Department of Communities (Child Safety Services) and Rolfston

[2010] FamCA 264

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF COMMUNITIES (CHILD SAFETY SERVICES) & ROLFSTON [2010] FamCA 264

FAMILY LAW – CHILD ABDUCTION – HAGUE CONVENTION – Habitual residence – Fluidity of factors contributing to establishment of habitual residence – Consideration that abandonment of place of habitual residence can occur without an irrevocable intention not to return – Onus to establish child’s habitual residence in the United States as at the relevant date not discharged – Application dismissed

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

Artso v Artso (1995) FLC 92-566
LK v Director-General, Department of Community Services (2009) 237 CLR 582
Murray v Director, Family Services (ACT) (1993) FLC 92-416
Panayotides and Panayotides (1997) FLC 92-733
re H and Anor (Minors) [1991] 3 All ER 230

APPLICANT: Department of Communities (Child Safety Services)

RESPONDENT: Ms Rolfston

FILE NUMBER: BRC 10566 of 2009

DATE DELIVERED: 13 April 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 22 February 2010

REPRESENTATION

SOLICITOR FOR THE APPLICANT Mr Parrott of Crown Law, Brisbane

COUNSEL FOR THE RESPONDENT: Mr North SC

SOLICITOR FOR THE RESPONDENT: Barry & Nilsson, Brisbane

Orders

1. That the application of the Central Authority filed 19 November 2009 be dismissed.

2. That the orders of The Honourable Justice Bell made on 27 November 2009 be discharged.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC10566 of 2009

Department of Communities (Child Safety Services)

Applicant

And

Ms Rolfston

Respondent

REASONS FOR JUDGMENT

1. The parents of E, who was born in September 2006, married and lived together in Z in the United States of America for 10 years until 28 November 2008. On that date, the mother and E travelled to Australia.  They had visited here on four previous occasions for holidays with the mother’s family and had, on each occasion, returned to the U.S. The November 2008 trip was for an extended stay; they did not plan to return until 24 May 2009.  They did not return on that date and have not returned since.

2. In March 2009, the father visited Australia.  The mother informed him that she did not intend returning to the United States.  The father went back to the USA after about two weeks. 

3. Thereafter, there was significant communication between the parties, mostly by email, in respect of their intentions. Those communications, and the emails in particular, are said to have significance for the instant proceedings which are brought by the Central Authority on behalf of the father, seeking the return of the child to the United States. It is asserted that a “wrongful retention” of the child, within the meaning of the Family Law (Child Abduction Convention) Regulations 1986 (the “abduction convention”), has occurred at the hands of the mother.

4. The mother argues that the child was not “habitually resident” in the U.S. at the time of the alleged retention by her and that, in any event, the father consented to, and has acquiesced in, the child remaining in Australia. 

5. A central component of the father’s argument is a Parenting Agreement signed by the mother and the father on, respectively, 28 May 2009 and 2 June 2009. That agreement was signed consequent upon a Mediation with a person in the United States named within the agreement.  The Mediation occurred primarily by telephone and email communication.

The Pleaded Relevant Date?

1. At the commencement of the hearing, Mr North SC, who appears for the respondent mother, sought further particularity of the date upon which it was alleged by the Central Authority that a wrongful retention had occurred.  The Central Authority amended the Form 2 Application to allege a wrongful retention on 24 May 2009.

2. After the Central Authority’s case had closed, a submission was made by Senior Counsel for the respondent mother that evidence in the Central Authority’s case indicated plainly on its face that the father had agreed to the child remaining in Australia until the end of June and that, consequently, the application by the Central Authority must fail as there was no wrongful retention at the date specified in the amended Application.

3. Over objection by Senior Counsel for the mother, the Central Authority sought to further amend the Application so as to allege 30 June 2009 as the date upon which wrongful retention occurred. 

4. Ultimately, I allowed the amendment, having concluded that the interests of justice, and what I see as this Court’s obligation to give full force and effect to the relevant Regulations (which, in turn, embody an International Convention) permitted of the amendment in circumstances where, as I found, the respondent mother was not unduly prejudiced by any such amendment.

Habitual Residence: Factual Background

1. It is clear that the sole attack upon the required prerequisites giving rise to a return of a child (see Regulations 16(1) and 1(A)) is the requirement that “the child habitually resided in a Convention Country immediately before the child’s … retention in Australia” (Regulations 16(1)(A)(b)).

2. Wrongful retention occurs “the moment [a party] refuse[s] [the other party] permission to return the children to their country of habitual residence”. (See Artso v Artso (1995) FLC 92-566 at 81,638 per Mushin J).

3. 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); Panayotides and Panayotides (1997) FLC 92-733.

4. The arguments on behalf of the respondent mother with respect to habitual residence (in respect of which the Central Authority bears the onus) and her arguments that the father had “consented or subsequently acquiesced in the child being … retained in Australia” (Regulation 16(3)) are inter-related. They are said to arise from the course of conduct between the parties and what it has to say about their respective intentions and the legal position emanating therefrom.

5. In order to understand those submissions, it is vital to detail the chronology of events and refer in detail to the emails between the parties and the place of the Parenting Agreement earlier referred to.

6. The starting point is the agreed position between the parties that, on 28 November 2008, the parties consented to the child and the mother going to Australia for a six-month holiday which would have seen them return on 24 May 2009.  It is plain, on the evidence, that, by the time the mother left for Australia for that lengthy holiday, the relationship between the parties had difficulties.

(a)      Conduct 28 November 2008 to 31 March 2009

1. The father travelled to Australia in early March 2009. During that visit, on 13 March 2009, the mother deposes that she informed the father “that the marriage was at an end”.  The mother asserts that the father agreed at that time that the child could remain living in Australia with her. As will be seen the father’s visit was preceded by a somewhat despairing communication by him to the mother on 5 February.

2. The mother also asserts that, on 13 March, the parties discussed their position with the Child Support Agency and, on 25 March 2009, the father left Australia and returned to the United States. The Child Support Assessment (which issued on 8 May 2009) in respect of the period 18 March 2009 to 17 June 2010 refers to a care percentage by the father of zero percent and a care percentage of 100 percent for the mother.

3. On 22 January 2009, an email from the mother to the father advises of various activities in Australia and ends “We love you very very much”.  That email occurs after an email from the father to the mother on 20 January 2009 in which the father says, “The only reason I lost my temper” … is “the fear of not seeing you and [E] again and the depression of the current times.  I love you eternally”. 

4. On 4 March 2009, a communication from the father to the mother is strongly indicative of a relationship in significant difficulties.  It refers to a desire on the part of the father to “get back to the loving place that we had when we first met” and goes on to ask the mother to “source and secure a reputable marriage councelor [sic] for us to meet with when I get there” referring to the father’s then upcoming trip to Australia.  The email goes on to say, “I have consistently shown through my actions that you are first, now I need you to work with me so we can raise [E] together so she never has to be without one of us the way we were when we were growing up”.

5. Subsequent to the father returning to the United States, he emailed the mother on 31 March referring to the fact that he was going to an AA meeting and said, “Over the past thirteen years, we have created a wonderful home, gave birth to [E] here and intended on raising her here and together”. 

6. The same day, but later that evening, a lengthy email was forwarded by the father to the mother.  The email refers to arrangements for the child in the United States and also to “therapy for the two” adults at a place in the U.S..  The email goes on to say, “I am willing to put it in writing – a legal document that I will stay in AA or a rehab program and or outpatient therapy with any pharmaceuticals they prescribe to stay sober and be there for you and [E] … This is the level of my serious commitment and love for you and [E].  Please come back to me.  I am doing everything you want and willing to do more”.

(b)      Conduct 1 April 2009 to 2 June 2009

1. The events subsequent to the father’s return to the United States led to the signing of an agreement, called a “Parenting Agreement”.  It was signed by the father on 28 May 2009 in the U.S. and by the mother on 2 June 2009 in Brisbane.

2. The agreement came about, it seems, by the parties submitting to mediation with a Ms Brenner, who is, apparently, a “matrimonial attorney and mediator” in the United States.  The negotiations were conducted by email and telephone communications.

3. It will be appreciated that the Parenting Agreement was signed by each of the parties subsequent to the date upon which the mother was originally scheduled to return to the United States with the child (24 May 2009).

4. Emails passing between the parties are also in evidence during this period.

5. On 16 April 2009, the father’s email to the mother commences by saying:

   “I will end this email the way I begin it.  I love you and want to [sic] our marriage to work, but if it can’t I still need to be a part of [E’s] life.  [E] will not reach her full potential without both parents being active participants in her daily life. 

   I want very much to make things right by us but, since you have not responded to my previous email and you have not told me when I will see my daughter next I am taking the advice of my lawyer in an effort to maintain my rights as a parent”. 

6. The email goes on to say:

   “If you don’t contact me by Sunday night informing me of when I can expect both of you to return I plan to go to Family Court, of the State of [Z] on Monday morning and file for sole custody of [E] …” The email ends, “I love you and want to [sic] our marriage to work, sincerely”.

7. An email dated 29 April 2009 from the mother to the father commences by reference to what appears to be an employment opportunity taken up by the father.  The mother says in that email, “Before we return end of May I would like to consult with a mediation service, for us to try to work out best arrangement for [E’s] future (education, health and financial) and us as loving parents of our beautiful daughter …”

8. An extract from another email from the father annexed to the Form 2 Application on behalf of the husband is not referenced to a date but appears to fit within the current chronological context and, in particular, the time leading up to the mediation meetings.  The email says, “What are your goals for this meeting?  Why can’t you just come back now?  Why do we have to wait till the end of the month?  [E] has already forgotten me and every hour of every day that she is away from me is beyond painful – I have never done anything like that to you”.

9. The mother says in her response that she had found a mediation service (in the United States) and made an appointment on behalf of the parties.  On 14 May 2009, the father emailed the mother: “it was very difficult to hear you on the call and you may not have heard me either so I just want to repeat myself to make certain”.  The email goes on, “I will meet you and [E] at the airport.  [E] has her room and you can have either the office or the bedroom, your choice … please understand that if you choose a hotel or a friends place that [E] will be coming home with me since this is her home and her room is here …”

10. A week later, on 21 May 2009, the mother emailed, “Working on flights … Are you okay to celebrate [E’s] birthday last week of August if we would like to return? Based on the 60 days from June to August”. Whilst not apparent on the face of that email, it is common ground that there were discussions between the parties about an arrangement that would see the mother return to the United States for a period of 60 days with a view to the parties discussing the potential for reconciliation and their parenting of [E] generally. 

11. It is plain, on any view of the material (and not contradicted by the mother) that, during this time, the father was anxious for a reconciliation to take place.  In an email, the date of which is not apparent from the annexure, the mother said, “These last couple of months have been – absolutely dreadful – beyond anything, imagined, that we would ever go through.  Everyday I tell [E] we are going on a plane to see Daddy. We are very excited”.  It appears that this email was sent prior to the end of May 2009 because, it seems, the father responds to that email on 22 May 2009, including music attachments entitled: “You are the sunshine of my life - … don’t you worry ’bout a thing”.

(c)      2 June 2009 to 1 July 2009

1. On 2 June 2009, the mother signed the Parenting Agreement to which further reference will be made shortly.  On 12 June 2009, the mother “signed an authority to the State of [Z]” in the presence of a Notary Public “seeking the ratification of the Parenting Agreement dated 2 June 2009 with the Family Court in [Z] … pursuant to Part XVI of the agreement”.

2. On 30 June 2009, the mother deposes that the father lodged an Application with the Family Court in Z, seeking “custody and residence of [E]”.  The mother deposes that, in that application, the father “indicated to the Court … that [E] was domiciled in [Z]”.  The father further indicated that no other proceedings were on foot relevant to the child.  The mother says that the information provided by the father in the Petition states “that I was refusing to re-enter the USA with [E]”.

3. On 1 July 2009, a Family Court in Z summonsed the wife to attend on 11 August 2009 and, on 23 September 2009, the father commenced proceedings pursuant to the “abduction convention”, signing an Article 28 statement on 1 October 2009, authorising the Australia Central Authority to act on his behalf.  The Director-General of the Department of Communities, acting as the Central Authority, filed an application on 19 November 2009.

4. In the meantime, however (and notwithstanding the proceedings pursuant to the “abduction convention”) the father’s proceedings in the Court in Z were heard on 18 November 2009.  The father’s application was dismissed, the Court finding that, for reasons specific to the law of that State, the Z Court did not have jurisdiction to hear the parenting proceedings between the parties. 

5. In the proceedings in this Court, Mr Parrot asserts, and is not contradicted by Counsel for the mother, that in the event that the child is ordered to return to the United States, the Z Court will have jurisdiction because that Court’s jurisdiction is enlivened in circumstances where a child is returned to that State pursuant to an order of the foreign Court under the “abduction convention”.

6. On 19 June 2009, the father sent an email to the mother which included the following:-

   a) I was never made aware that the parenting plan which could easily be interpreted as a custody document (if I say it’s fine for you and [E] to live in Australia full time, I’m obviously giving up custody) needed to be ratified in family court.  I thought we were done once I signed the document in Lois’ office.  The purpose of this document is a contingency, an understanding that “if” we separate/divorce that is what we agree but we “haven’t” separated/divorced at this time.

   b) when I first mentioned going to family court and seeking sole custody it was something I never intended, it was meant to have you start communicating with me and come back so we could at least try to work things out but you are in affect doing what I had only threatened.

   c) making your return contingent on this document is not what we discussed recently, recently we agreed that you would return at the end of June and if after 60 days it didn’t work out that we would either get you a place in the city or if you absolutely had to because of money, return to Australia – but you promised me 60 days …

   … I love you very much and can’t wait to prove it to you.  Please finalize your plans”.

7. That email was in response to an email from the mother addressed to both the father and the Mediator on 18 June.  That email says:

   As discussed, after the plan has been formalized, I can finalize our travel. … Please let me know as soon as the parenting plan has been finalized through the family court, so we can work out travel.

8. An email from the Mediator on 16 June 2009, addressed to both of the parties, said:-

   [The father] has expressed some concern about finalizing your parenting plan at the family court.  Can you both let me know how you want to proceed?

9. Email traffic ensued on about 23-24 June, the first of which concerns the child communicating by Skype with her father.  On 24 June, the father said:-

   This is the sixth month of this year so already over a hundred days have passed when I, as I did tonight took a power walk up and down [R Street] and saw fathers playing with their daughters.  My heart is ripped to shreds every time I see a man doting on his daughter as I think about my daughter 10,000 miles away from me and forgetting me as each day ends.  As I have told you again and again and again and again and again Skyping only stabs me in the heart over and over – WHAT PART OF THAT DO YOU NOT UNDERSTAND – ALL THOSE YEARS YOU CRIED.  You are there will [sic] [E] and I am not.  What is so difficult for you to understand???? !!!!!

   I need to know that you are getting on the plane this weekend but you have given me no assurances.  You are being horribly cruel to me […]. HORRIBLE.  ALL IVE HAD THESE PAST SIX MONTHS IS PAIN AND SORROW.  YOU MUST REALLY HATE ME.

   I HAVE NEVER DONE ANYTHING TO DESERVE THIS.

10. The mother responds to that email as follows, relevantly:-

    I have not booked our travel for this weekend, and cannot until the parenting plan has been formalized … You are most welcome to travel to Australia to visit – stay at Nanna’s or will find a place nearby in Brisbane until we can sort out our lives.  My priority is making sure [E’s] life is not disrupted – safe and protected.  The past 6 months and years preceding have been extremely difficult for both of us.  I would like to resolve the issues – will take part in conference calls with a therapist if that would help.

1. Subsequent emails in July culminated in emails dated 28 July and 31 July.  The first email says, relevantly:-

   … since we spoke the other day I think you have made it clear that by not responding to my email or or messages, you have no intention of returning. … All I want is my daughter back.  No drama, no fighting just the ability to share my life and love with her, unconditionally.

2. The latter email said, among other things:-

   … wonder when I will see my daughter again?!  You don’t just wake up one day and decide to raise our daughter in Australia, and decide when I see her and for how long!!  ---after 11 years of marriage, we never discussed this … WE AGREED THAT WE WOULD LIVE IN [Z] WHEN WE GOT MARRIED. … YOU WANTED TO GET MARRIED, I DIDN’T. … Since you have not responded to all of my phone calls and emails I am moving forward to the Hague/international kidnapping proceedings and the custody proceeding on August 11 in NYC, if you do not return to the United States prior to that date there is nothing I can do for you.  It will be out of my hands and I will have full custody of [E].  I wanted to resolve this peacefully for months now but you are leaving me no choice.

The Parenting Agreement

1. The Parenting Agreement signed by the father and mother on, respectively, 28 May and 2 June 2009 recites that the parties were married and “ever since then have been and now are husband and wife”.  Recitals go on:

   C.The parties desire that this Parenting Agreement, which is entered into after due and considered deliberation, shall be and constitute an agreement which defines certain rights with respect to their daughter.

   D.The Mother has been living in Australia with the child since November 2008 and the Father has been living in [Z].

   …

   F.The parties agree that the annual calculated child support amount shall be used towards air fares for the child to fly to the United States to visit the Father.

2. The operative provisions of the agreement include under the heading “Parenting Time Schedule”:_

   A.In the event of any irreconcilable differences, the Mother may live either in Australia or [Z] with the child.  The Father may live in [Z].

   B.The Mother agrees to bring the parties’ daughter to [Z] to visit with her Father. [The agreement thereafter outlines the “visitation schedule”]

   …

   E.The parties’ daughter presently attends the [M] infant school and child care part-time in Australia and, in 2010, she shall attend the [M] School full-time.

3. Part IX of the Agreement records:-

   The parties agree after this Parenting Plan is finalised, any changes the parties agree on can be made only by mediation, which must be first attempted, then by applying to a court and proving there has been a “change in circumstance”.  Before applying to the court, the parties understand that they will try to agree to resolve any disputes through mediation or other means.

4. Part XVI of the Agreement provides:-

   The parties agree this document shall be formalised in the State of [Z].

5. Central to the arguments on behalf of the Central Authority is the assertion that the parties were, despite the agreement, never ad idem.  It is submitted that the parties had completely different understandings of the nature of, and effect of, the agreement.  The Central Authority submits in written submissions, for example, that:-

   … at no time did the parents actually agree as to what was to occur.  Each of them had in their minds what they thought they were agreeing to but it is submitted they were, in fact, poles apart.

   …

   … It is submitted that at no time were the parents of one mind in what was being negotiated and what the effect of the agreement was to be and how it was to be implemented.

   … It is submitted that given the growing emotional state of the father and his agitation and anxiety about the returning of the child that in that the mother had refused at any time to return the child until such an agreement was entered into.  The father was effectively being blackmailed into signing a document in relation to this child’s future.  The father maintains this position throughout his material filed in the United States as well as the material filed in Australia.  It is of extreme relevance it is submitted, that at no time has the mother denied making that threat.  Indeed she makes that statement quite clearly in her emails in late May and into June when they continue to negotiate the travel of the mother and child to Australia.  At the very least the court will find that the father during all of this period of negotiation was acting under duress.

6. The Central Authority submits that the agreement signed by the parties was “a contingency plan” only.  The contingency was the mother travelling to Z with the child for a 60-day period to attempt a reconciliation and “it was only upon the failure of the reconciliation attempt that the father would agree to that proposed plan”. 

7. The (written) submission goes on:

   Conversely, on the mother’s version of events the plan itself was not final until it had been ‘ratified’ in the jurisdiction of [Z] State.  This is where the parents reached their stand off.  The mother refused to travel to Australia [sic] pursuant to the agreement until the agreement was made a formal order in the courts of [Z].  The father refused to make the orders formal in the courts of [Z] as they had not attempted the contingency of reconciliation for a 60 [day] period at least in [Z] State.  Accordingly it is submitted there was no agreement.

8. As indicated above, the emails exchanged between the parties are central to the arguments advanced on behalf of each of the parties.  The same emails are crucial to a central argument made on behalf of the mother: when properly analysed, the emails are indicative of the child being no longer habitually resident in Z. 

9. In that respect, it is necessary to refer to further emails annexed to the affidavit of the mother, filed by leave at the commencement of the hearing. On 5 February 2009, the father emailed the mother:

   Don’t bother buying me a ticket and wasting your mother’s money.  Don’t worry about coming back.  If you don’t want to do so happily I don’t want you here.  Tell me what you want me to pack up and send you.  I’ll file the divorce papers and send them to you.  Tell [E] her father is dead.

10. However, about a week later, the father emailed the mother:-

    I’ve given it a great deal of thought and I would love to come to Brisbane to spend a few quality weeks with you and [E].  Let’s talk about dates.

11. After the father’s visit to Australia in March, an email dated 29 April from the mother to the father, concludes, relevantly:-

    Before we return [to the US] end of May I would like to consult with a mediation service, for us to try to work out best arrangement for [E’s] future (education, health and financial) and us as loving parents of our beautiful daughter.

    The email then goes on to tell the father about the consultation arranged by the mother with the mediator who ultimately conducted the mediation of the parties.

12. On May 19 (some nine days prior to the father signing the Parenting Agreement), an email from the mother to the father includes:-

    … I support the 60-day plan and have listed what we started in Aus before you came became threatening, vindictive and me – terribly terribly terribly upset and insecure not knowing how to respond.

    We must work very hard on a parenting plan because I feel this is the only option we have …

13. The email then lists a number of itemised matters which include:-

    1.I want a formalized plan in place with Lois before we arrive.

    2.If after 60 days in the US during our next visit, we feel we CAN live as a couple, then a NEW plan will be drawn up and formalised with Lois.

    3.After the threats made to me it is important for you to understand.  I am a mother with a young toddler and should not be put in a situation EVER, where I do not feel safe and secure.  Formalizing the plan before I arrive will remove that constant worry.

    4.The formalized parenting plan is also vitally important so you feel secure.

    …

    7.By travelling [sic] on a visit to the US (and I called the CSA and Family Assistance to confirm) I am able to continue my benefits and will be covered medically while on travel.  If I stay then I can easily cancel as long as I tell the CSA and Family Assist office.

14. The email then goes on to enumerate a number of “steps”.  They include:-

    1.        This week – Parenting Plan so I feel secure.

    2.        Lois [the mediator] to formalize.

    3.I will arrive and happily stay with you after plan formalized. (if we are not getting along then I need the option to stay with friends close by).

    4.We will arrive and stay 60 days.

    5.I am not sure we can get this plan finalised before Sunday.

    6.We will ask Lois how long it will take and reschedule flight accordingly.  This is not to cause more upset it will only be rescheduled after we find out from Lois how long it will take to formalize.  My guess couple of weeks.

15. The email ends with the heading “Important” and, thereafter, further enumerated items:-

    7.If we feel after the 60-days we want to change the plan with Lois to STAY we have the option

    8.If we would like to return to Australia and DEFINATELY RETURN to the US in (September/October) and then again in (December/January) for our (SCHEDULED) visits – we (WILL) do that with no problems at all.

    9.Neither of us should ever feel we cannot travel freely between the two countries.

    10.I have included the draft parenting plan below – very detailed and very important to me that you read through and not disregard it.

    11.I am not taking your extremely important rights away as a father.  I am trying to find a way that will afford us quality time with [E] and live DECENT Affordable lives.

    12.I have attached the Aus plan for Lois and one – (as I said we can change).  Easy to change that then me worrying about my life …

16. On 20 May 2009, the father responded by saying:-

    … [If] you took the things I said as threats I am sorry for that. When it comes to you thinking I’m being vindictive nothing could be further from the truth --- just last week I told [C] that all I want is for you to come back so I could show you how much you mean to me and that as far as I’m concerned and I quote “all is forgiven” from my view.  I love you and I want to make it up to you very much.

    Everything else you laid out here is fine.  Please send to [the mediator] and tell her to draft it, call me and I’ll go to her office and sign it …

Habitual Residence: Legal Principles

1. The High Court has recently examined the concept of habitual residence in LK v Director-General, Department of Community Services (2009) 237 CLR 582. In the joint judgment of French CJ, Gummow, Hayne, Heydon and Kiefel JJ, a number of important matters emerge.

2. First, the concept of habitual residence within the meaning of the Regulations must be distinguished from concepts such as domicile.

   24. … Use of "habitual residence" in the Abduction Convention rather than domicile as the relevant connecting factor entails discarding notions like the revival of domicile of origin and the dependent domicile of a married woman which marked the English law of domicile. More importantly for present purposes, use of "habitual residence" in preference to domicile entails discarding the approach of the English law of domicile which gave questions of intention a decisive importance in determining whether a new domicile of choice had been acquired.

3. Expressed positively, “habitual residence, consistent with the purpose of its use, identifies the center of a person's personal and family life as disclosed by the facts of the individual's activities” (Scoles, Hay, Borchers and Symeonides, Conflict of Laws, 4th ed (2004) at 247 § 4.14, cited in LK at para 25).

4. Whilst the justices of the High Court thought it unlikely, their Honours nevertheless left open the possibility that a person may be habitually resident in more than one place at the one time (LK at para 25). Importantly, their Honours went on to say (ibid):

   25. … But even if place of habitual residence is necessarily singular, that does not entail that a person must always be so connected with one place that it is to be identified as that person's place of habitual residence. So, for example, a person may abandon a place as the place of that person's habitual residence without at once becoming habitually resident in some other place; a person may lead such a nomadic life as not to have a place of habitual residence.

5. In passages of that judgment which, in my view, have real resonance for this case, their Honour’s said:

   32. Because the possibility of reconciliation and return was not excluded when the mother left Israel, it may be said that her intentions, when she left, were to that extent ambiguous. Even accepting that to be so, because the notion of habitual residence does not require that it be possible to say of a person at any and every time that he or she has a place of habitual residence, it is important to recognise that a person may cease to reside habitually in one place without acquiring a new place of habitual residence.

   33. Secondly, because a person's intentions may be ambiguous, in asking whether a person has abandoned residence in a place it is necessary to recognise the possibility that the person may not have formed a singular and irrevocable intention not to return, yet properly be described as no longer habitually resident in that place. Absence of a final decision positively rejecting the possibility of returning to Israel in the foreseeable future is not necessarily inconsistent with ceasing to reside there habitually.

   34. Thirdly, when considering where a child is habitually resident, attention cannot be confined to the intentions of the parent who in fact has the day-to-day care of the child. It will usually be necessary to consider what each parent intends for the child. When parents are living together, young children will have the same habitual residence as their parents. No less importantly, it may be accepted that the general rule is that neither parent can unilaterally change that place of habitual residence. The assent of the other parent (or a court order) would be necessary. But again, if it becomes necessary to examine the intentions of the parents, the possibility of ambiguity or uncertainty on the part of one or both of them must be acknowledged.

6. As their Honour’s earlier observed (at 29), “individuals do not always act with a clearly formed and singular view of what it is intended (or hoped) that the future will hold.”

7. Because intentions (and hopes) are ambiguous, and because habitual residence may be fluid, identifying factors contributing to its establishment are of themselves fluid:

   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.

8. 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.

Habitual Residence: Conclusions

1. Senior Counsel for the mother submits that there is little doubt that during the whole of the time during which the mother and the child lived in Australia, the father harboured a keen and sincere desire to reconcile with the mother, and reunite the family with all of them living in Z.  Clearly, the mother left that open as a possibility.

2. However, it is submitted that, by 13 March 2009, the predominant intention of the mother had become clear and it was to live in Australia, albeit that she did not turn her back on the possibility of either reconciliation or living in the United States.  It is submitted that there was an acceptance of the mother and child living in Australia by 13 March in the sense that the father was resigned to that occurring if, at the end of 60 days, the parties could not patch up their differences and effect a reconciliation.

3. Against that background, it is submitted that the mother and children had been in Australia since November 2008 and during that time had become part of a wide community of family and friends.  The child had been enrolled at pre-school and at the same school (the M School) for 2010.  The mother asserts that the child was enrolled there with the husband’s agreement.  It is plain that he was aware of it; indeed, it is provided for in the Parenting Agreement which he signed.

4. It is also submitted by Mr North SC on behalf of the mother that it is of some significance that the father deposes (at paragraph 9 of his affidavit dated 1 October 2009) that, in March 2009, the mother informed him that she would “not be returning to the United States with her daughter …” The father goes on to depose that the mother “… refused to say when they would visit [the father] in the US”. 

5. Senior Counsel for the mother seeks to emphasise the following passage also deposed to by the father:-

   [The father] explained [to the mother] that he had been sending résumés to companies in Queensland and Melbourne since the previous December and had been applying to jobs in Australia on a daily basis.

6. Ultimately, Senior Counsel for the mother submits that the child’s habitual residence in the United States was lost by 13 March 2009 and “may have been lost” on 5 February 2009 when the father wrote the email earlier quoted.

7. Counsel for the Central Authority responds to those submissions by submitting that it is erroneous to pick on a particular aspect of the correspondence between the parties and it is necessary to look at it in its entirety. When looked at in that way, the correspondence between the parties is, it is submitted, redolent of the parties being equivocal as to what is in their minds about where the child (and the mother) would be residing. 

8. In that respect, it is submitted that 28 November 2008, when the mother travelled to Australia for a six-month holiday, was the last time the parties “were of one mind”.  It is submitted that beyond that date, the parties’ words and actions are “equivocal” and not indicative of any settled intention.

9. In my view, the evidence reveals that, in the period subsequent to 1 March 2009 and up to 30 June 2009:-

   ·The mother and the child were in Australia after the father informed the mother (on 5.2.09) that she ought not return to the USA unless she could do so happily and that she should tell the child that he “was dead”;

   ·The father visited Australia and during that visit (March 2009) the mother advised that she (and the child) did not intend returning to the U.S;

   ·On 13 March the parties discussed child support and, on 8 May an assessment issued on the basis of a 0% care percentage by the father;

   ·Communications between the parties evidence a consistent desire by the father (after his 5 February email) for the parties to reconcile;

   ·The child commenced at pre-school with the father’s consent and was enrolled at the same place for school in 2010;

   ·Communications from the mother evidence her return to the U.S. being (as far as she was concerned) conditional upon a reconciliation;

   ·In particular, the mother saw the Parenting Agreement as central to establishing her position in that respect;

   ·The Parenting Agreement evidences a clear intention on the part of the mother to live with the child in Australia unless a reconciliation was effected consequent upon a visit by the mother to the U.S.

1. I reject the submission on behalf of the Central Authority that the Parenting Agreement was a “contingency only”. On the contrary, it seems to me plain that the agreement was entered precisely because the wife had formed the intention to establish the child’s residence in Australia and had done so prior to informing the father of her view of the marriage being over on 13 March 2009.

2. There were overt manifestations of that intention: enrolment in a school, the position with respect to child support and the continued insistence upon a Parenting Agreement, or some concluded position, consistent with the child remaining in Australia, prior to attempting reconciliation and travelling with the child to the USA for that purpose. So too, that intention was evident when the father returned to the USA after his short visit, and the mother and the child remained.

3. I consider that the mother has, since forming the intention that the child (and she) should reside here rather than in the U.S., “set about establishing important connections with Australia consistent with her [and the child] establishing the centre of their lives here rather than in [the U.S.].” (LK at para 30).

4. I would assess the evidence here as being more redolent of an ambivalence about reconciliation with the father rather than an ambiguity about her intention as to her (and the child’s) place of residence. However described, here, as in LK, I do not think that it is possible to say that the mother had a settled intention that “excluded the possibility of reconciliation”. Yet, I very much have in mind that:

   … in asking whether a person has abandoned residence in a place it is necessary to recognise the possibility that the person may not have formed a singular and irrevocable intention not to return, yet properly be described as no longer habitually resident in that place. (LK at para 30)

5. I should also mention that I am very much aware that it is, of course, the child’s habitual residence which is in issue. But, as the High Court said in LK (at para 27): “The younger the child, the less sensible it is to speak of the place of habitual residence of the child as distinct from the place of habitual residence of the person or persons upon whom the child is immediately dependent for care and housing.” In this case, that adult is the mother.

6. In the circumstances of this case it is not in my view “sensible” to speak of 3 and a half year-old E having a habitual residence distinct from the habitual residence of the person upon whom she is “immediately dependant upon for care and housing,” here her mother.

7. In my judgment, looking at the evidence as a whole, the Central Authority has not discharged its onus of establishing that the child was habitually resident in the United States as at 30 June 2009.

8. It is not necessary, then, for me to decide the “defence” of consent or acquiescence.

9. I will order that the application of the Central Authority be dismissed.

I certify that the preceding eighty six (86) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy.

Associate:

Date:  13 April 2010