DEPARTMENT OF COMMUNITIES, CHILD SAFETY AND DISABILITY SERVICES & BOGOVIC
[2017] FamCA 462
•26 June 2017
FAMILY COURT OF AUSTRALIA
| DEPARTMENT OF COMMUNITIES, CHILD SAFETY AND DISABILITY SERVICES & BOGOVIC | [2017] FamCA 462 |
| FAMILY LAW – CHILD ABDUCTION – Hague Convention – Application under the Hague Convention for the return of the children to the United States of America – Whether wrongful retention in Australia - Children brought to Australia by consent of both parents for child to attend special schooling – Date of retention in issue – Habitual residence – Intention of parties at time of departure from United State of America to Australia – Parties regularly travelled between Australia and United States – Children born in Australia and spent significant time in Australia – No physical abode in United States – Findings that habitual residence was Australia – Where children’s retention in Australia not wrongful – Whether the residual discretion to make a return order ought be exercised – Children resident in Australia for over 2 years – Mother primary carer for children - Father’s delay in commencing proceedings – Where father found to have acquiesced to retention – No return order made |
| Family Law (Child Abduction Convention) Regulations 1986 (Cth) reg 16, 26 |
| Panayotides v Panayotides (1997) FLC 92-733 Re F (1992) 1 FLR 548 Cooper v Casey (1995) 18 Fam LR 433 In the Marriage of McCall (1994) 18 Fam LR 307 LK v Director-General, Department of Community Services (2009) 237 CLR 582 P v Secretary of Justice [2001] NZLR 40 Department of Community Services & Raelson [2014] FamCA 131 DP v Commonwealth Central Authority; JLM v Director-General, New South Wales Department of Community Service (2001) 206 CLR 401 Gsponer v Director-General, Department of Community Services (Vic) (1989) FLC 92-001 |
| APPLICANT: | Department of Communities, Child Safety and Disability Services |
| RESPONDENT: | Ms Bogovic |
| FILE NUMBER: | BRC | 12941 | of | 2016 |
| DATE DELIVERED: | 26 June 2017 |
| PLACE DELIVERED: | Cairns |
| PLACE HEARD: | Cairns by video link to Brisbane |
| JUDGMENT OF: | Tree J |
| HEARING DATE: | 14 March 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Parrott |
| SOLICITORS FOR THE APPLICANT: | Director of Child Protection Litigation |
| COUNSEL FOR THE RESPONDENT: | Ms Lyons |
| SOLICITORS FOR THE RESPONDENT: | Corney & Lind Lawyers |
Orders
The Applicant’s Form 2 Application filed 23 December 2016 is dismissed.
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 & Bogovic 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 CAIRNS |
FILE NUMBER: BRC12941/2016
| Department of Communities, Child Safety and Disability Services |
Applicant
And
| Ms Bogovic |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
By Initiating Application filed 23 December 2016, the Director-General, Department of Communities, Child Safety and Disability Services (“The Department”) seeks an order requiring the return of two children from Australia to the United States of America. The children in question are B (born in 2012 and hence presently five years of age) and C (born in 2013 and hence presently three years of age) (“the children”). Ms Bogovic (“the mother”) opposes that order on a number of bases which I shall shortly discuss. On 14 March 2017 I conducted the hearing of the application and reserved my decision, save that I afforded the parties an opportunity to make further written submissions in relation to one of the matters which the mother relied upon as a discretionary basis for declining to make a return order. This is my judgment arising from that hearing.
BACKGROUND FACTS
The mother was born in 1974 in Australia, and hence is presently 42 years of age. Mr Bogovic (“the father”) was born in the United States in 1975 and hence is presently also 42 years of age. The parties first cohabited in about late October 2010 and married in the United States later that year. At the time of their marriage the father was serving with the defence forces.
In the mother’s affidavit filed 3 February 2017 at [34], there is a detailed chronology of the parties’ movements between Australia and the United States after their marriage. It is obvious that the parties regularly travelled between the two countries, and often individually, so that for periods one of the parties was in Australia and the other in the United States.
On 8 April 2011 the mother made application for a United States Green Card, which she ultimately obtained.
Although both children were born in Australia, they have dual Australian and United States citizenship. After both of the children’s births, the parties continued to travel between the two countries with the children, although again on occasion they would travel independently of the other.
On 27 April 2014 the child B was diagnosed with autism and commenced therapy for that in the United States in June of that year.
The mother contends that the parties separated in the United States on 30 August 2014, although they remained cohabiting under one roof. The father does not accept that they then separated; he contends that the date of separation was when he was served with the mother’s application for divorce on 22 December 2015.
Accepting that she contends for an earlier date of separation than does the father, the mother says that during the relationship, she spent about 22 months (or 47 per cent) of the time in the United States, and about 25 months, (or 53 per cent) in Australia. On the other hand she estimates that the father spent 39 months of that period (or 83 per cent) in the United States, and 8 months in Australia (which equates to about 17 per cent). I will detail some further statistics in relation to the children in due course.
Even if the parties did separate on 30 August 2014, it is plain that they continued to cohabit and co-parent the children.
In March 2015 whilst still in the United States, the parties began to make enquiries of Australian providers of autism intervention. I will need to consider that in greater detail in due course, but for present purposes it is sufficient to say that on 3 May 2015 the parties and the children flew to Australia, and the mother and the children have remained living here since then. However the father returned to the United States from time to time because of his visa restrictions (which apparently only permitted him to stay 90 days in Australia at any one time).
Initially B was enrolled at, and attended, the D Foundation, but the parties developed some concerns in relation to that institution and commenced investigations with another organisation that assists autistic children, called the E Group.
On 11 November 2015 the mother filed an application for divorce in the Federal Circuit Court of Australia, but although father was then present in Australia, she nonetheless did not serve him prior to his departure for the United States on 19 November. Rather he was served with the application in the United States on 22 December 2015, shortly before he was due to return to Australia. He did indeed return to Australia on 25 December, and again returned to the United States on 23 March, before returning to Australia again on 25 April 2016.
In January 2016 the mother enrolled B into the E Group, which necessitated her moving to live in F Town, which is where the E Group program is offered.
As at the time of the hearing before me, the father remained living in the United States, although it does not appear as though he presently maintains an actual residence there, but utilises his father’s address in G State. He says that once this application has been determined, he proposes to find permanent accommodation in City H in I State.
The mother resides at Suburb J in F Town, together with a male friend (whom she denies she is in a relationship with). Both children reside with her, and attend the E Group.
THE CONDUCT OF THE HEARING
As is common in these sorts of matters, notwithstanding the considerable conflict between the evidence of the father and the mother, neither party sought to cross-examine. In Panayotides v Panayotides (1997) FLC 92-733 at 83,897, the Full Court recited, seemingly with approval, observations of the trial judge (Jordan J) about the conduct of proceedings in those circumstances, as follows:
The first thing to observe is that there is much conflict in the evidence. These are summary proceedings and issues must be determined on the papers. This often presents the court with difficulties. It would generally be inappropriate to absolutely reject the sworn testimony of a deponent (see, Re F (1992) 1 FLR 548). As was submitted by counsel of the Central Authority, I simply must do the best I can. I look to the versions of each of the parties, I find the common ground, and I note the areas of conflict. I can look to the inherent probabilities. Of course, when one is talking about the intent of the parties, where there is a matter of some conjecture, one looks to the conduct of the parties, and any documentary or corroborative evidence which may help to determine that issue.
I will adopt that approach in dealing with the conflict in the evidence before me.
UNCONTROVERSIAL MATTERS
A number of the matters which it is incumbent upon the Department to establish under the Family Law (Child Abduction Convention) Regulations 1986 are not in issue. Particularly the mother concedes:
·The Department has made an application for a return order for the child (Regulation 16(1)(a));
·Both children are under the age of 16 (Regulation 16(1A)(a));
·The father had rights of custody in relation to the children under the laws of I State which he would have exercised if the children had not been retained by the mother in Australia (Regulation 16(1A)(c) and (e)(ii)).
Therefore it is only necessary for me to consider the remaining controversial matters.
WRONGFUL REMOVAL OR WRONGFUL RETENTION
In written submissions relied upon by counsel for the mother, it was said that “separation occurred in August 2015 and therefore the application is more than one year and one day after the children were first removed…” However, correctly in my view, not only did the Department not conduct its case based upon wrongful removal, but at paragraph 42 of its extensive written submissions, contended that where used in Regulation 16(1A) the words “removal” and “retention” are meant to convey the same concept as the words “wrongful removal” and “wrongful retention” referred to in the convention. It is plain that on 3 May 2015 when the parties and children flew to Australia, there was nothing wrongful about their removal from the United States, as it occurred with both parties’ agreement. This is therefore not a wrongful removal case, but rather a case involving alleged wrongful retention.
DATE OF RETENTION
The date of any retention of the children by the mother in Australia is important for at least two reasons. Firstly, that is the date upon which the court is obliged to determine the place of habitual residence of the children; only if the children were habitually resident in a Convention country other than Australia will that retention be wrongful: Regulation 16(1A)(b). Secondly, it will be relevant if the return order application is filed more than one year after the day the children were first wrongfully retained in Australia, in which case Regulation 16(2) applies.
Although in his affidavit affirmed 16 December 2016, the father said that he considered 22 December 2015 (US time) to be the date of wrongful retention, because “this is the day I was served with an application for divorce,” by 21 December 2016, when he affirmed his next affidavit, he contended for 26 December 2015 instead, and it was that date primarily contended for by the Department in the hearing before me. (Given that these proceedings were commenced on 23 December 2016, a date of alleged wrongful retention of 21 December 2015 would have engaged Regulation 26(2) as discussed above).
The evidence to found wrongful retention on 26 December 2015 is comprised at least partially in paragraphs 5 to 7 of the father’s affidavit of 21 December 2016 as follows:
5. [Ms Bogovic] and I had no discussions about what was happening on the date I arrived in Australia, 25 December 2015. She did try to initiate a conversation, but I told her that I wanted to enjoy Christmas with the boys, not get into any arguments. She agreed to wait until the next day.
6. On the following day, 26 December 2015, [Ms Bogovic] told me that I was no longer welcome to stay at her mother’s house in [Suburb K].
7. As best as I can recall, we went out to [Suburb K] Centre, and on the way, [Ms Bogovic] told me about her lawyers. In particular, that when she asked them what her filing for divorce would do for my ability to be able to remain in Australia to be near my sons, they said, “who cares? That’s his problem.” And “at his age, its going to be very hard for him to get a visa anyway.” She said she told them to proceed to file for divorce after getting those answers. I do not remember the exact wording of anything after that, because what she said was particularly cruel and upsetting to me. I believe I said words to the effect of, “so you filed any way to get rid of me after they told you that?” And something to the effect of “you can’t do this… force me away and keep them here without me and without my permission, I’m going to talk to a lawyer.
Seemingly based upon those primary facts, the father has deposed to a number of conclusions on various occasions. For instance in paragraph 4 of that affidavit itself he concluded:
I consider that the date in (sic) which I first conveyed to [the mother] that I disapproved of our children remaining in Australia as the date of wrongful retention.
Likewise in his earlier affidavit of 30 November 2016, the father said (paragraph 25) “On 25 December 2015, I arrived in Australia and I contacted [the mother] who informed me that she and the children would be remaining in Australia, and would not be returning to the United States. I told [the mother] in person that I did not consent to the children remaining in Australia.” Accepting that it seems in fact no conversation apparently occurred on 25 December 2015, the conversation being referred to must be that of 26 December as detailed in paragraph 7 of the father’s 21 December 2016 affidavit.
The mother does not recall the conversation deposed to in paragraph 25 of the father’s 30 November 2016 affidavit: mother’s affidavit filed 3 February 2017 at [93]. This is therefore one of those matters where, unable to resolve the conflict in evidence by cross-examination, I need to look at other evidence, including the parties’ conduct.
An immediate difficulty with the father’s conclusions is that they do not appear to be supported by the more detailed account at paragraph 7 of his 21 December 2016 affidavit, which contains no demand – clear or otherwise – for the return of the children to the United States. The words “you can’t.. force me away and keep them here without me and without my permission” do not speak to a demand for the children to then return to the United States; rather what it indicates is that the father is plainly not consenting to the children living in Australia unless he was also here or he otherwise agrees. It is not controversial that the father was then in Australia, and so remained until 23 March 2016.
That is not inconsistent with the Department’s case that the parties’ intention had been that the children should remain in Australia only for so long as B was obtaining a therapeutic benefit, or there was a strong prospect that he would obtain such benefit, from one of the schools he was enrolled in. For instance, at paragraph 98 of the father’s affidavit filed 23 February 2017, he said “I have never agreed to allow the children to remain in Australia permanently…” but then continued:
..[The mother] did tell me in person that [D Foundation] was expecting a break-through moment and she wanted to give them more time. I was open to doing this and I was open to considering the possibility of enrolment in [E Group] for further trial, because [the mother] told me she thought they might produce better results in a shorter time, however I was not, under any circumstances, OK with the children remaining in Australia without me, and I expected that decisions regarding [B’s] schooling or the boys’ living arrangements would be made by both parents together, which was not the case.
At paragraph 102 of that affidavit he said:
Once again, our [May 2015] trip to Australia was to conduct interviews, and if [B] was enrolled in a successful program, only then would we remain for a significant period of time – if the school was not helpful, rather than waste [B’s] critical time in Australia, we had agreed to return quickly to the US to seek other options.
Five days after the alleged demand that the children return to the United States, on 31 December 2015, the father emailed the mother’s sister. The email is very long, but it is devoid of any suggestion that the father was then demanding the immediate return of the children to the United States, or had done so on 26 December 2015. Indeed, from that email it is plain that the father was considering the possibility of staying in Australia. For instance he said:
Now that she filed for divorce, I cannot apply for a spouse visa. The only option is a parent visa, which I cannot even apply for until the boys have been here for at least two years.. and it takes up to 30 years to process…
That means I cannot apply to remain in Australia permanently until May 2017 a year and a half from now.
…
I have very little hope the visa issue will work out in my favour, particularly because [the mother], despite what she says (because she is a liar), is acting in a manner to deny me access to the children. I will have to leave in March because of the ETA expiry and now with having to find and hire a lawyer, I won’t be able to afford to fly back and forth… and what would be the point if I also cannot afford flights, lawyer and then hotels, car rentals for long periods of time, just been denied access to the children? The boys will be without their father for a very long time.
Also in evidence was an email from the father to the mother of 9 January 2016. It appears to repeat, for the mother’s benefit, some advice from a Dr L. Partly it reads:
[D Foundation] vs [E Group]: she said its hard to know if it would better to switch or if an opportunity is missed by leaving him where he is. She said its very important to consider that he’s happy, calm and in good spirits at [D Foundation], but that if we are considering switching we should probably speak to a counsellor to help guide the decision making process for what’s best for [B], but to keep in mind where he feels comfortable.
[E Group] – I told her what [Dr L] said when we saw her last about them transitioning from ABA/DTT as quickly as possible to RDI. [Dr L] said RDI is a wonderful program, but its parent based, not best done by third party and if we can find a good RDI facilitator, you might benefit from their guidance in activities. She said it’s really good that he’s doing the sounds now, but she asked how is the transition from rewards going to work. She said she’s concerned that it doesn’t promote spontaneous, natural speech and is more of a programming technique. She said you should email her directly if you have any further questions. She wants to see videos of what you’ve been doing, so I’ll have to put them on drop box somehow.
This email does not align with the father not agreeing to B continuing to receive assistance in Australia, whether it be from D or E Group. Rather it shows him, maturely and sensibly, providing the mother with information relevant to the joint decision making as to which of the two schools the child should continue in for 2016. It is not consistent with his assertion that he demanded the return of the children to the United States on 26 December 2015.
Indeed the father continued to explore visa options which would enable him to remain in Australia into the early part of 2016. For instance, in evidence before me are some Department of Immigration and Border Protection notes of a conversation which an officer of that department had with the father on 2 March 2016. In them it is recorded that the father “has gone to seek advice from a Migration Agent however was told there isn’t a permanent visa pathway for him to stay in [Australia] and fight for custody of his children.”
Significantly the interview notes continue:
..Client stated he is willing to share custody of his children as he has a special needs son and does not want him to discontinue with his schooling. Client stated he was in the midst of seeking advice from the US Government however does not want to go down the path of claiming that his ex-partner is keeping his children (who are dual US/Aus citizens) without his permission and for his partner to be liable for kidnapping charges. (emphasis added)
Next on 11 March 2016, whilst he was in Australia seeking to spend time with the children, the father sent the mother an email. In part that read:
We were supposed to go back to [City H] after six months if the school wasn’t working to our expectations here. I wasn’t happy with the school fairly early on, but still waited to see if there was a breakthrough moment. There was not. So what did you do? You submarined me with divorce papers, hide the kids from me, severely limit their time and access to me, enrolled [B] in a new school without my consent and don’t even include me as a person for them to call in case of an emergency.
Well I do not consent to any of this. I do not consent to the children being separated from me and remaining away from me as you’ve done.
Whilst it is plain that the father did not seek to cancel the enrolment of B at E Group or otherwise specifically foreshadow any active step to require him to travel back to the United States, that email nonetheless does seem to, by the words “remaining away from me,” implicitly demand the return of the children to the father, and therefore inferentially to the United States (to which the father was due to shortly return and did so on 23 March). True it is that I would be more comfortable in reaching that conclusion if he had in the email expressly said that the children were to accompany him on his forthcoming return to the United States, but even absent such an explicit demand, as I say, it seems implicit.
Finally there is a text message exchange between the mother and father on 3 June 2016, (not long after he had again returned to Australia) which is annexed to the father’s 23 February 2017 affidavit. In the course of that exchange the father said:
You are not the only parent and you do not have the right to dictate conditions like this. You’re forcing me out of the country and out of their lives against my will and without regard to their right to know me.
Doing the best I can on these somewhat unusual facts:
·I am satisfied that, immediately prior to 22 December 2015, it was the father’s expectation that the children would remain living in Australia for some indeterminate time into the future, whilst B continued special schooling here, and certainly the parties had made no concrete plans for return to the United States;
·I am not persuaded that, on 26 December 2015, the father then demanded the return of the children to the United States;
·I am satisfied that, as at 26 December 2015, for the immediate future, the father was agreeable to both children remaining in Australia, but he was not agreeable to it in the longer term, and he communicated that fact to the mother. Further what he was particularly not then agreeable to was the mother’s restricting his access to the children;
·I am satisfied that, as at 11 March 2016, the father’s position firmed, and his email should be construed as a demand for the return of the children to the United States.
It therefore follows that I am satisfied that the date when the mother first retained the children in Australia contrary to the father’s demand was on, or shortly after, 11 March 2016.
HABITUAL RESIDENCE
The law
Regulation 16(1A) relevantly provides:
For sub-regulation (1) a child’s … retention in Australia is wrongful if:
…
(b)the child habitually resided in a Convention country immediately before the child’s .. retention in, Australia; and
…
The term “habitually resided” or like phrasing is not defined in either the regulations, or in the Hague Convention which the regulations are intended to give effect to.
However the following statements may be taken as established by the authorities:
·The question of habitual residence is one of fact;[1]
·The question comprises two elements: the first is residence in a particular country, and the second is an intention to reside there habitually;[2]
·A broad factual enquiry is mandated;[3]
·“Such an enquiry should take into account all relevant factors, including settled purpose, the actual 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.”[4]
·Settled purpose of the parents is important but not determinative.[5]
[1]Cooper v Casey (1995) 18 Fam LR 433.
[2]In the Marriage of McCall (1994) 18 Fam LR 307.
[3]LK v Director-General, Department of Community Services (2009) 237 CLR 582.
[4]ibid at [44], citing P v Secretary of Justice [2001] NZLR 40 at [88].
[5]ibid.
The parties’ intentions
The mother says that when she came to Australia on 3 May 2015, it was her intention to live permanently in Australia, and indeed she says that was the father’s intention as well, once he finalised his entitlement to a retirement pension. She says the parties reached that agreement in a counselling session which they engaged in whilst in Australia in February 2014, and she only subsequently again travelled to the United States because of the parties’ agreement to thereafter return to live in Australia for at least two years.
In support of that position she annexed to her affidavit an email from the father to the mother’s sister of 16 March 2014, which in part reads “[The mother] keeps harping on moving back to Australia (which although I did agree to it, I strongly believe it is yet another terrible idea of hers which will not benefit us at all) as soon as possible and then also in the interim, moving back to where we previously lived in [City H] to be closer to work and have a shorter commute…”
The mother contends that the words “I did agree to do it” refers to the agreement reached between the parties in counselling sessions.
The father’s affidavits do not specifically deny the counselling agreement asserted by the mother, but rather he says that “I do not recall any agreement to move to Australia for two years.”[6]
[6]Father’s affidavit 23 February 2017 paragraph 20.
Further the mother relies upon an email from her to the father of 7 March 2015, which in part reads “Well, for me its coming to a point of no return. I can’t watch my son slip away day after day. I am his Mother and I WILL NOT go to my grave knowing that I could have done more to help him. So you are giving me no choice but to file for divorce and full custody so I can take my son back to Australia and give him the opportunity to attend [E Group].”
However other contemporaneous records are more equivocal. For instance in a document annexed to the father’s affidavit filed 9 March 2017 sourced from the Inland Regional Centre (which appears to be a provider of autistic therapy in the United States) dated 14 April 2015, it is recorded:
They will be travelling to Australia in three weeks to check out the school and see if [B] will be accepted. They stated that the program can be anywhere from six months to two years.
Further, it is uncontroversial that on 3 May 2015, when the parties left the Unites States, they travelled to Australia on return tickets. How that aligns with the mother’s contention that trip was intended by both parties to be a permanent move to Australia is unclear.
Moreover, on 25 January 2016, the mother made enquiry of the United States Immigration Department. There are in evidence records of that communication. These include the mother writing an email which says:
I have been living in Australia since May 3rd 2015. When I departed from the United States, I was unaware of how long I would be out of the country. The reason being, my eldest son [B] who is 4 years old has autism and we came to Australia in hope in enrolling him in an excellent early intervention school called [D]. We did not know if the school would accept [B], hence we booked return flights to the United States a month out. Following a number of interviews and extensive intake assessment, [B] was accepted and enrolled. He will likely be receiving early intervention until aged 6. Therefore, we will not likely return to the United States for another 2 years…
Another factor which is relevant as to the parties’ intentions is that although they sold their house in I State prior leaving the United States (albeit that sale appears to have been arranged well prior to May 2015) they kept their furniture in storage in that country.
I have also discussed, in the context of wrongful retention, some of the father’s communications with the mother after 26 December 2015. Many of them appear to be consistent with the parties intending for the children to remain living in Australia so long as B was obtaining benefit from special schooling here. As has been seen, I am satisfied that indeed had been the father’s position up until 11 March 2016, although I also accept that at the time when they came to Australia in May 2015, the father either believed that the parties’ relationship was intact, or alternatively believed it had sufficient prospects of repair, and in any event the parties were continuing to cohabit. The mother’s divorce application no doubt changed that belief, albeit not necessarily immediately.
I am therefore satisfied that when the parties came to Australia in May 2015, their intention was to remain here for so long as B was obtaining benefit from special education, but to thereafter likely return to the United States. I therefore am not persuaded that in May 2015 the mother’s intention was to permanently live in Australia, as the contemporaneous and subsequent records do not support that.
Other relevant matters
The following factors are also relevant in determining habitual residence as at 11 March 2016:
·As detailed above, during the course of their relationship, the parties had regularly travelled to and spent significant periods of time in Australia;
·The mother estimates in her affidavit of 3 February 2017 that as at that date, B had spent 23 months of his life (which she says is 38 per cent) in the United States and 38 months (62 per cent) of his life in Australia, and that C has spent 13 months (27 per cent) of his life in the United States and 35 months (73 per cent) of his life in Australia. Accepting that the data and percentages as at 11 March 2016 would be different, nonetheless the children had spent significant time in both Australia and the United States as at that date;
·Both children were born in Australia (noting that they have dual citizenship);
·Both children had been residing in Australia for nearly 9 months, with B attending school in Australia (accepting that there were two schools) for most of that time;
·The maternal grandmother resides in Brisbane and the children have a close relationship with her.
Evaluation
Although not without some hesitation, and notwithstanding the parties’ intention when they arrived in Australia in May 2015 was likely not to remain here permanently, I am nonetheless satisfied that, as at 11 March 2016, the habitual residence of the children was in Australia.
Particularly I place significance upon the indefinite duration of the period in which B might obtain benefit from attending a special autism school, and the prospect – and indeed eventuality – that more than one school might need to be availed of.
Against a backdrop of the children and parties’ historically regular movement between the United States and Australia, the lack of any long period of continuous residence in either country is, in my view, important when considering the indefinite – albeit likely not permanent – stay in Australia.
Further, the lack of any physical abode in the United States, as at March 2016, and the mother’s and children’s close connections with Australia, are significant.
WRONGFUL RETENTION AND RETURN ORDER
As has been seen, I am satisfied that the first occasion when a demand for the return of the children to the United States was made, was on 11 March 2016. It therefore follows that, given that the children were habitually resident in Australia at that time, their retention in Australia thereafter was not wrongful as defined by Regulation 16(1A). It therefore follows that I am not obliged to make a return order under Regulation 16(1).
To cover the eventuality that there remains a residual discretion to nonetheless accede to the application, I should indicate that if such a discretion exists, I would not exercise it because:
·Since March 2016, the children have remained living in Australia, and inevitably have now settled now further into their lives in this country;
·The children have only lived with the mother, who appears to have lost her right to permanently reside in the United States, or at least her Green Card. Ordering the return of the children therefore is fraught with the prospect that it would separate the children from their mother;
·The father delayed considerably in commencing these proceedings. His explanation that he was unable to find a lawyer who he could afford to retain only goes so far to justify that delay;
·The children are enrolled in E Group until the end of 2017, and there is no reason to think B is not obtaining benefit from that facility.
OTHER MATTERS
If I am wrong in the earlier findings and conclusions which I have made, I should address some alternative arguments raised by the mother.
Acquiescence
In the event that indeed the father did make a demand for the return of the children to the United States on 26 December 2015, and that the children were then habitually resident in the United States of America, the mother argued that the father had subsequently acquiesced to the children being retained in Australia, and hence a discretion not to order the return of the children arises.
The law
Regulation 16(3)(a)(ii) states:
A court may refuse to make an order … (for the return of the child) … if a person opposing return establishes that:
(a)the person, institution or other body seeking the child’s return:
…
(ii)had consented or subsequently acquiesced in the child being removed, or retained in, Australia.
In Department of Community Services & Raelson [2014] FamCA 131, Kent J helpfully distilled principles relevant to acquiescence in this context as follows (footnotes omitted):
…The following propositions are distilled from Re H (Abduction: Acquiescence) [1998] 2 AC 72; Director-General, Department of Families, Youth and Community Care v Thorpe (1997) FLC 92-785 per Lindenmayer J; Re A (Minors) (Abduction: Custody Rights) [1992] Fam 106 (EWCA); Kilah v Director-General, Department of Community Services (2008) FLC 93-373 (Bryant CJ, Coleman and Thackray JJ); Police Commissioner of South Australia v Temple (1993) FLC 92-365; Laing v Central Authority (1996) 24 Fam LR 555.
(a)The onus of establishing acquiescence rests upon the respondent. Acquiescence must be proven by clear and cogent evidence.
(b)The right to which acquiescence is directed is the right of the applicant parent to the immediate return of the children. It is not acquiescence in the child or children remaining permanently in the forum that needs to be established.
(c)Acquiescence operates to effectively estopp the applicant parent from demanding the immediate return of the child or is to be seen as waiver by the applicant parent of the right to immediate return.
(d)The applicant parent must be shown to have the subjective intention not to insist upon a right to summary return. If that subjective intention is not established it is only if the words or actions of the applicant parent clearly and unequivocally show, and have lead the respondent parent to believe, that the applicant parent is not asserting or going to assert a right to summary return, and are inconsistent with such return, that acquiescence is established.
(e)Words or conduct of the applicant parent (including passive inaction over time where action ought be expected) have the potential to inform the enquiry as to acquiescence in two ways. First, and most commonly, the court infers from the words or conduct (or both) that the applicant parent had the requisite subjection intention despite later claims by the applicant parent as to his or her intentions being otherwise. In so doing the court is determining as a fact that the applicant parent had the requisite subjective intention. Second, and perhaps less commonly, the words or conduct (or both) of the applicant parent may be sufficiently clear and unequivocal as to demonstrate that the other parent was lead to believe that the applicant parent was not going to insist upon summary return. Later claims that the applicant parent always secretly intended to seek summary return, even if true, will not displace acquiescence in those circumstances.
(f)In both categories of case the context or contextual matters surrounding the words or the conduct may be important considerations in determining that clear and unequivocal acquiescence is established.
(g)Acquiescence, once established is irrevocable. To conclude otherwise would render the acquiescence exception illusory because it will only arise when the applicant parent, who has previously acquiesced, has changed his or her mind and seeks immediate return. Prompt attempts to displace or withdraw acquiescence might be relevant to the court’s exercise of discretion, as might be the reasons for those attempts and indeed the consequences of acquiescence, but acquiescence once established cannot be revoked.
I gratefully adopt that statement as still reflecting the current law.
Discussion
The following point to the father acquiescing to the retention of the children in Australia after 26 December 2015:
·In his email of 9 January 2016 to the mother, the father was expressly contemplating B being enrolled in E Group. That can only be consistent with him agreeing to the child to continuing to remain in Australia so as to obtain the benefit from that education, or at least not continuing to demand his immediate return;
·B was subsequently enrolled in E Group. Although that was without (it seems) the father’s active input, he subsequently raised no opposition to B being so enrolled. His protest is that it was done without consultation with him, not that it was done at all;
·In his immigration interview of 2 March 2016 he specifically said that he did not want B to discontinue his schooling, which is consistent with his other dealings with the mother.
I am satisfied that this establishes acquiescence. The evidence is clear and unequivocal. It is quite inconsistent with the exercise of a right to demand the immediate return of the children, even accepting that the father was not conceding their permanent residence in Australia. I am satisfied that it establishes the father’s subjective intention not to then exercise a right of summary return, most tellingly on 2 March 2016.
Grave risk
The mother contends that a second matter contained in Regulation 16(3) has been established by her, namely that there is a grave risk that the return of B would expose him to physical or psychological harm or otherwise place the child in an intolerable situation. She therefore again says that the discretion not to order return is enlivened.
The law
Regulation 16(3)(b) provides that a court may refuse to make a return order if the person opposing return establishes that “there is a grave risk that the return of the child would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.”
From the relevant authorities, the following propositions of law may be distilled:
·The burden of proof of showing the grave risk is upon the person opposing return;[7]
·The enquiry inevitably involves some consideration as to the interests of the child;[8]
·It is the exposure of the child to harm, rather than a finding that harm will actually occur, to which the regulation is directed;[9]
·The notion of grave risk of exposure to future harm is likely to require some clear and compelling evidence;[10]
·The physical or psychological harm in question must be of substantial or weighty kind.[11]
[7]DP v Commonwealth Central Authority; JLM v Director-General, New South Wales Department of Community Services (2001) 206 CLR 401 at [41].
[8]ibid.
[9]ibid at [42].
[10]ibid at [43].
[11]Gsponer v Director-General, Department of Community Services (Vic) (1989) FLC 92-001 at 77,159.
Evaluation
The mother says that:
·The father has no firm proposal as to where he would house the children if they were ordered a return to the United States;
·There is no evidence that B could be enrolled in a similar program to that conducted by E Group;
·In any event there is evidence that uprooting B from his established routine would be disruptive and counterproductive for him;
·Her ability to permanently reside in the United States is unclear.
However even if all of that be true, in my view that falls well short of establishing a grave risk of harm to the child; it does not establish any substantial risk of exposure to physical or psychological harm. I am not satisfied that this exception is made out.
Exercise of discretion
The establishment of one of the matters referred to in Regulation 16(3) only enlivens a discretion not to make a return order. The following points are relevant in the sense that they would weigh against the exercise of the discretion to return:
·The children have now been resident in Australia for over two years;
·It appears as though B is obtaining benefit from E Group;
·The children have always resided with and been cared for by the mother, and her entitlement to live in the United States is now unclear;
·There is no evidence as to the sorts of schooling and accommodation which the children would enjoy in the United States if in the father’s care;
·The father has never been the primary carer of the children at any time.
On the other hand the following factors weigh in favour of making a return order:
·The father is an important figure in the children’s lives, and yet it seems he may never be able to procure permanent residency in Australia, even if he wished to;
·The mother has on occasion expressly contemplated the prospect of return to the United States.
Weighing those factors in the balance, to my mind tells strongly against ordering the return of the children to the United States.
CONCLUSION
For these reasons there will be orders as set out at the commencement of this judgment.
I certify that the preceding seventy six (76) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 26 June 2017.
Associate
Date: 26 June 2017
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