Department of Community Services and Wexler

[2009] FamCA 215

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF COMMUNITY SERVICES & WEXLER [2009] FamCA 215

FAMILY LAW – CHILD ABDUCTION - Hague Convention –  “conditional consent”

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

A v A (Child Abduction) [1993] 2 FLR 225
Cooper v Casey (1995) FLC 92-575
Hanbury-Brown (1996) FLC 92-671
DW and Director-General, Department of Child Safety [2006] FamCA 93
HBH & Director-General, Department of Child Safety [2006] FamCA 1053, (2007) 36 Fam LR 333
M & M (Abduction; England and Scotland) [1997] 2 FLR 263
Re B (Minors) (Abduction) (No 2) [1993] 1 FLR 993
Re F (a Minor) (Child Abduction) [1992] 1 FLR 548
Re J (a Minor) (Abduction: Custody Rights) [1990] 2 AC 562

APPLICANT: Director-General, Department of Community Services

RESPONDENT: Mr Wexler

FILE NUMBER: SYC 6187 of 2008

DATE DELIVERED: 21 January 2009

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Le Poer Trench J

HEARING DATE: 17 December 2008 and
19 January 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Hartstein

SOLICITOR FOR THE APPLICANT: Department of Community Services

COUNSEL FOR THE RESPONDENT: In Person

SOLICITOR FOR THE RESPONDENT: In Person

Orders

1. The Application filed 22 October 2008 is dismissed.

2. In the absence of any Application to the contrary filed by the mother pursuant to the Family Law Act (1975) the Orders pursuant to paragraphs 1, 4 and 5 of the Application filed 22 October 2008 (those Orders being made 28 October 2008) be discharged at the expiration of twenty-one (21) days hereof.

3. I request the Central Authority forthwith advise the mother of the decision made in the proceedings today.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 6187 of 2008

DIRECTOR-GENERAL, DEPARTMENT OF COMMUNITY SERVICES

Applicant

And

MR WEXLER

Respondent

REASONS FOR JUDGMENT

1. On 22 October 2008 the Central Authority, through its delegate the Director‑General of the Department of Community Services, issued an application under the Family Law (Child Abduction Convention) Regulation 1986 seeking the return to the U.S.A. of three children, D born in September 1999, E born in November 2001, and M born in March 2005.  The children reside in Australia with their father, Mr Wexler, born in July 1975.  The mother is Mrs Wexler, born in April 1977. 

Background Facts

1. It is common ground that the mother and father agreed to relocate from the United States of America to Australia in 2008.  The parties agreed that the children and the father would leave the U.S.A. on 23 February 2008.  The father and the children did leave on that date.  The mother was to join them after she had attended to some personal and business matters.  Ultimately the mother did not join the father and children.  The applicant alleges that there was a wrongful retention of the children in Australia in about June of 2008.

2. The application is opposed.  The father filed an answer and cross-application on 1 December 2008.  The grounds for opposing the application are:

   a)That the habitual residence of the children was at all relevant times Australia;

   b)The mother was not exercising rights of custody in or about June 2008, the date upon which she alleges the children were wrongfully retained in Australia.

3. On 17 October 2008 the mother swore an affidavit.  It is annexed to the application by the Central Authority.  In that affidavit the mother says relevantly as follows. 

4. The mother and father worked for the mother’s father in business for about seven years.  In about early 2006 the father attempted to establish his own business with the assistance of the mother.  The father was to run the company and the mother was to care for the children.  The new business required the father to be away from home a great deal.  There was strain put on the family and the parties’ relationship due to the new business. 

5. In June 2006 the mother filed for divorce but did not proceed with it.  The business either failed or was shut down by the father.  The father suggested to the mother that the family live overseas.  A number of countries were discussed over some time.  The mother found objection to them until he proposed Australia.  The mother and father agreed they would move to Australia.  The parties told their families they were moving to London.  The mother said:

   “I felt extremely uneasy about this secrecy.  I went along with it because [the father] convinced me that we would be putting our families in a bad situation if they had to lie for us to the creditors looking for us.”

6. The parties began to sell their belongings in preparation for the move.  The parties raised $33,000 for their immigration to Australia.  Everything else was either repossessed or given away.  The mother says:

   “We obtained 12 month tourist visas for the family and purchased airline tickets.”

7. They fitted all their possessions into boxes to go to Australia.  In the days before departure to Australia the mother developed cold feet about the move.  The mother says that finally it was agreed the father and the girls would go to Australia.  Clearly this was to live there.  The mother’s development of cold feet was not in relation to the move to Australia indefinitely but, rather, the parties leaving behind business matters which had not been completed and resolved, such as imminent bankruptcy proceedings. 

8. Upon the move to Australia the parties planned the father would obtain employment, the mother would remain in the United States and take care of the bankruptcy matters, finish her education, and address other tax matters.  The mother was to join the family in June.  In paragraph 17 of her affidavit she says:

   “At this point with so many conflicts, perhaps even criminal proceedings, I felt that I must stay and face the problems and then go to Australia.  If it didn’t work out then we could re-enter the U.S.A.” 

9. The last sentence appears to be a thought of the mother’s rather than any agreement with the father.  She goes on to say:

   “But at the same time I was sick at my stomach leaving my kids.  I knew it was wrong but I should never have gone along with [the father].  But [the father] persuaded me that he would get everything set up and that as soon as I took care of things at home I could rejoin the family in Australia.  I went along with it but all the while I had worries and serious reservations and high emotions, and was extremely sad.  I felt even worse once I told my family that [the father] and the girls really went to Australia and I didn’t go with them.  I finally told them some of the story but they all thought I was crazy for letting the kids go without me.”

10. In paragraph 22 of that same affidavit the mother says:

    “The next problem arises; Bankruptcy is a long, drawn out process and is still ongoing.  One of the requirements is that the Bankruptcy petitioners must attend classes and physically appear at the hearing.  In discussing this with [the father], he refused to return so he can participate in the bankruptcy.  The bankruptcy hearing was set for July 3, 2008.  I wanted to rejoin the family in Australia right after the hearing.”

11. Paragraph 23 is as follows:

    “I had expressed to my husband that I should like to reconcile instead of going through a divorce.  [The father] said that he wanted to pursue a new relationship he had developed with a female he had met.  He further said that were I to come to Australia I would have to finance the trip and have enough money upon arrival to be able to live for at least four to six months while applying for a skilled migrant work visa.  He said it would take a minimum of $13,000 upon arrival.  I asked, if [the father] could help me.  I suggested while I got a job and eventually got set up that he let me stay in his house and be near the girls.  [The father] refused to let me live in the house and refused to help in any financial manner.  I asked him why as, was previously planned, that he did not include me on the family work visa? Or could he add me on now as we’re still married?  He replied that the process with the visa was closed and he could not re-open them to add me on.  He said he didn’t include me on them originally because his company had paid for the fees and they were expensive.  He was shy to ask them to pay for the wife as well (especially as he had told them I was dead after a long illness, a fact of I was not aware of until much later).”

12. Paragraph 24:

    “I don't know what to do.  I’m frantic as are my parents and extended family.  They say [the father] has effectively out manoeuvred me.  I have no way to immigrate to Australia to be with my kids, and it seems that it will remain so without his help and welcome.  I just want to be with my children.  Over the months it is clear that [the father] has made it impossible for me to go to my children.  My best hope would be for [the father] to come home with the girls where both my family and [the father’s] can enjoy the society of the kids who they love.”

13. Paragraph 32 of her affidavit is as follows:

    “To make a brief summary.  I agreed to let [the father] take our three children to Australia and I was to go reunite with them by June.  [The father] decided that he wanted to pursue a relationship with a woman in Australia and no longer wanted to reconcile with me.  [The father] did not include me in the Australian immigration visa applications, and told his employer that I was dead.  Through various means, [the father] has made it impossible for me to join my family.  Since I cannot join them I asked [the father] to return to the U.S.A. and he refused.  I asked for our children to return and he refused.”

14. In the father’s answer filed on 1 December 2008 the father in his verified statement denies the mother’s affidavit filed 17 October 2008 is correct.  He said the mother’s consent to the children living in Australia was not contingent upon her joining the children and the father in June 2008.  The father claims the mother declined two opportunities to relocate to Australia. 

15. In his submission the father took me to the following evidence. 

16. In support of the conclusion that the children were habitually resident in Australia the father says the evidence discloses the children are well settled in Australia.  The father has established a new home for the children, they have been in school for many months.  The father has re-partnered with a lady who has two children.  The subject children live as part of a nuclear family.  I was taken to pages 101 and 102 of the evidence.

17. On page 101 is a document signed by the mother and dated 18 February 2008.  The document is addressed to whom it may concern and is as follows:

    “I, [Mrs Wexler], the mother of [D], [E] and [M], three girls, who are our biological daughters, do willingly and knowingly allow my husband [the father] to permanently immigrate with our daughters to Australia.  He is also free to relocate with our three daughters throughout Australia as needs demand.  [The father] is the biological father and custodial caretaker of our children.”

    This is signed 11 March 2008.

18. The father says this document does not speak of any condition being attached to the consent.  The father referred me to page 108 of the book.  This is a copy of an email from the mother to the father dated 16 April 2008.  There he drew my attention to a passage which reads as follows:

    “On another topic.  I had oftentimes said in conversation that I didn’t feel like I was cut out to be a mother.  This line of thinking gets a little stronger every day.  I honestly don’t feel like I have what it takes to offer the girls a good mother.  Not only that but I wish I weren’t a mom.  Don’t get me wrong I love the girls immensely.  I’m actually crying right now because it hurts to think of the girls being far away and me not seeing them.  I love and care for them so much.  I think of you and how wonderful a father they have, someone who loves them so dearly who has capabilities to understand and provide them with what they need.  You’ve never had this kind of chance with them, you’ve never been able to focus on them, you’ve never had much time to spend with them.  Now that they have been front and centre in your life for the last few months you’ve all benefited greatly.  You’ve more than demonstrated to me you know how to care for the girls physically and emotionally.  They are benefiting more than they ever have.  I was more of a space filler.  I’m not capable of providing the type of care they truly need to develop the way they need to.  You are.  I feel so good that they are being truly cared for.  I feel disappointed for myself (a) not having what it takes, and (b) not feeling devastated, (c) knowing that they’re so much better off with their dad (not just better off, like it’s the best of two evils but it is truly best).  This clarification of this past realisation really makes me feel like an absolute miserable piece of human flesh.  But what can I say?  I can’t make a porterhouse steak out of a cow hoof (best analogy I can come up with).  I’m admitting to myself and my family that I’m not what’s best for the girls.  I can’t even honestly say that I’m good for the girls.  Do you understand why I wanted to fake my own death for their benefit?  Do you remember saying that I wish I could stage a car accident in where I die so the girls wouldn’t think they’ve got abandoned by their mum?  I honestly think you’re better off without me.  Now I know they’re better off without me.  God, I feel like such an absolute failure.  Isn’t motherhood supposed to be the most natural thing for a woman?”

19. I was then taken to page 112 of the evidence.  This document is another email.  It is dated 23 May 2008.  The following portions were drawn to my attention.  It is an email from the mother to the father:

    “The plan is to be in [S, United States of America] on August 1st.  So there’s no problem with hanging/going to the girls in July.  We just got back from [S] today.  We’re pretty exhausted.  We’ve settled on living in a two bed/two bath downtown apartment in [S].  You can check it out on (website provided).  Now we just need to find jobs there. 

    Yes my dad called me while I was waiting for the manager (to finish showering) at 24 hour fitness so I could talk to him about a job.  I talked to him about 15 minutes until I told him that I had to leave because the manager was standing in front of me.”

20. The email was in response to an email from the father to the mother dated 22 May 2008, which also appears on page 112.  In that email the father had asked:

    “How did your search in [S] go for housing?  Work?  Do tell.” 

21. The email of 23 May 2008 seems to make clear that the mother had abandoned the idea of joining the family in Australia to live permanently.  She was proposing to move to S in the United States.  The email was written in the plural, as the mother was referring to herself and her partner R.  Details of her proposed accommodation in S were provided. 

22. At page 117 of the evidence the father pointed to an email response from the mother dated 12 June 2008 to his email dated 9 June 2008.  In the mother’s email she said:

    “I’m sorry that I didn’t make it clear that I’m totally against those suggestions that would take the girls away from you and out of this beautiful new setting they’re in.  Not trying to make excuses for a poorly worded email, part of it may have been panic on your part (judging from how fast you responded). 

    I’m so sorry, anyway, yes let’s put that behind us. Until I have further knowledge of possible means of financial support, no real plans can be made about me moving.  I don't know how long this will take.  A miracle could happen, and it could be in just a couple of months, or it could be in years.  I just don’t know.  If it’s going to take a long time then we can figure out how to have some visiting time when the girls are out of school.”

23. At pages 131 to 133 of the evidence the father drew my attention to a transcript of a website which seems to be the mother’s.  This seems to be a short biography of the mother.  She sets out some history which suggests that shortly after the father and children travelled to Australia she commenced living with her partner R.  The entry is dated April 2008.  She says:

    “The girls are doing so extremely well in Australia with their dad.  We had moved four times in the last year and their lives had been unstable.  They need to stay there.  [The father] is providing a good home, experiences, education, and lots of love and support.  I’m convinced it’s in their best interests to stay with their dad.  Right now I’m not at a point where I could move down and begin again.  I have no money.  I’ve been a homemaker for two years so I’ve been out of the workforce.  Emotionally I’m not stable enough to do it.  I feel like a complete arsehole though.  I feel like I’ve abandoned my girls.  Have I?  Even though [the father] took the girls away they don’t have their mum.

    So this is where I’m at.  I have a job as a personal trainer at [G Gym] (I just started a week ago).  I have two and a half months to get my certification completed while I work there.  I have eight essays to write before I’m finished my certification.  They are slow in the process.  Hopefully I’ll have it done within three to four weeks.  I’m making May 31st my deadline.  [R] and I have been getting along well.  We’re both working through some issues.  We’re making plans to move to [S] this summer.  This kind of move will be good for both of us.  It gets us away from the crap that’s been stinking up the landscape here, an actual demarcation of new lives and progress for us both as individuals.”

24. On page 396 of the evidence the father sets out a letter he sent to the mother in February 2008.  This released the mother to pursue a relationship if she so desired.  Part of the letter says as follows:

    “You have my full love and support.  As we discussed and agreed our girls need some quiet stability right now.  My ability to do just that is at the perfect moment now.  So I’ll be providing them with the support and stability they need until June when we’ll revisit your status.  We agreed to leave the divorce alone until you/we have more time to get counsellors’ views on our situation and we have time to allow this surge of intensity to settle down enough for a rational look.  You have full freedom to explore relationships without violating your marriage vows within this time of separation.” 

25. The father and the children arrived in Australia on 20 February 2008.  The father disputes the mother’s assertions that he has placed an impediment in her path to joining the family in Australia.  He points to the email of 24 June 2008 at page 119 of the evidence.  In that email the mother confirms that about St Patrick’s Day (that is March 2008) she cancelled the air ticket the father had bought for her.  She said that she had fallen in love with her new partner R.  She wanted things to work out for that relationship.  At page 90 of the evidence the father says in his affidavit at paragraph 36 the following:

    “In a telephone conversation with the Father initiated by the Mother on about 18 March 2008 the Mother indicated that she had broken up with her new partner identified as [R] and wanted to join the family in Australia.  The Mother requested the Father purchase flight tickets for her at this time.  The Father believed this to be a genuine attempt by the mother to reconcile the marriage with the father.  The Father purchased flight tickets for the Mother.  However, in subsequent telephone conversations on or around 20 March 2008 the Mother indicated verbally that she had reconciled with [R] and wanted to remain with him in the United States.  The flight tickets were non-refundable and cost the father approximately $1200.  Evidence of this conversation and these events is contained in email correspondence dated 20 March 2008 and dated 24 June 2008.”

1. In about June 2008 the father says the mother had a change of heart and wanted to come to Australia to be with the family.  In response the father sent the mother some proposals as contained on page 339 of the evidence.  In addition the father sought advice from the company’s lawyers about a visa for the mother.  Exhibit F1 is an email from the lawyer dated 17 September 2008.  The father emailed the mother on 18 September 2008.  The father received his section 856 visa on 25 November 2008.  That placed him in a position of being able to apply for a visa for the mother without the necessity of he and the girls having to travel to New Zealand for some days.

The Submissions of the Central Authority

1. The Central Authority submits that the children’s habitual residence at the time of the alleged wrongful removal in June 2008 was that of the United States of America.  June 2008 was a date where the mother says she asked for the return of the children to the United States.  The Central Authority, whilst agreeing that the children left the United States of America with the father for the purpose of permanently residing in Australia, says that the mother’s agreement to that move was conditional.  The condition was that she was able to live with them as a family in Australia. This was referred to in the submissions as “conditional consent.”

2. Regulation 16(1) of the Family Law (Child Abduction Convention) Regulations 1986 compels this Court to order the return of a child who has been wrongfully removed to, or retained, in Australia from another convention country.  A removal or retention is wrongful under Sub-regulation 16(1)(a) 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.

3. The conditions for establishing habitual residence are enunciated by Lord Brandon in Re J (a Minor) (Abduction: Custody Rights) [1990] 2 AC 562:

   “… The first point is that the expression “habitually resident,” as used in article 3 of the Convention, is nowhere defined.  It follows, I think, that the expression is not to be treated as a term of art with some special meaning, but is rather to be understood according to the ordinary and natural meaning of the two words which it contains.  The second point is that the question whether a person is or is not habitually resident in a specified country is a question of fact to be decided by reference to all the circumstances of any particular case.  The third point is that there is a significant difference between a person ceasing to be habitually resident in country A, and who subsequently becoming habitually resident in country B.  A person may cease to be habitually resident in country A in a single day if he or she leaves it with a settled intention not to return to it but to take up long-term residence in country B instead.  Such a person cannot, however, become habitually resident in country B in a single day.  An appreciable period of time and a settled intention will be necessary to enable him or her to become so.  During that appreciable period of time the person will have ceased to be habitually resident in country A but not yet have become habitually resident in country B.  The fourth point is that, where a child of J’s age is in the sole lawful custody of the mother, his situation with regard to habitual residence will necessarily be the same as hers.”

4. Lord Brandon’s statement that, where it is contended that a habitual residence has ceased in one country and re-established in another, a settled intention is required to enable that change of habitual residence, is well established: See DW v Director-General of the Department of Child Safety [2006] FamCA 93. It is here useful to set out the re-statement of principles arising from the U.K. cases of Re J (supra) and Re F (a Minor) (Child Abduction) [1992] 1 FLR 548 by Waite J in Re B (Minors) (Abduction) (No 2) [1993] 1 FLR 993 at 995:

   “1.The habitual residence of the young children of parents who are living together is the same as the habitual residence of the parents themselves and neither parent can change it without the express or tacit consent of the other or an order of the court.

   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 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 period of time and a settled intention.  The House of Lords in Re J, … refrained, no doubt advisedly, from giving any indication as to what an ‘appreciable period’ would be.  Logic would suggest that provided the purpose was settled, the period of habitation need not be long.  Certainly in Re F (above) the Court of Appeal approved a judicial finding that a family had acquired a fresh habitual residence only one month after arrival in a new country.”

5. These principles have been adopted by the Full Court in Cooper v Casey (1995) FLC 92-575 and Hanbury-Brown (1996) FLC 92-671.   

6. It should be noted that point two of Waite J’s formulation above refers to the parents’ shared intentions.  Of this the Full Court in DW v Director-General of the Department of Child Safety (supra) held:

   “We regard the word “shared” as having the same meaning as “same” or “common”. That is, that the parties in question had the same or a common intention about their future living arrangements, even though- life being what it is- they may not have had a specific discussion and/or reached a clear agreement regarding their future living arrangements.”

7. In contention in this matter is whether the children were habitually resident in the United States prior to their removal to or retention in Australia.  In this case, as in DW v Director-General of the Department of Child Safety (supra), it is not contested that the father intended Australia to be his habitual residence.  At issue is whether there was a settled intention by the mother to be habitually resident in Australia.  In determining the issue the Court must consider the content of “settled intent”.  The Full Court in DWv Director-General of the Department of Child Safety considered two interpretations of Lord Brandon’s aforementioned statement:

   ·The statement of Rattee J in A v A (Child Abduction) [1993] 2 FLR 225 at 35: “I consider that when, in the latter sentence, Lord Brandon refers to a settled intention being necessary to constitute habitual residence, what he meant was a settled intention to take up long-term residence in the country concerned.”; and

   ·The statement of Lord Scarman in R v Barnet London Borough Council, adopted by Butler-Sloss LJ in M & M (Abduction; England and Scotland) [1997] 2 FLR 263: “Unless, therefore, it can be shown that the statutory framework or the legal context in which the words are used requires a different meaning, I unhesitatingly subscribe to the view that “ordinarily resident” refers to a man’s abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether or [sic] short or long duration.”

8. It is this latter formulation of Lord Scarman that was adopted by Holden J in the minority in DW v Director-General of the Department of Child Safety (supra). The reasoning of the majority did not require determination between the formulations; so far as conflict exists, it was not necessary to determine the conflict in that case.  At issue in that appeal was the finding by the trial judge, essentially, that the mother “had the intention of taking up residence with the father to see how that ‘worked out’”.  The mother had resided for a time with the father in the United States and subsequently relocated with the child to Australia when an attempt at reconciliation failed.  The majority held:

   “52.In our view on either formulation it would be almost a contradiction in terms, and would clearly be wrong, to conclude that a person who has taken up residence in a particular country to see how a relationship with a resident of the country would “work out” either had a settled intention to take up long term residence in that country (which in any event Warnick J found the mother did not have) or had adopted an abode in that country for settled purposes as part of the regular order of his or her life, and was accordingly “habitually resident” in that country.”

9. It was conceded by counsel for the Central Authority, and it is clearly apparent, that the factual circumstances of DWv Director-General of the Department of Child Safety (supra) can be distinguished from this case.  It was put to the Court, however, that DWv Director-General of the Department of Child Safety (supra) represents an example of a case where there has been a conditional move from one Hague Convention country to another, and in this respect is relevant.  This is certainly the case.  However, it appears evident from paragraph 52 excerpted above that the decision of the Full Court did not turn upon the fact of a condition, if one existed.  The condition in that case being the parties’ reconciliation was relevant to the decision only insofar as it provided evidence or otherwise of a settled intent.

10. The place of a condition in determining settled consent has also recently been considered by the Full Court. In the case of HBH & Director-General, Department of Child Safety [2006] FamCA 1053, (2007) 36 Fam LR 333, Kay J (with whom Faulks DCJ and Boland J concurred) held:

    “In my view, the finding by the trial judge at par 28 of his Honour’s judgment is ultimately decisive of the outcome of these proceedings.  Once there was a shared, settled intent for the parties to come and reside in Australia with the child being unlimited in terms in that it was not a temporary visit nor a conditional visit, and that settled intent was put into place then the conditions described by Lord Brandon had been met. The habitual residence was no longer the Netherlands and, accordingly, there was no wrongful retention.

    In those circumstances, the appeal must be allowed and the application filed by the State Central Authority ought be dismissed. [Emphasis added]”

11. At paragraph 28 of Barry J’s first instance judgment the following appears:

    “I accept it was the shared settled intention of the parties to reside here.  The father may have believed there was to be a reconciliation.  The mother may have believed she had convinced the father there was no prospect of reconciliation.  It may be the father came here so he could see his child regularly.  The best evidence as to the intention of the parties to my mind is to be found in the letter by the mother to the father of the 5 October 2005 (previously quoted paragraph 21).  That letter would indicate that there was a plan to reconcile and start a new life in this country.

    Further evidence to support this conclusion is the fact the parties had made an application to the Australian Embassy in Berlin for a family visa and the fact the parties’ goods were packed together.”

12. In relation to the question of determining where the parties and children were habitually resident at the relevant date I find that the mother and father had a settled intention in February 2008 for the children and the parties to leave the United States of America and not return to live in the United States of America in the foreseeable future.  I find that the parties acted on their shared settled intent by selling all of their assets and buying one-way tickets to Australia.  The father found employment and housing for the family.  The children were enrolled in school.

13. In February 2008 the mother intended to follow shortly after the father and children.  It was her decision to not travel with the family.  At some later time somewhere between March 2008 and May 2008 the mother decided to partner with R and make a life for herself in another part of the United States of America to that which the family had formerly lived.  In March 2008 the father had facilitated the mother’s travel to the Australia by provision of a one-way ticket for her.  She cancelled that ticket and advised the father she would not be coming.

14. In my view when the children left the United States of America in February 2008 with their father they did so in circumstances where both parents intended that the children’s habitual residence in the United States of America would be lost.  Once it is lost it seems to me that it cannot be revived because one of the parents at a time after the settled intention to change the habitual residence is made, and after that intention has been acted upon so far as changing the children’s habitual residence is concerned, changes his or her mind.

15. The case law referred to in submissions does not use the term “conditional consent” in relation to determining where the habitual residence of children may be.  The case law focuses on settled intention of the parents in relation to considering if a change of habitual residence has taken place at a relevant time.  In my view if there be such a notion as “conditional consent” to a permanent change of residence to another country, thereby abandoning habitual residence in the country of origin, the conditions must be clear and communicated to the other party.  The only occasion where direct communication of a condition would be unnecessary is where the condition is so basic to the agreement between the parties to change their own and their children’s habitual residence that it does not need stating.

16. If this notion of “conditional consent” is available then in this case it is said to be part of the parties’ agreement to relocate to Australia.  Namely, that each parent is able to live in Australia and parent the children.  The parties’ marriage had been rocky. It could not have been the case that they were unaware of the possibility of disharmony in Australia and the need to live separately and apart.  Thus the unspoken condition could only have been that the parents would both participate in the parenting of the children in Australia.

17. I accept the submission of the father that if there ever was such a condition it was specifically abandoned by the mother when she chose to partner with R and move to S in the United States of America.  The emails appearing at pages 108 and 112 of the evidence set out the position of the mother in April and May 2008.  She was to commence a new life for herself.  The children were better off with the father.  She had never felt cut out to be a mother.  The consent signed by the mother on 18 February 2008 was not conditional; it was clear in its terms.  After arriving in Australia the children and the father became settled.  The father found work and acquired accommodation for the children and himself.  The children were enrolled in schools.  By mid-2008 the children were well settled.  I find that by June 2008, if not before, the children were habitually resident in Australia. 

18. Should I be in error in relation to my determination of habitual residence then I need to consider Regulation 16(3).  The father says that the mother consented to the removal of the children from the United States of America.  The Central Authority agrees with that notion and that there was consent.  The father says that if the mother’s consent was conditional then the mother acquiesced in the father retaining the children in Australia when it became apparent that the mother would not be joining the children in Australia because of her change of plans in about March/April 2008.  Having so acquiesced the father submits the mother ought not be able to raise this notion of conditional consent again when her circumstances changed yet again in about mid-2008.  I agree with that submission of the father.

Discretion to Refuse to Make the Order

1. The father and the children are now, in my opinion, well settled in Australia.  The father has a job, the children are in school, and the parties have corresponded and mediated about future care of the children.  At this stage there is no agreement about those matters.  I suspect that the advent of these proceedings under the Hague Convention has put everything on hold. 

2. The father has re-partnered.  His partner has two children. The children now live in a nuclear family consisting of father, his partner, the children and the partner’s children.  Objectively the father must be seen to be in a superior position to have the children remain living with him in Australia, given the history of the father having cared for the children since February 2008 in what appears to be a very good manner.  This consideration relates to probable outcomes of parenting proceedings under the Family Law Act 1975.

3. The mother’s email extolling the virtues of the father as a person and a father to the children, and advising of her own shortcomings as a parent, would be a compelling piece of evidence in any such proceedings.  There is nothing to suggest the mother could not participate in proceedings in Australia in relation to the children under the Family Law Act 1975.  Considering all those matters I would not order the return of the children to the United States of America, and I propose to refuse the Central Authority’s application.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench.

Associate:     

Date:  27 March 2009