Department of Communities (Child Safety Services) and Ammaniz

[2011] FamCA 670

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF COMMUNITIES (CHILD SAFETY SERVICES) & AMMANIZ [2011] FamCA 670

FAMILY LAW – CHILD ABDUCTION – Hague Convention – Whether or not the children have been wrongfully retained in Australia by their mother – Whether the children habitually resided in a convention country immediately before their retention in Australia – Finding that at the time the children were retained in Australia, their habitual place of residence remained Scotland – Finding that the children were wrongfully retained by the mother in Australia – Whether the father consented to, or subsequently acquiesced in, the children being retained in Australia – Finding that the discretion to refuse the return order is enlivened – Refusal of a return order would not be in the children’s best interests

Family Law Act 1975 (Cth) part VII
Family Law (Child Abduction Convention) Regulations 1986 (Cth) reg 16(1A), reg 16(3)
Evidence Act 1995 (Cth) s 140

De L v Director General & NSW, Department of Community Services & Anor (1996) FLC 92-706
Director-General of the Department of Community Services & Timms (aka Black) (2008) FLC 93-376
LK v Director-General, Department of Community Services (2009) 237 CLR 582
MW v Director-General, Department of Community Services (2008) 82 ALJR 62
Panayotides & Panayotides (1996) 21 Fam LR 446
Re F [1992] 1 FLR 548
Zotkiewicz & Commissioner of Police (No.2) [2011] FamCAFC 147

APPLICANT: Department of Communities (Child Safety Services)

RESPONDENT: Ms Ammaniz

FILE NUMBER: BRC 3866 of 2011

DATE DELIVERED: 26 August 2011

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 20 July 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms J Hogan

SOLICITOR FOR THE APPLICANT: Crown Law

COUNSEL FOR THE RESPONDENT: Mr M Green

SOLICITOR FOR THE RESPONDENT: Journey Family Lawyers

Orders

(1)That the children, N born … October 2006 and K born … July 2008 be returned to the United Kingdom; and for the purposes of giving effect to this order:

(a)That the said children leave the Commonwealth of Australia on or before 8 September 2011;

(b)That the said children arrive in the United Kingdom on or before 9 September 2011.

(c)That pending the said children, returning to the United Kingdom, the respondent mother, Ms Ammaniz continue to be restrained and an injunction is hereby issued, restraining her from removing or attempting to remove the said children from the Commonwealth of Australia;

(d)That pending the return of the said children to the United Kingdom, the respondent mother continue to be restrained and an injunction is hereby issued, restraining her from changing the residence of the said children from the premises where the children and her are currently residing namely, … W Street, Town 1 in the State of Queensland, Australia;

(e)That subject to sub-paragraph (f) below, the Commissioner of the Australian Federal Police and all Federal Agents of the Australian Federal Police retain the names of the respondent mother and the said children on the All Ports Watch Alert System at all international departure points in Australia;

(f)That the said children, and the respondent mother be removed from the All Ports Watch Alert System by officers/agents of the Australian Federal Police upon receipt of a letter from an officer of the Court Services Unit, of the Department of Communities advising of the travel arrangements made for the said children to return to the United Kingdom from 12.00 am on the date nominated for the said travel in the letter;

(g)That the Marshall of the Family Court of Australia and the Commissioner and all Federal Agents of the Australian Federal Police and Officers of the Police Forces and Services of the various States and Territories are required and empowered to take all necessary steps to give effect to these orders;

(h)The Registrar of the Family Court shall, upon receipt of a letter from an officer of the Court Services Unit, of the Department of Communities, advising of the travel arrangements made for the said children to return to the United Kingdom, release to the person nominated in the letter, all current passports relating to the children for the purposes of the said children's return to the United Kingdom; and release the respondent mother’s passport to her or her nominee upon request.

(i)That liberty to apply be granted to the applicant to seek any further orders necessary to allow her or officers of the Department of Communities to make such arrangements as are necessary to facilitate and ensure the return of the children in accordance with this order and pursuant to the Central Authority’s obligation under regulation 20 of the Family Law (Child Abduction Convention) Regulations 1986.

(2)That the respondent mother Ms Ammaniz born … 1974, pay all the necessary expenses associated with returning the children to the United Kingdom, including the cost of airfares and departure taxes (if any) for the children to travel from Brisbane International Airport to the United Kingdom, and in the event the respondent mother fails or refuses to pay these expenses; the respondent mother pay to the applicant the necessary expenses incurred by or on behalf of the applicant and Mr Ammaniz, in returning the children to the United Kingdom, within two business days of the applicant making a written demand for reimbursement of the said expenses.

(3)That all other applications be dismissed.

(4)That there be liberty to apply.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 1127 of 2011

Department of Communities (Child Safety Services) 

Applicant

And

Ms Ammaniz

Respondent

REASONS FOR JUDGMENT

1.In March last year, Mr Ammaniz (“the father”) and Ms Ammaniz (“the mother”) brought their two children, 3 year old N and 20 month old K, to Australia from Scotland. In early May, 2010, as planned when they came, the father returned to Scotland. A few months later, he asked the mother to bring the children back to Scotland. The mother refused to do that and she and the two children have been in Australia ever since. The father still wants the children returned to Scotland.

2.This is what is commonly called a Hague Convention application. It is brought on behalf of the father who seeks an order that the children be returned to Scotland. The mother opposes the application.

3.The principal issue is whether or not the two children have been wrongfully retained in Australia by their mother.

4.The determination of that issue depends on whether the children have been “retained” in Australia by the mother and, if they have, whether or not Scotland was their “habitual place of residence” when they were retained here.

5.The father says the children have been retained in Australia as they had only come to this country for a temporary visit. He says the children were to be returned to Scotland at the end of the temporary visit.  He says that Scotland remained the children’s habitual place of residence in those circumstances

6.The mother says that there was no retention of the children in Australia. She says that she and the father had permanently moved the family to Australia and that they had abandoned Scotland as their habitual place of residence when they moved.

7.If I accept the mother’s case, I do not have the power to order the return of the children to Scotland. If I accept the father’s case, I am required to order their return to Scotland, or rather, to the United Kingdom, subject to a discretion not to order the children be returned to the UK if I am satisfied that the father consented to, or acquiesced in, their retention in Australia by the mother.  The mother argues that he did and that I should exercise the discretion to refuse a return order if I otherwise determine that the children have been wrongfully retained in Australia.

THE BACKGROUND

8.The father is 38 years old. He is a national of Country 1 and has lived in the UK for 16 years. He was granted British citizenship in November, 2010.

9.The mother was born in Country 2. She has Country 2 citizenship. She is now 36 years old. She first came to Australia as a child with her family. She has Permanent Residency Visa status in Australia, not yet having become an Australian citizen.  She went travelling to the UK in 2001 and met the father in City 1 in Scotland. They started living together there towards the end of that year and married on 6 June, 2002.

10.The couple visited Australia together in December 2003. The mother’s parents and sisters were still living here at the time. The couple returned to City 1 in Scotland at the end of that trip and the two children were subsequently born there.

11.In September, 2008, the mother and the two children travelled to Australia as her father was gravely ill. He passed away on 17 September, 2008. The mother and the children stayed in Australia for approximately ten months after that and returned to City 1 in Scotland in June, 2009. Each of the mother and the father gives a different explanation for that.

12.Sometime around late 2009 or early 2010, they applied to the Australian Government, through the Australian High Commission in London, for permanent residency migrant visas for the father and the two children. The couple had agreed for the family to move to Australia. The mother was their sponsor for that application. The couple was advised by an Australian Government official in London that the application would take four to six months to process. The couple do not appear to have doubted the success of the application. When the application was approved the father was going to obtain British citizenship and the family was going to relocate to Australia. 

13.In early 2010, whilst they were waiting for the application for Australian visas to be processed, the mother learned that her mother in Australia had terminal cancer and only had three to four months to live. The couple agreed that they would come over to Australia as soon as possible, even before the permanent residency visa application was determined. The mother would enter Australia on her existing permanent residency visa but the father and the two children had to enter Australia on tourist visas.

14.The couple knew that if the application for permanent residency visas was successful, the father and the children could only have those visas stamped in their passports by Australian Government officials if they were outside of Australia.

15.The family all flew out to Australia together, arriving on 5 March, 2010.  The mother and the children used the return leg of return air tickets that she had purchased in Australia when they were here in 2009. They had used the first leg of those tickets when they returned to Scotland in June 2009. The father used the first leg of a return air ticket. He had the return flight to City 1 in Scotland booked for a date in early May, 2010. He intended to return to Scotland to obtain British citizenship before moving to Australia.

16.The father returned alone to City 1 in Scotland on 8 May, 2010. The wife’s mother passed away in late May, 2010, and sometime around two days later, the father received in the mail an application for the dissolution of marriage completed by the wife and filed in Court here in Australia. In that application, the mother stated that the couple had finally separated in September, 2008. That was clearly not the case.

17.On 9 June, 2010, an email addressed to the father was received by the mother at her ‘hotmail’ email address. That email advised that the “migrant visa application” of the father and the two children had reached the stage where the visas could be granted. The advice was that all three persons would have to make an initial entry to Australia before 11 November, 2010, and confirmed that all three would have to be outside Australia at the time of the grant of the visas. The email letter advised that Australian Government records showed the two children were in Australia at that time and that they would have to depart Australia again in order to have their visas granted in a country outside Australia.

18.The mother filed an application in the Federal Magistrates Court of Australia at Brisbane on 13 July, 2010, in which she applied for orders that Australian passports be issued for the two children, dispensing with the requirement of the father’s consent to the two children becoming Australian residents. The mother also sought parenting orders for the children to live with her.  In her supporting affidavit filed with that application, the mother said the father had told her “on previous occasions that if he is not allowed to live in Australia he will not consent or sign any documents that may be necessary to allow the children to continue living with [her] in Australia.”

19.The father initially retained Queensland solicitors to represent him in those proceedings. A Response was prepared in advance of the first return date of the mother’s application, the 31st August, 2010. In that Response, the father sought an interim order that the application be adjourned until such time as the father was present in Australia and a final order that excused him from further particularising the orders he seeks until “such time as he returns to Australia”.

20.In an affidavit sworn on 27 August, 2010, the father said he was in the process of obtaining British citizenship and he intended returning to Australia to be with his children after he obtained that. He also said that he had not received any indication from any Government authority (presumably Australian) that his residency application would be declined.

21.The mother then filed an amended application in the Federal Magistrates Court for further orders that were apparently expected to facilitate application to the Australian Government for the two children to become permanent residents without the father’s consent. In the supporting affidavit, the mother said she decided to withdraw her sponsorship of the application for visas for the father and the children knowing that would result in the application being refused. She also said that the father had told her during a number of phone calls that he would not sign her application for the children to be granted permanent residency because he was not included in the application.

22.The father then notified the Federal Magistrates Court on 3 September, 2010, that he wanted the children returned to Scotland and was making a Hague Convention application. The proceedings were then transferred to this Court. The father commenced the Hague Convention process in Scotland in September, 2010, but for reasons that are not necessary to set out here the application before the Court was not filed until 10 May, 2011.

WRONGFUL RETENTION OF THE CHILDREN IN AUSTRALIA

23.Regulation 16(1A)[1] relevantly provides that the children’s retention in Australia is wrongful if they habitually resided in the UK immediately before the retention. The applicant asserts this is so. The mother has put it in issue.  The onus of proving the wrongful retention on the balance of probabilities rests with the applicant.[2]

Were the children retained in Australia and, if so, at what point in time?

24.The mother does not dispute that the father asked her to return the children to Scotland on 3 September, 2010, or that her refusal was in breach of the father’s ‘rights of custody’ under the law of Scotland.[3] Clearly then, the mother’s retention of the children occurred at that date, if not before.

25.However, the applicant submitted that the children were actually retained by the mother in Australia earlier than that. The applicant relied on the father’s evidence that the couple had agreed to go to Australia urgently when they learned of the grandmother’s illness but to return to Scotland at the end of the temporary visit so that he could obtain his British citizenship and finalize matters there before they moved out to Australia permanently.

26.The father did not say in evidence the date, if any, initially agreed between him and the mother as the return date for her and the children.  But he said that when he left Australia and returned to the UK on 8 May, 2010, the mother and he agreed that the mother and the children would return to Scotland to join him once the maternal grandmother had either passed away or her condition had improved.  As it was common ground that the maternal grandmother passed away in late May, 2010, the applicant contended that retention of the children in Australia by the mother actually occurred when the mother did not return with the children to Scotland soon after her mother died, somewhere, therefore, around the end of May.

27.That contention would be correct if I find that the agreement was as the father says it was. The mother though, says something completely different.

28.The mother’s evidence was that when they learned of the grandmother’s illness they agreed that the family would move as soon as they could rather than waiting until the residency visas were granted. It was agreed at that point, she said, that the father would return to the UK after two months in Australia to obtain his British citizenship, to finalise the family’s affairs in Scotland and to visit his family in Country 1 before returning to Australia.  She said it was also agreed that she and the children would remain in Australia so she could care for the maternal grandmother; only to leave for the children’s visas to be validated, somewhere offshore, once they were approved. The mother did not say which “offshore” country it was agreed she would take the children to for that visa validation.

29.She said that when they left the UK in March they had sold everything but for the minimal items that the father would require when he returned to the flat to finalise things. She said they shipped their personal possessions, including their clothes and personal effects like photo albums, to Australia before they left. The father included his clothes and his X-Box in the things that were shipped.

30.The mother said the couple started having arguments soon after they arrived in Australia, culminating in a big argument on the night of 23 March. She said they argued about him caring for the children whilst she went out and when she returned they argued further. The father packed his bags to leave. She said she told him that if he walked out the door the marriage would be over and, having heard her, he still left.

31.The mother said she did not know where he went when he left. She said her sick mother was in hospital by that time and the next day she and the children had to move out of her mother’s house and into a unit the grandmother had found. She said on 29 March the father came to the unit and told her he was ready to reconcile. She said she told him again that she considered the marriage was over and that she and the children would continue to live in Australia.  She said the father was angry and upset but said nothing about the children and her returning to live in the UK. She said from that day until he left Australia, the father visited the children at the unit for about 2 hours every day.

32.The mother said on 6 May, the father told her he was going to go back to the UK to finalise everything and that he would have a short holiday in Country 1 to see his family before returning to Australia.

33.She said that at that time, she told the father that she was going to cancel the application for the residency visas that they had made in the UK because they were not together as a couple anymore. She asked the father to sign a fresh application for permanent residency for the children and he took it away overnight. He returned it the next day and said “No, I’m not going to sign it because the other application is still pending.” He said “if I can’t have residence, then neither can the kids.” She said that at no time did he ask her to return to the UK or ask her to let him take the children back with him.

34.She said she told the father she would be remaining in Australia and if he did not consent to the children staying in Australia with her she would take it to the Courts. She said she asked him how long he thought it would be until he returned to Australia and he simply told her that he needed to get his British citizenship and visit his family in Country 1 before he came back.

How is this factual dispute to be decided? 

35.I have previously lamented the summary nature of Hague Convention proceedings making it more difficult to readily resolve critical factual disputes. This is not something new. Courts in Australia and other Hague Convention signatory countries have always recognised this difficulty. 

36.Indeed, the Full Court revisited the issue very recently in Zotkiewicz & Commissioner of Police (No. 2).[4]  In that decision, the policy reasons for dealing with Hague Convention applications on affidavit evidence alone were highlighted and the way in which evidentiary conflicts should be resolved in cases where there has been no cross-examination of witnesses was discussed. Particular approaches discussed in past cases were approved.[5] 

37.Referring to some High Court decisions,[6] the Full Court observed though, that it might indeed be appropriate in some Hague Convention cases for cross-examination to be allowed or even required.

38.When this application was heard, although the mother was present in the Court, unsurprisingly, the father was in Scotland. Neither of the experienced barristers representing the parties made application to cross-examine any of the witnesses. I acknowledge that I could have required cross-examination of the witnesses if I had considered it essential. Logistically, on the day, it would probably have involved the father being cross-examined over the telephone, but that is not to say it could not have been done. I did not insist that it happen. In proceeding that way, I was principally moved by my obligation to deal with the matter expeditiously, supported by belief that I would be able to decide the case on a principled basis in any event.

39.Having considered all of the evidence, I remain confident I can decide the case in a principled manner despite the fact that cross-examination of witnesses did not occur.  I must look to the versions of each of the parties to find the common ground, to note the areas of conflict, to look to the inherent probabilities. I must look to the conduct of the parties and to any extraneous evidence, such as documents, for support or corroboration of one version or the other and then  do the best that I can to determine the relevant facts in the face of the different versions. 

40.Ultimately, if I do not prefer the father’s evidence on critically relevant factual matters over the mother’s evidence, I must find that the applicant has failed to prove its case.[7] I do not though, have to accept the entirety of one parent’s version of the facts over the other parent’s version. I can accept some of the evidence of the father and some of the evidence of the mother, rejecting some of the evidence of each of them.

Is there any extraneous evidence that supports either side’s case?

41.The applicant tendered a bundle of documents into evidence at the hearing and submitted that some of those support the father’s evidence that the family was only going to Australia temporarily and was planning to return to Scotland to await approval of the application for the visas.

42.Included was a copy of a letter dated 1 June, 2010, from HM Revenue & Customs addressed to the mother at the couple’s City 1 in Scotland address. That letter is about the Child Benefit that was being paid to the mother by the British Government at the time of the family’s departure for Australia in March, 2010. The letter informed that the British Government would pay Child Benefit to the mother for 12 weeks up to 31 May, 2010, because her absence abroad was temporary and was for a relative to get treatment for an illness. However, there is no evidence that explains exactly how the letter came to be generated. On its face, it is apparent that the British Government sent it after becoming aware that the mother remained out of the country for 12 weeks and that it was told, by someone, that the mother was only temporarily out of the country because of a sick relative.

43.Clearly, that letter supports a finding that the mother did not inform the British Government, either before she left for Australia, or before that letter was sent, that she and the children were leaving the UK permanently. It appears the mother continued to receive the Child Benefit for 12 weeks after the family went to Australia. But the letter itself does not prove the mother told the British Government that she was only going to Australia temporarily. However, in her affidavit filed in these proceedings[8] before the copy of the letter was seen by the mother (it was sent to the applicant by the father from Scotland as a response to the mother’s filed evidence) the mother said she had informed the UK Government that they were leaving the country in March, 2010, so that their parenting payments (presumably the ‘Child Benefit’ referred to in the letter) would cease. She then went on to say that the parenting payments ceased in June, 2010, after she informed the Government that she would not be returning.

44.I find that as the mother told the UK Government that they were leaving the country in March, 2010, and that she had to tell the UK Government in June, 2010, that they would not be returning so that the parenting payments would cease, then the letter from the UK Government put into evidence by the applicant, is evidence that the mother must have only told the UK Government in the first place that they were going temporarily to Australia to visit her sick mother. 

45.Also included in the bundle of documents tendered by the applicant was a copy of a document from the City 1 in Scotland City Council Revenue and Benefits section headed ‘Case Report’. It is dated 25 February, 2010. Relevantly, it confirms the father had gone into a Council office and advised that he and his wife and family were going to Australia on 6 March as the grandmother was dying of cancer. He wanted to know if their housing benefit would resume upon return. It records “they may be away up to maximum of 2 months”.

46.Also included was a copy of a letter from the same Division of the City 1 in Scotland Council addressed to the father at the couple’s City 1 in Scotland address dated 3 March, 2010. Relevantly, it also confirmed the father had advised that they were going to Australia and would “likely be away for two months”. It advised that the housing benefit could continue to be paid during temporary absence not likely to exceed 13 weeks.

47.I accept that these documents are all consistent with the father’s version of the agreed travel plans. Clearly, the father told the Council before the family left for Australia that he and his family were going to be away temporarily and that it was going to be for a period of up to two months. It seems also to be clear that the mother told the UK Government before they left for Australia that it was only going to be a temporary visit before a return to the UK, even if the intention was ultimately to return to Australia to live.

48.In evidence also, annexed to the mother’s affidavit filed 1 July, 2011,[9]  is a copy of a Form 47CH Australian Government Immigration Department application for migration to Australia by a child completed by the mother. At paragraph 33, the mother answered the question as to whether the child currently held a visa for travel to, or stay in, Australia by saying that the child, N, did, that she had arrived on 7 March, 2010 and that the purpose of the stay in Australia was to visit family. That, too, is consistent with the father’s version of their plans.  

What of the other evidence?

49.The applicant also filed affidavits by four other witnesses. All said they were neighbours, friends or acquaintances of the mother and the father in City 1 in Scotland. In summary, they each gave evidence of surprise or shock at the alleged separation of the mother and the father, believing, from observation, them to be happily married before they left for Australia. I place no great weight on that evidence. It may be correct but does not prove that the parties did not separate whilst in Australia. Interestingly though, given that they were filed in the Applicant’s case, two of those witnesses specifically mentioned awareness of the family leaving Scotland in early 2010 to move to live in Australia. I consider that, nevertheless, consistent with both parties’ evidence that they were going to be moving to Australia in any event.

50.The mother also filed affidavits of two other persons. One of those was the mother’s sister and one was a close friend. Both of those witnesses live here in Australia. Both deposed to having been told by the mother on 24 March, 2010 that the mother and father had separated. The friend also deposed to having been told by the father, shortly after the family’s arrival in Australia in March, 2010, that he was going to be going back to Scotland in May to finalise financial and personal matters before returning to Australia. After applying cautious consideration of that evidence, having regard to the relationships between the deponents and the mother, I do not consider that there is any particular reason why I would reject it.  In any event, neither of those witnesses actually said that they were aware, when the family arrived, that the mother and children were not going to be returning to the UK, so they give no evidence critical to the determination of that important factual issue.  

Concerns about the evidence of the parents

51.I am quite troubled about aspects of the mother’s evidence. The fact that the mother applied for divorce as soon as the father left Australia, asserting separation in September, 2008, is one example. In her affidavit filed in the Federal Magistrates Court[10] she stuck to that story, saying that they separated in September, 2008, when she came to Australia, attempted reconciliation back in Scotland in July, 2009, before separating under the one roof in September, 2009, again returning to Australia in March, 2010. She said there, that the father came too, but to “assist with bringing the children to Australia”, staying with them only 2 weeks in the same residence, though still living separately in different rooms.

52.The mother resiled from much of that story in her affidavit filed in these proceedings. She certainly did not maintain that the couple had separated again in September, 2009, and had remained separated right through until the father left Australia in early May, 2010. The evidence she gave in this latest affidavit was not consistent with the couple being separated all through that period and really asserted final separation occurred when the father walked out in Australia, late March, 2010. The mother sought to explain the inconsistency in the more recent affidavit, but the explanation, shifting responsibility to her former solicitor who has since left the firm of solicitors who act for her, did not assuage my discomfort.

53.I have already referred to the mother’s evidence that she informed the UK Government that they were leaving the country in March, 2010 “so that [their] parenting payments would cease” and that the payments then ceased in June 2010 after she “informed them that [they] would not be returning.” Given that the payments did not cease after she told the UK Government that they were going to Australia in March, she clearly could not have told the UK Government that she was going permanently so as to stop the payments. The letter from the UK Government put into evidence by the applicant proves the mother must have told it that she was going temporarily. The letter also proves that the parenting payment was stopped by the UK Government without it being informed by the mother that she was not returning.

54.The father’s evidence troubles me a little too. I am as troubled about his evidence in which he attempts to shift responsibility for his 27 August, 2010 affidavit to the Australian solicitor who was acting for him as I am about the mother’s attempt to do the same discussed above. 

55.There is another particular piece of his evidence that troubles me. A letter the father wrote on 17 July, 2011, was put into evidence by the applicant in the bundle of documents admitted into evidence at the hearing. In that letter, he said that the mother had sent him a divorce application on 24 May, 2010, and as he was shocked by it, he called her. He said she told him she did not want to be married to him anymore and that she would not be going back to the UK.    He said that he asked her what would happen with the residency application because she was going to bring the children back to the UK to have the residency visas stamped in their passports. He said that she told him she could not leave her mother on her own and that she would be taking the children to New Zealand to have their visas stamped in their passports there and at the same time he could have his stamped in the UK so that he could return to Australia.   

56.The maternal grandmother passed away in late May, 2010. That was before the date on which he said he received the application for divorce. Either the conversation took place before he received the divorce application or he was wrong about the date he received the divorce application or he was wrong about the content of that particular conversation. It may be that he received the divorce application earlier than he said he did. It may be that he had the conversation with the mother before he received the divorce application. It is clear though that his evidence on the point cannot be correct. I consider it more likely than not that he was wrong about the timing of that conversation as the content of the conversation he says he had with the mother after he was back in Scotland has a ring of credibility about it. I find it more likely that the conversation happened before the maternal grandmother had died. That supports a finding that he did know of the mother’s intention to remain separated and not return the children to Scotland before he said he learned of it.

57.Evidence of the father that he learned in June, 2010, from an official of the Australian High Commission in London, that the application for residency visas for him and the girls had been approved also seems inherently probable. At the same time, he said, he was told that the mother had called the High Commission and told them that she would take the children to New Zealand to get their visas. He said he was also told that he could have his visa stamped once the children had left Australia for five days. That is consistent with his evidence that the mother was still intending, at least for a time after having filed the divorce application, to act on the approval of the visa application they had filed earlier in the year.

58.The father also said that shortly after that, the mother called him and told him that if he did not sign the application for divorce he would not see his children again and that she was doing all this to protect her money. He did not sign it. He said that he later learned from the High Commission in London that shortly after that call the mother withdrew her sponsorship and cancelled the visa application they had made together earlier in the year. It is then that she withdrew the application for divorce and made the application to the Federal Magistrates Court to be allowed to keep the children in Australia without his consent. That all sounds probable to me.

59.Just as probable though, in my view, is the mother’s evidence that before the father left Australia she told him she was going to stay in Australia and that she asked him to sign something to signify his consent to the children getting visas to live in Australia to which he responded that the existing application was still on foot and that if he could not live here the children could not.  At that point, the mother clearly thought that she needed the father’s consent to get the children’s permanent residency visas. I doubt that she told him at that time that she was going to withdraw her sponsorship of his visa application.

60.The father said in the letter I refer to in paragraph 55 of these reasons that he called the mother as soon as he knew that she had made “a new application for a residency for the kids only to keep them in Australia without [his] consent” and in that phone conversation asked her to take the children back to the UK. That is not consistent with the affidavit he swore on 27 August, 2010, that I have referred to, in which he indicated he was intending to come back to Australia. The fact that he says in that affidavit[11] that he had not received any indication from any Government authority that his residency application would be declined causes me to consider that he probably did not learn that the mother had withdrawn sponsorship of the visa application, effectively cancelling it, until after he swore that affidavit. It is clear that he then asked her to return the children to Scotland.

What were the relevant factual circumstances then?

61.I have reached the conclusion that the actual events, more probably than not, are a hybrid of both of the versions presented by the mother and the father. I find:-

(i)The couple intended to move the family to Australia before they came out in March, 2010, and they had told friends, neighbours and acquaintances in Scotland and Australia that.

(ii)The couple were originally going to wait until the application for permanent residency visas was approved and the father obtained British citizenship before they left Scotland. They considered those approvals would be given.

(iii)The couple agreed to come to Australia earlier than planned to see the maternal grandmother when told she was terminally ill with only a few months to live.

(iv)The couple knew when they came to Australia in March that even if the residency visa application for the father and the children was approved whilst they were in Australia the visas could only be stamped in their passports in a country other than Australia.

(v)The couple agreed when they went to Australia that it was, in the first instance, a temporary visit, and that they would all return to Scotland, even if but for a short time, so that the father could get British citizenship and the father and the children could get their residency visas for Australia stamped in their passports.

(vi)Consistent with the agreement reached between them, before they left Scotland the father notified the City 1 in Scotland Council and the mother notified the British Government of the proposed temporary nature of the trip to Australia.

(vii)Consistent with the agreement, the father bought a return ticket to Scotland to return in early May believing the mother and children would be returning to Scotland with him or, at least, around that time.

(viii)The couple shipped belongings to Australia before they left and sold some items of furniture in preparation for the fact that they were going to be moving to Australia for good, in due course, in any event.

(ix)When they were in Australia they did separate, the father leaving the mother and the children and living somewhere else but visiting them each day, spending time with the children.

(x)The father proposed reconciliation after some days away, but the mother did not agree.

(xi)As the date of the planned return to Scotland approached, the father told the mother he was going back to Scotland in accordance with the plan to get his British citizenship and was going to spend some time with his family in Country 1.

(xii)The mother told the father before he left Australia, probably 6 May, 2010, that she still wanted to live with the children in Australia and that she did not intend to take the two children back to Scotland. She asked him to sign a document to signify his consent on a fresh application for visas for the children alone.

(xiii)The father refused to sign the document as requested by the mother and told the mother that the existing application for visas for him and the two girls was still pending and that he intended to come back to Australia at some time. But he told the mother that if he could not get residency then he did not agree to the children living in Australia either.

(xiv)He left and returned to Scotland believing that the existing visa application remained on foot, expecting that it would be approved and that he would be able to go back to Australia, still hoping that he and the mother would reconcile and that she and the children would return to Scotland at some point to get the children’s passports stamped with their visas.

(xv)After the father returned to Scotland, in telephone conversation between the father and the mother, she confirmed her intention to actually end their marriage and not to return to Scotland with the children but she also told him that she would take the children to New Zealand instead to have the visas stamped in their passports when the approval came through. She told him he could get his passport stamped with the visa in the UK at that same time. She was still prepared to go ahead with the sponsorship of the existing application at that time.

(xvi)Around 24 May, 2010, the father received the divorce application in the post and sometime after that told the mother in a telephone conversation that he would not sign it, disputing the allegations it contained as to separation and still hoping for reconciliation.

(xvii)On 9 June, 2010, the mother received the email notice about the approval of the visa application of the father and the children and soon after that she informed the Australian High Commission in London that she intended to take the children to New Zealand to have their passports stamped there. She did not then tell them at that point she was withdrawing sponsorship.

(xviii)Sometime around the end of June and the beginning of July, 2010, the mother changed her mind about continuing with the sponsorship of the application for the residency visas for the father and the children, notified the Australian High Commission in London that she was withdrawing sponsorship and in July, 2010, commenced proceedings in the Federal Magistrates Court seeking orders dispensing with the father’s consent.

(xix)The father still believed that he was going to get a residency visa on the earlier application when he swore an affidavit on 27 August, 2010, for use in the proceedings the mother had commenced in the FMC.

(xx)Between 27 August and 2 September, 2010, the father learned that the mother had withdrawn sponsorship of the application for residency visas of the father and the two children. He then asked for the mother to return the children to the UK.

62.Having regard to those findings of fact, I consider that the children were actually ‘retained’ by the mother in Australia, within the meaning of that term in Regulation 16(1A), at the time the mother informed the father that she was acting unilaterally in respect of the living arrangements for the children. That was, I find, when she told the father she was not going to return with the children to Scotland in accordance with the agreement that I have found that they had when they came to Australia. I have found that was probably 6 May, 2010, just before the father left Australia on 7 May.

Were the children habitually resident in the UK as at 6 May, 2010?

63.The Full Court confirmed in Zotkiewicz[12]  that the law about how a child’s place of habitual residence is determined has been authoritatively settled by the High Court in its decision in LK v Director-General Department of Community Services.[13] The High Court held that a wide variety of circumstances are to be considered in determining where a person is said to reside and whether that can be described as habitual.  The past and present intentions of the person or persons under consideration will have a bearing upon the significance attached to particular circumstances like the duration of a person’s connections with a particular place of residence.

64.The High Court further observed that when the habitual residence of a child is being considered it will, generally, be important to consider where the person or persons who are actually caring for the child have their habitual residence, but that consideration is not to be limited to the intentions of the parent who has the day to day care of the child. Consideration must be given to the intentions each parent has for the child. The High Court said in this context:-

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. [14]

65.Whilst being mindful of what the High Court said, I am also required to construe the Regulations having regard to the principles and objects of the Convention, recognising “that the appropriate forum for resolving disputes relating to a child’s care, welfare and development is ordinarily the child’s country of habitual residence”[15].

66.In this case there is no dispute that the children were habitually resident in the UK immediately before they left there in early March, 2010. That is not the date though at which I have to determine whether they were habitually resident there. I am also not tasked with determining whether they acquired habitual residence in Australia at some point, although consideration of that could, I consider, be helpful in determining whether they could be said to be still habitually resident in the UK at that same point, the High Court having pointed out in LK that it is unlikely that someone could be habitually resident in more than one place at the same time.

67.Having regard to the authoritative pronouncements of the High Court and the Full Court,  in making my determination I should consider whether the parents, who were together as a couple jointly exercising their rights of custody in respect of these two young children when they left the UK in March, 2010, had a shared intention that the children were abandoning their habitual residence in the UK at that time and whether the circumstances were such that “their purpose could properly be described as settled”. If I find that the children’s habitual place of residence in the UK was abandoned as they left in March, 2010, then the application must be dismissed, as that was before the time when they were retained in Australia. If I find that it was not abandoned then, the focus turns to the critical date, the date of retention of the children in Australia, which I have found to be 6 May, 2010 rather than 3 September, 2010, as the mother’s counsel submitted it would have to be on the mother’s case.

68.My findings include that the couple intended to move to Australia and abandon habitual residence in the UK when the permanent residency visas for the father and the children they had applied for were approved. When the maternal grandmother became ill they agreed to come out earlier, but only for a temporary stay.  That they shipped some of their possessions out before the temporary visit, preparatory to returning to Australia once the visas they expected to get were later approved, is not inconsistent with a finding that they had not abandoned habitual residence in Scotland and would not be doing so until the permanent residency visas were approved.

69.In accord with what the High Court said in LK, cited above, I do not consider that the mother’s unilateral change to the settled purpose of the parties on the eve of the father’s return to Scotland constituted an abandonment of the habitual residence of the family that was, I find, at that time, still Scotland. The father made his position absolutely clear to the mother when he said that if he could not have residence in Australia he did not agree to their children having it. In my view, that is as if he said “if I am not able to abandon my place of habitual residence to come and live here as was our common intention, then I no longer agree that the children’s place of habitual residence be given up for them to live here.” 

70.Accordingly, I find that at the time the children were retained in Australia by the mother their habitual place of residence remained Scotland in the UK.  I am satisfied therefore, that their retention was wrongful within the meaning of Regulation 16(1A).

DID THE FATHER CONSENT TO, OR SUBSEQUENTLY ACQUIESCE IN, THE CHILDREN BEING RETAINED IN AUSTRALIA?

71.Regulation 16(3) enlivens a discretion to refuse to make a return order if the mother, who opposes the return of the children to Scotland, establishes one or more of the pre-requisites set out in that sub-Regulation. The mother asserts the pre-requisite of the father’s consent to, or subsequent acquiescence in, her retention of the children in Australia is established in this case. I accept that it is.

72.Counsel for the applicant quite sensibly submitted that the Court may well be persuaded of the father’s acquiescence in the children’s retention in Australia, particularly given the contents of the Affidavit he swore on 27 August 2011. I am persuaded by the evidence that the father acquiesced in the children staying in Australia after the mother retained them here. Clearly, he was intending to come out to Australia again himself, as originally planned, but then learned that the mother had withdrawn her sponsorship of his visa application. He then changed his position of acquiescence but, in my view, that change, after almost three months, does not vitiate his prior acquiescence.

73.I find the discretion to refuse the return order applied for is enlivened.

HOW SHOULD THE DISCRETION BE EXERCISED?

74.The nature of the discretion that is enlivened was considered by the High Court in De L v Director-General Department of Community Services.[16]  It is “unconfined” but nevertheless must be exercised within the parameters of the Regulations having regard to their scope and limited purpose.

75.Counsel for the mother submitted that the discretion should be exercised to dismiss the application because:-

(i)The children are settled in Australia.

(ii)Proceedings under Part VII of the Family Law Act to determine the children’s best interests have been commenced here and for a period, the father participated in them with legal representation.

(iii)The mother appears to have been the primary carer for the children since their birth.

(iv)Return would likely disrupt N commencing pre-school next year.

(v)The children have spent significant periods of their life in Australia with the father’s consent.

(vi)The mother would have to re-establish a home in the UK separate from the father with little or no family and friends to support her.

(vii)If a return was ordered, the mother says she will commence proceedings in the UK for permission to bring the children to Australia and a significant number of witnesses in those proceedings are likely to be in Australia.

76.Counsel also submitted that the only factor that supports a return to the UK is that the father resides in the UK and that the children had friends there. Further, counsel submitted that the purpose and intent of the Convention does not “weigh particularly heavily” in this case where the father voluntarily left Australia in early May, 2010, and took no decisive action to seek their return to Australia until December, 2010.

77.With respect to counsel, I do not accept that submission. In actual fact, consideration of the purpose and intent of the Convention does weigh very heavily in the exercise of my discretion in this case.

78.The father left Australia in May, 2010, in accord with the plan for the family to return to Scotland, after a temporary visit to Australia, to await the grant of his British citizenship and the approval of Australian residency visas for him and the children so that the entire family could move to Australia and make a new life.

79.The mother unilaterally determined not to return with the children to Scotland at the end of that temporary visit, informing the father that she considered their marriage ended. Knowing that was the mother’s intention when he left Australia, the father nevertheless expressed his own intention to return to Australia to be here near his children. He maintained that intention until he learned that the mother had withdrawn her sponsorship of his residency visa application and had applied to Court here for orders dispensing with his consent to the children living here.  The mother adopted that position after, on her own admission, having heard the father say that if he could not live here, he did not consent to the girls living here and with no apparent regard for whether or not the father would be able to still secure Australian residency without her sponsorship and support.

80.Whilst the parents remain in dispute as to whether it is in the best interests of the children to move them to Australia to live, in circumstances where the father may not be able to secure Australian Government approval to move here to live himself, consistent with the purpose and intent of the Hague Convention, that dispute is, I find, best determined in the UK, where they were habitually resident before their common purpose fell asunder. I hold to that view regardless of where witnesses might come from. The parents themselves will be the two principal witnesses in any such case and both can lawfully live and work in the UK. Both cannot do that here.  

81.The children are still very young and not yet in formal education and as long as their mother returns to the UK with them, I consider that they will cope with the disruption in their lives that the return will cause. The mother’s evidence, which I accept, is that she will return with the children to the UK if their return is ordered. 

82.Returning the children to the UK ensures they are in a position to spend meaningful time with their father as soon as possible whereas refusing a return order could result in them not spending any time with their father for the foreseeable future and, potentially, never again. Refusal of a return order would, therefore, not be in their best interests.

83.The Part VII Family Law Act proceedings commenced here were really commenced by the mother in an attempt to secure residency of the children here without the father’s consent.

84.The family’s council flat in City 1 in Scotland is still occupied by the father and he has sworn that he would make it available to the mother and the children to live in if they return to Scotland.

85.For these reasons, I do not refuse the return order sought by the applicant in respect of these two children. I will make it. In the first instance, I ask the applicant, after discussion with the mother’s solicitors, to bring in a minute of the orders that the applicant contends should now be made to most appropriately give effect to my decision. If necessary, I will hear submissions in respect of the appropriateness of those proposed orders if there is disagreement about them.  

I certify that the preceding eighty five (85) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 26 August 2011.

Associate: 

Date:  26 August 2011

[1]The Family Law (Child Abduction Convention) Regulations 1986 giving effect to Australia’s obligations under the Convention on the Civil Aspects of International Child Abduction signed at The Hague in the Netherlands on 25 October, 1980

[2] s 140 Evidence Act 1995

[3]This is another element required under Regulation 16(1A) for the children’s retention in Australia to be considered wrongful under the Regulations

[4] [2011] FamCAFC 147

[5]Panayotides v Panayotides (1996) 21 Fam LR 446, Director-General of the Department of Community Services & Timms (aka Black) (2008) FLC 93-376

[6]De L v Director General & NSW, Department of Community Services & Anor (1996) FLC 92-706, LK v Director-General, Department of Community Services (2009) 237 CLR 582, MW v Director General, Department of Community Services (2008) 82 ALJR 62

[7] See Re F [1992] 1 FLR 548 per Lord Butler-Sloss at pages 533-534

[8]          Filed 1 July 2011 paragraph 102

[9]          Part of Annexure SJW3

[10]         Filed 13 July 2010 and part of exhibit SJW3 to her affidavit filed in these proceedings on 1 July, 2011

[11]         Affidavit sworn 27 August, 2010 paragraph 7

[12] [2011] FamCAFC 147 at [97]

[13] (2009) 237 CLR 582

[14]         At paragraph 34

[15]         Confirmed by the Full Court in Zotkiewitz at paragraph 83 by reference to Regulation 1A

[16](1996) FLC 92-706 at page 83,456 by Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ in their joint judgment; see also the judgment of Kirby J at page 83,471.