FAMILY COURT OF AUSTRALIA
| DEPARTMENT OF FAMILY AND COMMUNITY SERVICES & GAUDIN | [2017] FamCA 767 |
| FAMILY LAW – CHILD ABDUCTION – Hague Convention application – Where an application is made for the return of two children to the United States – Where the mother contends that the provisions of Regulation 16(1A)(b) are not met – Where the mother asserts that the children became stateless when their parents formed a mutual intention that they were no longer habitually resident in the United States – Where a finding is made that the children were habitually resident in the United States prior to their removal – Where the mother relies upon Regulation 16(3)(b) to oppose the return of the children – Where the mother does not establish that there are personal circumstances genuinely precluding her from returning to the United States with the children – Where the mother’s child from a previous relationship will remain in Australia – Where the mother says she will not return to the United States – Where there is some risk of psychological harm to the children if a return order is made but that risk is unable to be categorised as grave –Where an order is made for the return of the children to the United States – Where in the event the mother decides to return with the children orders are made placing conditions on the return order. |
| Family Law (Child Abduction Convention) Regulations 1986 (Cth) |
| Commonwealth Central Authority & Cavanaugh (2015) FLC 93-682 Department of Family and Community Services & Svoboda (No. 2) [2012] FamCA 1108 Department of Family and Community Services & Watkins [2017] FamCA 197 Director-General, Department of Families Youth and Community Care v Bennett (2000) FlC 93-011 Director-General, Department of Families and RSP (2003) FLC 93-152 DP v Commonwealth Central Authority; JLM v Director-General, New South Wales Department of Community Services (2001) 206 CLR 401 Gsponer v Director-General, Department of Community Services (VIC) FLC 92-001 In Re C (A Minor) [1989] 1 FLR 403 In Re E (Children) (Abduction: Custody Appeal) [2011] 4 All ER 517 LK v Director-General, Department of Community Services (2009) 237 CLR 582 Wolford & Attorney-General’s Department (Cth) [2014] FamCAFC 197 |
| APPLICANT: | Department of Family and Community Services |
| RESPONDENT: | Ms Gaudin |
| FILE NUMBER: | SYC | 4451 | of | 2017 |
| DATE DELIVERED: | 27 September 2017 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Watts J |
| HEARING DATE: | 8 September 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Dr Barnett |
| SOLICITOR FOR THE APPLICANT: | Department of Family and Community Services |
| SOLICITOR FOR THE RESPONDENT: | Reid Family Lawyers |
Orders
The applicant and the mother make such arrangements as are necessary to ensure the return of the children, B (male) born … 2012 and C (male) born … 2014 (“the children”) to the United States of America.
In the event that within 14 days the mother changes her position and decides to return to the United States of America:
2.1.Within 14 days from the date of these orders, the mother is to give a written notice to the Department of Family and Community Services and the father that she has reconsidered her decision not to return to the United States of America and that she now intends to return to the United States of America;
2.2.In the event the mother gives that notice to the Department, the father is to provide to the Respondent and the Applicant an undertaking in writing that he will:
2.2.1.Not file any application or motion in the Circuit Court of State D (Family Court Branch) for the mother to be dealt with for contempt or contravention of the current ex parte orders that the mother return the child or any related order;
2.2.2.Not to do anything or sign any document that would have the effect of commencing or continuing proceedings against the mother for contempt or contravention of court orders in the Circuit Court of State D (Family Court Branch) arising from any conduct of the mother to up until the date of the implementation of the return order;
2.2.3.Suspend all divorce proceedings until final parenting orders are made in the United States of America;
2.2.4.Prior to the mother and children’s return to State D, seek a variation of the current ex parte orders so that upon the respondent’s return the children shall be physically placed with her until further orders are made by the Circuit Court of State D (Family Court Branch);
2.2.5.Do all things and sign all documents to seek expedition of the current family law proceedings in the Circuit Court of State D (Family Court Branch);
2.2.6.Until orders or rulings with respect to child support are made by a Court of competent jurisdiction, or the appropriate agency or authority in State D:
2.2.6.1.Pay an amount of USD$3,300 per month by way of child support;
2.2.6.2.Pay C’s child care fees at E Centre (the Company F child care facility);
2.2.6.3.Pay B’s school fees;
2.2.6.4.Do all acts and things to ensure that the mother and children remain beneficiaries of his health insurance plan.
In the event the mother maintains her resolve to remain in Australia notwithstanding that the return order has been made, the return order is not to be implemented after the expiration of 14 days from the date of these orders.
Orders 1, 2 and 5 made 24 July 2017 are discharged.
The Registrar of the Family Court of Australia is to release to the Department of Family & Community Services the children’s passports surrendered by the mother pursuant to order 5 made 24 July 2017 and the Department is to provide those passports to the parent who will be travelling with the children to the United States of America.
In the event the mother provides the notice referred to in order 2.1, the Registrar of the Family Court of Australia is to release her passport to the mother or otherwise release the mother’s passport to the mother after the children have been returned to the United States of America.
Until further order, the respondent Ms Gaudin born … 1980 by her servants and/or agents, be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the children from the Commonwealth of Australia except in accordance with these orders and it is requested that the Australian Federal Police give effect to this order.
Order 3 made 24 July 2017 be suspended to enable the children to leave Australia in accordance with these orders.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Department of Family and Community Services & Gaudin has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 4451 of 2017
| Department of Family and Community Services |
Applicant
And
| Ms Gaudin |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
The Secretary of the Department of Family and Community Services as the Central Authority (“the Central Authority”) filed an application on 13 July 2017 pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”), seeking orders for the return of the children, B born in 2012 and currently aged five (“B”) and C born in 2014 and currently aged three (“C”) (collectively “the children”) to the United States of America (“the United States”).
The mother opposes the orders sought by the Central Authority.
The mother asserts that the children were habitual residents of the United States until January 2017 at which time they became stateless as a result of the parents forming a mutual intention that they were no longer habitually resident in the United States. She therefore contends that the provisions of Regulation 16(1A)(b) are not satisfied. The mother’s lawyer concedes the argument she makes about the children’s habitual residence is novel. The mother otherwise concedes that the requirements of Regulations 16(1) and 16(1A) are met, namely, the children are under 16, the father has rights of custody in relation to the children under the law of State D, the children’s removal by the mother to Australia is in breach of those rights of custody and at the time of the children’s removal, the father was actually exercising those rights of custody.
The mother also contends that the court may refuse to make a return order pursuant to Regulation 16(3)(b).
The children are currently residing with their mother in G Town, NSW.
DOCUMENTS RELIED UPON
The Central Authority relies upon the following documents:
6.1.Form 2 Family Law (Child Abduction Convention) Regulations Application filed 13 July 2017 (50 pages);
6.2.Affidavit of Ms H filed 5 September 2017.
The mother relies upon the following documents:
7.1.Form 2A dated 30 August 2017;
7.2.Affidavit of the mother filed 24 August 2017. An objection was successfully taken to assertions in the mother’s affidavit about her immigration status in the United States. However, it became an agreed fact between the parties that separation does not affect the mother’s immigration status but divorce does. It was also agreed that a parenting application can be made separately to an application for divorce in State D;
7.3.Affidavit of Mr J filed 6 September 2017.
CREDIT
The mother’s lawyer submitted that a finding about the respective credit of the parents should be made in the mother’s favour because of contested facts, particularly relating to the issue of coercive family violence. It is not possible, in the context of this truncated hearing, to reach any detailed conclusions about the credit of the parents. For the purposes only of assessing whether there are circumstances which preclude the mother returning to the United States, I will take her assertions of family violence at their highest.
BACKGROUND
The father was born in Australia in 1978 and is currently aged 39.
The mother was born in Asia in 1980 and is currently aged 37. She is an Australian citizen.
The mother’s child from a previous relationship, K, was born in 2003 and is currently aged 13. K’s father lives in Sydney.
The mother and father met in Australia in July 2011.
The mother and father married in Australia in 2011. They moved to New Zealand after their marriage where the father took up a position as a Manager for Company F. K also relocated to New Zealand from Australia at this time. The mother has not been in paid employment prior to the date upon which the parties married.
The parties’ first child, B was born in New Zealand in 2012 and is currently aged five.
On 18 December 2013 the mother and K’s father, Mr J, entered into consent orders in New Zealand allowing K to relocate to the United States with the parties on the condition that she not reside there for more than two years and that K remain habitually resident in New Zealand.
The parties’ second child, C was born in New Zealand in 2014 and is currently aged three.
In October 2014 the father was offered a job with Company F at their headquarters in State D in the United States which he accepted.
In December 2014 the parties and the three children moved from New Zealand to the United States. The terms of the December 2013 New Zealand order allowed K to remain in the United States until December 2016.
In January 2015 the parties signed a one year lease on a home in State D. The lease contained options to renew for a second and third year. The lease was not formally renewed in January 2016 but the parents continued to live there with the children until the mother left the home on 17 April 2017.
In October 2016 the mother recommenced communications with her barrister in New Zealand about the effect moving to a different country would have on the agreement with K’s father.
In December 2016 the father told the mother that his employer had found him a position in Australia but that it would take six months to be finalised. She understood that they would be returning to Australia by June 2017. K’s father agreed to wait until June 2017 for K to return to Australia.
On 6 December 2016 B was enrolled in Kindergarten to commence in September 2017.
From January 2017 the mother says the parties commenced making plans to return to live in Australia with the children.
On 14 March 2017 father learned that he was not the only candidate for the position in Australia. The mother says but the father denies that he thereafter contacted an employment agency in Sydney to assist in finding a position in Australia.
On 14 March 2017 the father contacted the cargo company, Company L, and made inquiries about the cost of shipping their furniture and belongings to Australia.
On 17 March 2017 the father sent the mother a text message advising that a Manager was still trying to secure him a job with his current employer in Australia.
The mother says that from the beginning of April 2017 after the father returned from a business trip, her marriage with the father broke down and he isolated himself and acted very distantly towards her and the children The father concedes that he attempted to avoid the mother as much as possible but says this was because of the mother’s abuse and violent outbursts. He says that he continued to spend time with the children.
On 3 April 2017 the mother says she asked the father what was wrong and he started yelling at her aggressively using threatening tones. On 4 April 2017 the mother emailed the father about the state of their marriage and told him that it was not working. She says he would not discuss it with her.
On 6 April 2017 the mother says and the father denies that the mother told the father that she wanted to return to Australia. She says he replied that he would only let them go if she returned the children to him after a year. The mother declined.
On 8 April 2017 the mother says she and father had another conversation about her moving back to Australia with the children. The father says this conversation took place on 14 April 2017. The mother recorded this conversation and the recording had been transcribed. Neither document was permitted to be tendered given that it had not previously been provided by way of discovery. The parties’ version of the precise words used are different but the essence in respect of the relevant matter is the same, namely that the mother told the father that she was going to live in G Town near her parents in Australia; the father replied that she could not live there; the mother responded by saying that he could not tell her where to live; the father said “yes actually I can”. The mother says, and I accept, that during that conversation the father asserted that the children would be better off with him if she moved to Australia.
On 11 April 2017 C commenced a transition to preschool.
On 12 April 2017 the mother suggested to the father that they discuss their situation with the assistance of a mediator. The father told her that he was too busy and not interested in seeing a mediator but added “maybe next week”.
On 17 April 2017 the mother withdrew half the money in the parties’ joint bank account being over USD$70,000.00. She left their State D home with the children, removing all of her clothing as well as the children’s clothing, passports and birth certificates. The mother collected B from his day care facility in the morning having informed them that he had a doctor’s appointment. The mother advised police what she was doing. She stayed with a friend for two days while tickets for them to fly home to Australia were organised.
On 19 April 2017 the mother and the children left the United States and arrived in Australia. The father did not give the mother permission nor sign any documents allowing her to take the children to Australia. The mother concedes her removal of the children was without their father’s knowledge or consent.
On 19 April 2017 the father commenced a petition for divorce with minor children in the Circuit Court Family Court Branch in the State of State D, M County. Later that day the father was contacted by the M County Sheriff’s Department which informed him the mother had left the State of State D with the children that morning and they were on their way to Australia.
On 24 April 2017 the father attended an emergency hearing at the Circuit Court Family Court Branch in the State of State D, M County and temporary orders were made. It was agreed that that petition for divorce would affect the mother’s immigration status and the father has agreed as a condition of a return order, that that divorce application would not be continued until parental proceedings are finalised. It was also an agreed fact that competing applications for parenting orders between the parents would be able to be dealt with by the State D Court notwithstanding the father was not actively pursuing his petition for divorce at this time.
After the mother and the three children left the United States the father took a new job at Company F based in State D.
On 20 May 2017 the father says the mother ceased all communication between him and the children.
On 26 May 2017 the Circuit Court Family Court Branch in the State of State D, M County ordered, amongst other things, that the State of State D is the habitual residence of the children and the sole legal custody and sole physical placement of the children be with the father. An order was made for the mother to immediately return the children to the United States.
On 15 June 2017 the mother filed an application in the Family Court of Australia for parenting, property and spousal maintenance orders.
On 13 July 2017 the Central Authority commenced proceedings in this Court.
On 24 July 2017 an order was made in this Court restraining the mother from leaving Australia and from removing the children from Australia pending the finalisation of these proceedings. The mother and the children were placed on the airport Watch List and their passports surrendered to the Family Court of Australia.
The L1 and L2 visas for the father, the mother and the children for them to stay, live and return to the United States are valid until 9 December 2019.
The three children currently live with the mother’s mother and stepfather in G Town. The maternal grandmother provides the mother with significant emotional and practical support. The children attend pre-school at N Centre in G Town. B attends one day per week and C attends three days per week. They also attend O School. B attends pre-school there three days per week and C attends playgroup each Wednesday. They also attend swimming lessons at P Swimming Pool in G Town. K is attending high school at O School. Since returning to Australia she has spent time and communicated with her father.
The children have regular Skype contact with the father.
The mother receives support from the Q Family Support Service. Since 25 July 2017 the mother and children have been attending the R Goup each week. In a letter dated 21 August 2017 Ms S, a Child Youth & Family Worker with the Q Family Support Services advises that the “group is an ongoing supportive group designed for mums and their (non-school aged) children to attend each week where mums can share activities and ideas”. She states:
Workers have observed that [C] and [B] are happy and well-adjusted children, both children have a secure bond with [the mother] and she is a safe base for them to come back to during the group activities. [The mother] meets [B] and [C] needs during the group, they always attend the group clean and well dressed.
[B] and [C] have made good connections with other families within the group, both the boys positively interact and play with the other children and workers; they clearly enjoy the social connection the group provides them.
It is important for both [C] and [B’s] development to maintain these social connections, friendships and regular routines.
HABITUAL RESIDENCE
The Central Authority asserts that immediately prior to their removal the habitual residence of the children was the United States, a convention country.
As indicated above, although the mother concedes that the children were habitually resident in the United States from December 2014, she asserts that the children lost their habitual residence in the United States in January 2017 as a result of the settled intention of the parties not to continue to reside in the United States.
The Law
The High Court in LK v Director-General, Department of Community Services (2009) 237 CLR 582 (“LK”) discuss the applicable principles when determining habitual residence. In Department of Family and Community Services & Svoboda (No. 2) [2012] FamCA 1108 at [42] I discuss the propositions which emerge from statements made by the High Court in LK:
42. The following propositions emerge:
42.1A person can have:
42.1.1a place of habitual residence;
42.1.2no place of habitual residence (having abandoned an old place of habitual residence without acquiring a new one) (LK at paragraph 25);
42.1.3although unlikely, more than one place of habitual residence.
42.2A consideration of habitual residence in the context of a case under the Regulations may “tend in favour of finding that a child does have a place of habitual residence…” (LK at paragraph 26).
42.3A question about the habitual residence of a young child is usually answered by asking what is “the place of habitual residence of the person or persons upon whom the child is immediately dependent for care and housing” (LK at paragraph 27).
42.4Whilst a parent’s intention will usually be relevant and sometimes very important, “intention is not to be given controlling weight” (LK at paragraph 28).
42.5“… individuals do not always act with a clearly formed and singular view of what it is intended (or hoped) that the future will hold. Their intentions may be ambiguous” (LK at paragraph 29).
42.6A person can be said to have abandoned residence in a place without having formed “a singular or irrevocable intention not to return” (LK at paragraph 33).
42.7At paragraph 34 the High Court said:
…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.
42.8Habitual residence is a “broad factual inquiry” (LK at paragraph 44) and “should be treated as a question of pure fact” (LK at paragraph 36) … “to be decided by reference to all the circumstances of any particular case” (LK at paragraph 39, quoting from In re J. (A minor) (Abduction: Custody Rights) [1990] 2 AC 562 at 578).
42.9Habitual residence “will fall for decision in a very wide range of circumstances” and no list of possible matters nor any “predetermined hierarchy of importance” is appropriate (LK at paragraph 35).
42.10Habitual residence requires a “settled purpose” or settled intention which does not necessarily involve an intention to live at a place permanently or indefinitely. (LK at paragraphs 37 and 38).
42.11The plurality at paragraph 39 refer to the statement in In re J. (A Minor)(Abduction: Custody Rights) [1990] 2 AC 562 by Lord Brandon of Oakbrook where his Lordship said at 578-579:
…there is a significant difference between a person ceasing to be habitually resident in country A, and his subsequently becoming habitually resident in country B.
His Lordship continued:
A person may cease to be habitually resident in country A in a single day if he or she leaves it with a settled intention not to return to it but to take up long-term residence in country B instead. Such a person cannot, however, become habitually resident in country B in a single day. An appreciable period of time and a settled intention will be necessary to enable him or her to become so. During that appreciable period of time the person will have ceased to be habitually resident in country A but not yet have become habitually resident in country B.
42.12At paragraph 40 the High Court quotes Waite J in Re B (Minors) (Abduction) (No 2) [1993] 1 FLR 993 at 995 with approval:
Habitual residence is a term referring, when it is applied in the context of married parents living together, to their abode in a particular place or country which they have adopted voluntarily and for settled purposes as part of the regular order of their life for the time being, whether of short or of long duration.
All that the law requires for a ‘settled purpose’ is that the parents’ shared intentions in living where they do should have a sufficient degree of continuity about them to be properly described as settled. [emphasis added by the High Court]
42.13Further the High Court at paragraph 44 quoted with approval a statement by the plurality in P v Secretary for Justice [2007] 1 NZLR 40:
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 para [22], the underlying reality of the connection between the child and the particular state.
42.14“The relevant criterion is a shared intention by the parents that the children live in a particular place with a sufficient degree of continuity to be properly described as settled” (LK at paragraph 44).
In Commonwealth Central Authority & Cavanaugh (2015) FLC 93-682 (“Cavanaugh”) the Full Court, after discussing LK, said at 80,581:
29. To this we would add just two matters. The Regulations tend in favour of finding that a child has habitual residence because otherwise the child cannot be protected from abduction. In Re F (A Minor) (Child Abduction) [1992] 1 FLR (UK) 548 at 555, Butler-Sloss LJ said:
…it is important for the successful operation of the Convention that a child should have, where possible, an habitual residence, otherwise he cannot be protected from abduction by a parent from the country where he was last residing...
30. In Cooper v Casey (1995) FLC 92-575 at 81,696 Nicholson CJ said:
…the making of a finding that a child has no habitual residence could easily operate to defeat the purpose of the Convention and leave children open to the possibility of repeated abductions by both parents…
31. The other point that we would wish to make is that the finding of an intention or settled purpose is not dispositive of the issue of habitual residence. There is but one finding to be made which is of “habitual residence”, taking into account all relevant matters (State Central Authority & Camden (2012) FLC 93-501 at 86, 408).
The facts in this case
The mother rightly concedes that the children’s habitual residence in the United States commenced in December 2014.
At the time of their removal by the mother from the United States on 19 April 2017:
52.1.The children had lived in State D for two years and three months;
52.2.The children attended day care in State D;
52.3.Steps had been taken to secure the continued education of the children in the United States;
52.4.The children had lived in the same house in State D for over two years;
52.5.The children attended parties in State D;
52.6.The children attended doctors and dentists in State D.
The only other country that the children had lived in was New Zealand. Prior to living in the United States, B had lived in New Zealand for about the same time as he had lived in the United States prior to his removal from the United States. C had only lived in New Zealand for eight months.
The mother says that because of the father’s abusive behaviour (described below) she and the children were not fully integrated into their community in State D:
54.1.The children did attend day care three days per week at the father’s work however they missed day care when the father went away on overnight trips to City T because he took the car with him;
54.2.The father refused to pay for the children to attend any extra-curricular activities;
54.3.The mother was not allowed to do extra-curricular activities because the father would not allow her to spend money on it;
54.4.The children did not go on play dates with other children because the mother had no way of getting them there (the father not allowing her to use the car);
54.5.The father did not permit the mother to arrange birthday parties for the children;
54.6.The children spent most of their playtime in the basement so as not to disturb the father;
54.7.The father refused to agree to the family attending the Company F family summer camp.
The father says that the family were integrated into their community in State D. The mother does not point to any major event that happened in January 2017 that would lead to a finding that the children were rendered stateless at that time. Rather she says from January 2017 the parties’ intention to abandon the United States as their habitual residence was evidenced by the following steps in preparation for their return to Australia:
55.1.The parties did not renew the lease on their home in State D. Little weight can be placed upon that submission given that there was no renewal of the lease at the end of 2015 but the mother and father (and after 17 April 2017, the father) continued to occupy the property on either a weekly or monthly basis thereafter;
55.2.The parties stopped purchasing groceries for the household except for fresh items. The mother invited the court to find as a result of financial records, that she had run down the pantry. Whilst I am unable to draw that inference from the financial records, I accept the mother’s evidence that she had run down her pantry. Whilst these matters could be corroborative of a concluded intention by the parties to leave the United States, they are equally consistent with either:
55.2.1.general preparation by the parties to leave the United States in circumstances where there had been no concluded agreement as to when or in what circumstances that would happen; or
55.2.2.with the mother’s unilateral decision to remove the children from the United States without the father’s agreement.
55.3.The father made inquiries with Company L, a cargo company, in March 2017 about the cost of shipping furniture and belongings from the United States to Australia;
55.4.The father contacted his real estate agent in Australia to enquire about the value of a property he owns in Sydney and the parties researched Sydney real estate to consider locations where they could afford to buy a home;
55.5.On 9 March 2017 the mother had her braces removed by her dentist in State D. In a letter dated 10 August 2017 V Dentists advised that “on or about the date of 03.09.17, [the mother] presented to our clinic. She advised us that she would be leaving the country soon. She desired the removal of her braces. [The mother] was directed by her general dentist, [Dr U], to seek the advice of her Orthodontist at [V Dentists]. Braces were removed prior to treatment completion per her request. She desires resuming her orthodontic care at her discretion in Australia”;
55.6.The mother advised friends and family that she and the children were moving back to Australia;
55.7.The mother advised K’s school teacher that they were leaving State D.
The mother asks the court to place weight on arrangements that had been made between the mother and K’s father in respect of the agreement that had been made prior to leaving New Zealand for the United States as to the amount of time that K would be able to remain in the United States. There is a dispute between the parties as to the extent of the father’s involvement in a mediation between the mother and K’s father in the early part of 2013 that led to the December 2013 order in New Zealand between the mother and K’s father. The New Zealand orders of 18 December 2013 are annexed to the mother’s affidavit. K’s father agreed to the mother relocating to the United States “for no longer than a two year period”. Pausing there, it is of some relevance that although that order was made on 18 December 2013, the mother and father did not leave New Zealand for the United States for another year.
In his supplementary affidavit the father asserts that he was not a party to the proceedings commenced by the mother in New Zealand. The father asserts that the mother did tell him that K’s father would not agree to K moving from New Zealand to some other location and that he understood that the mother needed to do something to gain K’s father’s permission for a court order in case he obtained a job outside of New Zealand. He goes on to say that he was not a party to the order or present during any mediation leading up to the order. The father asserts he only found out about the terms that the mother had signed after the order had been made. He further asserts that the mother did not consult with him before agreeing to a term that would only allow a relocation of K to the United States for up to two years. The father asserts that there was a discussion between he and the mother in which the mother told him that it was on her lawyer’s advice that she agreed to the period of two years because by that stage K would be 13 years of age and K’s views would then be taken into account and it was unlikely that K’s father would challenge those views.
The father agreed that he talked to the mother about her discussions with K’s father prior to the mediation and that the mother would talk to him about how she should answer questions she was asked by her barrister in New Zealand. Exhibit 1 is an email from the mother’s barrister on 8 May 2013 forwarded by the mother to the father as to their plans to leave New Zealand. The father responded on 8 May 2013 as follows:
Initially when we moved to NZ the plan was to be here between 2 - 2.5 years and then we would be moved back to Australia to take up the … Director role there. That however changed in January/February this year when my career was fast tracked in a 5 year plan … The business has proposed that in approximately June next year I move to the US for development purposes (for approximately 18 months) and then move back to NZ to run the business here before finally moving back to run the Australian business.
I find that the father was not fully disclosing his involvement in the negotiations that led up to the December 2013 orders but it is likely that those orders were entered into as a tactic to clear the way for K to be able to move to the United States in circumstances where it was envisaged that after a period of two years (it is actually three because they did not leave New Zealand for a year after the order was made) K would be of an age where her views became an important consideration.
Towards the end of 2016 the mother was in communication with her barrister in New Zealand seeking advice about the operation of the New Zealand orders so far as they related to face to face time between K and her father and electronic communication. On 1 November 2016 the mother sent an email to the barrister indicating that “We will most likely be moving around in different countries throughout the years, I don’t want to be repeating this process wherever we go.” Later that day the mother sent a further email stating, “…my husband … is due for promotion which means we would be moving to a different country again.”
The advice the mother received was that at the age of 13 what K says would be highly determinative of what arrangements a New Zealand Court would order for K in the next three years and that at the age of 14 a New Zealand court is reluctant to force a young adult into doing something they do not want to do.
I accept that at the time the mother entered into an order limiting K’s time in the United States for a period of two years, there was no settled intention between the mother and father that they would leave the United States exactly two years after they arrived there. There is other evidence that it was clear that the father’s position in the United States was not necessarily going to be just for a two year period. On 21 December 2016 the father wrote the mother an email in which he said, inter alia:
We don’t know how long we will be here and I think it is important that we both contribute 50/50 financially.
I accept that upon leaving New Zealand the parties may have had a general period of two years in their contemplation but I find that neither party had a clear contemplation of what lay ahead in respect of the father’s career in the United States. Not unexpectedly things developed after the parties had lived in the United States for some time. The proposition that the parties kept open the possibility of flexible arrangements once they got to the United States is supported by the visas that they obtained which were valid until December 2019 (which visa can be up to a maximum limit of seven years). The father’s green card application was made on 19 February 2016 again with a view of creating a long term option of remaining in the United States.
I find that although there was an agreement between the mother and K’s father for K to come to the United States for no more than two years that is not the plan that the mother and father adhered to once they arrived in the United States.
At the time of their removal, the children had been in the United States for almost two and a half years which is a significant period of time having regard to their ages. Prior to their removal, neither of them would have any memory of any other place of residence.
Conclusion about habitual residence
This is not a case where the court has to search for the children’s place of habitual residence. It is conceded by the mother that up to January 2017 the children’s place of habitual residence was in the United States. It is possible for a person to abandon a place of habitual residence without becoming habitually resident in some other place but as the Full Court said in Cavanaugh the Regulations tend in favour of a finding that a child has a habitual residence for the good reason that a finding that a child has no habitual residence could easily operate to defeat the purpose of the Convention.
I find that the children were habitually resident in the United States as at the date of their removal from the United States by the mother on 19 April 2017.
GRAVE RISK AND INTOLERABLE SITUATION
The plurality in DP v Commonwealth Central Authority; JLM v Director-General, New South Wales Department of Community Services (2001) 206 CLR 401 (Gaudron, Gummow and Hayne JJ) said at 417 – 418:
41In the judgment of the Full Court of the Family Court which gives rise to the first of the matters now under consideration (DP v Commonwealth Central Authority) it was said that there is a “strong line of authority both within and out of Australia, that the reg 16(3)(b) and (d) exceptions are to be narrowly construed”. Exactly what is meant by saying that reg 16(3)(b) is to be narrowly construed is not self-evident. On its face reg 16(3)(b) presents no difficult question of construction and it is not ambiguous. The burden of proof is plainly imposed on the person who opposes return. What must be established is clearly identified: that there is a grave risk that the return of the child would expose the child to certain types of harm or otherwise place the child in “an intolerable situation”. That requires some prediction, based on the evidence, of what may happen if the child is returned. In a case where the person opposing return raises the exception, a court cannot avoid making that prediction by repeating that it is not for the courts of the country to which or in which a child has been removed or retained to inquire into the best interests of the child. The exception requires courts to make the kind of inquiry and prediction that will inevitably involve some consideration of the interests of the child.
42Necessarily there will seldom be any certainty about the prediction. It is essential, however, to observe that certainty is not required: what is required is persuasion that there is a risk which warrants the qualitative description “grave”. Leaving aside the reference to “intolerable situation”, and confining attention to harm, the risk that is relevant is not limited to harm that will actually occur, it extends to a risk that the return would expose the child to harm.
43Because what is to be established is a grave risk of exposure to future harm, it may well be true to say that a court will not be persuaded of that without some clear and compelling evidence. The bare assertion, by the person opposing return, of fears for the child may well not be sufficient to persuade the court that there is a real risk of exposure to harm.
44These considerations, however, do not warrant a conclusion that reg 16(3)(b) is to be given a “narrow” rather than a “broad” construction. There is, in these circumstances, no evident choice to be made between a “narrow” and “broad” construction of the regulation. If that is what is meant by saying that it is to be given a “narrow construction” it must be rejected. The exception is to be given the meaning its words require.
45That is not to say, however, that reg 16(3)(b) will find frequent application. It is well-nigh inevitable that a child, taken from one country to another without the agreement of one parent, will suffer disruption, uncertainty and anxiety. That disruption, uncertainty and anxiety will recur, and may well be magnified, by having to return to the country of habitual residence. Regulation 16(3)(b) and Art 13(b) of the Convention intend to refer to more than this kind of result when they speak of a grave risk to the child of exposure to physical or psychological harm on return.
(Footnotes omitted)
In Director-General, Department of Families and RSP (2003) FLC 93-152 (“RSP”), the Full Court considered whether or not these statements by the High Court altered what a previous Full Court had said about the interpretation of Regulation 16(3)(b) of the Regulations in Gsponer v Director-General, Department of Community Services (VIC) (1989) FLC 92-001 at 77,159 which was in the following terms:
31. The need to consider ... the following comments made by the Full Court in Gsponer v Director-General, Department of Community Services (VIC) (1989) FLC 92-001 at 77,159:
“In our view the three categories are to be read separately and to that extent we agree with the submissions of senior counsel for the wife. However it needs to be emphasised that there must be a ‘grave risk’ of the occurrence of one or more of such events. Further, it is impossible to ignore the existence of the words ‘or otherwise’. The consequence of those words is to link the quality which each of the first two categories must have to the emphatic words which describe the third category (‘an intolerable situation’). That is, it is not the grave risk of any physical or psychological harm which would satisfy the first two aspects of this subparagraph. The physical or psychological harm in question must be of a substantial or weighty kind.
This accords with the views of the Court of Appeal in Re A (supra), where at p 372, Nourse LJ said this:
‘I agree with Mr Singer, who appears for the father, that not only must the risk be a weighty one, but it must be one of substantial, and not trivial, psychological harm. That, as it seems to me is the effect of the words “or otherwise place the child in an intolerable situation”. It is unnecessary to speculate whether the ejusdem generis rule ought to be applied to the wording of an international convention having the force of law in this country. Assuming that it ought not, I nevertheless think that the force of those strong words cannot be ignored in deciding the degree of psychological harm which is in view.’”
The Full Court in RSP concluded:
34. We consider that little is to be gained by endeavouring to establish whether statements concerning the application of reg 16(3)(b) by the Full Court of this Court which pre-date JLM continue to have validity. In our opinion, the necessary guidance in relation to the application of reg 16(3)(b) is to be found in the paragraphs just quoted from JLM [namely [41] – [45]].
In Wolford & Attorney-General’s Department (Cth) [2014] FamCAFC 197 the Full Court discussed with apparent approval the trial judge’s reliance upon In Re E (Children) (Abduction: Custody Appeal) [2011] 4 All ER 517, a decision of the Supreme Court of the United Kingdom in 2011. The Full Court said:
57. Reliant on In Re E at [33] the primary judge correctly proceeded on the basis that the predicted risk “… must have reached such a level of seriousness as to be characterised as ‘grave,’” and, from the same passage that although the word “grave” characterises the risk rather than the harm, “there is in ordinary language a link between the two.” It is useful that we now set out in full that paragraph and the following paragraph of In Re E:
[33] Second, the risk to the child must be 'grave'. It is not enough, as it is in other contexts such as asylum, that the risk be 'real'. It must have reached such a level of seriousness as to be characterised as 'grave'. Although 'grave' characterises the risk rather than the harm, there is in ordinary language a link between the two. Thus a relatively low risk of death or really serious injury might properly be qualified as 'grave' while a higher level of risk might be required for other less serious forms of harm.
[34] Third, the words 'physical or psychological harm' are not qualified. However, they do gain colour from the alternative 'or otherwise' placed 'in an intolerable situation' (our emphasis). As was said in Re D [2007] 1 All ER 783 at [52], ' "Intolerable" is a strong word, but when applied to a child must mean "a situation which this particular child in these particular circumstances should not be expected to tolerate" '. Those words were carefully considered and can be applied just as sensibly to physical or psychological harm as to any other situation. Every child has to put up with a certain amount of rough and tumble, discomfort and distress. It is part of growing up. But there are some things which it is not reasonable to expect a child to tolerate. Among these, of course, are physical or psychological abuse or neglect of the child herself. Among these also, we now understand, can be exposure to the harmful effects of seeing and hearing the physical or psychological abuse of her own parent. [Mr R] accepts that, if there is such a risk, the source of it is irrelevant: eg, where a mother's subjective perception of events leads to a mental illness which could have intolerable consequences for the child.
In an oft-quoted passage in In Re C (A Minor) [1989] 1 FLR 403 at 410, Butler-Sloss LJ stated:
The grave risk of harm arises not from the return of the child, but the refusal of the mother to accompany him…Is a parent to create the psychological situation, and then rely upon it? If the grave risk of psychological harm to a child is to be inflicted by the conduct of the parent who abducted him, then it would be relied upon by every mother of a young child who removed him out of the jurisdiction and refused to return. It would drive a coach and four through the Convention, at least in respect of applications relating to young children. I, for my part, cannot believe that this is in the interests of international relations. Nor should the mother, by her own actions, succeed in preventing the return of a child who should be living in his own country and deny him contact with his other parent.
The mother was given leave to adduce oral evidence that she had made a decision not to return to the United States even if a return order was made in respect of the younger children.
The mother sought to rely upon the formulation of the Regulation 16(3)(b) ground as articulated in Department of Family and Community Services & Watkins [2017] FamCA 197 at [52] which is in the following terms:
52. The mother seeks to make out the Regulation 16(3)(b) exception upon the basis invited by Bennett. In the rulings on objections, a number of the rulings were predicated on the basis that relying upon Bennett, the following argument was open to the mother:
Regulation 16(3)(b) ground might be made out if:
1) The abducting mother’s decision not to return has to be based on a genuine belief by her that there are circumstances which preclude her from returning with the child; AND
2) There are in fact personal circumstances which genuinely preclude her from returning with the child; AND
3) The mother’s decision results in “a grave risk that the return of the child under the Convention would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation”.
This formulation is based upon a statement made by the Full Court in Director-General, Department of Families Youth and Community Care v Bennett (2000) FLC 93-011 at 87,230.
Is the abducting mother’s decision not to return based on a genuine belief by her that there are circumstances which preclude her from returning with the child?
The mother gave oral evidence about her reasons for a decision not to return to the United States.
There are three reasons why the mother says she is unable to return:
77.1.She does not want to be near or in contact with the father;
77.2.She does not want to leave K behind;
77.3.She would not be able to practically survive in the United States for the time it would take a State D court to decide an international relocation case.
Initially the mother also claimed that the father’s commencement of divorce proceedings in the United States meant that her visa status in the United States would be terminated. That assertion was maintained despite the fact that the father at the outset proffered an undertaking to not continue the divorce proceedings in the United States. As set out above, it was an agreed fact during the hearing that as long as there is no live divorce proceedings in the United States, the mother’s visa status in the United States is not compromised.
It was also an agreed fact that that condition would not jeopardise the ability of either parent to prosecute competing parenting applications in the United States and in particular the mother would be able to prosecute an application for the international relocation of the two younger children.
In a GP Mental Health Care Plan dated 17 May 2017, Dr W at X Pty Limited notes that the mother’s “Problem/Diagnosis” is “Distressed (domestic violence), anxiety”. Those notes state that the mother had “just moved from USA (3 weeks) due to domestic violence partner has court order against her to return the children”. The doctor continues:
The domestic violence lasted 5 years (entire time that she was married)
emotional abuse most of the time and physical abuse on few occasions (calling her bogen [sic]/low class and uneducated)
daughter was also abused by calling her servant (emotionally abused) step father not spending money for her at all
no physical abuse towards her
She became placid gradually Feels that he was cheeting [sic] on her.
The doctor noted that the mother’s appearance and general behaviour, mood and affect were “distressed”; that she had “Initial Insomnia/Early Morning Wakening”; lost a dress size; was under a lot of stress and experienced both physical and emotional anxiety symptoms. She diagnoses her with “PTSD (domestic violence)” and notes her goal is to “feel OK when tell the story be able to gain her confidence back reduce the imp[act [sic] on children and being able to interact with father enable to get stable job”. She referred the mother to Ms Y at Z Group. The mother says she is now receiving psychological treatment from Ms Y at Z Goup in G Town to help her recover from the abusive relationship with the father.
Accepting the mother’s assertions about family violence as being matters that she believes are accurate, I accept that she has a genuine belief that there are circumstances which preclude her from returning to the United States with the children.
I am prepared to accept that the mother’s other beliefs are genuine.
Are there in fact personal circumstances which genuinely preclude the mother from returning with the children?
The mother says there are a number of circumstances which preclude her from returning to the United States with the children.
The mother asserts that during the marriage there was a level of controlling family violence. The violence was primarily of a psychological kind, there being two specific incidents of physical violence asserted by the mother (and denied by the father).
The mother asserted in oral evidence that because of her contact with the police on 15 April 2017 (discussed below) she has no faith in the American judicial and policing system to give her protections upon a return to the United States. I set out the mother’s assertions in relation to the history of family violence.
The mother asserts that she was subjected to emotional abuse and financial control by the father during their marriage. She says he also occasionally physically harmed her. The father denies those assertions.
Shortly after their marriage the mother says the father became possessive and controlling towards her. She says he would criticise and judge her friends telling her they were inappropriate and not the type of people they should be associating with. She says he restricted the time she was permitted to go out with friends. After an event in April 2013 when she went out with her mother’s group for 45 minutes, the father got extremely angry at the mother for leaving him alone with the children. From that point she says he did not allow her to go out socially for the rest of the time they lived in New Zealand. She says he told her it was not a man’s job to stay at home with the children.
From April 2012 the mother says the father regularly denigrated her saying that she was “uneducated, a bogan, stupid, dumb, idiot, fucking bitch, slut, whore, psycho” and had “no class”. On many occasions she said he told her “you have no brain. Go back to the basement you came from”. She says she came from a poor background and the father used it as an insult to her saying “you’re worthless, you weren’t even loved as a child”. When the mother became upset the father would tell her to “get over it. You’re being too sensitive”.
The mother says the father restricted her access to money and spending. She gives the following examples:
90.1.The parties had a joint bank account into which the father’s salary was deposited. The mother says she was not allowed to withdraw money from that account. The child support she received from K’s father was banked into a different ANZ joint account which she also had no access to.
90.2.The father provided the mother with three credit cards and she says he made it clear that she was only allowed to use each credit card for specific purchases – one was for petrol; one was for groceries and one was for medical expenses. She was not permitted to make any other discretionary spending. When she did spend money on herself using the groceries credit card the mother says she was so scared of the father’s reaction that she would ask her mother to transfer the money back into the joint account.
90.3.From March 2016 the father began monitoring the mother’s spending by activating a feature on the credit cards which meant that he received a text message alert for any amount she spent. She says he would request the receipt and ask why she had made a particular purchase. The mother says she was afraid to buy anything because she was worried about his reaction.
90.4.If the mother took longer than the father thought was necessary for shopping he would verbally abuse her when she came home saying, “you took too long”.
90.5.The mother says K’s father sent money to purchase a piano but the father retained the money.
90.6.If the mother ever threatened to leave the father she says he took the credit cards from her wallet and hid them from her so she had no access to money at all.
The mother says the father constantly belittled her for being a stay at home mum and criticised her for the way she kept the house.
If the father did not like the food the mother had prepared, she says he would ask her to make something else and would sulk if he did not like the second meal. She says she became anxious about every meal she placed in front of him in case it did not please him.
As time passed the mother says the father’s behaviour became more and more controlling, aggressive and manipulative. She says he would explode in bouts of anger on a regular basis. On several occasions the mother says the father physically assaulted her in front of the children:
93.1.In September 2014 the father pushed her to the ground holding her down against her will;
93.2.The father smacked her in the hallway and grabbed her forcefully leaving bruises on her arms and legs.
The mother says the father removed the mother’s calling capabilities on her mobile phone so she was unable to contact her family in Australia. She says he hid her passport and refused to allow her to open her own bank account.
The mother says the parties had one car in both New Zealand and State D. She explains that she was rarely allowed to go out on her own:
95.1.The father did not allow her to drive the car at all for the three years that they lived in New Zealand.
95.2.For the first 10 months that they lived in the United States the father refused to allow her to drive the car. After that time, she was allowed to use the car if she had a good reason such as taking the children to a medical appointment or delivering the children to day care. She says if the father had to work late he would collect the children from day care, drive them home and then return to work.
95.3.The mother had to walk or ride a bike if she wanted to go out. She says the closest shops to their home in State D was a 20 minute bike ride away.
95.4.The father would take the car with him if he went to City T for an overnight work trip. The mother says the only time she had free access to the car was when the father went overseas for work.
95.5.In the last five and a half years the mother says the father allowed her to go out without him at night on only three occasions and she was never allowed to go out at night alone. On 8 April 2017 she says he allowed her to go out with her friends. She says it was the first time she left the father alone with the children. When she got into the car to leave the father was angry that she was taking the car. She was frightened of the consequences of defying him by taking the car that she stayed at her friend’s house that night. The following day she says the father messaged her advising he would report the car stolen.
95.6.Towards the end of their relationship the father often hid the car and house keys so the mother could not leave the house or use the car for weeks on end.
On 9 April 2017 the mother says the father hacked into her Facebook account and messaged her friends saying she was unwell and abusive towards him. She has since closed her Facebook account because of this.
On 15 April 2017 the mother made a report to the M County Police because she got to a point where she became fearful for her life. She says in her affidavit that police advised her that the father was “within his rights” and she was “free to leave”. In her oral evidence the mother said that the police told her that the father was “within his rights” to “confine” the mother in the house” so she does not feel like she is “protected over there”.
The mother says when the father returned home from work he was often tired and did not interact with the children or was impatient and did not tolerate them. She says the father frequently yelled at the children and often smacked them to discipline them. She says that the children became frightened and wary of him and often tried to hide from him if he was in a bad mood. She says they rarely went out as a family on the weekends as the father did not like going out. She does not recall an occasion when he took the children out on his own.
The mother says that the father also resented K and treated her badly. She says he would punish her by yelling at her and making her clean the house. She says he would often complain about having to feed K in her presence. On 9 January 2015 she says he poured water on her while she was sleeping. She says he would go through her personal belongings and hide them such as her mobile phone and iPad on which she contacted her father. She says he would barge into K’s room even while she was changing. She says K is frightened of the father because of the way he treated her.
The mother agreed that she had never sought a protection order in the United States (she gave as her reason the interaction with police that she had only days before she left the United States). The mother’s complaints about family violence were of course in the context of living with the father in the same residence. That would not be the situation if she returned to the United States. I am unable to find the mother would not be able to obtain in the United States, if there was a proper basis for doing so, an order for her protection. Taken at their highest, I am unable to find that the mother’s assertions about family violence preclude her from returning to the United States.
It is the mother’s assertion that the children are at psychological risk if they are taken from her and returned to the United States without her.
The mother submits that she should not be forced to choose between her children.
K’s father gives evidence that he does not consent to K returning to live in the United States. He says that the father was “verbally abusive to my daughter” and as such will not allow K to see or live with the father.
The mother points to the fact that the orders made in the Family Court in New Zealand do not allow K to return to the United States to live with her.
There is no evidence of any attempted negotiation between the mother and K’s father for an arrangement that would allow her to return to the United States with K for however long it took for an international relocation case to be heard. I infer the reason that there has been no such discussion between the mother and K’s father is that the mother currently does not intend to return.
K spent the whole of the last school holidays (two weeks) with her father. The mother currently resides in the home of her mother and stepfather with the three children. Should the mother return to the United States with the two younger children and K’s father did not agree to a temporary return of K then K would be able to reside at the home of her maternal grandmother or alternatively with her father in Sydney.
If she were to return to the United States with the children the mother says she does not have the capacity to find work and would have no means of supporting herself and the children. The mother focused on the time that she had been out of the work force (a period of more than five and a half years). It seemed an agreed fact that she would be able to work and earn a low basic wage. The father proffered that she had some skills as a baker. The mother says that if she is allowed to remain in Australia she intends to establish a business in G Town. I infer from that statement of intention that the mother believes she has the capacity and (whilst it was not tested) has some capacity to organise finance to establish such a business. I accept however that the mother has minimal skills, qualifications and experience. The mother has no family connections in the United States.
I have little information about the father’s financial circumstances but I infer that the father has a well-paid position of employment. I also infer that the father has the capacity to contribute towards the maintenance of the mother and the children in the United States if she returns at least during the currency of any contested international relocation application by the mother. The mother of course would need to approach the court in the United States for an appropriate interim financial order.
I also bear in mind that at the time of the separation, the mother had in excess of USD$70,000. She gave evidence that that amount was expended on her relocation to Australia; the acquisition of a motor vehicle and legal fees in respect of proceedings in Australia. The mother could have chosen to use those funds to stay in the United States and seek permission from a court in the United States to allow her to relocate back to Australia with the two younger children.
Conclusion
I find that the mother’s personal circumstances do not preclude her from returning to the United States with the two younger children.
Is there in any event a grave risk to the children of a return order being made in circumstances where the mother will not return to the United States?
If I am wrong about the mother’s personal circumstances genuinely precluding her from returning to the United States, I turn to the issue as to whether or not there is a grave risk that a return of the children would expose the children to psychical or psychological harm or otherwise place the children in an intolerable situation if the children were returned without their mother.
The mother says if the children are ordered to return to State D they would be in the father’s sole care which she says would be devastating for them to be separated from her and K. She says the father does not have capacity to care for them. She says the father’s parenting role with the children has been very limited and his capacity to care for them is limited by his high pressured executive position.
Throughout their marriage the mother says she was almost solely responsible for the care and needs of the children. She says the father worked long hours and was often away from home because he was required to travel domestically and internationally. Due to his work demands she says he often did not return from work until after 10pm and if he did return at a reasonable time he did not interact with the children. She says he was impatient with the children and could not tolerate their noise and energy. The father disagrees with these assertions and asserts that he was involved in the day to day care of the children.
It is an agreed fact that the mother has been the primary carer of the two children. I infer that the children are primarily attached to their mother. The father asserts that they also have a strong attachment to him and although the mother concedes that the younger children have a good relationship with their father she does not concede the level of involvement with the children as asserted by the father.
Although I acknowledge there is a risk of some psychological harm to the children of a return order in circumstances where the mother does not return with them I am unable to categorise that risk as “grave”. I am also not able to find that separation of the children from their mother places the children in an intolerable situation.
Accordingly, I find that Regulation 16(3)(b) is not enlivened and I may not refuse to make a return order on that basis.
CONCLUSION
I have confidence that the court in the country of origin is ready, willing and able to mediate, hear and determine competing parenting applications between the parents which will lead to agreement or orders in the country of origin which are in the child’s best interests.
The mother may have a reasonable case to seek an order allowing her to relocate with the children to Australia. Any such application needs to be pursued by her in a court in the state of the child’s habitual residence.
I shall make a return order.
CONDITIONS
Whilst I have accepted the mother’s evidence that it was her intention as at the date of the hearing not to return to the United States even if an order was made for the return of the children, I do not discount the possibility that the mother may reconsider that position when faced with the reality that a return order has been made.
At the end of the hearing I made the following orders:
…
2. I note that the lawyer for the mother sought to obtain instructions from the mother about conditions that might be imposed in the event that a return order was made and the mother reconsidered her position and decided to return to the United States with the children.
3. Within 7 days the parties are to confer and attempt to reach an agreement in respect of conditions to be imposed upon any return order and to the extent that those conditions can be agreed, that agreement is to be forwarded to my associate.
4. If no overall agreement can be reached about the conditions to be imposed, within 14 days of this date the parties are each to provide my associate with a document setting out the conditions each party seeks to be imposed upon the return order and written submissions in support of imposing those conditions.
Regulation 15 of the Regulations provides as follows:
(1) If a court is satisfied that it is desirable to do so, the court may, in relation to an application made under regulation 14:
(a) make an order of a kind mentioned in that regulation; and
(b) make any other order that the court considers to be appropriate to give effect to the Convention; and
(c) include in an order to which paragraph (a) and (b) applies a condition that the court considers to be appropriate to give effect to the Convention.
The conditions proposed by the mother in the event that she decides to return with the children are set out in Schedule 1.
The applicant has indicated the conditions which the applicant accepts and other conditions that the applicant proposes which are set out in Schedule 2.
In the event that the mother changes her mind, then I shall make an order which applies the conditions as now discussed:
125.1.Within 14 days from the date of these orders, the mother is to give a written notice to the Central Authority and the father that she has reconsidered her decision to return to the United States and that she now intends to return to the United States with the children.
125.2.I will make orders in accordance with those conditions in respect of which there is agreement.
125.3.The mother proposes the father discontinue or withdraw his application for divorce and not recommence it until the mother gets a Green Card. The Central Authority propose that the father suspend all divorce proceedings until final parenting orders are made in the United States. I accept that the father’s proposal would mean that the mother would be able to continue to reside in the United States whilst the parenting proceedings in the country of habitual residence were determined. I accept that what the father proposes, imposes only the minimum conditions that are necessary to give effect to the Convention. I will accordingly make orders in the form as sought by the applicant as they relate to the father’s current pending divorce proceedings.
125.4.In relation to the issue of periodic monthly support, both parties seek a condition be imposed until such time as a child support order or ruling is made by a court of competent jurisdiction or other appropriate agency or authority in State D. The mother wishes the condition to extend to the making of a spousal maintenance order.
125.5.The father’s proposal is that he would pay the mother $3,300 (I have inferred that that is US dollars) in child support. There was evidence that the cost of renting appropriate accommodation was about USD$800 per month, leaving the mother with USD$2,500 income for support of the children. She will independently of course have the ability to seek an order for spousal maintenance in State D and a variation of the condition that is imposed in relation to child support if there are proper grounds for her to do so in State D. I am mindful of the amount that she took from the joint account. The applicant’s submissions refer to a financial statement of the mother which the applicant seeks to tender. It is not appropriate to allow the applicant to reopen the case. There is no indication as to why the mother was not cross examined on her financial statement during the hearing. What I do know is that the mother owns a motor vehicle which she has purchased in Australia and presumably that motor vehicle could be sold to provide some short-term funds to assist the mother pending any application that she might make to a court in State D.
125.6.It is appropriate to impose a condition that is agreed to by the father that the father pay the mother USD$3,300 per month in child support. The father asserts that is 25 per cent of his gross income. This is an interim measure and maybe changed by subsequent orders or assessments made in State D.
125.7.There was evidence before the court that the father is able to get this matter before the court in State D in a matter of days and I infer the mother is in the same position. I also infer that the mother, within a short period of time, would be able to receive a determination from the State D court at least on an interim basis in respect of the appropriate level of financial support for both herself and the children should she return with the children.
125.8.It is also proper to impose the sunset provision proposed by the applicant to all financial support orders, that is “until orders or rulings with respect of child support are made by a court of competent jurisdiction, or the appropriate agency or authority, in State D”. I accept the applicant’s submission that to order spousal support, even in the interim, and to “guarantee” the respondent’s financial position until she obtains employment is to use conditions for return to over reach and impact on a matter that ought to be determined by a court in the country of habitual residence.
125.9.The mother lived in State D for a period of more than two years. She has persons in State D with whom she is familiar and at least one of them assisted her leaving the country in the first place.
125.10.I also accept the applicant’s submission that condition 6(e) as sought by the mother is well outside the requirements of the Regulations, particularly when one looks at their scope and purpose.
125.11.I will impose conditions consistent with these Reasons and the father is to provide an undertaking in writing that he will abide by those conditions.
It is noted that the father would also seek that the mother give an undertaking that the parenting and property proceedings in Australia be discontinued or dismissed. The applicant did not make any submission in respect of that matter. I am mindful that the mother has not had an opportunity to comment on this proposed condition. Given the effect of the orders I will make is that final parenting and at least interim financial proceedings are to be heard in State D it would seem that the father would have a very strong case to at least obtain a stay of those proceedings pending the outcome of the proceedings in the State D court. It would be sensible for the mother to agree to such a course but given that she has not been heard about this issue, I do not intend in these proceedings, to make a stay order or require the mother to stay the proceedings in Australia. That decision is made without any prejudice to the father otherwise pursuing such an application.
In the event the mother maintains her resolve to remain in Australia notwithstanding that the return order has been made, the return order is not to be implemented for a period of 14 days from the date of these orders.
Other orders should be made varying the ex parte orders made 24 July 2017.
I certify that the preceding one hundred & twenty-eight (128) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 27 September 2017
Associate:
Date: 27.9.2017
SCHEDULE 1
Conditions sought by the mother if she decides to return with the children
In the event the mother gives notice to the father and the Central Authority that she intends to return to the United States of America, the father is to provide to the Respondent and the Applicant an undertaking in writing that he will:
a)Not file any application or motion in the Circuit Court of State D (Family Court Branch) for the mother to be dealt with for contempt or contravention of the current ex parte orders that the mother return the child or any related order;
b)Not to do anything or sign any document that would have the effect of commencing or continuing proceedings against the mother for contempt or contravention of court orders in the Circuit Court of State D (Family \Court Branch) arising from any conduct of the mother to up until the date of the implementation of the return order;
c)Forthwith do all acts and things necessary to discontinue or withdraw his application for Divorce;
d)Not do any act or thing which would have the effect of recommencing his application for Divorce against the mother, until such time as she obtains a Green Card;
Prior to the mother and children’s return to State D, the father shall seek a variation of the current ex parte orders so that upon the respondent’s return the children shall be physically placed with her until further orders are made by the Circuit Court of State D (Family Court Branch);
The father shall do all things and sign all documents to seek expedition of the current family law proceedings in the Circuit Court of State D (Family Court Branch)
Other support
The father shall allow the mother and the children to live in the premises at AA Street, M County, State D without him until the Circuit Court of State D makes final parenting and financial orders, at his expense;
The father shall provide, at his expense, to the mother a motor vehicle for her and the children’s use, complete with 2 children’s car seats which are age appropriate for B and C.
The father shall provide the following financial support to the mother and the children:
a)A combined amount of USD$4,000 per month by way of child support and spousal maintenance; until such time as child support and spousal maintenance orders are made by the court.
b)Payment of C’s child care fees at E Centre (the Company F child care facility); and
c)Payment of B’s school fees; and
d)The father shall do all acts and things to ensure that the mother and children remain beneficiaries of his health insurance plan.
e)The father shall pay for return air tickets for K to visit her mother and brothers during each of the Australian school holiday periods (4 times per year).
SCHEDULE 2
Conditions to which the applicant consents
The following Conditions/undertakings as sought by the Respondent are agreed:
a.Condition 1 (a), (b)
b.Condition 2
c.Condition 3
d.Condition 6 (b), (c) and (d), so long as the words “until orders or rulings with respect to child support are by a Court of competent jurisdiction, or the appropriate agency or authority, in State D.”
With respect to condition 1(c) and (d), in the alternative it is proposed:
1(c) the father shall suspend all divorce proceedings until final parenting orders are made in the USA.
With respect to condition 6(a), the alternative it is proposed:
The father shall pay to the mother $3,300 a month to the mother (being 25% of his gross income) as child support until orders or rulings with respect to child support are by a Court of competent jurisdiction, or the appropriate agency or authority, in State D.
The father does not consent to conditions 4, 5 and 6 (e) being made and does not propose an alternative.
It is noted that the father would seek that the mother give an undertaking that the parenting and property proceedings in Australia be discontinued and or dismissed. The Central Authority does not propose to make submissions on that matter.
- AGLC
- Department of Family and Community Services and Gaudin [2017] FamCA 767
- Case
- [2017] FamCA 767
- Decision Date
CaseChat Overview and Summary
The court was required to determine the appropriate orders concerning the children's return to the United States, particularly in light of the mother's expressed desire to remain in Australia. This involved considering the conditions under which the children's return would proceed, the undertakings the father would need to provide if the mother decided to return, and the consequences if the mother maintained her resolve to stay in Australia. The court also had to address the discharge of previous orders and the release of passports.
Watts J ordered that the applicant and the mother make arrangements for the children's return to the United States. However, the implementation of this order was contingent on the mother's decision within 14 days. If the mother chose to return, the father was to provide specific written undertakings, including refraining from contempt proceedings against her in the United States, suspending divorce proceedings, seeking variations to existing orders to place the children with her upon return, expediting proceedings, and providing financial support and health insurance for the children and mother. If the mother maintained her decision to remain in Australia, the return order would not be implemented after the 14-day period. Previous orders were discharged, and provisions were made for the release of the children's and mother's passports, with a restraint on the mother removing the children from Australia except in accordance with the court's orders.
Orders
Orders of the court
1.
The applicant and the mother make such arrangements as are necessary to ensure the return of the children, B (male) born … 2012 and C (male) born … 2014 (“the children”) to the United States of America.
2.
In the event that within 14 days the mother changes her position and decides to return to the United States of America:
2.1. Within 14 days from the date of these orders, the mother is to give a written notice to the Department of Family and Community Services and the father that she has reconsidered her decision not to return to the United States of America and that she now intends to return to the United States of America;
2.2. In the event the mother gives that notice to the Department, the father is to provide to the Respondent and the Applicant an undertaking in writing that he will:
2.2.1. Not file any application or motion in the Circuit Court of State D (Family Court Branch) for the mother to be dealt with for contempt or contravention of the current ex parte orders that the mother return the child or any related order;
2.2.2. Not to do anything or sign any document that would have the effect of commencing or continuing proceedings against the mother for contempt or contravention of court orders in the Circuit Court of State D (Family Court Branch) arising from any conduct of the mother to up until the date of the implementation of the return order;
2.2.3. Suspend all divorce proceedings until final parenting orders are made in the United States of America;
2.2.4. Prior to the mother and children’s return to State D, seek a variation of the current ex parte orders so that upon the respondent’s return the children shall be physically placed with her until further orders are made by the Circuit Court of State D (Family Court Branch);
2.2.5. Do all things and sign all documents to seek expedition of the current family law proceedings in the Circuit Court of State D (Family Court Branch);
2.2.6. Until orders or rulings with respect to child support are made by a Court of competent jurisdiction, or the appropriate agency or authority in State D:
2.2.6.1. Pay an amount of USD$3,300 per month by way of child support;
2.2.6.2. Pay C’s child care fees at E Centre (the Company F child care facility);
2.2.6.3. Pay B’s school fees;
2.2.6.4. Do all acts and things to ensure that the mother and children remain beneficiaries of his health insurance plan.
3.
In the event the mother maintains her resolve to remain in Australia notwithstanding that the return order has been made, the return order is not to be implemented after the expiration of 14 days from the date of these orders.
4.
Orders 1, 2 and 5 made 24 July 2017 are discharged.
5.
The Registrar of the Family Court of Australia is to release to the Department of Family & Community Services the children’s passports surrendered by the mother pursuant to order 5 made 24 July 2017 and the Department is to provide those passports to the parent who will be travelling with the children to the United States of America.
6.
In the event the mother provides the notice referred to in order 2.1, the Registrar of the Family Court of Australia is to release her passport to the mother or otherwise release the mother’s passport to the mother after the children have been returned to the United States of America.
7.
Until further order, the respondent Ms Gaudin born … 1980 by her servants and/or agents, be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the children from the Commonwealth of Australia except in accordance with these orders and it is requested that the Australian Federal Police give effect to this order.
8.
Order 3 made 24 July 2017 be suspended to enable the children to leave Australia in accordance with these orders.
Note: The form of the order is subject to the entry of the order in the Court’s records.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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