also said that the mother was, in fact, friendly with her cousin and that they would catch up with her and her husband at family functions. He attached a print out of a text exchange between him and the mother on 1 December 2016 in which the mother said the following with respect to this cousin and her husband:
I talked to [Ms P] for a few hrs last night which was nice. I don’t get to talk to her very often anymore. She told me her & [Mr Q] wanted to try to get together with us before we leave but neither of us would really have the time.

Further response from the Mother

The mother, in her affidavit filed 5 July, said that she has never had a great relationship with her step-mother or her father. Nevertheless, she confirmed that they had met for a Christmas gift exchange before she and the father and child left D State.
She denied there was any discussion about the possibility of flying their dog out to Australia and she said she never had any intention of doing that.
The mother said that she believed her step-mother had said what she had in support of the father in these proceedings to destroy the relationship that the mother has with her own father.

Oral evidence in Court

Both the mother and the father were present at the hearing. Cross-examination of each of them by experienced counsel took place.
The mother gave evidence that the father’s income in the USA was about US$140,000 per annum, but she was not sure if that was before or after tax. That is equal to US$2,692 per week.
Counsel for the father showed the mother the father’s Facebook post of 24 November 2016 and the mother’s comment posted by her to his Facebook post. When shown that, the mother conceded that her evidence that she had made the comment in 2014 and that the father had somehow manipulated it to look like she had posted it on 24 November 2016 must be incorrect.
The mother was shown the photocopied Incoming Passenger Cards produced under subpoena by the Australian Government for herself, the father and the child. She identified the handwriting on the cards completed on 6 December 2016 as the father’s and she denied that the signature on her card was her own. She asserted that the father signed her signature on her card which he had completed. Indeed, when shown the copies of all of her Incoming Passenger Cards completed in recent years, the mother said that every card that had been completed in her name on occasions that she had entered Australia in the company of the father, had been completed by the father with her signature being signed by the father on each of those cards. The only Incoming Passenger Card completed in her name that she agreed she had actually completed and signed herself was the one that she completed in January 2017, on arrival in Australia on her own from Country R.
In his oral evidence, the father asserted that the mother knew that he had resigned from his employment and was wrong in saying that he had only taken two months leave from both of his jobs.
The father was shown the photographs the mother had adduced into evidence that depicted items in storage in D State. He agreed that they were photographs of their things that were in storage. He said those things were in storage as they could not even be given away before they left the US, despite trying.
In paragraph 21 of his first affidavit, the father said that he first booked return flights to D State so that he and the child could “return to USA when the Applicant had her permanent residency secured.” When the father was in the witness box being asked questions about the booking of return flights on 8 February, he agreed with a proposition put to him by me that at the time he booked the return tickets, it was actually his intention only to return to the USA on that date if the mother did not already have her permanent residency visa by then.
The father agreed that he had filled out all of the Incoming Passenger Cards as the mother had asserted. He denied, however, that he had ever signed her signature on the cards. He accepted that he had written on the cards for the mother and the child on their entry to Australia on 6 December 2016 that they were only visiting Australia for a two month stay. He asserted that he had done this, even though he knew that they were moving to live in Australia, because the mother was only entering Australia on a tourist visa giving her a right to stay for only three months at that time. He said that he thought if he wrote that the intention was to stay permanently that they might face problems at the Immigration counter on entry.
The father denied that he told the mother on 8 January 2017, that he would not be returning to the USA on 8 February or that the child would not be returning. He said that she told him she wanted an international custody agreement that allowed them to share the custody of their son between him staying in Australia and her returning to the USA. He denied that the mother said to him that the child could stay until 8 February when she would then expect him to return to the USA. He denied that he told her she could go home whenever she wanted to. He also denied that the mother asked him whether he wanted her to take the child home earlier than 8 February. He denied that he said that he would not be returning with the child to the USA on 8 February and said that the mother had said that she was going home by herself.
The father said that he had told the mother that he was going to get his own legal advice only after she had told him that she was getting legal advice. He said that the plan was that they were going to try to work things out.
The father agreed that he had gone to the mother’s bag soon after 8 January and taken the child’s passport out and said that he did that so she could not flee the country with the child.

Questions of competing credibility and findings

Plainly, there are many factual matters in this case where the mother and the father are completely at odds with each other in respect of the evidence they have given. I do not consider that their contrasting positions can simply be attributed, as sometimes is the case, to the giving of slightly different accounts of a factual circumstance due to a blurring of the memory in the time that has lapsed since. On many of these factual issues, one of the versions recounted by the mother and the father must be wrong. One of them has not told the truth.
However, having read all of the affidavit evidence and having had the advantage of observing the cross-examination of both parents by experienced counsel and having considered counsel’s submissions, I do not say, as can be said in many cases, that I prefer generally the credibility of one party over the other such that would permit me to accept all of one parent’s version of events and reject the other’s. In this particular case, I consider that each parent has not always told the truth in their evidence, both in affidavits and orally, so it is a case of working through the evidence and setting out the findings of fact I make on these disputed issues.
In particular, as a starting point in this process, I observe that each of the parents asserts and wants me to accept that they have given false information to Australian border protection authorities on incoming passenger cards completed on arrival in Australia. Each is thereby clearly telling me that they are quite capable of misrepresenting the truth when they consider that it is in their interests to do that.
As already set out herein, the father said that when he completed the mother’s and the child’s cards on arrival in Brisbane on 6 December 2016, he wrote that they were only staying for two months, visiting relatives, when he knew that they were coming to stay permanently. He said he did this to avoid potential problems he thought they might have at the immigration desk on arrival as the mother was seeking to enter Australia at the time on a three month tourist visa.
When asked in the witness box as to why he had not chosen the available option “Migrating permanently to Australia”, his response was:
No, because we all come together … I’ve done a lot of visas before and if I would have said that [the child] and myself were coming here permanently and then it would have looked like, if [the mother] had only put on hers she was here for two months, because we had return flights and everything like that, it would have looked kind of strange to Immigration that that would have happened, so that’s why I put that on there.
When asked why he thought that Immigration officers would have had concerns and why the truth would not have sufficed, the father responded:
I have watched a lot of border security and I get a bit worried, even when I went to the States on my Green Card, um, yeah well, we’re travelling together, there’s two of us that say as a family that we’re coming into Australia permanently, but what do we say for the mother, no she’s not.
When asked would he concede that what he wrote on the card was a lie, the father said, rather unconvincingly, that it was not a lie because they were going to return to the USA in February if the mother’s Permanent Residency Visa had not come through by then. Then, rather inconsistently, when asked would he concede that what he put on the card was then in fact the truth, that they were only coming to Australia temporarily, the father said “no, that’s incorrect”.
That said, I must say the father’s evidence that he filled out the forms as he did so as to avoid potential difficulties the family might face at immigration on entry if he had asserted the reality of the family moving to Australia when the mother was only entering, at that time, on a tourist visa, sounded tolerably credible as an explanation as opposed to a deliberate lie to this Court. Nevertheless, accepting that as truthful evidence still reflects the father’s apparent preparedness to misrepresent the truth to border protection authorities when they came in to Australia.
Similarly, the mother said that when she completed her own card on arrival from Country R on 21 January 2017, she wrote that she was migrating permanently to Australia and intending to live here for the next 12 months when she knew that she was not and that she would be returning to the USA before that. She said she did this to avoid potential problems at the immigration desk on arrival in respect to securing the permanent residency visa that would be activated on that arrival in Australia.
Although this, too, could be credible, I am not completely persuaded that the mother was not telling the truth when she completed the card. I am satisfied that the mother’s position about what she was doing changed fairly frequently and consider that at the time she returned to Australia from Country R in late January 2017, she probably considered that she would stay in Australia, only to change her mind again sometime soon thereafter.
However, the mother wanted me to accept that she gave false information to the Australian authorities, just as she wanted me to accept that she gave false information to the District Attorney of G County on 22 November 2016, in the letter she wrote to that office. Interestingly, she asserts she did that because she considered it to be in the family’s interests, though she essentially seeks to attribute responsibility for that to the defence attorney who was acting for the father at the time, rather than readily accepting her own personal responsibility for what she effectively says were pure misrepresentations of the truth. Even when she was confronted with the defence attorney’s declaration denying the things she asserts, the mother maintained the assertions that she had lied in the letter to the DA but that she had been encouraged to do that by the defence attorney, who she said had initially “dictated” the “convincing letter”.
Though there was no cross-examination of the defence attorney, there is really no evidence that would cause me to consider that he has not told the truth in the declaration he made and provided to the father for use in this matter. Accepting the mother’s evidence about that would mean completely rejecting the D State attorney’s assertions and finding him, a professional attorney-at-law, to be a person willing to readily lie without compunction about this type of professional matter. Without more, that is a very difficult notion to accept. It would be a finding that I would only make if all of the evidence, and my perception of the mother’s honesty about that, led me, on the balance of probabilities, to that conclusion. It does not.
There were two other pieces of evidence that also greatly influenced me in considering the mother’s honesty on the critical issue. The first one was the evidence about the Facebook comment the father alleged she posted on 24 November. When the father simply presented the print-out of the single comment attributed to the mother as posted on 24 November 2016:
That’s quite a population increase for Oz!!!I’m sure they are all just thrilled to gain an American and a half
the mother responded, as I have already observed, by asserting the father had somehow manipulated a Facebook post she had made as long ago as 2014 in response to some other person’s post. However, when, at the trial, the father’s counsel showed the mother the father’s Facebook page open on his smartphone and his own post of that day in November which read:
Dear Australia, please be advised that there is going to be a population increase by three very soon, plus one canine, also known as the child’s best furry bud, [H] the Dog. See you in a few weeks
and then showed the mother the above comment he attributed to her in response that day, she quickly conceded that her previous assertions about that comment had to be wrong. She said “I stand corrected”, but did so without making any attempt to explain her previous position either under cross-examination or in re-examination. I am satisfied she was, as she rightly conceded, clearly wrong when she originally denied that her comment had been posted on 24 November 2016.
That left me with nowhere to go but to find that the father had in fact excitedly posted a message on 24 November expressing the position that the family was going to be moving to Australia within a few weeks and that they were intending to take their pet dog, too, and that the mother had on the same day publicly acknowledged, in a clear way, the correctness of that position. I consider that is certainly consistent with them having a common understanding, at least on that day, that they were moving to Australia to live.

In addition, that was just two days after the mother had written to the District Attorney’s office telling that office, also in express terms, that she and the father were moving to Australia with a view to having a less stressful life here. That is all consistent with the father’s evidence that they had made up after the incident of 20 November and were reaffirmed in their commitment to move to Australia. I am satisfied that the mother truthfully represented the position to the District Attorney, as she understood it to be, when she wrote that letter on 22 November. I reject her evidence that the father’s defence attorney encouraged her to lie about that. I am satisfied that she was not being truthful to this Court when she said that she deliberately lied in that letter.
The second piece of evidence that really troubled me about the mother’s credibility on the critical issue was the mother’s evidence in response to the father adducing the printout of the text message exchange between him and the mother’s cousin’s husband of 19 November 2016, which I have already quoted herein.
The father adduced the evidence of the text exchange as contemporaneous documentary evidence corroborating his evidence that the parties had a common intention of moving to Australia before they left D State. The text exchange, which the father said was with the husband of the mother’s cousin, certainly appeared to reflect an understanding on the part of the father and the other man that the father and mother were moving from America to a different “continent”. It is to be remembered that the mother’s first evidentiary response to that was that this man with whom the father had communicated by text was “the partner of a relative that [the mother] does not communicate with”. In response to that, the father adduced evidence of the printout of a text message exchange between him and the mother on 1 December 2016 that I have set out in paragraph 150 above. It clearly belies the truth of the mother’s assertion and confirms that the mother and her cousin had been in communication and had told her that she and her husband wanted to try to get together with the mother and the father before they left for Australia.
That evidence, in my judgment, does prove the falsity of the mother’s initial assertion that she does not communicate with her cousin. It suggests that the mother lied about that to try to minimise the impact of the father’s evidence that supported a finding that as at 19 November the position was that the family was moving to Australia to live, not just for a holiday.
As I have said though, these findings about credit do not all go one way. As already observed, copies of the Incoming Passenger cards handed to the Australian authorities by the mother and the father on their arrivals in Australia over the years were adduced into evidence. The mother said, and the father agreed, that it was the father’s handwriting that completed the cards provided to the Australian authorities each time they entered Australia together. However, the mother also asserted after closely looking at the copies of the documents that the signatures on those cards were not hers either and that they must have been done by the father. After also closely looking at the copies of the mother’s incoming passenger cards, the father denied that he had signed the mother’s name on them.
Although there was no evidence from a handwriting expert on the issue, my own examination of the copies of the mother’s Incoming Passenger cards and comparison of what was purported to be the mother’s signature on them with her signatures on her affidavits in the proceedings (the authenticity of which there was no dispute about), satisfied me, on the balance of probabilities, that the father had, in fact, signed those cards for the mother in her name and that he was falsely denying that in his oral evidence. I consider that he lied about that in his oral evidence, probably believing that admission might still lead to trouble with border protection authorities. Here, I also observe that no objection was made by him or his counsel to the requirement for him to answer questions on the basis of the protection against self-incrimination and no certificate was sought by him, or on his behalf, pursuant to s 128 of the Evidence Act 1995.
Satisfaction that the father did not tell the truth about that issue though did not cause me to conclude that he could not be believed on all other things, particularly, as I have already observed, I could not believe the mother on some of the critical factual matters.
Further, I was also troubled by the mother’s evidence given in her affidavit filed 5 July 2017, that in November 2016 she and the father had agreed that they would go to Australia for a few months, despite her reservations. She went on to say that after this agreement the father “immediately started preparing for this trip” and that he “booked flights right away”. That is just not consistent with the uncontroversial evidence that the father booked flights for himself and their child on 16 November 2016, but did not book for the mother, her ticket only being purchased subsequently. Had there been agreement between the mother and the father that they were only going for “ a few months”, before the airline tickets were purchased, it would be far more likely, I am satisfied, that the tickets would have all been purchased at the same time and flights booked together. The uncontroversial fact that the father bought tickets for himself and the child in advance of the mother’s ticket being purchased is far more consistent with the father’s evidence that they were going to move to Australia but that the mother had initially said she would remain in the USA until her permanent residency visa had been granted, but then subsequently changed her mind.
The evidence given by each of them about the booking of the return flights is also important to consider. The mother’s evidence given in her first affidavit was that the father and child were initially only going to go for a temporary stay in Australia to have a break and visit his parents and that is the reason why the return flight was booked for the 8 February 2017. In that affidavit, she said that subsequently she decided she would go with them for the two months. Her evidence in her later affidavit, as I have already pointed out, was that they agreed to go together to Australia together with a view to getting their finances together, but only for a period of two months, and that is why the return flight was booked for 8 February 2017.
As I have already pointed out, there is inconsistency in those versions given by the mother and the latter version itself is inconsistent with the distinct purchase of the airline tickets for the father and the child and the later purchase of the ticket for the mother.
Counsel for the applicant submitted in his written submissions that the father’s credit was damaged by the evidence he gave around the purchase of the return airline tickets. On point, the father’s evidence in his affidavit filed 22 June 2017, at [21] was that he:
…booked return flights to coincide with the time frame that we had been given by the Australian Department of Immigration when we had most recently been advised about how long the process would take, namely 10 months from April so that we could return to USA when the Applicant had her permanent residency secured.
Counsel for the applicant challenged the father in cross-examination on that. He put to him, as I understood it, that he meant by that evidence that they were always going to go back to D State to live once the mother had secured permanent residency in Australia. I understood the father’s evidence in answer to be that he did not mean to say that and that the words used, if they conveyed that meaning, were the wrong words. In the witness box, he looked at that sentence in his affidavit and asserted that it did not make sense to him.
He said that they knew that because the mother’s application for the permanent residency visa had been made in the USA that if she was granted it, it could not be activated from within Australia, but rather could only be activated once granted by arriving in Australia from outside the country. He said that he first booked return flights for 8 February 2017, for himself and the child intending to use them at that time, if the mother had not yet secured her permanent residency visa, to come back to the USA to be with the mother until she got her visa and they could then return to Australia. I asked the father whether he had actually intended, when he booked the return flight for 8 February, not returning at that time to D State if the mother had by that time already secured her permanent residency visa and already joined them in Australia. He quickly agreed with that proposition. He went on and said that it was always cheaper to buy return tickets and that they were open ended tickets, on which the return flight could be changed at any time they wished. He said that when the mother changed her mind and decided to come with them straight away instead of waiting for the permanent residency visa to be granted, they bought her a return ticket and booked her on the same flight, knowing that she had to demonstrate that she had a return ticket if entering Australia on a tourist visa. He said that they also knew that if she did not have her visa granted before 8 February 2017, they could either extend her stay on her tourist visa or return temporarily to the USA until her visa was granted. He said they knew that if her visa was granted whilst they were in Australia that the mother would have to fly out of the country first before returning and securing her visa. After answering some questions from me about this, the father went on to say:
…we planned on staying in Australia for a while and working on our finances, trying to get our marriage on track and later on down the track, we’d have a chat about where are we going to go now.
Counsel for the applicant submitted that there were inconsistencies in the father’s evidence that demonstrated a lack of candour and reliability. With respect, I do not agree that his evidence demonstrated such inconsistency that would cause me not to accept it as reliable. I always read the last sentence in [21] of the father’s affidavit filed 22 June 2017, as conveying an intention, as at the time the tickets were first purchased for him and the child, of him and the child returning in February to D State to collect the mother and return with her to Australia if she had her visa granted by then. I also understood him to effectively expand on that in his oral evidence to assert that his intention had also been to return to the USA on that date if the mother did not have her visa in place by then so that they could all be together as a family until such time as she did have her visa enabling them to return to Australia. However, he did also agree with my proposition, and I accept the truthfulness of his evidence, that when he first bought the tickets for himself and the child and booked the return flight that they did not necessarily intend returning to D State as early as 8 February if the mother had already secured her visa and joined them in Australia by then. Furthermore, the evidence that he gave that I have set out at the end of the previous paragraph causes me to conclude that there was an understanding between them that they would not necessarily always live in Australia, but could agree to move on again, even back to D State.
Although counsel for the father laboured the point somewhat in his cross-examination of the mother, I am also satisfied that there is some merit in his final submission that the mother could not have honestly believed that the couple could get their debts under control and their finances back in shape in only two months in Australia, in circumstances where they would only be saving on rental payments but where the father would be earning a lot less income than he was earning in D State (a matter the mother conceded she knew). I accept the merit in the submission that in those circumstances truly only a much longer period of living in Australia might have given them the chance of improving their finances and that the mother could not have really believed that two months in Australia would give them any lasting financial relief. Thus, the mother’s assertion that she agreed, with some reservation, to come to Australia to help them get their finances under control does not sit consistently with her assertion that the stay in Australia was only ever limited to two months.
Attached to a number of the mother’s affidavits were letters written by her mother, her sister and her aunt, all containing assertions by each of them that the mother, father and child only came to Australia for a temporary visit and were understood to be intending on returning to live in D State. None of the writers of the letters swore affidavits and none were cross-examined. It is unsurprising that they would say things that would support the mother in these circumstances. I have considered their assertions but I respectfully say they do not persuade me to the view that what they asserting is correct.
Ultimately, considering all of these things, I do make the following factual findings:
·     In early 2016, application was made to the Australian Government for a Permanent Residency Visa for the mother with a view to giving the family the option of moving to Australia to live. The mother was an active, willing participant in that process;
·     Before leaving the USA, the mother and the father had slept in separate bedrooms for months because of the poor state of their relationship, but there was no agreement between them in early November 2016 that they would actually “discontinue” their marriage, as asserted by the mother;
·     By early November 2016, the mother and the father agreed that they would move to Australia to live, agreeing that it might help them improve their finances and their marriage relationship in circumstances where they would no longer have to pay rent, would have the support of the father’s parents in respect of providing employment, accommodation and practical assistance, and where the father would not need to work two jobs requiring him to be away from home for many hours each day;
·     Consequent upon that agreement, the father decided that he would give up his employment in D State and fly, with the child, to Australia on 4 December 2016, in advance of the mother who would stay behind to come over later when her permanent residency visa was secured, something they expected to happen in the early part of 2017;
·     The mother initially agreed with that plan and the parties set about putting those plans in action:
·On 10 November 2016, the father submitted a letter of resignation to his principal employer, advising that he would be leaving the country and that 2 December 2016 would be his last day of work for that employer;
·On 16 November 2016, the father bought “open ended” return air tickets for himself and the child with a return flight booked for 8 February 2017, to be utilised in the event that the mother had not joined them in Australia by that date;
·The father gave verbal notice to his supervisor at his other place of employment (formal written notice not being given because of his concern that he would have to repay money paid for a training course by his employer);
·They gave notice of termination of their tenancy to their lessor;
·The father sold his car;
·The mother arranged to move to live with her sister until she went to Australia;
·     On 20 November 2016, the mother and the father argued and in that argument the mother told the father that she did not want to move to live in Australia. That argument culminated in the father physically pushing the mother out of his bedroom, using his hand and arm to do so, and the mother calling the police, who attended and took the father into custody and charged him with an offence;
·     Upon his release from police custody after that argument, the father and the mother, both clearly remorseful about the circumstances, made up, renewed intimacy and emotional support for each other and renewed their commitment to move to Australia with the goal of giving their marriage relationship a fresh start;
·     At or around this same time, the mother changed her mind about waiting behind in the USA until her visa was secured and decided that she would travel with the father and the child when they left D State on 4 December 2016 and enter Australia on a tourist visa valid for three months. An air ticket was then purchased for her, and she was booked on the same flight to Australia as the father and the child on 4 December 2016 and the same flight back to the USA on 8 February 2017, to be utilised if they needed to return to D State, knowing the booking could be changed to a different date and time if necessary;
·     On 22 November 2016, the mother found and engaged a defence attorney for the father and when she and the father met with that attorney at his office they told him that they were moving to live in Australia, particularly to obtain some relief in respect of their difficult financial circumstances;
·     Also on 22 November 2016, the mother wrote a letter to the District Attorney’s Office (“the DA”), telling the DA that she and the father were moving to Australia to live to give their marriage a fresh start, hoping that such information would influence the DA not to continue with the criminal prosecution of the father. The mother was not lying about that when she told the DA, as she asserted to this Court she was. The mother was not telling the truth when she told this Court that she had been encouraged to lie about that to the DA by the father’s defence attorney;
·     The mother and the father told family, friends and other people that they were moving to Australia. The father posted a message to this effect on his Facebook page on 24 November, and the mother posted a comment to that page on the same day, publicly endorsing that position;
·     The mother and the father set about selling or giving away many of their possessions and packed what remained as they moved out of their house on 3 December 2016, and put it into commercial storage, to be either shipped to Australia or otherwise disposed of at a later date, potentially on a return visit in February 2017, or some other time when they might use the return leg of their air tickets. Items stored included the mother’s motor car;
·     The mother and the father met with the mother’s father and step-mother a few days before they left D State for Australia and told them that they were moving to Australia to live and informed them of the difficulties that confronted them in arranging for the mother’s pet dog to be shipped to Australia to live with them;
·     The mother and the father made arrangements for the mother’s sister to care for the mother’s pet dog after they left D State and for them to be able to live with the mother’s sister at her place in D State if they returned to D State on 8 February 2017, for a short stay, depending on what the position was by then with the mother’s permanent residency visa application;
·     Soon after they arrived in Australia, the mother and the father jointly enrolled the child in a day care centre to attend two days per week from the commencement of the 2017 school year, so that the child could socialise with his peers and so that the mother might be able to obtain employment on those days;
·     Soon after they arrived in Australia, the child was registered on the father’s Australian Medicare card and application was made to Centrelink for the family to obtain such Commonwealth benefits as they were entitled to obtain;
·     The couple’s relatively poor relationship did not improve as they hoped it would after arrival in Australia and on or around 8 January 2017, the mother and the father argued again and the mother told the father that she wanted to leave Australia and return to D State. The mother told the father that the child could stay with him in Australia until they returned to D State on the return flights booked for 8 February 2017, but that she was prepared to take him home with her earlier if the father wanted her to. Thus, the mother made clear her desire for the child to be taken back to D State to live with her there. The father told the mother that he did not want to go back and wanted the child to stay in Australia. The father told the mother that he would not be taking the child back to the USA on 8 February 2017. The mother told the father that they should negotiate an international custody agreement. The father told her that she should think about going back for a few weeks before returning to Australia to try to make their relationship work;
·     A day or so later the mother changed the date of her return flight to bring it forward from 8 February to 16 January 2017;
·     On or around this time, the mother, went looking for the child’s passport with the intention of taking him with her back to the USA and found that it was missing from her bag. She asked the father about this and he admitted to her that he had taken it from her bag and stored it somewhere safe where she could not access it so as to prevent her from taking their child from Australia without his knowledge and consent;
·     On or around 12 January 2017, the mother learned that her Australian permanent residency visa had been granted. She already knew this meant that she would have to leave Australia and return if she wanted to activate it. The mother subsequently decided not to return to the USA on 16 January and again changed the booking of her return flight to 1 May 2017. She then bought a return ticket to Country R for herself to fly there later in January to return to Australia from there to secure her visa;
·     In late January 2017, the mother flew alone to Country R, leaving the child with the father in Australia, stayed there for a few days and returned to Australia, with an ambivalent position about whether she would stay in Australia and, if she did, how long she would be staying for;
·     The child started attending the child care centre two days per week from the start of the 2017 school year and the mother started looking for a job after her return from Country R;
·     In late January 2017, the father’s parents bought a house for the father, the mother and the child to live in and the mother got involved in planning a redecoration and the purchase of new appliances and furniture for that house;
·     Prior to 8 February 2017, the father changed the booking for him and the child in respect of the return flight from Brisbane to City S. He changed it from 8 February 2017, to a date later in the year. He did that though without a clear intention of using the ticket and returning to the USA on the date of the booked return flight;
·     On or around 9 February 2017, the mother, who had by now again seemingly reached the position of wanting to go back to D State and taking the child with her if she could, sought and obtained legal advice from a solicitor in J Town. That solicitor confirms that she was informed by the mother that she had accompanied the father and that child to Australia so that the child could spend time with his extended family in Queensland; that they had return flights to the USA booked when they came; and that the father had told the mother sometime after they were in Australia that he was no longer willing to return to the USA and wanted the child to live with him in Australia. The solicitor confirms that she advised the mother that if she could get the child’s passport into her possession, there was nothing stopping her returning with the child to the USA;
·     The mother obtained the child’s passport from the father by deception and attempted to leave Australia on 11 March 2017, with the child, without the father’s knowledge or consent;
·     The child was stopped at the immigration barrier at Brisbane airport as his name had been placed on the family law watch list pursuant to Court order obtained by the father.

I am not satisfied that after the mother told the father that she was wanting to return to the USA to live and that she expected the child to be returned to the USA on 8 February 2017, and the father told her that he did not intend to take the child back to the USA on that date, that the mother and father reached an agreement that the child did not have to go back to D State on that date, or that the mother ever positively told the father that the child did not have to go back to D State on that date, or that she actually acquiesced in the child not being taken back to D State on that date, even though I am satisfied that she would have probably believed that the father would not take the child back that day. Accordingly, I am of the view that the father’s retention of the child in Australia actually occurred on 8 February 2017 when he did not take him back to D State or allow him to be taken back to D State.

Was the child still habitually resident in D State as at 8 February 2017?

As I have already observed, I am satisfied that when the father, the mother and the child left D State to travel to Australia on 4 December 2016, it was with the intention that they would be making Australia their home, even though the mother’s residency visa had not yet been secured. I am satisfied that they were leaving D State with no intention of returning to live there in the foreseeable future, despite understanding that they might return there, even as early as 8 February 2017, for a short while, if circumstances required that.
I am satisfied that they went about taking steps to assimilate into life in Australia, including enrolling the child in a child care centre with the intention of him commencing attendance there at the commencement of the new school year of 2017, registering him on the father’s Medicare Card and applying for any Centrelink benefits they might be entitled to as parents and as a family.
Notwithstanding the fact that the mother changed her mind just over a month after their arrival in Australia and then told the father that she wanted to return to the USA and wanted the child to return to live with her there also, I am satisfied that the child was no longer habitually resident in the USA as at 8 February 2017, when he was retained by the father in Australia against the wishes of the mother at that time. By that date, the child had been living in Australia for over two months pursuant to the parents’ original plan to move to Australia to live. He had already been attending the day care centre his parents had enrolled him in for two days a week for a couple of weeks. Although he and his parents had been mainly living in the home of his paternal grandparents at their caravan park business or in a cabin at the caravan park during those two months, a home had been purchased for his mother and father and him to live in by his paternal grandparents and efforts were being made by the parents to make that into a home. Pursuant to the original plan, his father had been working for the paternal grandparents in their business since their arrival in the country in early December. Although some of the family’s possessions remained in commercial storage in D State, the father had terminated his employment there before they had left, the family had surrendered their leasehold home and arrangements for temporary accommodation upon their possible return for a short term had been made.
Given my finding that the child was not habitually resident in D State as at 8 February 2017, I am not satisfied that the retention of him in Australia by his father at that date was wrongful within the relevant provisions of the Hague Regulations. That leaves me with no alternative but to dismiss the application and I do so.

I certify that the preceding two hundred (200) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 17

August 2017.

Associate:

Date: 17 August 2017

[2017] FamCA 611

17 August 2017

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