DEPARTMENT OF COMMUNITY SERVICES & HARRIS

[2010] FamCA 261

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF COMMUNITY SERVICES & HARRIS [2010] FamCA 261

FAMILY LAW – CHILD ABDUCTION – Hague Convention – Habitual residence – Child brought to Australia from Norway – Grave risk of harm (domestic violence) – Intolerable situation – Grave risk defence established -  Intolerable situation defence established – Exercise of discretion – Central Authority’s application for the return of the child to Norway is dismissed

Family Law (Child Abduction Convention) Regulations 1986 (Cth) reg 16(1A), reg 16(3)(b)

Agee v Agee (2000) 27 Fam LR 140
Cooper and Casey (1995) 18 Fam LR 433
De L v Director-General, NSW Dept of Community Services (1996) CLR 640
DP v Commonwealth Central Authority; JLM v Director-General New South Wales Department of Community Services (2001) 206 CLR 401
DW and Director General, Department of Child Safety (2006) FLC 93-255
Friedrich v Friedrich 6^th Circ (1996), 78 F3D 1060
Gsponer v Director-General, Dept of Community Services, Victoria (1989) FLC 92-001
HZ v State Central Authority (2006) FLC 93-264
LK v Director-General, DCS (2009) 40 Fam LR 495
Murray v Director of Family Services ACT (1993) FLC 92-416
MW v Director-General, Dept of Community Services (2008) 39 Fam LR 1
Panayotides v Panayotides (1997) FLC 92-733
P v Director General, Department of Community Services [2002] FamCA 321
Police Commissioner of South Australia v Temple (No 1) (1993)  FLC 92-365
Povey v QANTAS Airways Ltd (2005) 223 CLR 189
Punter [2007] 1 NZLR 40
Re B (Minors) (Abduction No  2) (1993) 1 FLR 993
Re F [1992] 1 FLR 548
Re H(Abduction: Acquiescence ) (1998) AC 72
Re J (A Minor) (Abduction: Custody Rights) [1990] 2 AC 562
Zafiropoulos and the Secretary of the Department of Human Services State Central Authority (2006) FLC 93-264

APPLICANT: Director-General, Department of Community Services

RESPONDENT: Ms Harris

FILE NUMBER: (P)SYC 3064 of 2009

DATE DELIVERED: 13 April 2010

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: The Hon. Justice Ryan

HEARING DATE: 25 November 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Hartstein

SOLICITOR FOR THE APPLICANT:

Legal Services Unit

Department of Community Services

COUNSEL FOR THE RESPONDENT: Ms Boyle

SOLICITOR FOR THE RESPONDENT: Watts McCray Lawyers

Orders

1. That the application filed by the Department of Community Services as the Central Authority on 25 May 2009 and as subsequently amended is dismissed.

2. Within fourteen days the Case Management Judge at the Parramatta registry of this Court is requested to relist the mother’s application for parenting orders for consideration (PAC 6118/08), inter alia, of expedition of the mother’s application and the appointment of an Independent Children’s Lawyer for the child.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: (P)SYC 3064 of 2009  

DIRECTOR-GENERAL DEPARTMENT OF COMMUNITY SERVICES

Applicant

And

MS HARRIS

Respondent

REASONS FOR JUDGMENT

Introduction

1. These are proceedings brought pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (Cth). By these regulations Australia ratified the Hague Convention on the Civil Aspects of International Child Abduction, (“the Abduction Convention”). The Abduction Convention provides a mechanism for the prompt return of wrongfully removed or retained children between contracting states. The Director-General of the Department of Community Services, as the relevant Central Authority (“the Central Authority”) in Australia, started these proceedings with an application filed in this Court on 25 May 2009. The Central Authority filed an amended application on 4 August 2009 in which it applied for a suite of orders for the return to Norway of the parties’ child. The child, who was born in Norway in April 2007, has dual Norwegian and Australian citizenship.

2. On 27 November 2008 Ms Harris (“the mother”) surreptitiously left the family home in Norway with the child and travelled to Australia.  Upon their arrival she informed Mr Harris, who is the child’s father (“the father”), where they were. During the following weeks there were numerous telephone conversations between them about the child’s removal to Australia.  These culminated in the father’s agreement that the child could remain in Australia until 10 January 2009.  When the mother failed to return the child to Norway by this date, on 19 March 2009 the father completed an application under the Abduction Convention in which he sought that Australia return the child to Norway, where he alleged the child was habitually resident and from where he had been wrongfully removed.  In the alternative, he claimed that no later than 10 January 2009 the child had been wrongfully retained.   

3. Australia accepted the Norwegian Central Authority’s request and commenced these proceedings.

4. It is the mother’s contention that the Abduction Convention does not apply and thus the Central Authority’s application must be dismissed.  Summarised, it is her contention that prior to the child’s removal from Norway he had lost, or in the alternative had never established, habitual residence in Norway.  According to her, if he was habitually resident anywhere this was in Australia.  In the event that the Court was persuaded that the threshold requirement of habitual residence had been established, she raised a series of defences. Specifically that the father consented to the child’s removal from Norway or acquiesced to his retention in Australia and that there is a grave risk that return to Norway would subject the child to physical or psychological harm or otherwise place him in an intolerable situation.  If the mother established one of these defences she contended that the Court should exercise its discretion not to return the child to Norway. 

5. The Central Authority carries the onus of establishing that the Abduction Convention applies to the child.  As a threshold requirement reg 16(1A) provides that a removal or retention is wrongful if: 

   (a)the child was under 16;  and

   (b)the child habitually resided in the 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.

6. In this case if the Central Authority established those elements required by reg 16(1A), unless the mother was able to establish one of the Abduction Convention defences I am obliged to order the child’s return to Norway. 

The issues

1. The principal issues which require determination are:

   ·       Was the child habitually resident in Norway immediately before his removal on 27 November 2008?

   ·       Did the father consent to the child’s removal from Norway?

   ·       Did the father acquiesce to the child’s retention in Australia?

   ·       Is there a grave risk that ordering the child’s return to Norway will expose him to physical or psychological harm or otherwise place him in an intolerable situation?

   ·       If the Court is satisfied there is a grave risk to the child or he would be placed in an intolerable situation, should the Court exercise its discretion against returning the child to Norway?

   ·       If the Court is satisfied that there is a grave risk to the child or he would be placed in an intolerable situation, should there be an order for his return to Norway notwithstanding, upon conditions stipulated by the Court?

Background facts

1. Throughout these reasons findings of facts will be determined upon the balance of probabilities. Section 140 Evidence Act 1995 (Cth).

2. The mother was born in Australia in 1971.  The mother is an Australian citizen and her family lives in Australia.   

3. The father was born in Norway in 1972.  He is a Norwegian citizen and his family lives in Norway. 

4. The mother and father met in France in August 2005 which is when they commenced an intimate relationship.  In her application filed on 24 December 2008 the mother said that she and the father began living together in August 2005.  Thereafter they spent time in Norway and holidayed in Asia and Canada before returning to Norway in mid 2006.  In August 2006 the mother and father separated.  While the father remained in Asia, the mother returned to Australia.  Not long after she arrived, the mother learned she was pregnant to him. 

5. The father joined the mother in Australia in September 2006.  The parties remained in Australia and in November 2006 they married. 

6. In December 2006 the father and mother returned to Norway to live.  The father and mother moved into the father’s grandfather’s house near G.  Other than when they visited Australia, this is where they lived until November 2008.

7. On 2 January 2007 the mother was registered on the Norwegian Central Population Register as being resident in Norway at the address where she and the father were living.   I infer the registration was personally undertaken by the mother, albeit not necessarily unaided.

8. During February 2007 the father and mother attended marriage counselling at the family centre in G.  

9. That same month the mother attended a crisis centre where she sought advice concerning domestic violence.  The father said he wanted both of them to attend upon the domestic violence counsellor but in the end he spoke with the counsellor on the telephone and nothing further came of it.  

10. The child was born in Norway in April 2007.  The following day he was registered by his parents on the Central Population Register as resident at the same address in Norway where they lived.  At that time the father was employed in community services.  After the child was born the father was required to spend a few days away for work.  He decided his working conditions were not family friendly and in mid 2007 he started a new position with an company in G.  This was a full time position which occasionally involved overtime and night work.  Not long after the father started with his new employer he took six weeks paternity leave.

11. Between 8 August 2007 and 14 September 2007, with the father’s consent, the mother brought the child to Australia.  The father remained in Norway for work. 

12. In the later part of 2007 the father took about 26 weeks paternity leave. It seems likely this was between the child’s two 2007 trips to Australia.  Although the mother said the father was not involved in the child’s care there is sufficient evidence to corroborate his evidence that he was.  His two periods of paternity leave amplified his opportunity for significant, albeit secondary to the mother’s,  role in the child’s care.

13. Between 6 December 2007 and 8 February 2008, with the father’s consent, the mother holidayed in Australia with the child.  The father remained in Norway. 

14. On 14 May 2008 the mother was treated in hospital for a fractured left ulna. It is the mother’s evidence that the father broke her arm.  There is no doubt the parents engaged in a physical altercation during which the mother’s arm was broken.  Each accused the other of being the aggressor.  The mother gave a history of the injury to the hospital that she fell.  At this initial consultation the father was present.  Two days later the mother returned to hospital and informed a doctor she had not fallen and that her arm was broken when the father hit her.  The treating doctor and attending nurse spoke to the mother about reporting the incident to the police.  The mother indicated she wanted her information recorded but not reported to police.  The father was not injured in this incident.

15. Following this incident the parents contemplated separation but were both motivated to try and save their marriage. 

16. On 20 May 2008 they attended mediation at the Office of Family Protection, G, where they entered into an agreement headed “Agreement of Parental Responsibility, The Child’s Permanent Residence and Right of Access”.  This is referred to as a “right of access” agreement which provided:

    1.That the husband and wife “will have joint parental responsibility” for the child.

    2.        The child “will live permanently with” the mother.

    3.        The mother “is allowed to live in Australia with” the child.

    4.        “The agreement will set in at separation”.

17. For different reasons both parents were unhappy with the mediation process.

18. In any event, the right of access agreement was signed by both parents and is stated to be valid from 20 May 2008.  The operation of the agreement is not limited by time.  The same day, the mediator issued a mediation certificate pursuant to s 26 of the Norwegian Marriage Act and s 51 cl 54 of the Norwegian Children’s Act.  The certificate, but not the right of access agreement, was valid for six months from the date of issue.    The mediator provided the mother with a pro forma separation application.  Ultimately, there was no significant dispute about the nature of these documents.  Where the parties disagreed was in relation to the parents’ respective understanding of the effect of these documents and what was contended were their intentions arising there from.

19. In relation to the process and documents which emanated from the 20 May 2008 mediation the G District Court said: 

    Mediation is a statutory requirement in order for married persons with common children under the age of 16 to obtain a separation order.   This follows from Section 51, second paragraph of the Norwegian Children Act:  Married parents with children of the marriage under the age of 16 must, in order to be granted a separation or divorce order pursuant to sections 20 and 22 of the Norwegian Marriage Act, have attended mediation at a Family Counselling Office or with another approved mediator, cf section 26 of the Norwegian Marriage Act.

    After completing mediation a mediation certificate issues, and this functions as documentation of completed mediation.  The certificate is valid for six months, cf Section 54 of the Act and the regulations on mediation pursuant to the Norwegian Marriage Act, and Section 8 of the Norwegian Children Act of 18 December 2006.  If more than six months has passed since the mediation, a new mediation certificate must be completed in order to apply for separation.

    The purpose of this mediation is stated in section 52 of the Norwegian Children Act:  Section 52.  Purpose and content of the mediation:

    The purpose of the mediation is to get the parents to arrive at a written agreement on the parental responsibility, and where the child shall live permanently and about time spent with the child.  The parties should be familiarised with the most important financial consequences that the agreement entails. 

    An agreement for a change in parental custody must be registered in the National Population Register in order to be legal, cf.  Section 39 of the Norwegian Children Act.  However, an agreement between the parents on where the child is to live permanently and access rights is a private agreement between the parents.  Such an agreement is not subject to registration.  Moreover it is not dispositive/binding in the same way as agreements in the area of property law would be.

    An agreement on parental custody, a permanent place of residence and right of access can be made enforceable by the County Governor pursuant to Section 55 of the Norwegian Children Act, but this presupposes that both parents request such and that the Country Governor performs an independent assessment of the agreement and finds it to be in the child’s best interest.  This exception is not relevant to the present case.

    The fact that one of the parents at one time agreed that the child could move abroad (or enters into another agreement on a permanent place of residence or right of access) does not entail that such consent is binding in the future.  The parents are free to withdraw their consent and to institute a case before the courts regarding parental custody, the child’s permanent place of residence and right of access. 

20. The expert evidence is consistent with the ruling discussed above and the ruling is an accurate statement of the applicable law.

21. Thus, the effect of the evidence is that the mediation certificate was issued to address a mandatory requirement (subject to exceptions) of the Norwegian Marriage Act that parents who are separating must discuss with a mediator their children’s future living arrangements before they are eligible for a separation or divorce order.  If more than six months has passed the certificate lapsed and a further mediation attendance and certificate would be required.  Because the right of access agreement provided for shared parental responsibility registration was not required.   Registration would have been required if the right of access agreement provided that one of the parents was to have sole parental responsibility.  Registration of the right of access agreement was available so as to make it enforceable but only with the consent of both parents.  It is common ground that the right of access agreement did not oust the jurisdiction of the courts in Norway, on the application of a parent, to make parental responsibility, custody and similar parenting orders.  It is also agreed that the right of access agreement continued to operate as an unenforceable agreement in accordance with its terms or, on the application of a parent, a court made parenting orders.  This is consistent with the expert evidence and the ruling from the G District Court.   An attachment to the application for separation, which the mother received from the mediator, made these matters clear.   From this attachment it is also clear that one spouse is able to apply for a separation order and that, notwithstanding the right of access agreement the Norwegian Court of Justice retained jurisdiction to determine matters about the child.  It was the mother’s evidence that because of her limited capacity with the Norwegian language she was unable to fully understand the attachment.  I do not accept this evidence. As the translation of the attachment shows the language there used is relatively uncomplicated.  Within a few months of receiving this document the mother was teaching English language classes in Norway.  I infer, that in order to do so, she needed a reasonably competent command of both written and spoken English and Norwegian.  It is also noteworthy that, unaided, the mother completed the application for separation only a few months later.  This document was also written in Norwegian.  Consequently I do not accept that the mother was unable to read and comprehend the attachment to the right of access agreement.

22. The mother was provided with a copy of the agreement.  The father said he was not. 

23. The father said the agreement was entered into on the basis that the parents may shortly separate and to address the child’s situation in the event they separated during their forthcoming trip to Australia. That is, if they separated while in Australia, the child would remain with the mother in Australia and he would return to Norway to live.  According to him, long before the parents finally separated he told the mother he resiled from the agreement.  Thus they both knew it would be necessary for the issues which had arisen about the child’s future living arrangements to be determined by a court.  For reasons, which will become clearer later I accept the father’s evidence that the agreement was intended to address a specific situation, that is separation during the forthcoming holiday.  Also that long before the parties separated the mother knew that he did not agree she could remove the child from Norway.  On this matter, unlike the mother’s evidence on the topic, his evidence was consistent.  It was also telling that in terms of the effect of the right of access agreement and the process generally his evidence was considerably more accurate than the mother’s. 

1. The mother gave different versions of what she said she understood was the effect of the right of access agreement.  In her first affidavit she did not describe her understanding of it and I infer she was content for the agreement to be understood in the manner described by the father in his statement and the Central Authorities’ initiating application.  On one occasion she said that the right of access agreement would be valid for six months after the separation agreement was registered and a separation order made. On another, and thereafter consistently, she said she understood the right of access agreement would be valid for six months but that it “..do not [did not] go into effect until you post them in.”

2. As to the documents being valid for six months this is consistent with the advice the mother said she was given by the mediator. The mother correctly understood that in order to obtain a separation order it was necessary for one or both of the parties to submit an application for separation to the County Governor to which a valid mediation certificate was attached.  Because a certificate remained valid for six months, this meant an application for separation reliant upon the 20 May 2008 mediation certificate had to be lodged no later than 20 November 2008.  However, as the expert evidence and the ruling from the G District Court made clear the mother did not require an order for separation to be able to rely on the right of access agreement.  Nonetheless the mother said she believed that the effect of the right of access agreement was that if the parents separated, that is obtained a separation order, during the six months which she understood the right of access agreement remained operative, she was able to take the child to live in Australia. Thus when, after a holiday in Australia, she returned with the child to Norway in the hope her marriage would improve she believed there was no impediment to her returning to Australia with the child.  Her intentions and actions should thus, it was submitted on her behalf, be analysed in the context of her mistaken belief.  Even if this was her genuinely, albeit mistaken belief, it follows she believed the right of access agreement was only valid until 20 November 2008.

3. As already indicated I accept the father’s evidence that the parents attended mediation and entered into the rights of access agreement in anticipation they might separate while in Australia.  It was not their intention that the right of access agreement would continue upon their return to Norway.  I am also satisfied that the mother believed she had a suite of documents, which were valid for six months, and which on their face evidenced the father’s consent to her taking the child to live in Australia and which if needed she might be able to use to her advantage. Again, as will be discussed later, the mother knew that the Norwegian Courts retained jurisdiction over the child.

4. As they had planned, on 23 May 2008 the father, mother and child travelled together to Australia. In Australia they resided in a small flat at the mother’s parent’s home in the western suburbs. 

5. On the evening of 22 June 2008 the mother refractured her left arm in the same place as her earlier injury.  The mother and father give divergent accounts of an ugly dispute that evening which appears to have been about whether they would separate.  Each accuses the other of being the aggressor and of physical aggression.  The gravamen of the father’s evidence was that to the extent there was a physical altercation that evening it was primarily instigated by the mother with the only physical aspects which may have resulted in the mother’s arm being injured having occurred during the melee between her and her parents.  The mother says her arm was broken when the father pushed her into a wall. The father agreed he pushed the mother.  He was not injured in this incident.

6. The following morning the mother’s mother took her to Westmead Hospital where her injury was treated by her arm being placed in a sling.  The mother reported to Westmead Hospital that the father had previously broken her arm and was responsible for this injury.  Upon the doctor’s suggestion the mother accepted a referral to a hospital social worker.  The father moved out of the flat for a few days and stayed in a motel. 

7. On 23 June 2008 the mother was seen by a social worker at Westmead Hospital.  To the social worker the mother gave a detailed history of domestic violence by the father towards her.  The mother reported that the child had not been a target of the father’s violence but had been present during violent incidents.  The social worker provided the mother with a comprehensive overview of the risks and consequences of family violence, to her and the child.  The social worker referred the mother to a local women’s health centre and provided her with information concerning the child protection role of the Department of Community Services (as it was then known).  The social worker attempted unsuccessfully to contact the mother on 25 June 2008 then left a message on her telephone in which he asked her to contact him.   The mother did not respond to the social worker’s message.  The social worker telephoned the mother on 26 June 2008 during which the mother declined further assistance.  The social worker reported his dealings with the mother to the Department of Community Services.  The Department of Community Services took no further action.

8. During the same period the mother obtained advice from the Women’s Legal Advice line and a solicitor.  From at least this time the mother understood that, notwithstanding the rights of access agreement and whether courts in Australia or Norway determined the matter, if the parents separated a decision about the child would be determined on its merits and on the basis of the child’s best interests being the ultimate determinant.  This is the combined effect of information given to the mother by the mediator in Norway and these sources in Australia.

9. The parents disagree about which of them instigated their resumption of cohabitation.  Irrespective of who it was by no later than 29 June 2008 they were living together as a family at the mother’s parents’ flat. 

10. Together, the father, mother and child returned to their home in Norway on 25 – 26 August 2008.  Once there, the father resumed full time employment with his former employer.  According to the father upon their return to Norway with the child the parents understood the purpose of the rights of access agreement was spent. I accept this was the parents’ intention when they entered into the agreement. 

11. In early September 2008 the mother resumed part time work.  While she was at work the father, his mother or Ms H, a day carer, cared for the child.

12. On 18 September 2008 the mother attended a casualty clinic where she was observed as “showing signs of physical violence in the shape of haematoma on the left upper arm, haematoma around the right eye.”  The mother gave a history of physical violence from the father which she said had commenced in February 2006.  The mother was advised to report her situation to police but did not.  The clinic also referred the mother to an attorney, who was Ole Ellingsen.  It is likely that to hide the bruise around her right eye that S saw the mother with “strange make up” around her eye.  

13. It is the mother’s evidence that this attorney gave her advice about custody law in Norway which she understood meant that notwithstanding the right of access agreement “..it can be overthrown in a court at a later date..”  Attorney Ellingsen contradicted aspects of the mother’s evidence.  According to him the mother sought general advice about Norwegian child abduction law and the Abduction Convention. From this I infer the mother was already aware of the existence of the Abduction Convention, which as she had only previously taken legal advice in Australia, is the likely source of her knowledge.  In any event Attorney Ellingsen spoke once with the mother by telephone in which he was understandably cautious and did not give the mother “personal legal advice”.  On a number of occasions during their telephone discussion he explained that she would need to attend upon him if she wanted detailed advice.   He said “She did not ask me for legal advice concerning her leaving legally for Australia or not.”  Where there is a conflict in their evidence I prefer Attorney Ellingsen’s evidence.   He is independent of the father and his evidence is compelling.  So that it is clear, while I accept that Attorney Ellingsen was not the original source of the mother’s information about the ongoing nature of the Norwegian court’s jurisdiction and the Abduction Convention, her affidavit evidence demonstrated she was aware of these from at least the time she consulted him.  In a similar vein where there is a conflict in the evidence given by Attorney Ellingsen and the mother’s Norwegian attorney, Attorney Hagen I prefer the evidence of Attorney Ellingsen.  While there are relatively few points of difference in their evidence, Attorney Hagen’s evidence that the “principle of domicile” would determine where the parenting issues would be decided suggested a degree of confusion by her about the Abduction Convention and the applicable law.

14. The mother said that in October 2008 she decided her relationship with the father was over.  It is her evidence that she communicated this decision to the father.  While he agrees the period of relative harmony in the relationship had by this time come to an end he denied the mother told him she intended to separate.  While I have no doubt the mother had decided to leave the father the evidence was insufficient to establish that she communicated her decision to him.  That there were discussions about the future of their marriage is apparent from both parents’ evidence.  During these discussions the father said he made it clear to the mother that he did not agree she could take the child to live in Australia.  In preparation for her secretive departure the mother began training a person to take over her position at work.  The father knew nothing of this.  She gave items of the child’s clothes and possessions to others.  The father was unaware these were gifts made in anticipation of her departure.  Although the mother told some of her friends she would be leaving Norway she did not tell the father’s family.  Her secrecy on these matters as well as her ultimate departure persuades me that the father had communicated to the mother she could not, if they separated, take the child to Australia. The mother explained she needed to keep her actual departure dates secret from the father out of fear he would assault her.  Without in any way intending to trivialise the mother’s evidence about her fear of the father, that the mother feared his reaction to this information is inconsistent with her evidence she had his consent to remove the child from Norway. 

15. By electronic transfer on 1 October 2008, the father transferred from his bank account to the mother’s bank account NOK 440,500 (Norwegian Kroner).  Included in the transfer was the transmission report:  “NOK 450,000, minus NOK 9,500 in cash.  Wish you the best darling”.  On current exchange rates, NOK 450,000 is the equivalent of about $84,500.  It was submitted by counsel for the mother, that the words “wish you the best darling” supported the mother’s position that the parents were separating.  These words are also consistent with the father’s contention that the parties entered into a financial arrangement designed to preserve their marriage.  In reaching this view I am bolstered by the nature of the financial agreement they entered into a few weeks later.  

16. Under the auspices of s 42 of the Norwegian Marriage Act, on 22 October 2008 the mother and father entered into a marriage settlement in relation to their property.  By this agreement, they agreed to have “full separate estates”.  It was agreed that the father would have the “full separate estate” of the home he owned and in which the parties resided in G.  The father agreed to pay the mother NOK 450,000 ($88,000) which was in addition to the funds he had transferred to her on 1 October 2008.  Counsel for the parties agreed the marriage settlement is analogous to a financial agreement entered into pursuant to the Family Law Act 1975 (Cth), which can be entered into before, during or after a marriage. It may deal with all or part of the spouses’ assets and financial circumstances. However, as I explain when discussing the defences the effect of the expert evidence, which was consistent with the ruling from the G District Court, is that there is a difference between a marriage settlement and a separation settlement. The parents’ agreement came within the former category. The father has not paid the mother this second lump sum payment.

17. In about early October 2008 the mother said she learned her father had been diagnosed with prostate cancer.  She said the father agreed with her she could return to Australia with the child.  The father denied the mother raised this issue with him.  I am not satisfied she did. 

18. On 24 October 2008, the Regional Commissioner in G received the parents’ 20 May 2008 mediation certificate and an application for an order of separation.  An order for separation in relation to the marriage of the father and mother was issued by the Regional Commissioner on 28 October 2008.  There was an issue between the father and mother about whether the mother secured the order of separation without the father’s knowledge.  In the face of the father’s denial, the evidence does not establish that he was involved in the presentation of any documents to the Regional Commissioner.   To each of the parents the Regional Commissioner posted an order for separation to the home where they cohabited.  The mother received her copy but the father said he did not.  I accept his denial.  It is his belief that the mother intercepted his mail and kept the order for separation from him.  Her subsequent secretive departure from Norway is consistent with this hypothesis.

19. After the mother had departed from Norway, the father said he discovered that prior to her departure she broke into the father’s email account and deleted all emails to him from her.  The mother does not deny doing so.  I accept she did and that the most likely explanation for this is that her emails were inconsistent with his alleged agreement she could take the child to Australia.

20. If the mother believed the right of access agreement was valid for six months its validity expired on 20 November 2008.

21. On 27 November 2008, without the father’s knowledge, the mother departed Norway with the child.  The child travelled on his Australian passport.  Although the father knew the mother had the child’s Australian passport he wrongly believed that absent his consent she would only be able to remove the child from Norway on his Norwegian passport. Accordingly and to prevent the child’s removal not long before she departed for Australia the father removed the child’s Norwegian passport from the mother’s possession.

22. When the mother departed with the child he was registered on the Norwegian National Register as resident in Norway.  It is a requirement of Norwegian law that prior to permanent departure overseas a person or, in the case of a child his parents, must lodge a form known as Q0199 with the Register.  That the mother knew of the Register is evidenced by her role in registration in it of her and the child’s details.  This knowledge when combined with the father’s evidence that he had informed the mother that they as parents would need to lodge a Q0199 certificate if they were to change the child’s place of residence persuades me that on this issue I should prefer the father’s evidence.     

23. The father discovered that the mother and child were gone from their home when he arrived home from work on 27 November 2008.  In an attempt to locate them, he immediately contacted several of the mother’s friends.  The same day the father contacted local police and reported them as missing.  The father’s immediate attempts to locate the mother and child are inconsistent with any notion she had his consent to remove the child to Australia.

24. The mother and child arrived in Australia on 29 November 2008.  That same day she telephoned the father and told him they were in Australia.  Since then the mother and child have lived at her parents’ home in the western suburbs of Sydney.  Thereafter and until about mid December 2008 the parents spoke to each other virtually daily during which conversations the father ultimately indicated his agreement that the child could remain with the mother temporarily in Australia but he had to be back in Norway by no later than 10 January 2009.

25. During a telephone conversation in mid December 2008 the father threatened to kill at least the mother and her parents.  The mother said he said “If you don’t cooperate and do exactly what I want, then I will fly to Australia and kill you, [the child], your father and your mother.”    The father said “…I completely lost my temper and screamed in despair that I wanted to kill her and her family.  Of course I did not mean this and I have since apologized for this.”

26. On 19 December 2008 the mother attended a western suburbs Police Station where she spoke to Police about the father’s threat.  The mother was advised to have “her papers” translated and to come back in the following week.  The mother did not and instead commenced proceedings in this Court.

27. On 24 December 2008 the mother filed in the Family Court at Parramatta an Application for Final Orders and simultaneously an Application in a Case for interim orders.  By way of final orders, the mother applied for orders that:

    1That the child, […] born on […] April 2007 (“[the child]”) live with the mother.

    2That the mother have the sole parental responsibility for [the child].

    3The father, by himself, his servants or his agents are restrained from removing or attempting to remove the child, […] born […] April 2007 (male) from the Commonwealth of Australia.

    4That the father and his servants and agents are restrained from taking or sending or attempting to take or send the child, […] born […] April 2007 (male) from Australia.

    5That the Marshal and all officers of the Australian Federal Police and the police forces of the States and Territories are requested and authorised to give effect to these orders.

    6That the solicitor for the mother forthwith notify the Marshal and the Australian Federal Police family law team of these orders as soon as possible and provide a copy of these orders to the Marshal, the Australian Federal Police and the New South Wales police.

    7That the Court requests that until further notice the Australian Federal Police place the child on the airport watch list at all points of international arrivals and departures in Australia for the purpose of preventing removal of the child from Australia in breach of these orders.

28. The mother’s applications were given a first court date of 16 March 2009.

29. Under cover of letter dated 22 January 2009 the mother’s solicitors served the father with English but not translated versions of the abovementioned applications and two supporting affidavits.  The father was advised of the date upon which the applications were listed and informed that unless he arranged to appear at that hearing the mother would seek orders in relation to the child without further notice to him.  From these documents the father realised the mother intended to retain the child in Australia.

30. On 23 January 2009 the father consulted a lawyer in Norway.

31. In January 2009 the father filed a child abduction complaint in Norway against the mother.  Had the complaint been established the mother would have been subject to a possible term of imprisonment.

1. The mother’s applications filed 24 December 2008 came before a Judicial Registrar on 16 March 2009.  The Judicial Registrar made the following interim orders:

   1The proceedings are adjourned to the Judicial Registrar’s Call-over at 9:30 am on 29 June 2009.

   2Until further Order, Orders are made in terms of paragraphs 1, 2, 3, 5, 6 and 7 of the Application in a Case filed 24 December 2008 as set out hereunder:

   “1.That the child, […] born on […] April 2007 (“[the child]”) live with the Mother.

   2.That the Mother have sole parental responsibility for [the child].

   3.The Father, by himself, his servants or his agents are restrained from removing or attempting to remove the child, […] born […] April 2007 (male) from the Commonwealth of Australia.

   5.That the Marshal and all officers of the Australian Federal Police and the police forces of the States and Territories are requested and authorised to give effect to these orders.

   6.That the solicitor for the Mother forthwith notify the Marshal and the Australian Federal Police Family Law Team of these orders as soon as possible and provide a copy of these orders to the Marshal, the Australian Federal Police and the New South Wales Police.

   7.That the Court requests that until further notice the Australian Federal Police place the child on the Airport Watch List at all points of international arrivals and departures in Australia for the purpose of preventing removal of the child from Australia in breach of these Orders.”

   3Until further order the father be restrained from approaching within 200 metres of the child […] born […] April 2007 or [mother’s address] in the state of New South Wales or any other place where the child may reside.

   4That leave be granted to the mother to make an oral application for that order.

   5The Court dispensed with service of that application on the father.

   6IT IS NOTED that Order 3 is an order for the personal protection of the child and therefore confers on the Marshal and the Police a power of arrest without warrant under section 68C of the Family Law Act1975.

   7Leave to either party to restore these proceedings to the list on giving 14 days’ notice to the other party and to the Court.

   8That a sealed copy of these orders be forwarded to the father at his last known address within 7 days from today’s date.

2. On 19 March 2009 the father lodged an application with the Norwegian Central Authority requesting the child’s return to Norway.  On behalf of the mother it was submitted the Court would be concerned about the time taken by the father to lodge this application, which it was said was supportive of him having consented to the child’s removal and/or acquiescence to his retention.  When assessed in the context of the father having promptly contacted Police and, after he received the mother’s application filed in this Court, his retention of a lawyer, the time taken by him to complete and lodge his request did not trouble me.  Having regard to the gravity and complexity of the issue and the nature of the material lodged with his application that the father took two months to lodge it is easily understood and reasonable.  In short, the time taken by him does not support the inference which the mother contended the Court would reach.     

3. Reliant upon the Abduction Convention, the Royal Ministry of Justice and the Police, as the Norwegian Central Authority, on 15 April 2009 requested that Australia return the child to Norway. 

4. On 25 May 2009 the Central Authority filed the application which commenced these proceedings.

5. On 9 June 2009 in the Abduction Convention application, a Judicial Registrar made the following orders:

   1Leave to approach the Court Services Manager for a date for hearing an application under the Family Law (Child Abduction Convention) Regulations estimated hearing time 1 day.

   2The Court noted that the mother will surrender her passport and that of the child within 48 hours.

   3By consent orders are made in terms of the document titled “Orders” marked Exhibit 1 as set out hereunder:

   “(1)That until further order the respondent Mother, [Ms Harris] and/or any other person be restrained from removing the child […] (male) born […] April 2007 from the Commonwealth of Australia until further order of this Court and that the Australian Federal Police give effect to this order.

   (2)That until further order, the respondent Mother, [Ms Harris] born […] 1971 surrenders forthwith to the Registrar of the Family Court of Australia, all current passports and air tickets relating to herself and the said child […] (male) born […] April 2007.

   (3)That until further order, the names of the respondent Mother, [Ms Harris] born […] 1971 and the child […] (male) born […] April 2007 be placed upon the P.A.S.S. alert system at all Australian international arrival and departure points as soon as possible.

   (4)That the respondent mother files and serves her Form 2A and any material upon which she is seeking to rely on upon this matter by Tuesday 7 July 2009.

   (5)That the Central Authority files and serves any material in reply by Tuesday, 4 August 2009.

   (6)That the matter be listed for a hearing before a judge on the first available date after Monday 10 August 2009. Time estimate 1 day.

   (7)That sealed copies of this Application and these orders be served upon the Commissioner, Australian Federal Police.

   (8)That the parties are at liberty to apply herein on twenty-four hours notice.”

6. The father initiated an enquiry pursuant to s 4-2 of the Norwegian Child Welfare Services Act in July 2009.  On 22 July 2009 the Child Welfare Service in G advised the father to seek legal advice and said the child’s circumstances did not fall within its statutory responsibilities. 

7. The mother filed her Response to the Application filed by the Central Authority on 4 August 2009. 

8. The Abduction Convention proceedings were listed for hearing before me on 17 August 2009.  At the hearing the parties jointly applied for an adjournment.  That day I made the following orders and notations:

   BY CONSENT IT IS ORDERED:

   1That this matter is adjourned for further hearing to 10.00 am on 6 October 2009 (time estimate of less than 1 day).

   2The Applicant Central Authority is granted leave to file and serve any further evidence on or before 7 September 2009.

   3Other than is provided for in these orders, no further evidence shall be filed without leave of the Court.

   4That the Respondent pay the Applicant’s costs thrown away on the adjournment in the sum of $2,500, such costs to be paid within 28 days of the date of this order.

   5That the Respondent have leave to file the original affidavit of [Ms H] affirmed 12 August 2009.

   6The solicitors for the parties shall prepare a joint letter of instruction to the Norwegian lawyers instructed by the parties requesting that they confer and prepare a joint statement setting out their areas of the agreement/ disagreement on the issues requested.

   7The  Court requests that Justice V Bennett, as the Australian Liaison Judge to the Hague Convention on the Civil Aspects of International Child Abduction, obtains from a judge appointed in Norway as Liaison Judge to the Hague Convention on the Civil Aspects of International Child Abduction an opinion as to the following matters:

   (a)What is the legal framework which underpins the mediation agreement dated 20 May 2008?   (Copy attached).

   (b)Does the mediation agreement impact in any way upon the father’s ([Mr Harris]) rights of custody in relation to the child […] under Norwegian law?  If so, how?

   (c)Is there a time limit for registration of the agreement?

   (d)Is one party able to effect registration of such a mediation agreement?

   (e)If between 20 May 2008 when the agreement was executed and 28 October 2008 when it was registered (by the mother) the parties separated then reconciled how does reconciliation affect the agreement and its registration.

   THE COURT NOTES:

   8The parties agree to the following facts being provided to the Norwegian judge:

   8.1The parties had a tumultuous relationship. Subsequent to the signing of the agreement dated 20 May 2008, the father and the mother continued to live together.

   8.2The father and the mother went with the child to Australia on 23 May 2008 as a family, and returned to live in Norway as a family on 25 August 2008.  Whilst in Australia there was a dispute between them and the father stayed in a hotel for approximately a week.  The father characterizes this as a separation; the mother says it was part of the pattern of their relationship.

   8.3The parties entered into an agreement to resolve property issues between them on 22 October 2008.

   8.4The father says that, fearful that the mother might remove the child, he took and hid the child’s Norwegian passport. The mother says that the child has travelled to Australia on both his Australian and Norwegian passports.

   8.5There is a dispute with respect to the registration of the agreement: the mother asserts it was registered with the father’s knowledge and consent; the father asserts it was registered without his knowledge or consent.  The registration occurred on 28 October 2008.

   8.6The father and the mother continued to live in Norway with the child until the mother left Norway with the child on 27 November 2008. The father says he had no prior notice whatsoever that the mother and child were leaving. The mother says that the father knew they were leaving but did not know the date.

   THE COURT FURTHER NOTES:

   9The child was born in Norway.

   10Other than for visits to Australia he has lived in Norway since birth and his departure for Australia on 27 November 2008.

9. On 1 September 2009 the G region Politiet dismissed the child abduction complaint previously initiated by the father against the mother. There are now no outstanding charges against the mother in Norway in relation to her removal of the child.

10. The Abduction Convention proceedings came before Bennett J on 4 September 2009.  Bennett J made the following orders and notations:

    IT IS ORDERED:

    1.The subject of any order by the Honourable Justice Ryan to the contrary, the following documents be marked as exhibits in the proceedings as follows:

    a.The email communication from me to the Norwegian Hague Network Judge dated 26 August 2009 (without attachments) and the response thereto dated 1 September 2009 be marked “Network 1” and remain on the Court file;

    b.The email and from the solicitor for the applicant State Central Authority, Audrey Pereira, to my Associate dated 4 September 2009 (without attachments) be marked “Network 2” and remain on the Court file.

    AND THE COURT NOTES that the parties have consented to me forwarding to the Hague Network Judge for Norway any details of the proceedings referred to by the solicitor for the applicant State Central Authority in Exhibit “Network 2” as having been filed by the requesting parent in a court in Norway together with a request as to when it is likely that application will be determined.

    2.That this matter otherwise remains listed for 4 October 2009 at 10.00 am before Justice Ryan.

11. The hearing scheduled to commence on 6 October 2009 was adjourned pending the outcome of proceedings in Norway commenced in response to the reg 15 request made by Bennett J.

12. The G District Court published its ruling on 3 November 2009.  The ruling followed a defended hearing at which the father and mother were each represented and in which both gave evidence and were cross examined.  The G District Court concluded:

    (1)[The mother’s] abduction of [the child] to Australia on 27 November 2008 was unlawful.

    (2)[The mother] shall pay 108,450 Norwegian Kroner (NOK 108,450) as compensation for [the father’s] legal costs within the two (2) weeks from service of this ruling.

13. It is agreed that the G District Court ruling does not bind this Court.

14. On 20 November 2009 the mother filed an Application in a Case in which she applied for an order:  “That the hearing date of Wednesday 25 November 2009 in Newcastle be vacated pending the determination of the appeal by the respondent mother to the decision of the [G] District Court in Norway dated 3 November 2009.” 

15. On 21 November 2009 the mother lodged as appeal to the Court of Appeal in Norway against the ruling made by the G District Court on 3 November 2009. 

16. The mother’s adjournment application was listed for hearing before me on 25 November 2009.  The Central Authority opposed the mother’s adjournment application which the mother withdrew.

17. The Abduction Convention hearing was heard by me on 25 November 2009.

18. This court has not been advised of the outcome of the mother’s appeal.

A hearing determined without cross-examination

1. Prior to MW v Director-General, Dept of Community Services (2008) 39 Fam LR 1 the general approach to Abduction Convention hearings was that they tended to be undertaken without cross-examination. Post MW v Director-General, Dept of Community Services where parties seek to test the evidence through cross-examination it is usually permitted. Nonetheless and notwithstanding the conflicted nature of the parties evidence, they elected to conduct this hearing without cross-examination. The Central Authority submitted that where there is conflict in the evidence I would prefer the evidence given by the father in preference to the mother’s.  While I accept there are internal inconsistencies in aspects of the mother’s evidence her evidence is not so compromised that I would be prepared to adopt this approach.  I have applied the approach adopted by Jordan J, which was cited with approval by the Full Court in Panayotides v Panayotides (1997) FLC 92-733 per Fogarty and Baker JJ (with whom Finn J agreed), namely:

   The first thing to observe is that there is much conflict in the evidence.  These are summary proceedings and issues must be determined on the papers.  This often presents the Court with difficulties.  It would generally be inappropriate to absolutely reject the sworn testimony of a deponent (see, Re F [1992] 1 FLR 548). As was submitted by counsel for the Central Authority, I simply must do the best I can. I look to the versions of each of the parties, I find the common ground, and I note the areas of conflict. I can look to the inherent probabilities. Of course, when one is talking about the intent of parties, where this is a matter of some conjecture, one looks to the conduct of the parties, and any documentary or corroborative evidence which may help to determine that issue.

2. See also HZ v State Central Authority (2006) FLC 93-264 where the Full Court accepted the trial judge’s approach which adopted Butler Sloss LJ (with whom the other members of the Court of Appeal agreed) in Re F (supra), at page 554, as follows:-

   If a judge is faced with irreconcilable affidavit evidence and no oral evidence is available or, as in this case, there was no application to call it, how does the judge resolve the disputed evidence?  It may turn out not to be crucial to the decision, thus not requiring a determination.  If the issue has to be faced on disputed non-oral evidence, the judge has to look to see if there is independent extraneous evidence in support of one side.  That evidence has, in my judgment, to be compelling before the judge is entitled to reject the sworn testimony of a deponent.  Alternatively, the evidence contained within the affidavit may in itself be inherently improbable and however, there are no grounds for rejecting the written evidence on either side, the applicant will have failed to establish his case.

3. Fortunately in relation to a number of factual disputes there is independent evidence available to which it is appropriate to attach significant weight. There is also a considerable amount of evidence from the parties close friends and family members filed in support of their respective cases.  Unless stated differently this evidence is not sufficiently independent that it would be appropriate to attach to it the degree of weight which would be required to resolve disputed evidence.  

Was the child habitually resident in Norway immediately prior to his removal?

1. The term “habitual residence” is not defined in the Regulations, which determine the operation of the Abduction Convention in Australia, or the Abduction Convention.  One must look to the case law, both local and of other contracting states, for guidance. This is permissible because international treaties should be interpreted uniformly by contracting states. Povey v QANTAS Airways Ltd (2005) 223 CLR 189.

2. In a seminal decision concerning the term “habitual residence” Re J (A Minor) (Abduction: Custody Rights) [1990] 2 AC 562 at 578-579, Lord Brandon of Oakbrook said:

   It follows, I think, that the expression is not to be treated as an expression 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 in a single day if he or she leaves it with a settled intention not to return to it but to not 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. 

3. In Cooper and Casey (1995) 18 Fam LR 433 at 435 the Full Court cited with approval Waite J in Re B (Minors) (Abduction No. 2) (1993) 1 FLR 993 at 994 where it was held:

   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 the judicial finding that a family had acquired a fresh habitual residence only one month after arrival in a new country.

4. Reference to Re F is reference to a decision of the Court of Appeal in Re F (a minor) (Child Abduction) (1992) 1 FLR 548. There, Butler-Sloss LJ adopted Lord Brandon of Oakbrook’s above quoted opinion in support of her conclusion that: “A young child cannot acquire habitual residence in isolation from those who care for him. While (the subject child) lived with both parents, he shared their common habitual residence or lack of it”.

5. The Full Court considered the authorities on the question of habitual residence, citing with approval those referred to above in DW and Director General, Department of Child Safety (2006) FLC 93-255. There, at par 43, Finn and May JJ in the majority held:

   Subsequently in Panayotides (1997) FLC 92-733 at 83,897 the Full Court majority (Fogarty and Baker JJ) quoted with apparent approval the following passage from the judgment of the trial Judge in that case, Jordan J (emphasis added):

   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.’

   (See, re B (minor) (supra) p.995).

   I expressly adopt the aforementioned observations and those of Kay J in the Department of Health and Community Services v Casse (1995) FLC 92-629, wherein his Honour said:

   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.’

   I do not accept an interpretation of the proposition advanced in In re J [supra], wherein it might be argued that the reference in that decision to “an appreciable time” was intended to be construed as meaning a long time. In my view, once an intention to adopt an habitual residence has been reached and acted upon in a decisive way so as to provide a degree of certainty and continuity, then it may be open to a Court to find that habitual residence has been changed from that point.

   It is important, we think, to observe that this emphasized passage is virtually a direct quote of the second of the three principles which Waite J in Re B extracted from the English authorities and which was approved and adopted for Australia by Nicholson CJ (with whom the other members of the Full Court concurred) in Cooper v Casey.

1. Habitual residence and the role of intention in the establishment of habitual residence was recently considered by the High Court in LK V Director-General, DCS (2009) 40 Fam LR 495. It is clear that the authorities cited above remain good law. Their Honours referred with approval to Punter [2007] 1 NZLR 40 and in particular quoted Anderson P, Glazebrook, William Young and O’Reagan JJ who said :

   [88] Such an inquiry should take into account all relevant factors, including settled purpose, the actual and intended length of stay in a state, the purpose of the stay, the strength of ties to the state and to any other state (both in the past and currently), the degree of assimilation into the state, including living and schooling arrangements, and cultural, social and economic integration.  In this catalogue, SK v KP held that settled purpose (and with young children the settled purpose of the parents) is important but not necessarily decisive.  It should not in itself override what McGrath J called, at [22], the underlying connection between the child and the particular state.

2. Reference to settled intention does not import the approach to intention used in the application of the law of domicile. 

3. In LK v Director-General, DCS the High Court pointed out that a person’s intentions may be ambiguous and that “individuals do not always act with a clearly formed and singular view of what it is intended (or hoped) that the future may hold.”  Because of the potential significance to this case it is appropriate to quote fully the remarks next made by their Honours: 

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

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

4. It follows that the authorities concerned with habitual residence do not comprise a closed list of considerations nor establish principles of general application which predetermine the weight to be given to particular factors.

5. Turing then to the facts in this case.  At some stage prior to August 2005 the mother departed Australia for Europe.  There appears to be no contest that at her point of departure the mother was habitually resident in Australia.  The mother’s travels took her to Europe where she met the father.  He had, at an earlier point departed Norway, which was his habitual residence, and travelled through Europe.  Thereafter and until about August 2006 the parties lived together in various places, including for a period in Norway.  Having travelled to Canada and Asia in August 2006, the mother returned to Australia.  Nothing to which I have been taken would support a finding that between the commencement of their relationship and the mother’s return to Australia in August 2006, she had settled in one place with a clarity of intention and style of connection to the foreign community sufficient to establish a foreign habitual residence.  I make similar findings in relation to the father but acknowledge that during the period when he returned to Norway he reconfirmed his ties to his homeland and it remained his habitual residence.

6. In August 2006, when the mother returned to Australia her and the father’s relationship was interrupted.  When the mother discovered her pregnancy to the father this raised complex issues which they discussed at length.  These included whether to continue the pregnancy, whether or not to marry and whether to settle in Australia or Norway.  These were resolved with their agreement that the mother would have the child, they would marry in Australia and initially settle here.  Thus, while he did not abandon habitual residence in Norway the father was open to the idea that he may settle in Australia and adopt it as his habitual residence. 

7. Following their agreement within a relatively short period, to the mother the father expressed his desire that they return to Norway to live.  The father’s grandfather, to whom he was close, was ill and the father proposed that they live in his grandfather’s home with the father, thus able to support his grandfather and, in effect, repay his earlier kindness.  The issue was resolved, when as a surprise, the mother purchased tickets for she and the father to return to Norway where it was agreed she would have their baby.  Thus, the mother was open to the idea that she may adopt Norway as her habitual residence.

8. The mother and father travelled to Norway in December 2006 with no plans to return to reside in Australia.  Although the evidence did not establish that the father had become habitually resident in Australia, had he done so, upon his return to Norway he abandoned Australia in favour of re-establishment of habitual residence in Norway.  Once back in Norway, as planned, they moved in with the father’s grandfather and set up a home in G.  This was their only home. Both registered themselves as being resident in Norway on the Central Population Register.  The father found fulltime employment and until he and mother finally separated he supported the family.  The mother undertook language classes and prepared for the birth of their baby. The parties also attended marriage counselling which they discontinued prior to the child’s birth.  Once the child was born he too was registered on the Central Population Register.  Although he took dual Australian and Norwegian citizenship, the parties established the child’s life in Norway. This was no coincidence but rather part of their shared intention that this was where he would be born and thereafter live indefinitely. The effect of this is that from birth the child was habitually resident in Norway.

9. After the child was born the mother and father shared his care.  Because the father worked full time the mother was primarily responsible for the child’s care.  I do not accept the mother’s evidence concerning the father’s indifference to the child and lack of involvement in the child’s day to day care.  The father’s work records, for example, demonstrated that the mother’s account of the father’s absences from their home because of work commitments, were wrong.  In a similar vein, the records from the child care centre demonstrated that the father’s involvement in the child’s care was far greater than the mother claimed in her affidavit evidence.  The mother and father accompanied the child to his appointments with the public health nurse on 11 April 2008 and 9 May 2008.  From these attendances it was apparent the child was achieving his developmental milestones in accordance with his chronological age and the father was interested in the child’s welfare.  The child was reported as sleeping in his parent’s bed if he awoke at night.

10. On 29 May 2007, the mother informed the public health nurse that she was attending Norwegian language classes and that the father cared for the child while she was absent.  She was reported as saying that this arrangement “works out fine”.  When the mother saw the public health nurse on 20 September 2007 the child was observed to be developing good motor function.

11. Although the mother and father agreed theirs has been a tumultuous relationship, from not long after they arrived in Norway they were jointly involved in trying to establish a settled family existence for themselves and the child in Norway.  Notwithstanding that the mother may have had misgivings about the longevity of her marriage with the father, she continued to put her efforts into making the marriage and her and the child’s life in Norway happy and settled.  To this end the mother studied the Norwegian language.  She set up a home and tried to make friends in her local community. The mother did not have independent accommodation in Australia and there was no evidence she had, for example, taken leave of absence from an employer in Australia. Thus notwithstanding that she had not made a final decision positively rejecting the idea of returning to Australia as time passed and by about the time the child was born the mother was sufficiently integrated into a settled life in Norway that she had become habitually resident there. 

12. With the father’s support the mother returned to Australia in August 2007 with the child for about six weeks.  The father remained in Norway for work.  Whilst in Australia the child contracted broncholitis in relation to which shortly after they returned to Norway the mother consulted a nurse at a public health centre. The centre’s records report that the mother explained she “has had a good holiday in Australia” [my emphasis]. The father was not present at this consultation and the mother’s description of the purpose for the trip was hers alone.  Reference to the trip having been a holiday indicates that the mother perceived she lived in Norway and she returned to Australia with no intention to remain there and every intention to return to Norway. This was a relatively short visit and while it re-established her connection with Australia, from both her and the child’s perspective this trip was a holiday.  When the mother and child returned to Norway she in effect acknowledged the parties’ shared intention that they and the child would live together in Norway.  Not for a finite period but indefinitely as an intact family unit. This trip did not result in either the mother or child’s habitual residence being changed from Norway. 

13. Upon the child’s return to Norway the father took paternity leave during which he was significantly involved in the child’s day to day care.  This coincided with the mother commencing part-time work as an English teacher.  Her actions are evidence of her ongoing assimilation into life in Norway. Ms H is a day care giver who cared for the child two to three times a week for a little over one year while the mother was at work or studying.  She described the child as an alert boy with a healthy appetite.  Ms H saw no signs of the child having been abused and it was her opinion that the child and father seemed to have “a very good relationship”.  She said “[the child] smiled and lit up when he saw [the father]”.  Ms H is a trained children’s nurse who had worked with children for 40 years.  Ms H is independent of both the father and the mother and her evidence warrants reasonable weight.  Her evidence contradicts the mother’s evidence concerning the nature of the child’s relationship with the father and corroborates to a considerable degree his evidence and that of his various family members concerning his involvement in the child’s care and the warm and happy relationship which had developed between them.

14. During a consultation at a public health centre on 25 October 2007 the mother informed the nurse that she and the child would shortly be travelling to Australia.  The records report the effect of the mother’s information was “She will be going to Australia on holiday and will be returning in February” [my emphasis]. The father was not present at this consultation and the description of the purpose for the trip was solely the mother’s.  Reference to the trip having been a holiday indicates that the mother perceived she lived in Norway and she returned to Australia with no intention to remain there and every intention to return to Norway. Even if I was wrong about the mother’s place of habitual residence having become Norway by about the time the child was born, there is little scope for dispute that by the time the mother departed for Australia in December 2007 she was habitually resident in Norway. This trip occurred between 6 December 2007 and 8 February 2008, when with the father’s consent, the mother and child visited Australia for a fixed period of limited duration.  He remained in Norway for work.  This trip was, as the mother explained to the nurse, a holiday.  When the mother and child returned to Norway she acknowledged the parties’ shared intention that they and the child would live together in Norway.  Not for a finite period but indefinitely as an intact family unit. This trip did not result in either the mother or child’s habitual residence being changed from Norway. 

15. By May 2008 the mother and father were struggling in their increasingly unhappy marriage.  For some time they had planned to visit Australia as a family. Arrangements were made, which included the purchase of return tickets, for the three of them to visit Australia between late May 2008 and late August 2008.  Following the violent altercation which resulted in the mother’s arm being broken, the mother and father agreed that it was possible they would permanently separate.  This required that they consider their son’s future living arrangements.  In accordance with the dictates of Norwegian family law, the parties attended mediation on 20 May 2008.  In mediation they agreed that, if during their forthcoming trip to Australia they separated, the child would live with the mother in Australia. 

16. Using return tickets the mother, father and child departed for Australia on 23 May 2008.  Whilst in Australia the mother, father and child stayed with the mother’s parents.  Neither of them looked for work nor sought to establish their own home.  In late June 2008 the father moved into a hotel for approximately one week.  Other than those occasions when the mother holidayed in Australia, this was the first time the mother and father had lived separately.  During this period, the mother received advice from a social worker at Westmead Hospital, Cumberland Women’s Health Centre, the Women’s Legal Advice line and a private lawyer.  From these agencies and individuals, the mother obtained advice about family law, domestic violence legislation and assistance for victims of domestic violence in Australia.  Although the mother submitted that this was part of the ebb and flow of her and the father’s tumultuous lifestyle and that they had not separated, I am persuaded that during this period they were separated.  Thus, the mother, as she knew she could, was entitled to rely upon the right of access agreement and, subject to any order under the Family Law Act 1975 to the contrary, elect to remain in Australia with the child. 

17. The mother decided:  “The thought of facing a court battle and not being able to protect [the child] from [the father]” meant that it “was better to stay with [the father] and not risk having [the child] with him when I was not present.”  The effect of her evidence was that the parents were in dispute about their son and from her perspective it was best to avoid family law litigation.  Her approach was more consistent with her being aware the right of access agreement had limited application than with her believing she had an ongoing enforceable agreement.  Thus, the parents resumed cohabitation and they agreed they would work to improve their marriage.  In furtherance of this aim, the mother encouraged the father to meditate twice every day, which, throughout July and August 2008, he did.  The parent’s relationship improved and throughout the period the mother said the father “was very pleasant to be around”.  The mother said she “…decided to give [the father] one more chance to prove that he could be a good father and husband.”  With this hope for the future the mother returned to Norway with the father and child on 25 August 2008. 

18. The mother’s sister in law was concerned about the mother’s decision to return to Norway.  However, the mother told her “We have signed a document which is valid for six months, that gives me permission to return to live in Australia with [the child] if [the father’s] behaviour doesn’t change.”  I have already made findings about what the mother knew was the effect of the right of access agreement.  Her discussion with her sister in law demonstrated that she also believed she had documents she could possibly use for another purpose, that is, as she has in this hearing, erroneously claim she had the father’s consent to remove the child to Australia even after they returned to Norway. 

19. Counsel for the mother relied upon DW v Department of Child Safety (2006) 34 Fam LR 656 where the majority per Finn and May JJ, held

    ..it would almost be 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 ….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.   

20. Reliance was placed upon the majorities caution in the same judgment at par 54 that: 

    ..the interests of children generally could well be adversely affected if the courts too readily find that a parent of a child who attempts a reconciliation in a foreign country with the other parent in order to try to create for the child a family consisting of both its parents has, together with the child, become ‘habitually resident’ in that foreign country. 

21. It was the mother’s contention that her return to Norway with the child was conditional upon the father continuing daily meditation and that there was no further violence.  The point being that this was a fragile arrangement in which her return to Norway was no more than a final attempt on her part to save her marriage and preserve the child’s opportunity for a family life with both of his parents.  Consistent with the application of the remarks to which I have just made reference, it was submitted that it would be wrong to elevate her approach as being that of a “settled intention” or her actions as indicative of abode in Norway for settled purposes as part of the regular order of her life.  Thus, it was submitted, the Court would not conclude that on her return to Norway in August 2008 the mother or child became habitually resident in that country. 

22. While I accept she extracted the father’s commitment to behave accordingly, the evidence does not establish that if the father breached her conditions that he agreed she could remove the child from Norway.  The mother made no mention of this type of discussion in her first affidavit filed in the Abduction Convention proceedings or her affidavit filed in support of her application filed on 24 December 2008.  The first mention of this type of discussion came in her affidavit filed 14 August 2009.  In that affidavit, which was sworn in reply to the father’s evidence, the mother said there had been no formal separation in Australia.  However, she said that she said to the father “What if you stop meditating and it all goes back to the way it was before?  I can still come back to Australia can’t I?”  In reply to which the mother said the father stated “Yes”.  The father denied such a discussion.  The mother gave no explanation for her failure to earlier mention this potentially significant evidence.  It was far too important, if true, to have been overlooked.  It is revealing that the mother’s sister in law, the person with whom she most extensively discussed these issues, made no mention of the mother having extracted the father’s oral consent.  Her evidence made reference to the 20 May 2008 agreement. Having regard to the gravamen of the mother’s discussion with her sister in law, I am satisfied that if she had extracted the father’s further oral consent she would have told her.  Because there is no mention of it I infer the mother did not inform her and that the reason for this is that the father did not give the mother his oral consent.  

1. It is apparent that there is no dispute that the mother’s arm was broken and that the injury occurred during a violent altercation between her and the father.  Although the father said the mother pushed then attacked him, he does not say how she attacked him nor suggest he was at any stage afraid.  This is in contrast to the detail he gave about other incidents where he said the mother had been violent to him.  It is clear that the father was not injured.  Nor is it contentious that it was only the following morning that he took the mother to hospital.  The father remained with the mother at hospital and was present when she informed the doctor that her arm was broken in a fall.  The following day the mother spoke again with the crisis centre where she was advised to contact the hospital and disclose the true circumstances of how her arm was injured.  There was discussion initiated by the crisis centre that the mother should inform police. The mother requested the crisis centre not to inform police.

2. In accordance with the advice she received from the crisis centre, on 16 May 2008 the mother returned to the hospital and corrected the history which she had given.  The hospital notes record: 

   The patient informs that she did not fall. Is of the opinion that her husband, that was present at the last examination, hit her.  This is something that happens often and the patient attends the Women’s Refuge for this.  According to her the pair is getting a divorce.  The patient is travelling to Australia in six days with her husband and her son.  The patient would like this to be documented but not reported to the police.

3. It is beyond dispute that the mother suffered a serious injury which caused her intense pain. Although the father denies much of the surrounding circumstances alleged by the mother about this incident, he does not deny the mother’s evidence that her arm broke when the father hit her arm with his fist.  I accept her evidence this is how she was injured.  Similarly, I am satisfied she initially withheld the real cause of the injury from the hospital for fear of the potential repercussions.  The evidence does not demonstrate that the father’s actions were in any way proportionate to the level of aggression, which, if his evidence was accepted, had been initiated by the mother. His actions were disproportionate to the situation and are very troubling.

4. Both parties gave evidence of a verbal altercation some days later when they were about to board their flight to Australia.  The accounts are divergent.  While evidence of ongoing unhappiness and distress, I am unable to determine where the truth of that situation ultimately lay.

5. The next serious incident occurred on 22 June 2008 when the mother’s arm was re-broken.  This is the incident which happened while the parents were in Australia and occurred at the mother’s parents’ home.  The mother is specific that during an argument which lasted some time, the father pushed her into a wall which was when her arm was re-broken.  The father agreed there was a long argument in relation to which he said the mother’s parents intervened. The father said that the mother’s parents, particularly her mother tried to restrain the mother which escalated into a confrontation which lasted about two hours.  He denied that he was responsible for the mother’s injury although he said, in order to keep the mother out, he pushed then carried her out of the room and locked the door.  That is he locked her out of his room and understood her father then locked her in another room. Again although some of the surrounding circumstances are in dispute there is no dispute that during an argument the father pushed the mother, which is how she said she was injured.  I am satisfied this is how the mother’s arm was re-broken. 

6. For that part of the incident to which she was privy the mother’s mother agreed she tried to stop what was then a verbal dispute.  She denied she slapped the mother.  The mother’s father did not give evidence. As earlier discussed the parents then separated and the following morning the mother was treated at Westmead Hospital where she informed hospital staff the father was responsible for this injury.  To a social worker she gave a detailed history of prolonged domestic violence inflicted upon her by the father. 

7. It is the mother’s evidence that following the parties’ return to Norway in August 2008 the father became more controlling and aggressive and “started to turn his violence towards [the child].”  She described an incident when she said the father hit her and the child after the child dropped food or spilled his drink.  She said: 

   The father squeezed the child’s arms until the child became hysterical and then hit her and the child. In the same months she said an argument developed about the presence of insects during which, while she was sitting on a chair, he ran towards me and repeatedly struck me brutally with a closed fist to my upper body and arms.  After a few minutes of this, he stepped back and took a breather and then lunged at me again to repeatedly beat me with his closed fist.  The best way I can describe how brutal this was is to compare it to a boxer knocking a man out with a punch while wearing his gloves.  Every time I received one of these blows they were with bare fists.  The pain was excruciating to the point where I believe I would almost black out.  The attacks on me were happening every few days and if I tried to pick up [the child] and remove us from the room, the blows would be to both [the child] and myself.

8. The mother said: 

   I believe if [the child] and I stayed in Norway it would not be possible for us to escape from the violence that was directed towards us.  When [the father] was beating us, if I tried to leave the room he would follow us, still beating us and would threaten to kill us. 

9. The father denied ever assaulting the child and the mother’s allegations contained in the paragraph above.  The brutal nature of the blows described by the mother if they had been inflicted upon the child as she said they were would as a matter of probability, have been likely to result in injuries to him.  There is no evidence from any of the witnesses who regularly saw the child that they observed injuries to the child.  The frequency and the severity of beatings which the mother said the father inflicted upon the child suggests that one at least of the numerous witnesses would have seen signs of physical abuse on the child.  That there are none persuades me that on this matter the mother’s evidence warrants considerable caution. 

10. When the mother attended the consultation casualty clinic on 18 September 2008 she reported physical violence by the father to her.  This is the incident where the father hit her in the face and on the arms and which resulted in the mother suffering a black eye and bruising to her left arm.  The father was not injured in this incident.  Again the evidence does not establish the type of provocation by the mother which may have made some sort of physical response at least capable of being understood.  The clinic does not record her as having disclosed that the father was also beating the child which, if her evidence in her affidavit were correct, he had been doing “every few days” for about four weeks.  Had the subject matter of that consultation been something other than domestic violence, the non-disclosure by the mother of these alleged assaults on the child may have been easier to understand.  In the face of the father’s denials and with the lack of any corroborative evidence of injuries to the child when combined with the mother’s failure to disclose the father’s alleged assaults upon the child during the 18 September 2008 consultation tips the balance in favour of the father’s denials rather than the mother’s allegations.  That is to say, I am not satisfied that the father assaulted the child.

11. There is no dispute that on15 December 2008 the father threatened to kill the mother. 

12. In summary, in relation to the mother’s allegations of verbal abuse and physical violence I am satisfied that the father:

    ·Between December 2006 and February 2007 was verbally abusive and physically violent towards the mother which prompted her to seek assistance from a domestic violence counsellor in February 2007.

    ·In March 2007 using a closed fist punched the mother in the face.

    ·On 20 November 2007, in the course of an argument, jabbed his finger in her eye which resulted in an eye injury and the mother requiring treatment at hospital.

    ·On 14 May 2008 broke the mother’s arm.

    ·On 22 June 2008 pushed the mother into a wall which caused her arm to be re-broken.

    ·Attempted to strangle the mother which resulted in bruises to her face and “red strangling marks around her neck” as observed at the crisis centre.

    ·On 18 September 2008 physically assaulted the mother as a result of which he blackened her right eye and bruised her left upper arm, which injuries were observed at a casualty clinic.

    ·On 15 December 2008 threatened to kill the mother.

13. While the mother, as I have already found, gave evidence of more pervasive violence, I have been unable to conclude that this more pervasive violence occurred.  However, even without the additional matters deposed to by the mother being taken into account, the mother has satisfied me she has been the victim of severe violence inflicted upon her by the father. 

14. It was the Central Authority’s contention that even if they were accepted, the mother’s allegations did not amount to a grave risk of physical or psychological harm to the child.  It was said:  “At its highest, the mother’s case must be that if she and the father lived together in the future, the child might be at risk of witnessing or being caught up in domestic violence.  As the father has indicated that he has no wish to resume the relationship, and has suggested minimising contact between the parents, there is no risk of harm to the child.” 

15. Reference was also made by the Central Authority to the father’s evidence that he was the victim of serious physical and verbal abuse inflicted upon him by the mother whilst the parties cohabitated.  As I have already noted the mother denied these allegations.  It was the father’s evidence that on two occasions the mother hit him which resulted in him suffering black eyes.  He said that on other occasions he was scratched.  The father adduced evidence from a wide range of family members and acquaintances with whom he and the mother had contact whilst they cohabitated in Norway.  Of these witnesses, the father’s mother is the only person who observed signs of injury on the father.  The father’s mother deposed that on two occasions she saw the father had a black eye and on one of these his clothes were torn.  According to the father’s mother he told her the mother caused his injuries.  Even if I were able to conclude that it was the mother who caused the father to have two black eyes, these do not appear to have occurred from incidents about which I have made findings about the mother’s injuries.  It remains noteworthy that the domestic violence which occurred during the parent’s cohabitation overwhelmingly resulted in more numerous and more serious injuries to the mother compared to the injuries to the father.  The fact the father may have suffered these injuries caused by the mother does not, on the facts of this case, diminish the seriousness of the violence alleged by the mother.

16. I have already referred to the fact that both parents discussed violence in their relationship with members of the father’s family.  The evidence given by members of the father’s family did not indicate that he disclosed to them that he was the victim of violence, rape or abuse anywhere nearly as extensive as that which he gave in these proceedings.  I infer he did not disclose rape, her attempts to strangle him and (excluding the matters about which I have already mentioned) or the other matters about which he now complains.  I accept he also raised his concern about her mood swings and her demanding and erratic behaviour which he found to be embarrassing.  Thus other than when I have found to the contrary, in the face of the mother’s denials and the absence of corroborative or other compelling evidence I am unable to conclude that the mother behaved towards the father in the manner alleged by him.

17. I have not accepted the mother’s evidence that the father was physically violent to the child.  However, on both parents’ evidence there has been serious verbal abuse and physical violence between them following the child’s birth while he was in their care.  The mother’s serious injuries, which I have summarised above and which occurred following the child’s birth, as I understood it, occurred whilst the child was in the parents’ care.  On those occasions where this was not specifically acknowledged, it is an appropriate inference to draw.  While the child probably did not see the father injure the mother, the likelihood is that he overheard some perhaps all.  Even though he was not directly involved, his presence in the home during violent altercations between his parents placed him in a highly risky situation.  Because the child was so young and dependant upon the mother (from whom he had never been separated) as his primary carer, that she was so seriously abused and injured within his hearing was psychologically abusive of him. 

18. Violence of the type that was inflicted upon the mother and of the arguments and altercations about which both parents gave evidence, could easily have developed into a situation into which the child was drawn.  In other words it posed a direct threat of serious harm to the child.  That he was not physically harmed is fortunate but does not diminish the gravity of the risk he may have been at. 

19. I turn next to consideration of what may happen were the child returned to Norway.  That is, returned for the purpose of determination of parenting proceedings.  The Court received evidence from the Royal Ministry of Justice and the Police concerning the operation of Norwegian domestic law in cases involving domestic violence and custody issues.  This established that domestic violence is a criminal offence in Norway.  In Norway domestic violence has a broad definition which encompasses “threats, duress, depravation of liberty, violence or any other wrong, grossly or repeatedly maltreats his or her former or present spouse”.  Upon conviction of a domestic violence offence a person is liable to imprisonment to a term not exceeding three years.  The Norwegian Children Act, which is the legislation under which these parents would have parental responsibility, residence, custody, access and similar issues determined, has as its core tenet that the best interests of the child “is superior in all matters that concern the child.”  Although phrased slightly differently, it is similar in effect to the provisions of the Family Law Act 1975 (Cth) which provide that for proceedings determined in this country the child’s best interests are the paramount consideration. In the list of factors which a court in Norway would be required to consider the court must: “Ensure that the child is not subjected to violence or in any other way treated in such a manner as to impair or endanger his or her physical or mental health (s 48)”.

20. Section 222 of the Norwegian Criminal Procedure Act enables: “The Norwegian Prosecuting Authority [to] impose a ban on visits [with a child] if there is reasons to believe that a person will otherwise commit a criminal act against another person.  This may be applied if there is reason to believe that a mother will be exposed for violence from the father of her child.”  By s 219 of the Norwegian Civil Penal Code:  “It is also possible to apply for an alarm for protection against violence that will be directly connected to the local Police.”  In Norway there are women’s refuges and crisis centres.  It follows that there exists in Norway a well structured legislative and community framework for dealing with family law cases which involve allegations of domestic violence. 

21. Without any intention to be unkind about the efficacy of the domestic violence and family law systems which operate in Norway, it was submitted on behalf of the mother that the evidence in this case demonstrated that relevant agencies in Norway were aware that the child resided in a home in which there was severe domestic violence between his parents from which the system did not protect the child.  For example, on 16 May 2008 the mother informed hospital staff the father had broken her arm, and on 18 September 2008 when she presented with a black eye and bruising to her left arm.  Although on both occasions hospital staff considered the matter warranted police intervention they did not refer the family to police or child welfare authorities.  The crisis centre workers suggested the mother contact Police but took no further action.  The mediator who saw the parties on 20 May 2008 at the “Office of Family Protection”, notwithstanding that the mediator observed the mother with her broken arm in a sling and was informed it was the father who injured her, did not give the mother advice about the consequences for, at least the child, of the effects of exposure to domestic violence, nor inform police or child welfare authorities of the child’s situation. 

22. Counsel for the mother contrasted this approach with that adopted by the social worker at the Westmead Hospital in June 2008 when the mother disclosed the level of violence in the parent’s relationship.  When the social worker realised that the mother’s response to the situation was to proffer the father contact with the child, possibly supervised by her, even although he understood the parents were separated, he notified the Department of Community Services that the child was at risk.  I respectfully agree with the social worker’s assessment of the child’s situation.  It is with disappointment I note that the Department of Community Services did not take further action in relation to the social worker’s notification.

23. The point which flows from these remarks is that even with a well structured legislative framework and social service agencies with responsibilities to assist victims of domestic violence and children who are exposed to it, such laws and systems may in individual cases be insufficient protection for the child.  In this case prior to the parent’s final separation, not only was the mother unable to utilise laws so as to keep herself safe, she failed to act so as to utilise those laws to keep the child safe.  It is not an uncommon experience in this court to hear evidence from victims of prolonged family violence that they felt leaving the perpetrator may heighten the risk of violence to them or the child, or that they could not believe that courts and police could protect them.  Hence, as was submitted by counsel for the mother, the importance of a proactive approach by child protection agencies, hospitals and the like, for example through mandatory notification requirements, or if necessary, coercive action in order to protect the child.  Such action did not occur in Norway and was ineffective in Australia. 

24. The mother gave evidence of various discussions she had with individuals, for example at the crisis centre, the mediator and a lawyer about the likely outcome of a custody and access proceeding between the parents in Norway.  She gave evidence of similar discussions with lawyers and others in Australia about Australian family law.  In relation to both jurisdictions, the effect of the mother’s evidence was that she was advised it was almost certain the father would be granted at least access to the child, albeit possibly upon conditions such as supervision by members of his family.  In relation to Norway, the mother said she was advised this would be the outcome even though a court may be satisfied the father had “raped or assaulted the child.”  I do not accept the mother accurately described the effect of the advice which she received in relation to either the application of Norwegian or Australian family law.  In relation to Norway, s 43 of the Children Act made it plain:  “If such access is not in the best interests of the child, the Court must decide that there shall be no access.”  Provision is made in the same section for the Ministry of Justice to appoint a supervisor paid for by the Ministry. 

1. In relation to Norway, the evidence adduced by the Central Authority was that the Norwegian courts would treat the mother’s allegations of domestic violence with appropriate gravitas, including the likely appointment of a psychologist as an expert witness to investigate the allegations and the risk to the child.  See s 61-3 the Children Act, (Norway).  Thus, according to the father’s attorney:  “If [the mother] could prove that her severe accusations against [the father] were true, she would clearly get the Norwegian court to decide in her favour concerning parental responsibility and permanent living.”  I have no difficulty accepting this evidence and am similarly satisfied that Norwegian domestic family law is no less well suited to the disposition of parenting proceedings between these parents in a manner which appropriately addresses the risk of harm issues than would be the situation in Australia.  The point being that irrespective of whether the proceedings are determined in Australia or Norway suitable interim parenting orders and protective domestic violence orders would be available to the mother and child. 

2. Good laws and orders, however, do not always achieve their intended effect.  If effective legislation and social welfare services, as reflected in good laws, orders and systems, were a complete answer to a risk of domestic violence, it could be anticipated in those countries with good laws and systems there would be little domestic violence.  In this case, it is not asserted on behalf of Norway or Australia that their respective laws and social services are guaranteed to keep victims of domestic violence safe.  While both countries are committed to doing so, there appears to be no issue that the mother and child in this case at least, are evidence that legal and social systems are not necessarily a complete answer to the risk of future harm. 

3. As I understood the evidence, it is both parents’ expectation that if the child is ordered to return to Norway the mother will accompany him.  In the short term it would be expected that the child would reside with the mother pending adjudication of the parenting issues by the Norwegian Court.  The father says he is:  “Willing to accept a temporary limitation of his access right to [the child] if [the child] is returned to Norway.  He accepts to have supervision during access until the parents have reached an agreement or the Court has given a decision about parental responsibility, permanent living and access rights.”  He points out that he does not have a criminal record and would be content that an alarm be put in the mother’s home.  The gravamen of his evidence is that he would abide orders for the mother and child’s protection.

4. Although on return to Norway the mother would be likely to seek police protection and orders which on their face would protect her and the child from the father and keep the child safe, I am not satisfied the orders would achieve their intended effect.  For the child, the reality would be that he would primarily be reliant upon a personally isolated primary carer who historically has been unable to protect him from the risk of harm discussed earlier.  The mother’s personal isolation increases the gravity of risk of harm to the child. This is because her isolation would mean that there would be few people intimately involved in her and the child’s life who could themselves intervene if her will to take further necessary action failed her.  The evidence suggests that the violence which the father inflicted upon the mother ceased primarily because the mother moved to another country.  There is a real risk that the type of violence which the father may inflict is not amenable to the type of constraints which the interim orders and the criminal law would impose.  In this regard it is noteworthy that even after the mother had removed herself and the child from Norway the father’s threats to her continued.  His threat to kill her is a threat with the potential of the gravest consequences to her and the child.  I am not confident that the father’s apology and his failure to act in accordance with the threat, means it has abated. 

5. Nor am I satisfied that the father’s family would be able to provide the mother with the type of emotional and practical support which she may need in order to hold the father to account should he breach orders designed to protect her and the child.  In short, the totality of the evidence persuades me that if the child returned to Norway with the mother there exists a grave risk of grave physical harm to the mother and a risk of commensurate severity of physical and psychological harm to the child. While in Australia domestic violence has rarely been found to bring this defence into play (see Murray v Director of Family Services ACT (1993) FLC 92-416, Zafiropoulos and the Secretary of the Department of Human Services State Central Authority (2006) FLC 93-264) I am persuaded that this is one of those rare occasions where the facts support such an outcome.

6. If I am wrong about the risk of harm defence the evidence relied upon by the mother discussed above would also be relevant to her claim that a return order would place the child in an intolerable situation.  In Gsponer v Director-General, Dept of Community Services, Victoria (1989) FLC 92-001 it was held that the three reg 13(b) categories were to be read disjunctively.

7. It is the father’s evidence that if the mother and child return to Norway, he would pay the rent on an apartment for her for one month.  The father anticipates this would cost about NOK 7,000.  In the alternative, he would vacate his home where she and the child could reside there for one month.  During their first month, the father offered to pay NOK 4,000 for the mother and the child.  He is willing to give her his car.  Thereafter, the father agreed to pay NOK 4,000 each month for the child until an administrative or court decision determines his level of ongoing child support.  The Royal Ministry of Justice and the Police provided evidence about the mother’s eligibility for social service benefits in Norway.  These are administered by the Norwegian Ministry of Labour and Social Inclusion.  The father’s attorney addressed this issue and did not challenge the evidence provided by the Royal Ministry of Justice and the Police.  The effect of the evidence is that under the Norwegian scheme a single parent benefit would be available from the Norwegian National Insurance Scheme.  Benefits under this scheme comprise “child care benefit, education benefit, transitional benefit and grant to cover necessary removal expenses in order to gain employment.”  However, to be eligible for this type of single parent benefit and/or income support, the applicant single parent must have been insured for three years immediately prior to claiming benefits.  All persons who are either resident or working as employees in Norway are insured under the National Insurance Scheme.  Thus, eligibility is not contingent upon employment.  It is sufficient that a person has been resident in Norway for three years.  There was no dispute that the mother has not been resident in Norway for three years.  Consequently, the mother is ineligible for financial support from the Norwegian National Insurance Scheme.

8. The father contends that the mother could support herself by getting work in Norway, by social support from within the community and/or with his contribution in the terms outlined above.  The evidence does not establish the level of community social support which would be available to the mother and the child.  Absent evidence about the magnitude of the support I am not persuaded I could infer this would be sufficient to provide the mother and child with even a rudimentary standard of living.  Nor am I satisfied the nature and style of work which the mother previously undertook in Norway would provide her with sufficient supplementary income to bridge the gap between the approximately NOK 7,000 a month rental the mother would require and the NOK 4,000 which the father said he would initially pay.  When her other financial needs, for example for food and heating are taken into account, the mother would be unable to provide her or the child with basic essentials.  Although I note reference was made to the existence of women’s shelters in Norway I am unaware of demand for placements in these shelters.  The evidence does not disclose that the mother and child would necessarily have places made available to them to be given shelter.  

9. Since the mother left Norway she has been reliant upon social security benefits in Australia.  As I understand eligibility requirements, these benefits would not be transportable overseas.  Thus I have no difficulty accepting the mother’s evidence that she has few financial resources and that she and the child would be in a financially extremely vulnerable position were the child ordered to return to Norway.  The reality of the child’s situation if he is ordered to return to Norway, is that he would live with his primary carer in financially parlous circumstances and without provision for basic essentials of life. 

10. I am persuaded that the child and the mother if the child were to be ordered to be returned to Norway, would be placed in an intolerable situation.  That is, from the child’s perspective, not only without provision of basic essentials but reliant upon the mother as his primary carer who would almost certainly be isolated and terrified.  In short, there is compelling evidence the mother genuinely and reasonably believes her life is at risk from the father if she returns to Norway.  The seriousness of the past domestic violence and abuse discussed above when combined with his threat to kill her would place her in an intolerable situation. Because of the child’s reliance upon her for the entirety of his physical and psychological needs, these factors add to my satisfaction that a return order would also place him in an intolerable situation.

Discretion

1. The mother has thus enlivened both the grave risk and intolerable situation defences.  Even where a defence is established the Court may still return the child to his or her place of habitual residence.  In De L v Director-General, NSW Dept of Community Services (1996) CLR 640 the High Court said “The Regulations are silent as to the matters to be taken into account in the exercise and the ‘discretion is therefore, unconfined except in so far as the subject matter and the scope and purpose of the [Regulations]’ enable it to be said that a particular consideration is extraneous.” In Agee v Agee (2000) 27 Fam LR 140 the Full Court per Finn, Holden and Guest JJ held that the underlying purpose and intent of the Abduction Convention must be afforded significant weight as should “specific consideration of the welfare of the particular child.”

2. Although the father expressed concern that the mother fled to Australia with the child because she perceived that in Australia she would have access to a family law system which would give her a better outcome than she would achieve in Norway, I do not accept his contention.  As I hope my earlier discussion revealed, I am persuaded there are great similarities between Australian and Norwegian private family law and no material differences.  The evidence did not demonstrate, in relation to substantive law or matters of practice and procedure,  a material difference in the approach taken in Norway and Australia to the determination of issues concerning parental responsibility, residence (or custody), access and safety issues.  In both countries the child’s best interests would be the ultimate determinant with proper weight and due consideration given, inter alia, to promoting the child’s relationship with his parents, as well as ensuring the child’s safety.  In both countries the child’s circumstances may be investigated by a court appointed expert, such as a psychologist, and a lawyer may be appointed to represent the child’s interest.  It has been established that in both countries parties may have the benefit of legal representation and evidence may be tested through cross examination.  I infer that in both countries the proceedings would be afforded appropriate priority. 

3. Thus, even if the application of the Central Authority is dismissed, the father would be able to participate in contested proceedings in this country reliant upon a system of law similar to that which operates in Norway.  Although some of the witnesses who one would anticipate will give evidence reside in Norway, their participation can be facilitated through the use of telephone and/or video links.  I accept also that there is likely to be some additional expense and inconvenience for the father in conducting parenting proceedings than would be the case were he to conduct them in Norway.

4. At present the child resides with his primary carer in settled and appropriate accommodation provided by his maternal grandparents.  With State financial support the mother is able to ensure that his physical needs are adequately provided.  The mother’s care of the child is supplemented by her family support.  Their presence in the child’s life moderates the risk to the child which may be present if the father’s evidence of the mother’s threats to harm their son were accepted. Until the father arrives in Australia the risk of harm to the mother and child from his domestic violence is virtually non-existent.  While upon his arrival the risk increases, that the mother and child reside with her parents moderates this risk.  That is because now they are aware of the situation the maternal grandmother at least is likely to be proactive in keeping them safe.  In other words the personal supports which the mother has available to her in Australia are likely to add to resolve to keep herself and the child safe, including the use of appropriate legal and community protections.  When these factors are compared to the situation which the child would be in if returned to Norway they weigh significantly against a return order.  

5. As must be clear from my findings made in consideration of the defences I am not satisfied that it is possible to construct enforceable conditions for the child’s return which would moderate the gravity of the risk of harm to the child to a level which would reasonably address his safety needs or place him in anything other than an intolerable situation. 

6. On balance, and mindful of the purpose and intent of the Abduction Convention, the welfare of this particular child requires that in the exercise of my discretion the application by the Central Authority for the child to return to Norway should be dismissed.

7. Within 14 days the Case Management Judge in Parramatta is requested to relist the mother’s application for parenting orders for consideration, inter alia, of expedition of the mother’s application and the appointment of an Independent Children’s Lawyer for the child.

8. For these reasons I make the orders identified at the start of this judgment. 

I certify that the preceding two hundred and three (203) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan

Associate: 

Date:  13 April 2010