Department of Communities (Child Safety Services) and Fraser

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF COMMUNITIES (CHILD SAFETY SERVICES) & FRASER

[2010] FamCA 340

FAMILY LAW – CHILD ABDUCTION – Hague convention – Habitual residence – Mother bringing children from New Zealand to Australia – Appropriate time for determining habitual residence – Whether children habitually resident in New Zealand or Australia – Whether intention decisive of habitual residence or whether consideration of wide variety of circumstances permitted – Whether parent ceased habitual residence in New Zealand without making a final decision not to return there – “Rights of custody” – Cessation of agreed time in another country – Family Law (Child Abduction Convention) Regulations regs 4 15, 16(1A)

Family Law Act 1975 (Cth)
Family Law (Child Abduction Convention) Regulations 1986
Guardianship Act 1968 (NZ)

Artso v Artso (1995) FLC 92-566
Cooper v Casey (1995) FLC 92-575
DJL v The Central Authority (2000) 201 CLR 226
DP v Commonwealth Central Authority; JLM v Director-General New South Wales Department of Community Services (2001) 206 CLR 401
The Director-General Families, Youth and Community Care Queensland v A [2000] FamCA 738
Director-General, Department of Community Services v Crowe (1996) FLC 92-717
Hanbury-Brown and Hanbury-Brown (1996) FLC 92-671
Henry v Henry (1996) 185 CLR 571
LK v Director-General, Department of Community Services (2009) 237 CLR 582
McCall and McCall: State Central Authority (Applicant); Attorney-General (Intervenor) (1995) FLC 92-551
Murray v Director, Family Services (ACT) (1993) FLC 92-416
Panayotides and Panayotides (1997) FLC 92-733
Punter v Secretary for Justice [2007] 1 NZLR 40
Re B (Minors) (Abduction) (No 2) [1993] 1 FLR 993
Re H and Anor(minors) [1991] 3 All ER 230
Re H (minors) (Abduction: Acquiescence) [1998] AC 72
State Central Authority v McCall (1995) FLC 92-552
Voth v Milandra Flour Mills Pty Ltd (1990) 171 CLR 538

APPLICANT:

Director-General, Department of Communities (Child Safety Services)

RESPONDENT:

Ms Fraser

FILE NUMBER:

BRC

2374

2010

DATE DELIVERED:

4 May 2010

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Murphy J

HEARING DATE:

21 April 2010

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr Parrott of Crown Law

THE RESPONDENT:

In person

Orders

THAT the Application by the Central Authority filed on 12 March 2010 be dismissed.
THAT the Cross-Application filed by the respondent mother on 14 April 2010 be dismissed.
THAT all previous orders be discharged.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 2374 of 2010

DIRECTOR-GENERAL, DEPARTMENT OF COMMUNITIES (CHILD SAFETY SERVICES)

Applicant

And

MS FRASER

Respondent

REASONS FOR JUDGMENT

The parents of E, who was born in January 2003 and N, who was born in July 2004 were in a de-facto relationship for about 5 years from 2001 until September 2006. The parties are New Zealand citizens and lived in that country with the children during the course of their relationship and after they separated.
At the end of 2007, the mother advised the father that she intended moving permanently to Australia shortly thereafter and intended that the children would reside permanently with her here. In early 2008, she and the children moved to Australia with the father’s agreement, but in circumstances where the mother promised to return with the children to New Zealand so that the father could spend holiday time with them.
The mother has remained in Australia since and the father in New Zealand. The children have, however, shared their time between the two countries in circumstances that will be referred to in more detail below.
In December 2009, the children, who had been living for a period of time with the father in New Zealand, came to Australia for a holiday with the mother. It is asserted by the applicant Central Authority that, as and from 16 January 2010, the mother retained the children in this country wrongfully, within the meaning of Regulation 16(1) of the Family Law (Child Abduction Convention) Regulations 1986 (“the regulations”).
As a result, an order is sought that the children be returned to New Zealand together with ancillary orders designed to effect that return.

Overview and Threshold Findings

Within the meaning of Regulation 16 of the regulations, the evidence clearly establishes that:
·   An application has been made to this court under sub-Regulation 14(1) for an order for the return of children allegedly retained in Australia. (Reg 16(1)(a));
·   Each of the children is under sixteen years of age (Reg 16(1A)(a));
·   The application is made within one year of the children’s alleged retention on 16 January 2010 (Reg 16(1)(b)); and
·   New Zealand is a Convention Country (Reg 16(1A)(b)).
Thus, the return of the children to New Zealand should be ordered if I am satisfied that (a) the children were habitually resident in New Zealand as at 16 January 2010; (b) that the father had, and was exercising, “rights of custody” as at that date and (c) none of the “defences” prescribed in Reg 16(3) apply.
The mother is self-represented and has prepared her own material in answer to the application. In her material, she seeks an order that the children “stay in the country of Australia with their mother … until a Parenting Order can be sought”. It is not immediately apparent from the Form 2A filed by the mother what the specific basis for that order might be, although a reading of the document as a whole might readily lead to the conclusion that a central issue is habitual residence (Reg 16(1A)(b)).
No case is apparent from the material filed by the mother, nor from any matters adduced during oral submission, that suggests that a case is mounted for any “defence” provided for in Regulation 16(3).
Counsel for the Central Authority, Mr Parrott, prepared written submissions (and prepared for the hearing more generally) based on meeting a case centred on the issue of “habitual residence”. The Form 2A and accompanying affidavit of the mother were not, through her mistake, served on the applicant. Mr Parrott takes no point in respect of same. Early in the hearing, the mother indicated a reliance upon an assertion that the father did not have “rights of custody” (Reg 16(1A)(c)) (or she was not acting in breach of any rights of custody of his (Reg 16(1A)(d)) as at the date of the alleged retention.
Understandably enough, the mother did not articulate her submission in those terms, but it seemed to me that the thrust of her submissions squarely raised that issue. Bearing in mind her self-represented status, I reframed her assertions in that manner and afforded Mr Parrott the opportunity to make submissions in respect of same.

Habitual Residence and Rights of Custody – Principles

Rights of Custody

Regulation 4(2) provides:
For the purpose of sub-regulation (1), rights of custody include rights relating to the care of the person of the child and, in particular, the right to determine the place of residence of the child.
No “custody order” has been made between the parties. Accordingly, each is a guardian according to New Zealand law. (s. 3 Guardianship Act 1968 (NZ)). The rights of a guardian under New Zealand law are “rights of custody” for the purposes of the regulations. (Director-General, Department of Community Services v Crowe [1996] FLC 92-717).
“Retention” within the meaning of the regulations is something which occurs on a specified occasion as distinct from a continuing state of affairs. (Artso v Artso [1995] FLC 92-566 at 81,638; Murray v Director, Family Services (ACT) [1993] FLC 92-416 at 80,252). In the latter case, the Full Court held (at 101) that:
Remembering for the purpose of the Regulations that removal encompasses both removal and retention within the meaning of the Hague Convention, it is nevertheless clear that the court is being asked by the sub-regulation in the case of a removal, to look at the time when the removal occurred, and in the case of retention, to look at the situation at the time that the retention first occurred. [emphasis added]
The Full Court also referred to the Travaux Preparatoires to the Hague Convention and, in particular, para 108 which includes this statement:
The fixing of the decisive date in cases of wrongful retention should be understood as that on which the child ought to have been returned to its custodians or on which the holder of the right of custody refused to agree to an extension of the child's stay in a place other than that of its habitual residence." [emphasis added]

In The Director-General Families, Youth and Community Care Queensland v A [2000] Fam CA 738 (appeal dismissed: [2000] FamCAFC 1251), Jerrard J said, referring to the decision of the Full Court in Crowe, above:
In [Crowe] the Full Court considered these very rights given by the New Zealand Guardianship Statute and the effect of a, if one likes, delegation of that right of custody to another person by the relevant parent. It seems plain enough that actions of a person with a right of custody in arranging to have children cared for by another, is not a surrendering, abandoning, waiving or giving away of those rights of custody; which that parent continues to have the right to continue to exercise. This right exists whether or not a like right exists in another.
Wrongful retention occurs “the moment [a party] refuse[s] [the other party] permission to return the children to their country of habitual residence”. (Artso v Artso (1995) FLC 92-566 at 81,638 per Mushin J).
Retention occurs when “… a child, which has previously been for a limited period of time outside the state of its habitual residence, is not returned to that state on the expiry of such limited period” (see Murray v Director, Family Services (ACT) (1993) FLC 92-416 at 80,252 citing Lord Brandon in re H and Anor (minors) [1991] 3 All ER 230). Habitual residence is to be determined at the date of the wrongful retention (see Reg 4(1)(a); Artso v Artso, above @ 81,638; Panayotides and Panayotides (1997) FLC 92-733.

Habitual Residence

Because judicial expressions of the concept of habitual residence have adopted expressions such as “voluntarily adopts” places of residence for “settled purposes” or “settled intention”, agreements between separated parents who each hold rights of custody, can be seen to be an important – indeed crucial – part of the considerations relevant to a determination of habitual residence in a particular case.
The corollary is crucial to applications of the type confronted by the court here: one parent cannot unilaterally determine their child’s habitual residence. (See eg. State Central Authority v McCall [1995] FLC 92-552; Panayotides v Panayotides (1997) FLC 92-733).
Equally, though:
…once an intention to adopt a habitual residence has been reached and acted upon in a decisive way so as to provide a degree of certainty and continuity, then it may be open to a Court to find that a habitual residence has been changed from that point. (Cooper v Casey [1995] FLC 92-575 at 81,694).
Recently, the High Court examined comprehensively the concept of habitual residence. (LK v Director-General, Department of Community Services (2009) 237 CLR 582; French CJ, Gummow, Hayne, Heydon, Kiefel JJ) (“LK”). It is important to examine that decision in some detail.
Here, the written submissions of the Central Authority include the assertion that “a child can have only one habitual place of residence at any one time”. In support of that proposition, the decision of the Full Court in Hanbury-Brown and Hanbury-Brown (1996) FLC 92-671 (per Ellis, Lindenmayer and Finn JJ at par 5.53) is cited: “… The notion of dual habitual residence is simply inconsistent with the wording of the Contravention and with all known judicial pronouncements upon it”.
The High Court said in LK (at par 25):-
Accordingly, it is unlikely, although it is not necessary to exclude the possibility, that a person would be found to be habitually resident in more than one place at the one time. But even if a place of habitual residence is necessarily singular, that does not entail that a person must always be so connected with one place that it is to be identified as that person's place of habitual residence. So, for example, a person may abandon a place as the place of that person's habitual residence without at once becoming habitually resident in some other place; a person may lead such a nomadic life as not to have a place of habitual residence.
While, it is to be noted, the Justices of the High Court themselves may have left open the question of whether a person can have more than one place of habitual residence, the earlier proposition, expressed in the manner in which it was, must now, as it seems to me, be open to at least some doubt.
What is clear, though, is that a person may leave behind a place of habitual residence without acquiring another one.
The High Court held in LK that, when considering where children are habitually resident:
34.… attention cannot be confined to the intentions of the parent who, in fact, has the day to day care of the child. It will usually be necessary to consider what each parent intends for the child. When parents are living together, young children will have the same habitual residence as their parents. No less importantly, it may be accepted that the general rule is that neither parent can unilaterally change that place of habitual residence. The assent of the other parent (or a court order) would be necessary. But again, if it becomes necessary to examine the intentions of the parents, the possibility of ambiguity or uncertainty on the part of one or both of them must be acknowledged.
The High Court went on to say:
35.… to seek to identify a set list of criteria that bear upon where a child is habitually resident, or to attempt to organise the list of possible matters that might bear upon the question according to some predetermined hierarchy of importance, would deny the simple observation that the question of habitual residence will fall for decision in a very wide range of circumstances. An examination of decided cases in the area does not require the identification of a closed set of criteria, or the attribution of predetermined weighting between them.
But:
22.To approach the term only from a standpoint which describes it as presenting a question of fact has evident limitations. The identification of what is or may be relevant to the inquiry is not to be masked by stopping at the point of describing the inquiry as one of fact. If the term "habitual residence" is to be given meaning, some criteria must be engaged at some point in the inquiry and they are to be found in the ordinary meaning of the composite expression. The search must be for where a person resides and whether residence at that place can be described as habitual.
23.Having regard, however, to the stated determination to eschew definition of the expression in its use in the Abduction Convention, and other instruments derived from the work of the Hague Conference, it would be wrong to attempt in these reasons to devise some further definition of the term intended to be capable of universal application. Rather, it is sufficient for present purposes to make two points. First, application of the expression "habitual residence" permits consideration of a wide variety of circumstances that bear upon where a person is said to reside and whether that residence is to be described as habitual. Secondly, the past and present intentions of the person under consideration will often bear upon the significance that is to be attached to particular circumstances like the duration of a person's connections with a particular place of residence.
In seeking to underscore those same points (and, also, as it seems to me, to underscore the fact that applications pursuant to the Regulations are about forum, and not about the merits of a parenting case), the High Court went on to say:
26.In deciding where a child was habitually resident at an identified time, it is, no doubt, important to consider the context in which the enquiry is required. Here, the chief contextual consideration is thus, in accordance with the Abduction Convention, the purposes of the regulations, is to facilitate resolution of disputes between parents relating to child’s care, welfare and development in one forum – the child’s country of habitual residence – rather than any other forum. While that may tend in favour of a finding that a child does have a place of habitual residence, neither the Regulations nor the Abduction Convention provides for a particular vindication or enforcement of rights in relation to the child. Vindication and enforcement of rights is to be a matter for the forum to which the Regulations and the Abduction Convention point: that of a child’s habitual residence.
Having conducted an extensive review of the authorities (both in Australia and elsewhere), the High Court turned to consider the principles underlying how habitual residence might be determined. It is, I think important to quote what the Court said at some length.
40.But for the reasons given by Lord Scarman in Shah's Case, it would be wrong to treat the references to settled purposes (or settled purpose or intention) as importing the old law of domicile by directing an inquiry in cases arising in connection with the Abduction Convention into whether the person whose place of residence is in issue is shown to intend to live there permanently or at least indefinitely. Rather, as Waite J rightly said in Re B (Minors) (Abduction) (No 2), the effect of decisions in the United Kingdom about the Abduction Convention, particularly the decision of the House of Lords in re J, is that:
" Habitual residence is a term referring, when it is applied in the context of married parents living together, to their abode in a particular place or country which they have adopted voluntarily and for settled purposes as part of the regular order of their life for the time being, whether of short or of long duration.
All that the law requires for a 'settled purpose' is that the parents' shared intentions in living where they do should have a sufficient degree of continuity about them to be properly described as settled." [emphasis added by the High Court]
…
42.… if references to settled intention were to be understood as requiring inquiries about intention like those that are necessary to the application of the law of domicile, such an understanding would be sharply at odds with the use of the expression "habitually resident" in the Regulations and the Abduction Convention in preference to domicile .
…
44.In … Punter v Secretary for Justice … the plurality reasons of the Court of Appeal of New Zealand (Anderson P, Glazebrook, William Young and O'Regan JJ) … [said] …:
" Such [a broad factual] inquiry should take into account all relevant factors, including settled purpose, the actual and intended length of stay in a state, the purpose of the stay, the strength of ties to the state and to any other state (both in the past and currently), the degree of assimilation into the state, including living and schooling arrangements, and cultural, social and economic integration. In this catalogue, SK v KP held that settled purpose (and with young children the settled purpose of the parents) is important but not necessarily decisive. It should not in itself override what McGrath J called, at para [22], the underlying reality of the connection between the child and the particular state".
As the plurality rightly said, the search is for the connection between the child and the particular state. That being the nature of the search the plurality's references to settled purpose are to be read as directing attention to the intentions of the parents. But as explained earlier in these reasons, the relevant criterion is a shared intention that the children live in a particular place with a sufficient degree of continuity to be properly described as settled. So understood, there is no disconformity between the approach of the New Zealand courts and the need, identified by Lord Brandon in re J, to decide the question of habitual residence "by reference to all the circumstances of any particular case" [emphasis added by the High Court].
45.Moreover, the approach described in Punter accords with the general tenor of decisions in the United States of America … [A] thread common to the leading decisions in the United States remains the need to look at all of the circumstances of the case. And it is that approach, as described in Punter, which should be followed.
[footnotes and citations omitted]

What Circumstances Saw The Children in Australia on 16 January?

As the earlier statements of principle make clear, in seeking to determine where the children were habitually resident (if anywhere) on 16 January 2010, the past and present intentions of the parties will likely “bear upon the significance that is to be attached to particular circumstances like the duration of the … connection with a particular place of residence”.
Here, there is no doubt that the children had been living in New Zealand with the father between July 2009 and 11 December 2009 prior to joining the mother in Australia for an agreed Christmas holiday occasion.
Equally, there is no doubt that, despite the fact that the parties are each New Zealand citizens and resided with the children in that country both during their relationship and post-separation, agreement between them has, from about the beginning of 2008, affected the manner in which each of them have interacted as joint guardians of the children and the manner in which they have exercised their rights of custody – which, I find, they each had and each exercised).
The affidavit of the father identifies a number of (oral) agreements between he and the mother about the children moving between them in New Zealand and Australia for significant periods of time as follows:
·An agreement that the children could live with their mother in Australia when she moved there permanently at the beginning of 2008 – the agreement occurring at the end of 2007 (par 14);
·An agreement occurring in July 2008 when the mother took the girls to New Zealand for a holiday that:
o the children would remain in Auckland for six months, until January 2009; and
o “At the end of that six months the girls would go back to Australia for either six months or a year. At that time we had not finalised any agreement on the amount of time they would then remain in Australia”. (par 14)
·An (apparently subsequent) agreement that the children would stay in Australia from January 2009 to July 2009 (par 16). That agreement was made (I infer from what is deposed at paragraph 16) during the period July 2008 to December 2008.
The mother accepts there was an agreement about the first period of time as alleged. So, too, she accepts that there was an agreement that the children would live in New Zealand with the father between July 2008 and January 2009 and with her in Australia from then until July 2009. She does not agree that, as at January 2009 the children would return to her for “either six months or a year”; she says there was agreement for six months. Irrespective of that issue, it is agreed between the parties that the children lived in those countries for those respective periods of six months.
Further, each of the parties agree that the time that the children would spend with each of them in their respective countries was attended by the parents (each and both) putting into place such things as might be expected of children enjoying an immersion into that country’s social and cultural environment. (Examples include child care arrangements, school enrolments and medical practitioners and appointments).
The evidence of each of the parties is also redolent of an apparent agreement that the children’s time with each of them in the respective six month periods up to July 2009 should be continuous and uninterrupted by the other.
Despite some statements apparently to the contrary, no agreement about “block periods” of time after the January – July 2009 period is, in fact, apparent from the evidence of the father (save for a holiday period agreed (ultimately) to commence on 11 December 2009). The position revealed by the father’s sworn evidence is as follows:
·The father deposes that on 29 June 2009 he “travelled to Australia and picked up the girls” (par 19);
·The father does not depose to there being any agreement about the length of time that they would remain with him, deposing instead (in his affidavit sworn on 10 February, 2010) effectively swearing to the issue: “… since July 2009 the children have resided in New Zealand” (par 20);
·The father deposes to discussions between he and the mother occurring “over the last six months while the children have been in New Zealand [i.e. from July 2009 onwards] (par 26);
·The father goes on to depose: “We had agreed that the girls would stay in New Zealand until July 2010 (in other words for a full year). [Discussions] deteriorated when I tried to extend their stay [in New Zealand] beyond that to July 2010. (par 27).
But, if there was any such “agreement” to “extend their stay … to July 2010”, it is not evident, from what the father deposes, where or when that agreement was made and, in particular, what words or actions of the mother are said by him to signify it.
Moreover, in the absence of any such deposition, the assertion just quoted from par 27 of the father’s affidavit would appear to run contrary to that which is deposed at paragraph 14 of the affidavit (also quoted above).
Furthermore, that part of paragraph 27 quoted above is inherently contradictory; if there was an agreement to stay in New Zealand until July 2010, how could there have been a breakdown in discussions which were directed to an attempt to extend the time beyond “that” to July 2010. In terms, the paragraph suggests an agreement to (an unspecified) period terminating earlier than July 2010, thereby necessitating the extension to July 2010 deposed to.
That interpretation is more consistent with paragraph 14 of the same affidavit which deposes to it being “agreed” that, in July 2009, the children would “go back to Australia for either six months or a year”, noting, in addition, that this paragraph concludes with the statement “At that time we had not finalised any agreement on the amount of time [the children] would remain in Australia”.
As the outline of the evidence just referred to demonstrates, it is difficult to determine from the father’s affidavit just what it is that he says “the agreement” between the parties was beyond July 2009 (apart, of course, from the agreed December holiday period).
It should be observed that, if there had been a prior agreement that established the future pattern of alternate six-month periods with each parent in different countries which in fact occurred until July 2009, the children would have been due to return to the mother and live in Australia from about January 2010. The mother so alleges. She deposes (at pp 4-5 of her affidavit):
…initially [after announcing plans to move to Australia] we were intending for the children to stay with their Dad on school holidays. This was later found to be a costly exercise and it was decided that the children would stay with each of us for 6 months at a time. This arrangement continued without issue until July 19 2009. It was at this time that I expressed to [the father] that due to the children’s education the duration of the stay with either parent currently being 6 months was no longer ideal and I indicated to him that when they returned to my care in December 2009 (as originally planned) that they should stay for a 12 month period (the school year) starting from January 2010 and finishing in December. [emphasis added]
[The father] agreed that 12 months was a better time frame with the children’s education in mind however he wanted to start straight away as they were in his care at the time and wanted to extend it beyond the normal finish of his period which would have been December [2009] and retain the children until July 2010. This would in fact effectively take my time away which was originally January through July 2010.
The mother goes on to depose:
I disagreed that the 12 month period should start from July to July as it would not be in the best interests of the children’s education which was in fact the reason for wanting to extend the 6 month time frame to 12 months in the first instance.
I felt that changing countries, schools and houses mid year was hugely detrimental to the children’s wellbeing in general … [By] October 2009 after numerous phone calls and attempts to reach an understanding … I advised [the father] I would be seeking legal advice, retaining the services of a lawyer and seeking a legal parenting order.
[The father] vehemently opposed the idea and expressed this a number of times both over the phone and over Facebook in emails.
Despite this disagreement the arrangements for the children to spend Christmas 2009 with me … and the following 6 months remained. It was the last standing arrangement we had and no changes to this had been agreed to by either party at this stage. [emphasis added].
The Central Authority contends in written submissions:
37.It is submitted that the Facebook exchange between the father and mother on October 13 2009 in which he raises the issue of plans for the children sets the context for all future communications. In particular, he discusses the issue of July 2010 as the next possible return date for the children to Australia, aside from any holidays at Christmas. In particular, he states, “I have reluctantly decided that [the children] will go back to Australia in July 2010”. He then goes on to state subsequently, “A discussion about how long [the children] will be with you in Australia now needs to be addressed”.
38.It is within this context that the father and mother negotiate the Christmas travel for the children. It is the mother acting in apparent agreement with those timeframes that the Court must consider the children’s place of habitual residence. It is submitted that even in the mind of the mother on the face of this exchange the children were habitually resident at the relevant time in New Zealand. That is they were to have been in New Zealand from July 2009 until at least July 2010. At which time they would be returned to Australia and further negotiations would take place in relation to where they would continue to reside and how long they would reside in Australia.
The submission in the last two sentences is, apparently, an acceptance of the father’s assertion earlier referred to that there as an agreement to that effect. It is said by the Central Authority that, when read in the context of the other e-mails set in the context of the first of them earlier referred to, that this evidences an agreement to return the children to the father.
It seems to me that, rather than being evidence of agreement, the first of the e-mails is redolent of the opposite. First, it refers to past conflict and talks about a need for future discussions, specifying a belief that discussion can resolve “all conflict”. Secondly, it relates “an understanding” of what the mother might want. Thirdly, rather than signifying agreement to a specified proposal of the mother, it asserts what the father has “reluctantly decided” about July 2010 and the same sentence concludes: “A discussion about how long [the children] will be with you in Australia now needs to be addressed”. That e-mail and those which follow it cannot be divorced from the sworn evidence of the father earlier referred to. I refer again to what I regard as the inconsistency inherent in paragraph 27 of the father’s affidavit.
Equally, however, I find it difficult to see how the mother’s assertion in her affidavit earlier quoted that there was an agreement for Christmas 2009 “and the following six months” is consistent with the evidence as a whole. In particular, an e-mail authored by her on 23 November 2009 says:
I appreciate you need return dates for the girls, I can’t give you a specific date as yet because I have not yet booked their flights. As you know flying is an expensive cost and paying for the girls flights and mine this December was not an expected cost until you advised me at Brisbane airport in July – (it takes me that long to save up funds) likewise the January flights will likely be paid for with the wages I earn over December – (penal rates etc) but as soon as I have booked them I will let you know dates/times etc for pickup …[emphasis added]
That e-mail clearly contemplates (a) the possibility of return flights (which can only be to New Zealand, that being the country from which the children have come), and (b) flights to accommodate that return in January.
The mother contended in oral submission that the e-mail is indicative of - or not contrary to – her position which was that she contemplated two sets of flights during the period under discussion; flights to end the December holiday period and a subsequent flight to start her “block period” later in January. That, she asserts, is consistent with what she asserts is the continuance of a central agreement for alternating six-monthly periods.
The cost of flying between the two countries was (understandably enough) a significant issue for the mother flagged in e-mails. It seems to me inherently unlikely that the mother would be suggesting to the father that the children should travel to Australia for a holiday only to return to New Zealand (for what could only have been for a maximum of a few weeks) before returning to Australia if, in fact, there was an agreement in place that the children would come to her for a December holiday and remain for six months. Had that been the intention, I would have expected to see that issue raised directly and specifically in the e-mails. It was not.
Moreover, at par 14 of an affidavit filed on 14 April, the mother deposed that, in light of “the escalating disagreements” with the father “I advised him that I would not send the children to him for [E’s] birthday and that … the girls would remain in my care”. She does not say when that conversation occurred. No such indication is given in the e-mails exhibited to the father’s affidavit. I should say that the mother asserts that the discussions evidenced by those e-mails (annexed to the father’s affidavit) are not the totality of the discussions between them at this time about this issue and that there were many telephone communications at the same time. I accept this; it seems to me to be inherently likely given the pendency of the trip and the issue central to it and at least one of the e-mails (November 4 2009 at 3.48pm) is indicative of there being a communication of some sort between that e-mail and the one which preceded it.
However, the fact that I do not accept that there was an agreement in place that would see the children live with the mother for the six months after December 2009 does not mean that there must have been an agreement that the children would remain in New Zealand until July 2010.
In my judgment, when looked at as a whole, the evidence reveals that the parties were not in agreement about the specifics of the children’s care beyond July 2009.
What is revealed, in my view, is a general intention, shared between the parties, that the children would live with each of them in different countries for significant periods of time and that this would occur in a way that best accommodated the children’s educational needs. But, there was no agreement about when that would start, with whom it would start and the periods of time that the children would spend with each party. Specifically, while the mother agreed with the children being in New Zealand with the father from July 2009, and the parties agreed to the children to returning to Australia for a holiday commencing December, no agreement had been reached as to what “block period” of time the children should spend with each parent.
I consider that what in fact the evidence reveals is that, from about early 2008, each party was committed to a broad general principle that the children would spend significant periods of continuous and uninterrupted time with each of them in each of Australia and New Zealand and acted in accordance with that shared intention. That shared intention remained despite them being unable to agree about future arrangements beyond July 2009. However, when their lack of agreement became increasingly apparent, each determined to act in accordance with their preferred position. Thus, the father asserted an agreed position for the period July 2009 – July 2010 and the mother asserted an agreed position from December 2009 when, in fact, neither had been agreed.
Thus, the mother was prepared to allow the father to have “his time”, being the six months that would otherwise have fallen in the pre-existing sequence, but determined to put her position into operation by withholding the children after the holiday period. Her prevarication about return dates evident in the e-mails occurred because she did not intend to return the children. In a similar vein, the assertions by the father which recounted an “understanding” of the mother’s position were disingenuous; he knew the parties were not in agreement but sought to assert his position as an agreed position. He “permitted” the holiday period because doing so was consistent with that position. Furthermore, each of the parties so acted while nevertheless being committed (each and both) to the underlying intention earlier identified; what confounded them was the mechanics of it.
Of course, the search in the instant context is not for agreement per se, but rather what any such agreement, or lack of agreement, might say about the parties’ intentions, including their shared intentions which are, in turn, but part of “a broad factual inquiry” about the “reality of the connection between the [children] and the particular state”. “The search”, as the High Court reminds us, “must be for where a person resides and whether residence in that place can be described as habitual”.
Before dealing with that central issue in the context of the findings just made, I observe that, in this case, agreed (albeit informal) arrangements have seen children pass from one contracting state to another for two years. Now, for the (legitimate and understandable) reason that future co-parenting arrangements should accommodate the children’s educational needs, a disagreement (itself understandable) has ensued. That such a dispute should arise in the circumstances of this case is, perhaps, unsurprising. Yet, the underlying nature and extent of this dispute is, to my mind at least, hardly the stuff of international child abduction and the application of regulations designed to deal (in a summary way) with “wrongful retention” - at least as that concept, and the concept of “international child abduction”, might commonly be conceptualised.
This is not, as it seems to me, a case where unilateral, cross-border actions by one parent have sought to deny the courts of an established, pre-existing place of habitual residence the proper conduct of proceedings. This is a parenting dispute with international elements in respect of which, to the extent that forum is an issue, could be (and, arguably, perhaps should be) accommodated within familiar forum non conveniens principles – in the courts of either Australia or New Zealand. Those principles are familiar to the law of each country.
That said, this matter has been accepted for prosecution by the Central Authority. As Justice Callinan said (in a Convention case, but in a slightly different context), “…the international arrangements and their adoption in this country provide a, indeed the, code for the way in which the future welfare of a child who has been removed from a subscribing country, is to be determined” (DJL v The Central Authority (2000) 201 CLR 226 at para 191). (With respect, it seems that the word “wrongfully” is to be understood as qualifying the word “removed”). Mr Parrott rightly submits that this court has no residual discretion save in the circumstances prescribed by Regulation 16(3) which are not relevant here. If the relevant matters prescribed by the regulations are made out, an order must be made.

Habitual Residence as at 16 January 2010?

The factual findings just made permit of a number of possible ultimate findings about the children’s habitual residence. The first is that, despite what occurred after the beginning of 2008, the children retained their habitual residence in New Zealand. This outcome is contended for in the Central Authority’s written submissions. It is there said: “… that the habitual residence of the children remain in New Zealand notwithstanding the earlier previous agreements”.
The submissions continue:
40.On the face of the material it is submitted that there was no intention to abandon New Zealand as a place of the children’s habitual residence. While the initial conditional travel to Australia may have suggested that there was an intention to abandon New Zealand as a place of habitual residence. However, subsequent events including the father’s dissatisfaction with the mother’s compliance with the condition to allow the children to leave, together with the ongoing six monthly return trips between Australia and New Zealand and the enrolment of the children in the schools in New Zealand are all inconsistent with an intention to abandon New Zealand as the children’s place of habitual residence.
41.However, it is submitted that it is not necessary to make such a finding. The communications as between the parents between the period July to December 2009 indicate that even in the mind of the mother, the children were to have been returned at the end of that period. In particular the emails exchanged on Facebook clearly demonstrate that the understanding of the mother was that the intention was that the children be returned to New Zealand. The Facebook message dated November 23 2009 states “I appreciate that you need return dates for the girls, I can’t give you a specific date as yet because I have not yet booked their return flights. As you know flying is an expensive cost and paying for the girls’ flights and mine this December was not an expected cost until you advised me in Brisbane airport in July that (it takes me that long to save up funds) likewise the January flights will be paid for with the wages I earn over December – (penal rates etc.) but as soon as I have booked them I will let you know dates/times for pickup.”
I reject those submissions, and their conclusion, in respect of habitual residence. To find, as originally contended by the Central Authority, that New Zealand had not been abandoned as a habitual residence because of the conditional nature of the children’s residence in Australia, would be to fly in the face of the agreements which each of the parties concede they made reflective of their shared intentions both leading up to the mother’s move to Australia and thereafter. From when the children joined the mother in Australia in 2008, it cannot be said that the shared intention of the parties was that the children were residing in Australia conditionally - or even temporarily. For example, discussions were not about when the children would return “home” to New Zealand but, rather, how and when the children would spend significant time with each of their parents in each of two different countries.
After early 2008, I find it difficult to see how the children could be described as continuing to reside in New Zealand and even more difficult to see how it could be said that they did so “habitually”. While, of course, they clearly had connections with New Zealand, given their ages, the primary connection was their father (and his nurturing of them) just as their primary connection with Australia was their mother (and her nurturing of them).
In my view, the children abandoned New Zealand as their habitual residence from when they commenced to live in Australia with their mother with the consent of their father. The further questions are, though, did they acquire a new place of habitual residence thereafter, and, if so, where and when?
In oral submissions, after discussion about the ramifications of the decision of the High Court in LK, counsel for the Central Authority submitted that the children acquired two new places of habitual residence (but not at the same time). Mr Parrott submitted that the children became habitually resident in Australia “a very short period of time” after commencing their (agreed) period of time with the mother in this country and, subsequently, abandoned that place of habitual residence and became habitually resident in New Zealand “a very short time after” commencing their (agreed) period of time with their father in New Zealand.
Thus, the submission is that the children had, in effect, alternating places of habitual residence, each existing at different times depending upon where and with whom they were residing. Implicit in the submission is an acceptance that the previous place of habitual residence is abandoned at the end of (or “a very short period of time after the end of”) the earlier agreed period (and place) of residence, upon subsequent agreement as to residence in an alternative agreed place.
In her oral submissions, the mother not only conceded that proposition, but actively argued for a finding to that effect. I emphasise again, however, that the mother was self represented and I do not take her as embracing the legal concepts inherent in the acceptance of the Central Authority’s submissions. (Her position does, though, reinforce the conclusion otherwise arrived at that the true underlying intention was a sharing of substantial periods of time in each country).
If that argument is accepted, a conclusion that the children were habitually resident in New Zealand at the relevant date would seem to follow in this case: the last agreement was that the children would reside with the father in New Zealand, they did so from July 2009 and (on my findings) no subsequent agreement brought about an abandonment of that.
The position advocated for by Mr Parrott can, in my view, be seen to be consistent with principle (see the passages cited from LK, in particular, above) and the argument can also be seen to be consistent with what the evidence discloses of at least some of the parties’ underlying shared intentions in this case.
But, the analysis is, in my view, significantly dependant upon the agreements reached between the parties which manifest their shared intentions. Looked at in that way, the specifics of those shared intentions might be seen to be readily discerned from the parties’ actions (and the lack of real dispute) until July 2009. Until then, it can be argued that a shared intention was put into place and that shared intention can, the argument continues, be seen to have about it certainty and continuity consistent with the children being settled in each of those places for the respective, agreed, periods of time.
But, an argument equally consistent with the available evidence also commences with the children abandoning their habitual residence in New Zealand at the beginning of 2008 because the shared or settled intention of the parties is that New Zealand would no longer be where the children would reside habitually; rather, they would reside for differing lengths of time in different countries with each parent.
In those circumstances, it cannot be said, that argument would continue, that the children acquired a “new” place of habitual residence because the agreements reached between the parties were the antithesis of it; while the parties might have agreed (at least up until July 2009) that the children would reside for blocks of time with each parent in each country, the arrangement was, when looked at as a whole, the opposite of “habitual” – there was no “settled intention” or “settled purpose”.
Put another way, and respectfully adopting the words of the High Court, the children were not habitually resident because the underlying shared intention of their parents was that they would be “nomadic”. That word can be used to describe people who constantly roam or are wanderers, but the word is equally applicable to those who live for periods of time in differing places by reference to certain factors (the seasons, climactic conditions, availability of food and the like). Here the children moved from state to state not because of those factors, but moved regularly, nevertheless, albeit as a result of different factors.
I consider that it is also possible to mount an argument based on the facts as found that the children were habitually resident in both Australia and New Zealand; that is, that they had two places of habitual residence at the same time.
A conclusion to that effect would run contrary to Full Court authority which binds me. Whilst it might be said that some doubt is cast upon same by the decision of the High Court in LK, I decline to enter upon a consideration of that issue in this case, particularly when it was neither properly explored or fully argued.
I would, in any event, however, offer this view: if it is possible as a matter of law to have two places of habitual residence simultaneously such a conclusion would not be open on the facts as found in this case. There would, to my mind, need to be far greater unanimity of purpose/s over a significantly longer duration before such a conclusion would commend itself.
In arriving at an ultimate determination of the issue, in light of the facts as found and the arguments as adumbrated, it is, I think, important to revisit important aspects of underlying principle:
·       There is a need to “look at all the circumstances of the case”. Circumstances can vary widely and a “broad factual inquiry” should take account of all relevant factors;
·       The central question – or “the search” – is “where a person resides” and “whether residence at that place can be described as “habitual”;
·       The duration of a stay in a contracting state as a factor is often put into proper focus by “the past and present intentions of the person under consideration”;
·       A sufficient degree of continuity about parent’s shared intentions is all that the law requires to establish “settled purpose”;
·       What is being searched for is “the connection between the child and the particular state”;
·       A person “may lead such a nomadic life as not to have a place of habitual residence”
I apprehend, then, that the first and central question I should ask is: having looked at the whole of the circumstances in conducting a broad factual inquiry, where, as at 16 January 2010 can it be said that these children reside and do they reside there habitually?
I am unable to satisfy myself that, as at that date, the children resided in either Australia or New Zealand. As at that date, it seems to me that the children were resident in neither one country nor the other. There is to my mind an insufficient degree of continuity so as to describe either state as being the children’s residence. Certainly, I do not think that the duration of the erstwhile stays in each state, the nature of the connections established (post-2008) in either or such continuity and stability as attended the arrangements could see either place of residence as “habitual”.
I do not consider that, as at 16 January 2010, the children had a real connection with one contracting state more than the other. So, too, at least from July 2009, I do not consider that the parties have had a shared intention other than that the children would share their time and receive their care in approximately equal periods of time with each parent in different countries. Whilst it might be possible to describe that as a “shared intention” or a “settled purpose” neither such description brings with it a sufficient connection with one contracting state or the other to describe either as a “habitual” place of residence for the children.
I conclude that:
(a)The children “abandoned” New Zealand as their place of residence in early 2008 after the parties agreed and put into place an arrangement whereby the children would live with the mother in Australia and, thereafter, with each of the father and the mother in, respectively, New Zealand and Australia; and
(b)Subsequent to that time, the children have not acquired a place of habitual residence.
In my judgment, then, the children were not habitually resident in New Zealand as at 16 January 2010. The Central Authority’s application must fail.

Rights of Custody

The conclusion just reached makes it strictly unnecessary to consider whether the mother’s retention of the children on 16 January 2010 was in breach of the father’s rights of custody. The issue arises in the event that I am wrong as to the conclusion just reached and the children were, contrary to my finding, habitually resident in New Zealand as at that date.
Reference to the principles earlier discussed make it plain, in my view, that as at 16 January 2010, the father was exercising rights of custody with respect to the children.
The relevant question here, relates to whether the mother was in breach of those rights by having the children in her possession at the specified date (as distinct from any other date or period of time.) The onus is on the Central Authority to establish same.
The mother could not have been in breach of the father’s rights of custody if, as at that date, she had possession of the children in accordance with an agreement to that effect. Plainly, the children were with her by agreement as and from 11 December 2009. The issue is, has the Central Authority proved that was not the case at the date specified in the application.
In my view, specificity must attend what must be proved; the issue is, relevantly, wrongful detention on the alleged date, not some other date. So, too, it is insufficient, in my view, for the Central Authority to prove (as in my view they can) that the agreed time with the mother was to conclude “in January”. (See, in that respect, what was said in Artso and in Murray referred to earlier).
The father asserts an agreement that the children would be returned “before [E’s] birthday on […] January 2010”. (par 29) and, in the e-mails in evidence, the father fixes that event (as much as the date itself) as the desired date of return of the children.
The father also deposes that, upon collection of the children at the commencement of the December 2009 holiday time, the mother confirmed (orally) that they would be back in New Zealand by that date (par 29). The father goes on to depose (par 31) to the mother “confirming” that the children “would be back before the 16^th January”. In the affidavit filed by the mother on 14 April previously referred to, she deposes:
[The father] and I had several discussions over the phone and via facebook from Christmas through to January he had asked if the girls could return to NZ for [E’s] birthday […] January 2010. At the time I was considering to do this flight costs were low and the children were still on school holidays there is an email exchange between [the father] and I indicating this. However at no time was there ever an intention on my part that the girls would return to his care before July 2010 as per our standing agreement.
I repeat that I consider the mother was being – at best – disingenuous when engaging in the e-mail communications and, specifically, that of 23 November. That would appear to be confirmed by her own evidence just quoted. What seems clear on the mother’s own case is that she was, at least at some stage, holding out to the father that the children would be returned to the father by E’s birthday. Added to that, of course, the mother asserted in oral argument that the children would return to the father in January (although, as she would have it, only to return to her for their six months commencing in the same month).
In so far as a finding of agreement about return is concerned, it is necessary to observe that in these proceedings, conducted in a “summary way”, no cross-examination occurred. However, in my view the evidence, when looked at as a whole, points to preferring the father’s evidence about the existence of an agreement to return the children to New Zealand by the specified date (or, perhaps more accurately, before that event).
However, agreement about return before the nominated date may not, in any event, be required. If, as this discussion assumes, the children were habitually resident in New Zealand at 16 January 2010 and, if, as in my view is clear, the father had, and sought to exercise, rights of custody on that date, it is in my view sufficient if the father made it clear to the mother that he refused to extend “the child[ren]’s stay in a place other than [their] place of habitual residence” beyond a date that would see them in New Zealand by the nominated date. Although that quotation is taken from the Travaux Prepatotoire to the Hague Convention (quoted earlier in these reasons), the statement is also, in my view, consistent with authority. (See the decisions of the Full Court earlier cited).
In my view, the Central Authority has established that it is more likely than not that the father had not consented to the children’s stay in Australia beyond a date that would see them in New Zealand on 16 January.
Accordingly, if, contrary to my finding, the children were habitually resident in New Zealand it follows that, at 16 January 2010, the mother’s retention in Australia is in breach of the father’s rights of custody and the retention is wrongful within the meaning of the regulations.
I order, however, in accordance with my earlier findings.

I certify that the preceding ninety-nine (99) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy.

Associate:

Date: 4 May 2010

[2010] FamCA 340

4 May 2010

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Family Law

Administrative Law

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Standing

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