Department of Community Services and Sharmain (No. 2)

[2008] FamCA 1114

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF COMMUNITY SERVICES AND SHARMAIN (NO.2) [2008] FamCA 1114

FAMILY LAW – CHILD ABDUCTION – HAGUE CONVENTION – the Regulations – whether issues of habitual residence rights of custody; “consent” and Regulation 16(3)(b) established – the applicable foreign law considered

Family Law Act 1975 (Cth)

MW v Director General Department of Community Services [2008] HCA 12
DW and Director-General Department of Child Safety (2006) FLC 93-255
Panayotides and Panayotides (1997) FLC 92-733
 Re J and A v A (2006) FLC 93-255
Cooper v Casey (1995) FLC 92-575
Re: B (Minors) (Abduction ) (No. 2) (1993) 1 FLR 993;
Armendariz v The People of the State of Colorado 711P.2d 1268; 1986 Colo. Lexis 477
People of the State of Colorado v Haynie 826P 2d371; 1991 Colo. App. Lexis 285
 DP v Cental Authority; JLM v NSW Department of Community Services (2001) FLC 93-081
 In Re D (the child) Abduction: Rights of Custody [2007] 1 AC 619
Department of Community Services v Casse (1995) 19 FamLR 474.

APPLICANT: Director-General, New South Wales Department of Community Services

RESPONDENT: Ms Sharmain

FILE NUMBER: SYC 707 of 2008

DATE DELIVERED: 22 December 2008

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: The Hon. Justice Rose

HEARING DATE:	24 April 2008
WRITTEN SUBMISSIONS:	7 & 13 May 2008;  12 & 14 November 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:	S Christie
SOLICITOR FOR THE APPLICANT:	New South Wales Department of Community Services, Legal Services Unit

COUNSEL FOR THE RESPONDENT:	T Tockar
SOLICITOR FOR THE RESPONDENT:	Simon Diab and Associates

Orders

1. Declare that the removal by the mother of the child … born … December 2004 (“the child”) from the United States of America on 26 June 2007 and the retention of the child by her in Australia was wrongful within the meaning of Article 3 of the Convention.

2. That the applicant make such arrangements as are necessary to ensure the return of the child … born … December 2004 to the United States of America forthwith in the company of her mother MS SHARMAIN also known as MS MACK and her son J MACK.

3. That Order (2) is stayed until further order and pending submissions in relation to the conditions, if any, that should be attached to that Order.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC707 of 2008

DIRECTOR GENERAL, DEPARTMENT OF COMMUNITY SERVICES

Applicant

And

MS SHARMAIN

Respondent

REASONS FOR JUDGMENT

Introduction

1. In these proceedings the applicant, the Director-General of the New South Wales Department of Community Services in the capacity of the New South Wales Central Authority by the Application filed 11 February 2008 (“the Application”) sought the following order:

   “That the applicant make such arrangements as are necessary to ensure the return of the child […] (female) born […] December 2004 to the United States of America forthwith in the company of such person and upon such conditions as this Court deems necessary pursuant to the provisions on the Hague Convention on the Civil Aspects of International Child Abduction.”

2. The Application is made pursuant to Regulation 14(1) of the Family Law (Child Abduction Convention) Regulations 1986 (“the Regulations”).

3. The respondent Ms Mack (formerly known as “[Sharmain]”) seeks an order that the Application be dismissed in accordance with her Answer and Cross Application filed 11 April 2008.

4. The mother was born in Asia.  The mother is an Australian citizen and permanent resident of the United States of America (“the USA”).

5. The mother’s child by her previous marriage, J Mack, eight years of age having been born in August 1999 (“[J]”), lives with her and the child.

6. The father of the child is Mr Sharmain (who for convenience I shall refer to as the “father”).  He is a citizen of the United States of America and resides in the United States.

7. The mother resides in Australia, in the State of News South Wales.

8. The child who is the subject of proceedings resides with her.  The child is three years of age having been born in December 2004.  The child was born in the State of Queensland.  The child is a dual citizen of the United States of America and Australia.

9. On 26 June 2007 the mother and the two children left the USA by air travelling to Australia.

10. On 28 June 2007 the mother and the two children arrived in Sydney.  They have continued to live in Australia since that time.

11. I was much assisted by the oral and written submissions made by counsel for the parties including their respective case outline documents.  In view of the pending proceedings between the father and mother in the District County Court, USA in which the father’s application for permanent orders had been set down for 10 October 2008, I was concerned to have before me a copy of the orders which may be made and any further written submissions in that regard.  Whilst that had the consequence that a prompt decision could not be made within 42 days of the Application being filed, to have done otherwise would have resulted in an “inadequate, albeit prompt, disposition, of the application upon a patently imperfect record”[1]

    [1] MW v Director General Department of Community Services [2008] HCA 12

HISTORICAL BACKGROUND

1. The following are significant relevant matters which are not in controversy, drawn from the agreed chronology which is Exhibit 5.

2. In January 1996 the mother became an Australian citizen.  On 3 July 2001 the mother and J moved to Colorado in the USA.

3. In September 2001 the mother and father married in the USA.

4. The father contends that in December 2003 he and the mother commenced to discuss the purchase of his family home in M in the USA.

5. On the 5 March 2004 the mother and J travelled to Australia.  Within a short time, implicitly in that month, the mother purchased a house in the State of Queensland for $180,000.00 (“the Queensland property”). The mother contends that the purpose of the purchase was to establish a residence for herself and J “when we eventually move back to Australia.  It was a long time plan of [the father] and me for the family to move to Australia.  [The father] was aware of this and the sole purpose of the purchase.”

6. The father contends that he had not agreed with the mother’s decision to purchase the Queensland property.

7. At about the end of March 2004, the mother and J returned to the USA.  It is common ground that the father informed her that he was purchasing a house in M.  The mother contends that she was surprised and “strongly objected” in view of “the plan to move to Australia”.

8. The father, for his part, says the two of them had previously discussed the purchase of that property.

9. On 23 April 2004 the mother, father and J moved to live in M.  The mother subsequently fell pregnant.

10. In September 2004 the mother and J returned to Australia for the birth of the child.

11. On 11 November 2004 the father emailed the mother whilst she and J were in Australia referring to the house that had been purchased in M and stated “I thought it would be a great place for all of us to be for a while until we are able to move to Australia or someplace else that we both liked.”

12. In December 2004 the child was born in Queensland.  The father was not present, he was in the USA.

13. About February 2005 the father was convicted of a felony and sentenced to 18 months imprisonment.

14. On 28 February 2005 the mother, J and the child returned to M, USA.

15. On 17 March 2005 the father commenced serving his custodial sentence.  He had been ordered to undergo a residential drug abuse program for alcoholism.

16. On 13 August 2005 the father was released from prison with a three year parole period.

17. In September 2006 the mother and father agreed to sell the house in M and move to Colorado.

18. In October 2006 the father and the two children commenced living in M whilst the mother remained in Colorado for four months.

19. In February 2007 the mother, father and the two children moved to Colorado.

20. For the period 1 March 2007 to 26 June 2007 the mother father and the two children lived in Colorado.

21. On 8 June 2007 the mother purchased one way air travel tickets for herself and the two children to travel to Australia.

22. On 16 July 2007 the father filed an Application for a Decree of Dissolution of Marriage in the District Court at Colorado in the USA (“the District Court”).  He also sought allocation of parental responsibilities in respect of J and possibly the child.

23. On 16 August 2007 the first trial hearing commenced in the District Court, with the mother participating by telelink while she was in Australia.  A jurisdictional issue was raised by the trial judge in respect of the father’s application for “allocation of parental responsibilities”.

24. On 1 November 2007 the father completed a written application under the Hague Convention for the return of the child to the USA.

25. On 10 December 2007 a telephone contact order was made in the District Court.

26. On 19 February 2008 an order was made in the District Court dismissing the application of the father for “allocation of parental responsibilities” in relation to the child and J for want of jurisdiction.

27. On 5 March 2008 application was made by the father in the District Court for re-consideration of the order made 19 February 2008.

28. On 8 April 2008 the application of the father to re-consider the order made 19 February 2008 in relation to J was dismissed.

29. On 14 April 2008 the application of the father to re-consider the orders made 19 February 2008 in relation to the child was also dismissed.

30. On 10 October 2008 the proceedings in the District Court was listed for a hearing of an application for permanent orders.  Exhibit 6 is a “Statement of Agreed Facts” in the following terms:

    “1.      The proceedings before the Court on 10 October 2008 were proceedings for dissolution of the parties’ marriage and incidental relief.

    2.Relevantly, the Court made the following findings of fact, conclusions of law and issued the following orders and decree:

    The Court has previously ruled in this matter that it has no subject matter jurisdiction over the minor child.  The Court will not enter any allocation of parental responsibilities order.”

Issues

1. The applicant’s case is that:

   (a)the child’s removal and retention in Australia by the mother was wrongful as at the time of removal the child was habitually resident in the United States of America.

   (b)the United States of America is a signatory to the Hague Convention[2].

   (c)the child is under the age of 16 years.

   (d)the father is a person who had rights of custody in respect of the child immediately prior to her wrongful removal and retention.

   (e)the father is a person with parental responsibility for the child pursuant to Colorado law.

   (f)the father was a person who was exercising his rights of custody at the time of the child’s removal by the mother to Australia.

   (g)an application for return was made within one year of the date of retention.

   [2] The Hague Convention on the Civil Aspects of International Child Abduction 1980

2. There is no issue in relation to matters referred to in paragraphs 42(b), (c), and (g) nor that Australia is a signatory to the Hague Convention.

3. The case for the mother raises the following, that:

   (a)the child’s habitual residence at the relevant time was in Australia not the USA.

   (b)      the father did not have rights of custody.

   (c)      the father consented to the mother’s removal of the child.

   (d)      the “grave risk” ground pursuant to Regulation 16(3)(b) is established.

4. There are significant conflicts in the evidence of the father and the mother in relation to material facts relevant to the issues.  Neither counsel for the applicant or the mother sought to cross-examine the father or the mother.

Habitual residence

1. The evidence in relation to this matter can be conveniently considered having regard to the periods and places of residence of the parties subsequent to their marriage which took place in September 2001.  That will follow the structure which they themselves provided[3].

   [3] Affidavit of RY affirmed 23 April 2008 Annexure “A” (Affidavit of father sworn 21 April 2008).

From marriage in September 2001 to approximately to April 2004 in Colorado, USA

1. It is common ground that the mother and father resided in the state of Colorado throughout the abovementioned period with the exception of the next period to which I will refer.

5 March 2004 to 30 March 2004 in Australia

1. The mother and J were in Australia throughout this period.  The father remained living in Colorado.  Neither of them gave evidence as to the purpose of this short period of travel from the USA to Australia.  Whilst in Australia the mother purchased a house in Queensland.  The mother contends that the purchase was part of the “long time plan of [the father] and me for the family to move to Australia.  [The father] was aware of this and the sole purpose of the purchase.  He was pleased with the house purchased and had expressed his intention to join us in the future.  I still own that house.”

2. The father states that he was opposed to the mother purchasing the house to which I have referred.  He categorises the house as having been purchased “for an investment purpose”.

3. He contends that the mother’s travel to Australia was for “her vacation”.  It is implicit from that evidence that the father did not agree with the mother’s categorisation of the purchase of the property and it being part of a “long time plan” for them and the family to move to Australia.

April 2004 to September 2004 in M, USA

1. There is no dispute that the mother and father resided together in M.  The mother was pregnant during that time.

2. The father contends that he and the mother agreed that she should travel to Australia for the purpose of the birth of her child given that they did not have health insurance in the USA compared to the opportunity for national health care in Australia.  It was against that background that the father says he agreed to the mother and J returning to Australia for the birth of her child and subsequent return by them to resume living with the father in M.

3. The mother does not give evidence to the contrary in relation to this specific period of time.

September 2004 to February 2005 in Australia

1. The mother and J travelled to Australia where they remained prior and subsequent to the birth of the child.  The child was born in Queensland in December 2004.

2. The father remained in the USA facing pending criminal charges.  Subsequently he was convicted.

3. The mother alleges that her return to the USA with J and the child was a temporary one.  In addition, she alleges that it was agreed between the mother and father that following the future release by the father from prison they would move to Australia and settle there permanently.  The mother stored her belongings at a friend’s residence in New South Wales prior to her return to the USA.

4. The father’s evidence is that there was a discussion, as opposed to an agreement, in relation to the family’s future relocation to Australia.

February 2005 to January 2007 in M.

1. The father’s evidence is that the mother and the two children returned to the USA from Australia.  He commenced a term of imprisonment on 17 March 2005.  He was sentenced to a term of 11 months and six (6) months in a half way house.  Throughout that time the mother continued to live with the two children in M.

2. The mother’s evidence is that she and the two children did indeed return from Australia to the USA.  The mother states that she lived with the two children in the house that the father purchased in M.  The mother claimed that she has received correspondence from the father which gave her hope for “new beginnings in Australia”.

3. The father was released from prison on 13 August 2005 with a parole period of three (3) years.

4. The mother contends that the father “expressed interest in taking part in the move to Australia.  The plan was to move to Australia permanently in February 2007.”

5. The mother further alleges that in about September 2006 “we agreed to sell the house in [M] and move back to [Colorado] in the meantime to ease financial pressure for a temporary basis.”

6. The mother also states that “the plan to move to Australia in February 2007 did not materialise because we had only relocated to [Colorado] around the end of February 2007.”

January 2007 (alternatively 1 March 2007) to 26 June 2007

1. There is a dispute on the evidence as to whether the mother and father together with the two children moved to Colorado in January 2007 or from 1 March 2007.  This aspect of the chronology is irrelevant in the sense that the mother and father and the two children continued to live in the USA, whether they commenced at the earlier or later date in Colorado.

2. The father’s evidence is that regardless of where each of the mother and him lived in Colorado, the two children and he lived together in Colorado until 26 June 2007.

3. The mother states that “the father was still part of our plan to move back to Australia.  [The father] mentioned that by August 2007 he would be eligible to apply for early termination of his parole, so he should know then of the approximate time that he could follow us to Australia.”

4. The mother further contends that whilst the family lived in Colorado during this particular period the father and she discussed “the children and my return to Australia.  It was discussed that July was the best time but we ended up making ticket reservations in June because there were special ticket offers available.  I purchased the one way tickets three weeks before departure and [the father] kept a copy of our itinerary.”

5. The mother further alleges that “the plan was that when the kids and I arrived in Australia, I would go to Melbourne to look for a place for us to live.  [The father] wanted to move and live in Geelong, Victoria.  I was hesitant as I had not lived in Geelong before.  I was unsure whether it was a good place to live.  The mother further contends that she and the father agreed that upon arrival in Australia the mother and children would travel to Geelong, Victoria “so that I could see the place for myself.  If I believed that it was right for all of us, then I was to locate a house for us to live in.”

6. That represents a contradiction with the mother’s earlier evidence that whilst in Australia from 5 to 30 March 2004 she purchased a house in Queensland fulfilling the intention for her and J to have a place to live “when we eventually move back to Australia” and that the father was pleased with the purchase and “expressed his intention to join us in the future.”  No explanation was given by the mother as to why it was then considered appropriate not to move to the house purchased in Queensland on the basis that it was their future residence but rather to go to Geelong to consider if it was an appropriate place to live.

7. The mother alleges that the father was “at all times aware of my and the children’s departure to Australia.”  The mother contends that three weeks prior to departure she had commenced packing clothes in three separate luggage bags and that the father was working from the home at that time and as a consequence he was aware of that packing activity.

8. The mother contends that “prior to our anticipated flight [the father] and I had some unpleasant conversations.”  The mother claims that subsequently and prior to departure she suffered violence and abuse from the father.  The mother had also claimed that she had purchased one way tickets three weeks prior to departure and that the father kept a copy of the itinerary.

9. Ultimately, the mother together with the two children left the USA on 26 June 2007 to travel to Australia.  The mother states that the day prior to the departure the father had been physically violent towards her.  The mother surmises that was probably the reason why the father claims that she and the two children left without his consent.  The mother contends that he had knowledge “about our departure” and that she did not want him to take them to the airport.

1. Indeed, the mother states that upon her arrival with the two children in Australia on 28 June 2007 she received a telephone call from the father who said that he was upset as he wanted to take her and the children to the airport and “say goodbye”.  This suggests that the father did not know of the actual departure from the USA immediately prior to the mother leaving with the two children for the airport.  The mother claims that during the telephone conversation she informed the father that she was going to search for a house to live in whilst they were in Geelong. Yet, no mention was made by her of the house purchased for that very purpose in Queensland.

2. The father denies that he was aware of the proposed departure by the mother and the children to Australia, he states that it was only following a telephone call from a friend of the mother during the afternoon of the day of departure, that is 26 June 2007 that he became aware that the mother had taken the children and was returning to Australia.  The father says he was unaware of the packing of belongings that had taken place as the mother was able to conceal that activity from him.  The father further contends that he only discovered a copy of the flight itinerary on the morning of 27 June 2007.

Relevant legal principles

1. Counsel referred me to a number of Full Court judgments which consider the principles to be applied for determining whether or not a child is, or was, habitually resident in a particular country.  The most recent of those judgments is the joint judgment in DW and Director-General Department of Child Safety.[4]

   [4] DW and Director-General Department of Child Safety (2006) FLC 93-255.

2. The joint judgment in DW and Director-General Department of Child Safety reviews previous Full Court judgments.  However, with respect to their Honours the paragraphs which follow the sub-heading “Conclusion in relation to the present case” do not set out their conclusion regarding the principles to be applied, but rather refer to the approach that the Trial Judge took and his findings of fact.  Implicitly, the Full Court followed both the majority judgment in Panayotides and Panayotides[5] and leading English judgments in Re J and A  v A.[6]

   [5] Panayotides and Panayotides (1997) FLC 92-733 at 83,897.

   [6]Re J and A v A. (2006) FLC 93-255 at 80,331 – 80,332.

3. Consequently, I have determined that I will follow the dicta in those English judgments apparently followed by the Full Court in Cooper v Casey[7] and the Full Court judgment in Panayotides in which the majority judgment of Fogarty and Baker JJ held as follows:

   “The question of habitual residence has been the subject of much judicial deliberation, and I have been referred to numerous authorities in that regard.  From those authorities, the following principles emerge:

   (1)      the expression ‘habitually resident’ is not to be treated as a term of art with some special meaning, but rather it is to be understood according to the ordinary literal meaning of the two words used (see, In re J (a minor) (1990)
   3 WLR ¶949);

   (2)      the question of whether a person is or is not habitually resident in a specified country is a question of fact to be determined by reference to all the circumstances of the case (see, In re J (a minor) (supra);

   (3)      the habitual residence of a child whose parents reside together is the habitual residence of those parents (see, Re B (minor) (1993) 1 FLR ¶993);

   (4)      it is not possible for one parent to unilaterally determine a child’s habitual residence by removing that child (see, State Central Authority v McCall (1995) FLC ¶92-552);

   (5)      habitual residence refers to the parents’ habitual abode in a country:

   ‘Which they have adopted voluntarily and for settled purposes as part of the regular order of their life for the time being whether it is of short or long duration’.

   [7]Cooper v Casey (1995) FLC 92-575 at 81,695 – 81,696.

   (see, re B (minor) (supra) p.995).”

4. The English decisions to which I referred held that, inter alia:-

   “Although habitual residence can be lost in a single day, for example upon departure upon the initial abode with no intention of returning, the assumption of habitual residence requires an appreciable period of time and a settled intention.  The House of Lords in Re: J Sub Nom CVS (above) refrained, no doubt advisedly, from giving any indication as to what an ‘appreciable period’ would be.  If the purpose was settled, the period of cohabitation need not be long.”

5. The evidence of the mother and father is contained in affidavits and witness statements which I received into evidence without objection.

6. As earlier stated, I respectfully follow and apply the summary of the principles of law in relation to habitual residence enunciated by the Full Court and provided by Waite J in Re: B (Minors) (Abduction ) (No. 2)[8] to which I have made earlier reference.  It is appropriate to provide the following summary of principles relevant to the issues before me which includes, inter alia:

   “2.  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 it is 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.

   3.  Although habitual residence can be lost in a single day, for example upon departure from the initial abode with no intention of returning, the assumption of habitual residence requires an appreciable time and a settled intention.”

   [8] Re: B (Minors) (Abduction ) (No. 2) (1993) 1 FLR 993 at 995 referred to by Ellis J and cited with implicit approval in Cooper and Casey (1995) FLC 92-575 at 81,695 and subsequent Full Court Judgments.

Conclusion

1. I have determined that the habitual residence of the child, at the time of her removal by the mother from the USA on 26 June 2007, was in the USA. My reasons are as follows, bearing in mind that whether or not the child was habitually resident in the USA or indeed in Australia as submitted by the mother is a question of fact.[9]

   [9] Panayotides supra.

2. The mother and father cohabited in the USA from marriage until 26 June 2007, being a period of approximately five and three quarter years, with the exception of two brief periods.  The first of those periods was for about three weeks in March 2004 and of course prior to the birth of the child, when the mother and J resided in Australia.  The second period was for about five and half months from 16 September 2004 until 28 February 2005.  I find that the travel by the mother with J at the commencement of that period, with the consent of the father, was to enable the mother to give birth to the child in Australia and implicitly, then return to live with the father in the USA together with J and the child.  That in fact occurred.

3. Whether the mother and father lived for a shorter or longer period of time in one State or the other, being in either M or Colorado, is irrelevant.  It is the residence in the USA being the relevant “Convention Country” that is the relevant place in accordance with the provisions of Regulation 16(1A)(b).

4. I also find, that for the purpose of habitual residence, the mother and father demonstrated a “settled purpose” in living in the USA, which represented a shared intention to do so which, having regard to the period of time involved both prior and subsequent to the birth of the child, demonstrated such continuity as can be described as “settled”.  To that extent the principles enunciated, to which I have made earlier reference, apply.[10]  It is not necessary to establish domicile.

   [10] Cooper v Casey following Re: B (Minors) (Abduction ) (No. 2) per Waite J supra.

5. I make the further finding that the reality is that, against a background of an ever deteriorating marriage relationship between the father and mother, the mother decided to leave the USA with the child and J on 26 June 2007 to live permanently in Australia.  That was her sole decision.

6. It is well established that one parent cannot unilaterally change the habitual residence of the child, whose habitual residence is that of both of the parents of the child at the time of removal.  That habitual residence at that time was the USA.[11]

   [11] Panayotides supra.

7. I find that whilst the mother and father did have a joint long term plan in the past to live together with J and the child in Australia, not only was that joint plan expressed well before the mother, the child and J left the USA on 26 June 2007, I find that they did not agree that for that purpose the mother may leave the USA with the child (and J) on 26 June 2007 to live in Australia permanently without the father leaving with them on that date for that purpose.  Indeed, I further find that not only did the father fail to agree to the change of habitual residence taking place, by the mother leaving with the child in those circumstances, but that he also did not agree to the mother and child remaining in Australia on a permanent basis with a view to him joining them on a particular subsequent date or during a defined subsequent period.

8. At the time when the mother removed the child from the USA on 26 June 2007 she had the dual status of being an Australia citizen and a permanent resident in the USA.

9. The father, for his part, was a citizen of the USA at all material times.  As at 26 June 2007 he did not hold Australian permanent residence status nor an Australian visa to permit him to reside in Australia on any terms.  He had not he applied for Australian permanent residence and/or a visa.  Indeed, as at 26 June 2007 he was still bound by his parole conditions following his release from prison. There is no evidence of such parole conditions having been waived to permit him to apply, let alone obtain, a visa or permanent status in Australia consistent with any past plan that the mother and father may have had.

Whether the father had rights of custody in relation to the child

1. The Application to the Court was made within one year of the removal of the child from the USA.

2. As a result, Regulation 16(1) applies.  As a consequence, should the applicant satisfy the court that the child’s removal or retention was “wrongful” pursuant to Regulation 16(1A) then a return order for the child must be made subject to the court being “satisfied” of a matter that arises for determination pursuant to Regulation 16(3).

3. Regulation 16(1A) is in the following terms:

   “For subregulation (1), a child's removal to, or retention in, Australia is wrongful if:

   (a)      the child was under 16; and

   (b)      the child habitually resided in a convention country immediately before the child's removal to, or retention in, Australia; and

   (c)       the person, institution or other body seeking the child's return had rights of custody in relation to the child under the law of the country in which the child habitually resided immediately before the child's removal to, or retention in, Australia; and

   (d)      the child's removal to, or retention in, Australia is in breach of those rights of custody; and

   (e)       at the time of the child's removal or retention, the person, institution or other body:

   (i)       was actually exercising the rights of custody (either jointly or alone); or

   (ii)       would have exercised those rights if the child had not been removed or retained.”(Emphasis added)

4. As previously referred to, it is submitted on behalf of the mother that the father did not have “rights of custody in relation to the child” in accordance with Regulation 16(1)(c).  It is important to consider the explanation of the expression “rights of custody in relation to the child” as provided in Regulation 4 which is in the following terms:

   “(1) For these Regulations, a person, institution or other body has rights of custody in relation to a child if:

   (a)the child was habitually resident in Australia or in a convention country immediately before his or her removal or retention; and

   (b)rights of custody in relation to the child are attributed to the person, institution or other body, either jointly or alone, under a law in force in Australia or in the convention country in which the child habitually resided immediately before his or her removal or retention.

   (2)For the purposes of subregulation (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.

   (3)      For the purposes of this regulation, rights of custody may arise:

   (a) by operation of law; or

   (b) by reason of a judicial or administrative decision; or

   (c) by reason of an agreement having legal effect under a law in force in Australia or a convention country.”(Emphasis added)

5. It is common ground that in these proceedings, the issue of the rights of custody of the father immediately prior to the mother’s removal of the child from the USA arises by operation of law, namely the law of the USA.  My determination cannot, of course, bind the appropriate forum in the USA.[12].  The critical time for the purpose of considering “wrongful” removal in accordance with Regulation 16(1A)(c) relates to the person, in this case the father, who seeks return by the Central Authority, having rights of custody immediately before the removal of the child.

   [12] M W v Director General, Department of Community Services [2008] HCA 12 at paragraph 73 per Gummow, Heydon and Crennan JJ.

6. The evidence of the foreign law, that is the law of the USA, so far as these proceedings are concerned, comprises Exhibit 2 being annotations to legislation in the State of … USA; Exhibit 3 which is similar material in relation to the State of … USA; Exhibit 4 being the annotated USA Federal Law, the Uniform Child Custody Jurisdiction and Enforcement Act (1997) and two Affidavits of Susan H. De Freitas, an attorney who is a member of the State Bar sworn on the 9 January 2008 and 7 February 2008 respectively.

7. I raised with counsel the desirability of appointing a single joint expert in relation to the relevant law in the USA given the unusual circumstance in these proceedings that subject that in the matter of the interpretation of Exhibits 2, 3 and 4, the expert evidence was that given by the father’s attorney.  To that extent the father’s attorney had made herself a witness in the case, albeit for the purpose of giving expert evidence.  Without seeking to impugn the credibility of the father’s attorney, having regard to the questions of law that arose in these proceedings, it seemed desirable for an independent expert witness to be appointed.

8. The Rules of this court, which encourage the appointment of an independent single joint expert, have been in force since 2004.  Generally speaking, those Rules have proved to be successful in terms of the quality of the evidence given, containment of the length of hearings and reduction in the amount of legal costs that might otherwise be incurred.  Given that the Central Authority is, in effect, part of a Government Department, I had considered that the suggestion of a single joint expert being appointed would be positively received.  Ultimately, it was not a course adopted by the applicant.  So far as the mother is concerned, her position was that she did not have the financial resources to meet the fees that might have been incurred.  Consequently, the mother’s case was limited to the evidence adduced by the applicant.  Accordingly, I will proceed to determine this issue, notwithstanding my concern in relation to the limitations of the evidence before me.

9. The evidence of the father’s attorney is that at the time of the mother’s removal of the child on 26 June 2007 from the home of the mother and father in C:

   (a)      the mother and father were married.

   (b)an order had not been made by a court in relation to the custody of the child.

   (c)under the relevant US law, “both parents share an equal right to the custody of the child in the absence of a court order granting legal or physical custody to one parent or the other.”

10. There is no issue that for the purpose of Regulation 4(3) the question of whether the father had “rights of custody” at the time of removal by the mother of the child must be considered to have arisen, if at all, “by operation of law”[13].

    [13] Regulation 4(3)(a)

11. On behalf of the mother, it is submitted that no weight can be given to the evidence of the father’s attorney as that evidence did not deal with the question whether the father’s rights of custody, albeit not conceded, do include “the right to determine the place of residence of the child” in accordance with Regulations 4(1)(b) and (2).

12. Annexure “B” to the Affidavit of Ms RY affirmed 18 February 2008 and filed 19 February 2008 includes a copy of the judgment of the Supreme Court of Colorado sitting as an appellate court dated 13 January 1986[14].  The petitioner had been convicted of second degree kidnapping.  He was alleged to have kidnapped a four month old child, being the child of his marriage, from the care of his wife who was caring for the child in her apartment.  The petitioner and his wife had been separated for several months at the time of the incident.  A custody order had not been made at that time.

    [14] Armendariz v The People of the State of Colorado 711P.2d 1268; 1986 Colo. Lexis 477.

13. It was held in that judgment that “under modern law in most States, both parents have an equal and joint right to the custody of their minor children.”

14. In addition, it was held by reference to the relevant legislation “that legal custody may be taken from a parent only by court action.”  Absent a court order granting “legal or physical custody to the child’s mother, the defendant shared an equal right to the custody of the child.”  Consequently, it was held that the prosecution’s case failed.

15. I was also referred to the judgment of the Court of Appeals of Colorado Division 1 delivered on 12 September 1991 in the People of the State of Colorado v Haynie.[15]  With respect, I am not assisted by that judgment.  A relevant factor was that there had been a current custody order.  Consequently, the issues that were considered in the context of the charge of second degree kidnapping, are different to the issues for determination by me in these proceedings as it is common ground that no order in relation to custody, or indeed, access or parental responsibility had been made by any court in the USA.

    [15] Annexure “C” of RY affirmed 18 February 2008; 826P. 2d371; 1991 Colo. App. Lexis 285.

16. Exhibit 4 is the relevant federal law to which I have referred.  I accept the submission made by the applicant that this legislation has, as one if its objects, to “deter abductions of children”.  I also accept the submission made on behalf of the applicant that “this is consistent with a system where parents with rights of custody have the right to determine a child’s place of residence. It is inconsistent with a system which gives one parent unilateral authority to determine a child’s place of residence.”

17. Indeed the judgment given in Armendariz demonstrates the acceptance by the Supreme Court Colorado of the proposition that rights of custody do indeed include the right to determine the place of residence of a child and that absent a court order, those rights are reposed equally in the parents of the child.

18. The joint judgment of Gaudron, Gummow and Hayne JJ in DP v Central Authority; JLM v NSW Department of Community Services having referred to relevant Regulations 3, 4 and 14, held that there was no requirement that before any alleged removal or retention of the child there must have been a judicial decision about rights or custody or that subsequently there “be any application to a court to determine who shall have future rights of custody in relation to the child”[16].

    [16] DP v Cental Authority; JLM v NSW Department of Community Services (2001) FLC 93-081 at paragraph 27

1. Indeed the Regulation so referred to included “the right to determine the place of residence of the child”[17]. It was further held that “all that the definitions require is that by the law of the place of habitual residence immediately before removal or retention, the child’s removal to Australia or the child’s retention in Australia is in breach of the rights of custody of some person, institution or body.  Often enough, that will be so where, by operation of the law of the place of habitual residence, both parents have rights of custody of child of their union”[18].

   [17] Regulation 4

   [18] Ibid

2. Indeed, further support for that approach is found in the subsequent judgment of Kirby J in MW v Director General, Department of Community Services when His Honour approved the statement of Hope LJ InRe D (the child) Abduction: Rights of Custody in which His Lordship held:

   “A right to object to the child’s removal to another country is as much a right of custody, for [Convention] purposes, as a right to determine where the child is to live within the country of its residence.”[19]

   [19] In Re D (the child) Abduction: Rights of Custody paragraph 217 & 218; [2007] 1 AC 619 at 616

3. Having regard to the statement of the applicable law by the Supreme Court of Colorado referred to in paragraphs 102 and 103 and the submissions made on behalf of the applicant to which I have made reference in paragraphs 105 and 106 as well as the dicta in the High Court to which I have referred, I have concluded that the father did have “rights of custody” in relation to the child immediately prior to her removal by the mother from the USA on 26 June 2007.  I also find that the father was exercising these rights of custody in that he and the mother were living together with the chid in the same house.

4. In his succinct and cogent written submissions made on behalf of the mother, counsel submitted that there was an absence of jurisdiction in the State of Colorado to enable enforcement of any rights of custody that the father had.

5. As Exhibits 5 and 6 make clear it is agreed that on the 19 February 2008 and 10 October 2008 Russell J in the District Court dismissed the application of the father for “allocation of parental responsibilities for want of jurisdiction”.  As a result the submission by counsel for the mother was made.

6. Notwithstanding the limitations in the evidence of the father’s attorney and the absence of more extensive expert evidence in relation to both the Federal USA law and the applicable law in the State of Colorado, I have concluded that the appropriate court in either the State of Colorado or the State of M may be persuaded to exercise jurisdiction for the following reasons.  Each of those States, or indeed another State with which there may be “a connection” established by either of the mother and father and the child, may be persuaded that it has jurisdiction which should be exercised, given not only the “Home State” provisions, but also having regard to the court’s parens patriae jurisdiction and/or the power to deal with “emergency situations”.  I accept the submissions made on behalf of the applicant that the relevant State court in the USA is not prevented from considering those issues in any subsequent parenting proceedings.  The material before me, either by way of evidence or in counsel’s helpful written submissions, does not refer to there having been any determination made in relation to all or any of those issues.  That may be due to there having been a lack of submissions made to the court in relation to those issues.

The consent of the father

1. The mother contends that the father consented to her leaving the USA with the child and J on 26 June 2007 in order to travel to and live in Australia.

2. There is no issue that the mother and J lived in Australia for a period of about three and half weeks being from 5 March to 30 March 2004.

3. The mother’s evidence is that she and J travelled to Australia with the father’s consent where they lived for a live for a period of about three and a half weeks mainly from 5 March 2004 to 30 March 2004 before returning to the USA.

4. The mother claims that her travel to Australia for that period was in order to “reassess the situation” against a background of alleged violent behaviour by the father.

5. Apart from the purchase of the house in Queensland by the mother, to which I have earlier referred, the mother alleges that “it was a long time plan of [the father] and me for the family to move to Australia.”  The mother contends that the father was both aware of the purpose of the purchase of the house in Queensland and was pleased with it as well as having “expressed his intention to join us in the future”.

6. The evidence of the father is that he did not have a positive view in relation to the purchase of the Queensland house by the mother.  His evidence does not deal with the remaining matters to which I have referred.

7. The mother and father together with J lived in the USA until during September 2004.  There is also no issue that the father consented to the mother returning to Australia with J during September 2004.  The mother at the time was pregnant.  The mother and father had agreed that it was preferable for the child to be born in Australia given the more attractive health scheme in Australia.  There is no issue that the mother, J and subsequently the child remained in Australia until 28 February 2005 with the consent of the father.

8. The father denies the allegation by the mother that she only returned to the USA with the child and J having been persuaded to do so by the father.

9. There is no issue that the mother and father together with J and the child continued to reside in the USA until 26 June 2007.  On that date the mother, J and the child left the USA and travelled to Australia.

10. During the last mentioned period it is clear from the evidence of both the mother and father that their relationship was volatile and, for different reasons attributed by them, that relationship had deteriorated.

11. The mother alleges that following the father’s release from prison in about August 2005 the father agreed with her “that it was time for the children and I to return to Australia.”  The mother further alleges that the father “had expressed interest in taking part in the move to Australia.  The plan was to move to Australia permanently in February 2007”.

12. I note that the mother only claims that the father “expressed interest” in “the plan” rather than having moved to the next stage of actually agreeing to it.

13. The mother further alleges that in about September 2006 she and the father had agreed to sell the house in M and return to Colorado to “ease financial pressure for a temporary basis.”  The mother states that “the plan to move to Australia in February 2007” did not come to fruition “because we had only relocated to [Colorado] around the end of February 2007”.

14. That reason does not appear to be logical.  If the mother’s claim is correct then they could still have travelled to Australia instead on relocating to Colorado.

15. The mother further alleges that “[the father] was still part of our plan to move back to Australia.  [The father] mentioned that by August 2007 he would be eligible to apply for early termination of his parole, so he should know then of the approximate time that he could follow us to Australia.”

16. This is a curious way of expressing the father’s alleged consent to the mother and the child returning to live in Australia.  If it was indeed an agreement between the two of them, then that was not stated.  It would have been a simple matter for the mother to have claimed that “we” or “[the father] and I still planned to move to Australia.”  The manner in which this evidence is expressed suggests perhaps that it was really the mother’s plan dressed up as “our plan” and that the father was simply part of her plan.

17. The mother further contends that in June 2007, prior to her ultimate departure with the child and J on 26 June 2007, she and the father discussed “the children and my return to Australia.”  The mother further contends that “July was the best time” but tickets were purchased in June as there were special offers available.  The mother further alleges that the father kept a copy of the itinerary.  In addition, the mother alleges that “the plan” was that following the mother’s arrival with the child and J in Australia she would travel to Melbourne to search for a place to live and that the father “wanted to move and live in Geelong, Victoria.”  The mother contends that ultimately she and the father agreed that she would satisfy herself whether Geelong was a suitable place to live and then to proceed to locate a house for that purpose.

18. The mother claims that the father was present in the home when she proceeded to pack clothes for the impending travel to Australia.

19. The mother also claims that the relationship between herself and the father had deteriorated due to arguments between them in relation to his alleged alcoholism and absences from the home.  The mother claims that she was frightened.

20. The mother claims that on the day of departure, namely 26 June 2007, she decided, as opposed to the mother and the father making a joint decision, that she and the child and J would travel to the airport themselves.  The mother states that she did not want the father to take them to the airport due to violent behaviour by the father to her that day or the previous day.

21. The mother states that, following her arrival in Australia, she had a telephone conversation with the father who had called her.  He was “upset” and allegedly stated that he had wanted to take her and the two children to the airport “and say goodbye.”  The mother claims that over some “days” her fear of the father “had slowly subsided.”

22. The evidence of the father is that he was unaware of the mother packing belongings as she must have done so surreptitiously.  He also contends that it was not until the 27 June 2007 that he discovered a copy of the relevant flight itinerary.  He also states that he was unaware that the mother had left with the children until he had received a call from a friend of hers during the afternoon of 26 June 2007.

23. The father denies the allegations of violence and consumption of alcohol made by the mother.  Indeed he contends that the mother engaged in abusive behaviour towards him as well as violent behaviour.

24. It is apparent from the father’s diary entry for 2 May 2007 that upon the mother arriving home from work he states that he “made a comment about moving to Australia by this fall.  She told me that she was leaving in August and taking the children with her.  I told her, that the children and I would not be able to leave until October or November, at the earliest.  She then told me that she did not care about having me move to Australia, but it would be just her and the children.  It was at this point that I told her that I would not allow this and [the mother] became more angry and started arguing about the past again.”

25. It appears from the father’s evidence that any consent to the mother’s travel with the children to Australia was on the basis that he would travel with them but not until October or November 2007 “at the earliest.”  He was opposed to the mother taking the children with her, without him.

26. The mother contends that copy email annexed to her Affidavit sworn 11 April 2008 is relevant to the issue of consent by the father.  That email includes the following sent by the father to the mother:

    (a)11 November 2004.  The father referring to property purchased in M states “I thought that it would be a great place to be for of all us, for a while, until we were able to move to Australia or some place else that we both liked.”

    (b)17 November 2004.  Referring to his attorney, the father stated that he had called the father “and I had a chance to discuss our moving to Australia after everything is finished up with legal stuff”.  The father referred to his conversation with his attorney in relation to criminal proceedings, and again in referring to his attorney, states “he said that after he gets the report from the parole department, he can see about having this added in and he does not think it will be a problem.  This is definitely good news for us, as it will hopefully increase my chances for immigration when the time comes.”

    (c)16 December 2004.  The father, having referred to renovations, proceeds to state “I was just looking on the internet about more info on Geelong.  The more that I learn about that place and the photos that I see, the more that I really like the place.  It sound and looks so wonderful and I’m sure that it would be a great place to raise our kids.  Also, it has the best of both worlds when it comes to what we’re each wanting in a place to live.  I certainly think that it warrants taking a real close look at when it comes time to move to Australia.”

    The father concludes by reference to the expected birth of the child in two weeks.

    (d)9 February 2005.  The father states “for now, I just keep my thoughts focussed on the future and hopefully, our move to Australia.  I feel that once we are away from here and get settled in over there, we’ll be able smile again and maybe even take a deep breath of relief.”

    (e)In or about November 2006.  The father states “I came across this reply to a post and wanted to know if you knew anything about it.  It talks about “Newstart Allowance”, when moving to Australia”.  The father refers to other benefits such as Centrelink available in Australia.

    The mother replied by email dated 13 November 2006 referring to her familiarity with the relevant Australian programs.  The mother refers to her aspiration of being offered “a job in around February”.

Conclusion

1. I have carefully reviewed the evidence upon which the mother relies.  I have concluded that the father did not provide, either an express or implied, consent to the mother removing the child from the USA on 26 June 2007 and retaining her in the mother’s care in Australia for the subsequent period.

2. I have followed the interpretation provided in Department of Community Services v Casse that there must be “clear and unequivocable words and conduct which could properly be interpreted as acquiescence”[20] to the issue of “consent” relied upon by the mother in these proceedings.

   [20] Department of Community Services v Casse (1995) 19 FamLR 474.

3. The email communication between the father and the mother following her departure with the child (and J) from the USA on 26 June 2007 and arrival in Australia is at odds with her contention that implicitly, the father consented to departure on that date for the purpose of living in Australia due to his alleged previous knowledge of the proposed departure.  Indeed, there is no evidence of substance either immediately prior or subsequent to that departure with regard to the father’s communication with the mother and any other conduct which supports her case.  The fact that the parties had previously had a joint plan to live in Australia at some indeterminate time in the future does not support the wife’s case on the issue of “consent” immediately prior to the date of departure by the mother with the child from the USA for the purpose of them living permanently in Australia.

Regulation 16 (3)(b)

1. The mother relies on the ground referred to in this regulation which, if established, may cause the court in its exercise of discretion to refuse to make an order for the return of the child who has otherwise been wrongfully removed his or her habitual residence.

2. Regulation 16(3)(b) is in the following terms:

   “A court may refuse to make an order under subregulation (1) or (2) if a person opposing return establishes that:

   …

   (b)      there is a grave risk that the return of the child under the Convention would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.”

3. In support of the mother’s case she relies upon the alleged conduct of the father as set forth in her Affidavit sworn 11 April 2008.

4. The mother claims that the father regularly consumed alcohol to the point that he became intoxicated was often violent and abusive towards her.  There is no allegation made by the mother that he acted in any violent or abusive way towards the child or J.  However, it is implicit that the mother alleges that both children were in the premises occupied by the mother and father at the time of those relevant occurrences and consequently, were or may have been affected by the father’s behaviour.

5. The evidence of the father is that he concedes that “I drink too much and must cut it back a great deal”.  However, he also alleges that there were periods when he was not consuming alcohol.  His own version of the marriage relationship is that they frequently argued and had “fights” in the sense of verbal abuse and at other times when the mother was physically violent towards him and otherwise was violent in the household by breaking contents of it.  The father also contends that the mother exhibited “extreme mood swings” and argued “over petty issues”.

6. The mother contends that whilst she and the father resided in Colorado and prior to the birth of the child she called the police on “a couple of times due to [the father’s] intoxication” the police counselled the father but did not charge him.  The mother contends that he was physically violent or threatening towards her.

7. It is clear that the marital relationship was a volatile one with periods during which, according to the mother, joint plans were made for their future lives together including in Australia.

8. The mother claims that during the period 28 February 2005 to 1 March 2007, following the father’s release from prison, they continued to have many heated arguments.

9. During the period 1 March 2007 to the date of the mother’s departure with the two children on 26 June 2007 the mother claims that the father became severely intoxicated with alcohol, heated arguments developed between them in relation to the father’s alcohol consumption and that he became “physical towards me.”

10. The mother alleges that during the last argument that she and the father had prior to her departure with the two children on 26 June 2007, the father kicked her and also hit her on the arm causing her to almost fall down the stairs.

11. The father gives instances of the mother’s verbal abuse and physically striking him on the chest and arms.  He denies the allegations of alcoholic intoxication, subject to the concession to which I have earlier referred.

12. With regard to the mother’s allegations of violent behaviour by the father shortly prior to the mother’s departure with the two children from the USA to Australia, the father contends that the argument that they had was a continuation of a previous argument some weeks earlier and that in the course of it the mother screamed at him, was abusive and commenced striking him.  He claims he formed the opinion that the mother “was completely out of control in her actions towards me, so I turned around and kicked her with the side of my foot on her behind.  This was not a hard kick and was not intended to hurt her, only to let her know that I was not going to allow her to hit me any longer”.  He states that the police were not called.

13. I find that the father and mother had a volatile relationship during the course of their cohabitation.  It was marked by the husband at times consuming intoxicating liquor to excess, arguments and abusive behaviour between them.

14. Indeed, having regard to the evidence which each gave, previously summarised by me, there can hardly be any dispute in relation to such findings.

15. However, such findings are not sufficient to attract the provisions of Regulation 16(3)(b).  The leading authority in relation to this Regulation is represented by the judgments of the majority in DP v Cental Authority; JLM v NSW Department of Community Services[21].

    [21] DP v Cental Authority; JLM v NSW Department of Community Services (2001) FLC 93-081

1. The joint judgment in that case makes it clear that the party opposing return bears the onus of proof[22].  The majority judgments rejected the proposition that Regulation 16(3)(b) is to be narrowly construed.  Indeed, it was held that Regulation “presents no difficult question of construction and it is not ambiguous”[23].  The majority judgment proceeded to hold that “what must be established is clearly identified: that there is a grave risk that the return of the child would expose the child to certain types of harm or otherwise place the child in “an intolerable situation” ”.  That approach requires prediction of “what may happen if the child is returned”[24].

   [22] Ibid at paragraph 39 per Gaudron, Gummow and Hayne JJ; Callinan J concurring

   [23] Ibid at paragraph 41

   [24] Ibid at paragraph 41

2. The majority judgment emphasised “what is required is persuasion that there is a risk which warrants the qualitative description “grave” ”.  Their Honours emphasised that the “risk” which is found to be “grave” extends not only to “harm that will actually occur, it extends to a risk that the return would expose the child to harm”[25].

   [25] Ibid at paragraph 42

3. The majority judgment further held that in relation to the establishment of grave risk of exposure to future harm “a court will not be persuaded of that without some clear and compelling evidence”[26].(Emphasis added)

   [26] Ibid at paragraph 43

4. I am not persuaded, on the balance of probabilities, that the mother has discharged the onus of proof that she bears.  I am unable to be satisfied, that the mother’s evidence in relation to the father’s alleged violent and abusive behaviour to her implicitly amounted to a “grave risk” of exposing the child to harm whether physical or emotional or that the child may be placed in an “intolerable situation”.  My difficulties in that regard are due to the conflicting detailed evidence of the mother and the father, each of which has been presented in a plausible way and which was not tested by cross-examination.  Indeed, leave was not sought to do so.  The observations of the High Court in previous judgments are relevant in that regard.[27]

   [27] DP v Cental Authority; JLM v NSW Department of Community Services supra at paragraph 77; MW v Director General Department of Community Services (2008) HCA 12 at paragraph 46.

5. Whilst there is a risk that the child may be in the care of the father either during the day or overnight upon her return to the USA and may be intoxicated and conduct himself in a way which may alarm the child, that “risk” of itself does not satisfy me that it is a grave risk of harm to the child or may place her in an intolerable situation.  There is no evidence that the father has anything other than a loving parental attitude to the child.  The conduct that the father and mother allege against each other arises out of their deteriorating relationship.  There is no evidence to suggest that should the mother return with the child to the USA that she will resume cohabitation with the father or live in the same premises as him.  Indeed, there have been proceedings instituted by the father seeking a decree of dissolution of his marriage to the mother.

6. The mother also contends that the child will be placed in an “intolerable situation” due to the financial circumstances that she will face upon returning with the child to the USA if so ordered to do so.  Whilst an order is sought that the mother return with the child, it would be unrealistic to be blind to the circumstances of the mother having been the primary care of the child, both prior and subsequent to the date of removal from the USA and the implicit attachment that the child is likely to have with the mother in those circumstances.  Accordingly, I have considered the issues on the assumption that the mother would return to the USA with the child should the orders as sought by the applicant be made.

7. The evidence is that the father has been engaged in employment for the majority of the period of the cohabitation between the mother and father in the USA.

8. So far as the mother’s financial circumstances are concerned, her evidence which I accept is that in March 2004 she purchased a house property in Queensland for $180,000.00.  The mother did not give evidence of the manner in which she was able to pay the purchase price.  As the mother has referred to other aspects of financial burdens that she has carried since her marriage to the father, I consider it to be reasonable to infer that should she have borrowed funds to meet the whole or any part of the purchase price then she would have given evidence to that effect.  However, no such evidence has been given.  I accept the mother’s evidence that the property so purchased by her has been continuously rented since its purchase.

9. The mother also gave evidence that in 2005 she returned to unspecified employment.  The mother’s evidence also is that the income earned by her enabled her to support herself and the two children as well as providing “spending money” to the father whilst he was in prison.  No evidence was given by the mother of either the gross of net income after tax so earned by her.

10. The mother’s evidence also refers to her having held a “teaching licence” since expired.

11. Other relevant evidence given by the mother is that should she return to the USA her financial position would be difficult as not only has her teaching licence expired and she does not have employment secured in the USA, but that the father has not paid child support.  In addition, the mother claims that she does not have accommodation in the USA.  The mother refers to her lack of “a support group” in the USA and that the USA does not a “social security system” not would she, the child and J be eligible for medical benefits.  The mother also states that she would not be able to afford child care.

12. Whilst I accept the mother’s evidence that she does not have accommodation in the USA and would not live with the father, I do not accept the balance of her evidence which is uncorroborated.

13. An important omission from that evidence is the amount of rent, gross or net, after expenses and tax that the mother receives from her Queensland property, or its current market value, or whether she would sell that property and utilise the net sale proceeds for future financial support, or continue to receive the rent from it.

14. In those circumstances I do not accept the wife’s case that the child would be placed in “an intolerable situation” in accordance with Regulation 16(3)(b).

15. Having regard to my findings of fact it follows that I am not persuaded that a grave risk of exposure to future harm or the child having been placed in “an intolerable situation” in accordance with Regulation 16(3)(b) have been established due to a lack of “clear and compelling evidence” to satisfy me on the balance of probabilities.

16. Consequently, I find that the mother is not able to successfully rely upon Regulation 16(3)(b).

Conclusion

1. I have made findings in favour of the applicant that immediately prior to the removal of the child by the mother from the USA on 26 June 2007 that:

   (a)      the child habitually resided in the USA being a Convention Country.

   (b)the father had rights of custody in relation to the child under the law of the USA.

   (c)the child’s removal to and/or retention in Australia is in breach of those rights of custody.

   (d)at the time of the child’s removal or retention the father was actually exercising those rights of custody jointly with the mother or alternatively would have exercised those rights if the child had not been removed or retained.

2. There is no issue that at the time of removal the child was under the age of 16 years.

3. Accordingly, I declare that the mother’s retention of the child in Australia was wrongful in accordance with Article 3A of the Convention.

4. I have not received submissions in relation to conditions, if any, that should be the subject of orders in relation to the return of the child to the USA.  I will stay the order for the return of the child pending submissions in relation to that matter.

I certify that the preceding one hundred and seventy-seven (177) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose

Associate: 

Date:  22 December 2008