Department of Family and Community Services and Gurner
[2017] FamCA 232
•13 April 2017
FAMILY COURT OF AUSTRALIA
| DEPARTMENT OF FAMILY AND COMMUNITY SERVICES & GURNER | [2017] FamCA 232 |
| FAMILY LAW – CHILD ABDUCTION – Hague Convention – Where the Department seeks the return of the child to Arizona – Where the mother opposes the orders sought by the Department and says that the child was not habitually resident in the United States prior to her retention in Australia and therefore Regulation 16(1A)(b) of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations) is not satisfied – Where the mother says in the alternative that a return order should not be made because of the exception contained in either Regulation 16(3)(b) of 16(3)(d) of the Regulations – Where it is found that the child was not habitually resident in the United States prior to her retention in Australia and a return order is not made – Where the mother would not have been successful in relying on the exceptions in Regulation 16(3) of the Regulations. |
| Family Law Act 1975 (Cth) Family Law (Child Abduction Convention) Regulations 1986 (Cth) | |
| Commonwealth Central Authority & Cavanaugh (2015) FLC 93-682 | |
| APPLICANT: | Secretary, Department of Family and Community Services |
| RESPONDENT: | Ms Gurner |
| FILE NUMBER: | SYC | 8532 | of | 2016 |
| DATE DELIVERED: | 13 April 2017 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Watts J |
| HEARING DATE: | 31 March 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Tockar |
| SOLICITOR FOR THE APPLICANT: | Department of Family and Community Services |
| COUNSEL FOR THE RESPONDENT: | Mr Anderson |
| SOLICITOR FOR THE RESPONDENT: | Watts McCray |
Orders
The application for an order that the applicant and the respondent make such arrangements as are necessary to ensure the return of the child, B (“the child”) born … 2013, forthwith to the United States of America pursuant to the provisions of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) is dismissed.
Orders made on 23 December 2016 are discharged.
For a period of 28 days from the date of these orders or until the parties earlier agree in writing:
3.1.The Respondent, Ms Gurner born … 1976, her servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the child, B born … 2013, from the Commonwealth of Australia and it is requested that the Australian Federal Police give effect to this order;
3.2.The Respondent, Ms Gurner born … 1976, be restrained from leaving the Commonwealth of Australia and that the Australian Federal Police give effect to this order;
3.3.The names of the Respondent, Ms Gurner born … 1976, and the child, B born … 2013, remain on the Watch List in force at all points of arrival and departure in the Commonwealth of Australia;
3.4.The Registrar of the Family Court of Australia, retain all current passports and air tickets relating Ms Gurner born … 1976 and the child, B born … 2013.
Otherwise the application of the applicant filed 21 December 2016 is dismissed.
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 & Gurner 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 8532 of 2016
| Secretary, Department of Family and Community Services |
Applicant
And
| Ms Gurner |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
The Secretary of the Department of Family and Community Services as the Central Authority (“the Department”) filed an application on 21 December 2016, pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”), seeking orders for the return of the child, B (“the child”), born in 2013 and currently aged three years and 11 months old, to the United States of America (“the United States”).
The mother opposes the orders sought by the Department.
The circumstances in which the mother and child came to Australia are more fully discussed below. On 27 October 2016 the mother sent an email to the father telling him that she had decided that it was in the child’s best interests for her to stay with her in Australia and that she was not catching a planned flight back to the United States on 30 October. The Department asserts that this action by the mother was a wrongful retention of the child in Australia.
The mother says that as at 27 October 2016 the child was not habitually resident in the United States and that accordingly the provisions of Regulation 16(1A)(b) of the Regulations were not satisfied. Accordingly the mother argues that the Department are not able to establish that the retention of the child in Australia on 27 October 2016 was wrongful.
If that argument is unsuccessful then the mother further argues that the court may refuse to make a return order either pursuant to Regulation 16(3)(b) or alternatively, Regulation 16(3)(d) of the Regulations.
DOCUMENTS RELIED UPON
The Department relied upon a Form 2 filed 21 December 2016 which, inter alia, had attached to it an affidavit by Mr C, an attorney in the State of Arizona, who gave evidence about the applicable law in the State of Arizona and an affidavit of the father sworn 17 November 2016.
The Department relied upon a further affidavit by the Department’s Australian lawyer, which annexed a further affidavit by the father sworn 15 March 2017.
The mother relied upon a Form 2A filed 27 February 2017; an affidavit of herself and her mother filed on the same day; an affidavit of Prof D (the mother’s treating Gynaecologist and Reproductive Endocrinologist) and an affidavit by Ms E (the mother’s treating psychologist).
The Department initially did not seek to ask the mother any questions.
The father participated in the proceedings by way of video link from the United States. He was cross examined by counsel for the mother.
BACKGROUND
The father was born in F Town, Arizona, the United States, in 1974 and is currently 42 years old.
The mother was born in Canberra, Australia in 1976 and is currently 41 years old.
The parties met online in 2008. The mother travelled to the United States for a couple of weeks in 2008 or early 2009 to spend time with the father there.
Between March and October 2009 the father resided in Australia with the mother.
From October to December 2009 the mother resided in the United States with the father, returning to Australia after this period.
In March 2010 the mother travelled to City G on a tourist visa to be with the father.
In 2010 the mother and the father were married in City G, Arizona, in the United States.
In November 2010 the mother obtained employment in City G, Arizona. She resigned from employment a few months prior to the child’s birth.
In January 2012 the mother commenced attending upon a psychologist, Dr H.
In 2013 the child was born in City G, Arizona, United States and is currently three years and eleven months old. Soon after the child’s birth, the mother was diagnosed with postnatal depression.
On 31 August 2016 the Superior Court of the State of Arizona issued temporary orders (pursuant to an agreement signed by the parties on 23 August 2016) which, inter alia, allowed the mother to relocate the child to Australia but provided the father have sole discretion to “retrieve” the child and bring her to the United States .
On 12 September 2016 the mother travelled to Australia with the child. They reside in I Town, New South Wales with the maternal grandparents and the maternal aunt.
PROCEDURAL HISTORY
On 31 October 2016 the father filed a petition in the Superior Court of the State of Arizona in and for the County of J for enforcement of the temporary orders issued on 31 August 2016 and for the return of the child to City G, Arizona.
On 1 November 2016 the mother commenced proceedings in the Family Court seeking that the child live with her in Australia. The father filed a Response on 6 December 2016 seeking that those proceedings be dismissed.
On 4 November 2016 the father filed, with the US State Department, an application pursuant to the Hague Convention on the Civil Aspects of International Child Abduction for the immediate return of the child to the United States.
On 22 November 2016 orders were made in the Arizona Superior Court for the child to be returned to the United States on 11 January 2017 and then to be returned to the mother in Australia on 1 February 2017; that the mother ensure the child be “readily available to travel” upon the father’s arrival in Australia to collect the child and for an “Evidentiary Hearing re Modification to Temporary Orders” to occur on 25 January 2017. The parties were also ordered to attend mediation on 15 December 2016. The mother was legally represented at this hearing.
On 21 December 2016 the father filed a Motion in the Superior Court of the State of Arizona to enforce the orders made on 22 November 2016 for the child to travel to the United States.
On 21 December 2016 the Department filed an Application seeking the return of the child to the United States.
On 23 December 2016 orders were made by Justice Loughnan in the absence of the mother, placing her and the child on the airport Watch List and restraining the mother from removing the child from Australia. An order was also made for the Registrar of the Family Court to hold the mother and the child’s passport and air tickets.
On 3 January 2017 orders were made in the Arizona Superior Court requiring the mother to take all actions necessary to remove the child from the Airport Watch List. The mother was legally represented at this hearing.
On 10 January 2017 the Family Court proceedings in Australia were stayed pending the outcome of the Hague application.
On 25 January 2017 orders were made in the Arizona Superior Court requiring the mother to sign a consent form for the child to be removed from the Airport Watch List and to return the child to Arizona but “with the understanding that this Court is taking no position as to the Hague hearing that is taking place in Australia”.
On 3 February 2017 orders were made in the Arizona Superior Court denying the father’s Motion to compel the mother to sign a consent form for the child to be removed from the Watch List on the basis that it did not have jurisdiction “due to the pending Hague Convention proceedings”.
On 27 February 2017 the mother filed a Form 2A opposing a return order being made.
WRONGFUL REMOVAL
The mother accepts that the following elements in Regulation 16(1A) of the Regulations are satisfied:
35.1.The child is under 16;
35.2.The father had rights of custody in relation to the child pursuant to the law in the United States.
The mother contends that the child’s habitual residence prior to her retention in Australia was Australia and not the United States. The mother concedes that if that contention is not successful, a finding of wrongful retention would be made.
The mother further contends that in the event it is found she has wrongfully retained the child in Australia, a return order should not be made because either the provisions of Regulation 16(3)(c) or Regulation 16(3)(d) of the Regulations are satisfied.
HABITUAL RESIDENCE
The Department submits that the child was habitually resident in the United States immediately prior to her retention in Australia. It is submitted by the mother that on 27 October 2016, when the mother informed the father that the child would not be returning to the United States, the child had ceased to be habitually resident in the United States and had become habitually resident in Australia a short time after her arrival in Australia on 14 September 2016.
The Law
Regulation 16(1) of the Regulations provides that a court must (subject to discretion in Regulation 16(3)) make an order for a child’s return if the court is satisfied the child’s removal or retention is wrongful. Subregulation 16(1A) provides:
(1A) For subregulation (1), a child's removal to, or retention in, Australia is wrongful if:
(a) the child was under 16; and
(b) the child habitually resided in a convention country immediately before the child's removal to, or retention in, Australia; and
(c) the person, institution or other body seeking the child's return had rights of custody in relation to the child under the law of the country in which the child habitually resided immediately before the child's removal to, or retention in, Australia; and
(d) the child's removal to, or retention in, Australia is in breach of those rights of custody; and
(e) at the time of the child's removal or retention, the person, institution or other body:
(i) was actually exercising the rights of custody (either jointly or alone); or
(ii) would have exercised those rights if the child had not been removed or retained.
(Emphasis added)
The High Court has considered the applicable principles when determining habitual residence in LK v Director-General, Department of Community Services (2009) 237 CLR 582 (“LK”) (particularly at paragraphs 21 to 46).
In Department of Family and Community Services & Svoboda [2012] FamCA1108, I summarised the following propositions which emerge from LK:
41.1.A person can have:
41.1.1.a place of habitual residence;
41.1.2.no place of habitual residence (having abandoned an old place of habitual residence without acquiring a new one) (LK at paragraph 25);
41.1.3.although unlikely, more than one place of habitual residence.
41.2.A 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).
41.3.A 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).
41.4.Whilst a parent’s intention will usually be relevant and sometimes very important, “intention is not to be given controlling weight” (LK at paragraph 28).
41.5.“… 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).
41.6.A 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).
41.7.At 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.
41.8.Habitual 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).
41.9.Habitual 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).
41.10.Habitual 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).
41.11.The 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.
41.12.At 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]
41.13.Further 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.
41.14.“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).
Habitual residence in this case
In this case the facts relevant to a determination in respect of the competing propositions of the parties relating to the habitual residence of the child are unusual and need to be set out in some detail.
Whilst the place of habitual residence of a child aged almost four is usually that of the habitual residence of the person upon whom the child is immediately dependent for care and housing, (in this case the mother), attention cannot be confined to one parent’s intentions alone. In this case it is necessary to consider what each parent intended for the child.
Given that I am required to engage in a broad factual inquiry and decide the matter as a question of pure fact by reference to all the circumstances of this particular case, I set out all of the important relevant evidence (most of which is not controversial).
As indicated, the child was born in 2013. From that time the child was primarily cared for by the mother. The child is a citizen of the United States.
Soon after the child’s birth, the mother was diagnosed with postnatal depression. The mother also developed symptoms of premenstrual dysphoric disorder (“PMDD”).
The mother says that in late 2014, after not having returned to Australia for three years, she became more depressed and sought medical assistance from her gynaecologist nurse practitioner. The mother tried a few different hormone treatments to help but they were ineffective. The mother says at paragraph [45] of her affidavit that on occasion she and the father had a conversation to the following effect:
[Mother]:“I would love to return to Australia, I really think having my family would help me through this difficult time.”
[Father] :“You can ask your parents to come here but I cannot leave work.”
[Mother]:“Well I don’t want to be away from [the child] and go alone.”
[Father]:“You can’t take her out of the country.”
The mother’s parents and her sister visited her in the United States in November 2014 and her mother visited her again in February 2015.
As discussed below, at the beginning of 2015 the mother experienced suicidal ideation. In 2015 the mother’s mental health fluctuated. The mother says, and I accept, that during this period she felt socially isolated, unsupported, scared and dominated.
The mother says that the father would become very angry whenever she brought up the topic of travelling to Australia despite the fact that they had agreed on a savings plan to fund such trips. In about February 2015 the father told the mother, “There’s no way we can take a trip to Australia for at least the next two years”.
In February 2015, during a conversation with the father, the mother told him that she had thought of leaving him, he threatened her with words to the effect, “If you leave, you cannot take [the child] with you. You will have to give her up forever”.
A nanny was employed by the father between February 2015 and the end of 2015. The mother says this was a unilateral decision taken by the father at a time when he was working two jobs and was unavailable to provide supportive parenting. The mother reported that the nanny did not bond with the child, rarely talked to the child and rarely assisted the mother in caring for the child. There was friction between the mother and the father about the father’s relationship and interaction with the nanny. The mother alleges that on 11 August 2016 the father admitted to her that he felt sexually attracted to the nanny.
The mother invited the father to couples counselling during 2015 but he declined.
The mother says that by early 2016 her mental health had improved.
The mother’s father visited her for two weeks in February 2016. The mother said that after he had left she was once again reminded her of how isolated she felt in the United States.
The mother reports that, in her view, the father was depressed during 2016 and that his involvement with the child was begrudging and he reported it as difficult.
In about 2016 the mother suggested to the father that she could return to work before the child commenced school. The father indicated to her that she could not work until the child commenced school.
The mother alleges the father was emotionally abusive towards her during their marriage. She also says the father had his own mental status difficulties including panic attacks. The father denies that he has had any problem with his mental health.
The turning point in the parties’ relationship came on 6 August 2016 where the mother became aware that the father had a girlfriend, Ms K (“Ms K”). When confronted, the father admitted to the mother that Ms K was a lifeline for him and “the time we spend together fills me up”. In this conversation the mother says the father promised to stop contact with Ms K immediately. The mother reports however the father and Ms K spoke on the phone that evening.
On 8 August the mother found a new psychologist who could see her that day. The mother reported that she felt alone, without support and needed help.
On 9 August the mother saw a text message sent by Ms K to the father. On that day the father said to the mother:
We [the father and Ms K] love each other and I am not willing to give her up. I thought I could keep it platonic. I have been lying to you for months. We have fallen in love. She says that this marriage is going to kill me!
The father then left the matrimonial home, returning later. The mother says the father later told her that 9 August 2016 was “the first time things got physical” with Ms K.
The mother reported that the father took the rest of the week off work and spent each day with Ms K.
On 11 August 2016 the mother said a conversation to the following effect took place between herself and the father:
[Father]:“There is no chance we will reconcile so I will just leave.”
[Mother]:“But I won’t be able to survive in the US without support. I want to move to Australia.”
[Father]:“I think that is best for you and [the child]. You should both move to Australia.”
The father left the matrimonial home on 12 August 2016.
The father’s blanket denial in his oral evidence that none of that conversation took place is curious given that the father in his affidavit sworn 15 March 2017 at [7], agreed that the mother said to him after the separation and before the orders were made at the end of August 2016:
7. At separation, [the mother] was explosively violent with me. I observed her to strike the wall and scream vulgarities at me. Afterwards, she appeared to be in shock, and once we agreed the marriage would end, [the mother] became coercive and insistent. She said to me:
“I will never survive in America without you”
And
“There is no other way”
I begged her to reconsider another option but she would not even consider anything which would not involve her returning to Australia. I was desperate to keep the peace and maintain a positive relationship between us for the sake of [the child].
I accept the mother’s version of the conversation between the father and herself on 11 August 2016.
During the week of 15 August 2016 the parties saw a Mr L. Mr L was a lawyer who the parties had found online. Mr L subsequently indicated that he could act as their mediator.
The parties consented to evidence being adduced in these proceedings which was part of the communication made between them with an attempt to negotiate a settlement to their dispute.
During the week of 15 August 2016 the father said to the mother words to the effect:
I won’t let you get a passport for [the child] or take her out of the country, unless you agree in writing to returning [the child] should you be unable to care for her in the future. I want ‘God Powers’ meaning that I can do whatever I want.
In the father’s first affidavit he says that the mother and he entered into an agreement on or about 16 August 2016 (this is clearly an incorrect date as this did not happen until 23 August 2016). The father asserts that prior to the agreement being entered into, both the parties had an opportunity to hire independent legal counsel but both decided independently that they did not need attorneys. The father states that the joint motion was 16 August 2016 but as I have said, that is not correct. The father in his first affidavit talks about agreeing to “temporary parenting time orders” which “permitted [the mother] to relocate to Australia” (emphasis added).
On 20 August 2016 the mother received a text message from the father saying that when she was in Australia he would prefer her to be a stay at home mum for the child until the child started school.
The mother and father attended mediation with Mr L on 22 August 2016. The father’s summary of the negotiations that took place are contained at [9], [10] and [11] of his affidavit of 15 March 2017 which are in the following terms:
9. [The mother] made it clear that she wished to return to Australia. I was sceptical given [the mother’s] history of mental illness and her capacity to parent [the child], along with my capacity to maintain a connection with [the child] as a 3 year old, however, I finally succumbed to her following much insistence and agreed to orders which allowed her trial relocation to Australia. I entered into these orders on the basis that they also provided me with the sole parental responsibility for the long-term health and wellbeing of [the child], along with the capacity to compel [the child’s] return to the United States. This was to be a trial parenting arrangement and would be subject to further orders on a final basis.
10. Once I agreed to allow [the mother] to leave the United States on a trial basis, she became positive, focused and helpful. Prior to this date she was coercive and solely focused on convincing me that I had to let her and [the child] leave the United States. I was encouraged but was still concerned about the effect that would have on [the child]. I also felt manipulated by her actions and that [the mother] was only acting this way so that I would agree to her trial in Australia.
11. I felt it was of critical importance to protect [the child] and my ability to have a consistent and meaningful connection with her. On one occasion during the negotiations concerning the trial arrangements, [the mother] said to me:
“If you cannot maintain your connection with [the child] I promise I will allow [the child] to return”
I understand that [the mother] accepts she made that representation to me in her Affidavit [a reference to [78] of the mother’s affidavit as set out below], albeit with differing views as to what ‘return’ referred to. I was clear with [the mother] that ‘return’ meant permanently returning to the United States to live.
On 23 August 2016 each of the parties signed a joint motion and agreement for temporary orders. That joint motion was filed in court on 25 August 2016. The document seems to have been drafted by somebody with legal expertise. I have no evidence about it but I infer it was drafted by Mr L. The joint motion on its face indicates that the father, as petitioner, was self-represented as was the mother as respondent. The joint motion requests orders be made in the terms set out below.
The mother gives evidence that she felt coerced into signing joint motion for the temporary order. The mother says at [78] of her affidavit the father had said to her words to the effect:
“I also want a document to be drafted which will enable me to monitor your health and ensure [the child] will be returned to me in the US if I deem you as unfit to look after her” ….
“I felt I had no choice but to agree if I wanted to get [the child] back to Australia to my home, friends and family.”
The joint motion contains the following preamble:
1. It is the parties’ desire to amicably resolve all issues related to the divorce, including property and debt division, legal decision-making, parenting time, spousal maintenance and child support in a final consent decree, marital settlement agreement and parenting plan.
2. Mother desires to return to her home country of Australia with the parties’ minor child in the very near future, prior to a final agreement as described above.
3. Father agrees that Mother may return to Australia with the minor child subject to the parties’ agreement contained in this Joint Motion, below.
On 24 August 2016 Mr L sent an email to both the parents reminding them that they were each entitled to have an attorney of their own choosing revise documents “that you signed” [this is apparently a reference to the joint motion signed 23 August 2016]. The mother responded by saying “I understand. I do not require an independent lawyer at this time”.
At [15] of his initial affidavit, the father say, “I had only agreed to allow [the mother] to relocate with [the child] to Australia on a temporary trial basis”.
The mother received a text from the father on 24 August 2016 in the following terms:
Have you no mercy in you? I said I would give you everything, that I would do what you want. In return I only asked you to make it as easy as possible for me to do it. And instead you make me feel like a criminal. You have somehow made me feel like I am imposing on you.
On 25 August 2016 the mother received a further text message from the father to the following terms:
I want to say sorry for taking away your best friend. Your support. Your husband. But I do not think there are words that could convey that. The only way to say it, is to show you – and put you and [the child] onto the life raft, and for me to stay on the sinking deck. That is how much I love you and how sorry I am, that I failed us.
I accept that at this time the father was sufficiently insightful to understand that the mother’s ability to relocate to Australia was for her a “life raft”.
On 25 August 2016 the father filed a Petition of Dissolution of Marriage in the Superior Court of the State of Arizona in and for the County of J. That petition is still currently pending.
On 27 August 2016 the mother received a text message from the father in the following terms:
I don’t know what to do about anything except get this stupid fucking document done so you and [the child] can get on with your lives. I’m sorry you’re hurting. I wish there was something we could do. But I do not believe there is any course but the one we’re on. If you feel there is, you know I want to hear it.
It is not clear to me what document the father is referring to given that the parties had both signed the joint motion on 23 August. It is however likely to be a document that does not seem to have come into existence which the father refers to as “a Right of Recall document” in his second email to the mother of 28 August 2016 as discussed below.
Based upon the joint motion referred to above, the Honourable Scott Rash signed the orders on 26 August 2016. Those orders were in the following terms:
IT IS ORDERED THAT:
1. The relief requested in the parties’ Joint Motion and Agreement of the Parties for Temporary Orders (Pre-Decree/Judgment) is hereby GRANTED.
IT IS FURTHER ORDERED, pendent lite, that:
2. Father has sole legal decision-making of the parties’ minor child, B. Father shall make a good faith effort to discuss issues related to legal decision-making with mother.
3. Mother has all parenting time, subject to reasonable parenting time for Father. Reasonable parenting time is defined as a minimum of two weeks uninterrupted parenting time at least every three months to be coordinated by the parties.
4. Father is responsible for transportation costs for the minor child for his parenting time.
5. Father shall pay $1,400 in non-taxable child support directly to Mother by the first day of each month, beginning on October 1, 2016.
6. Father shall pay $600.00 in spousal maintenance to Mother by the first day of each month, beginning on October 1, 2016. This payment shall be taxable income to Mother and tax deductible to Father for income tax purposes.
7. In Father’s sole discretion, should he determine that it is appropriate for the minor child to return to the United States, he shall be entitled to retrieve the minor child and bring her to the United States, and Mother shall cooperate with Father to effectuate this provision.
8. Should an Australian court or entity determine that any provisions of this Order are unenforceable, the parties shall cooperate to accomplish any actions necessary to implement the terms and agreements contained in this Joint Motion.
9. The parties shall cooperate in selecting legal counsel in Australia and in taking appropriate measures to cause this Court Order to be registered with an Australian court of appropriate jurisdiction. Should either party fail to cooperate, the other party may take any appropriate measures individually to cause this Court Order to be registered in an Australian Court of appropriate jurisdiction.
10. Mother is hereby permitted to relocate to Australia with the minor child.
The father sent two emails to the mother on 28 August 2016. Because of their importance, I set the text of those two emails out in full at Schedules 1 and 2 of these Reasons.
The email in Schedule 1 indicates that the trial period that the father had in mind was of an indefinite duration. This email indicates that the father had in mind that the mother and the child would not be coming back to visit the United States until they had “settled in” Australia which he anticipated being for Easter (14 April 2017). The father at that time anticipated that he would come to Australia for Christmas or January/February at the latest but so far as I know did not do so. The father acknowledges in this email that an earlier return for the child prior to Easter 2017 would be too traumatic. The father shows some insight as to the difficulties in his parenting relationship with the child which are likely to arise as a result of his consenting to the child’s move to Australia. The father acknowledges that it would be too traumatic for the mother as well as the child to return to the United States before Easter 2017.
The second email of 28 August 2016, which is Schedule 2, has as its subject “What does a Right of Recall document look like”. Given that the parties had already signed the joint motion on 23 August 2016, it is unclear to me as to what further document the father thought was necessary but it seems he wanted to reach an understanding about the circumstances in which he would “retrieve the minor child and bring her to the United States”. In the second email of 28 August the father contemplates a time where the mother would move from the Central Coast of New South Wales (her parents and sister’s home) and live in Sydney with the child. He seeks to discuss with the mother what difficulties in her mental health and her ability to look after the child might trigger the father activating the “Right of Recall”. The conditions that the father proposes for recall were ones that “should not be a hair-trigger”. Rather, the father proposed that the right of recall would be based on the need to guard the child against what the father describes as any “irrational behaviour” by the mother in the future (acknowledging as he does that everyone gets sick and everybody has bad days). The father further proposes that no condition based on the mother’s mental status should be enforced as a condition until the mother had “finished all available treatment plans you have discussed ending with hysterectomy”. As discussed below, two weeks prior to the hearing before me, the mother had a full hysterectomy on specialist’s advice in an attempt to cure her chronic hormonal imbalance.
The father in this second email envisages that the child may well remain in Australia until the age of 18 but that “she will one day be a young woman of two worlds, two countries”. The father wishes to be able to give her the ability to choose what world she wants to live in and envisages that the parents might agree that that choice be given to the child as she entered grade 7 or alternatively grade 9.
This second email of 28 August ends by the father expressing his love for the mother and his hope that he will always love her. He concludes “[f]or the love I bear you, and [the child], I will let you both leave me – something else I will likely regret for eternity”.
On 30 August 2016 the mother received a text message from the father stating “You are a great mum, I wouldn’t let you take [the child] await [sic] if I thought otherwise. I believe that with all my heart”.
On 31 August 2016 the court date stamped (and I infer issued) the consent order, the terms of which are set out above, which is based on the joint motion that reflected the terms of the mediation agreement.
In the next couple of weeks after the issue of the Temporary orders there were conversations between the mother and father which led to the mother becoming anxious as to whether or not the father intended to renege on the agreement to allow the mother and the child to leave the United States. At one point the father said to the mother, “you will have to return [the child] to [City G] every three months for two weeks for the next two years”.
Before the mother left the United States, the father arranged for the mother’s name to be removed from joint bank accounts and documentation relating to the house deeds and car. The father also insisted that the mother obtain copies of all her personal medical records and make copies available to him. She did that. On 5 September 2016 the father sent the mother a text message in the following terms:
Did they upset you? If you did read them all, I hope you could see as I did how you improved over time. I hope you can see clearly now how sick you were, but no more – you made it through [mother’s name] and I am so proud of you. So happy for you, I want you to know – you have my faith and trust.
On 12 September 2016 the mother and child left the United States and arrived in Australia on 14 September 2016. On the day of the mother’s arrival in Australia, the father sent the following text message:
I know [the child] loves me. But she is at that age where she really only has eyes for her person. And that person is you! She has good tastes, you’re a great person to have. That’s one of the reasons I miss you.
Upon arriving in Australia, the mother moved into the five bedroom home of her mother, father and her sister on the Central Coast of New South Wales.
On 17 September 2016 the father sent the mother the following text message:
I know you felt like I didn’t put you first those last weeks. But I was – it was the hardest thing I have ever done and I am so sorry I could not show you how much you featured in my heart. My best girls are gone now, I got through it.
On 29 September 2016 the father cancelled the mother’s access to credit cards (claiming that the mother’s credit cards had been stolen). The father sent a text saying that he would send the mother $53,000 but did not do so.
In the father’s first affidavit he says that by Skype on 28 September 2016 and again by email on 30 September 2016, “I notified [the mother] that because the geographical distance was too great for [the child] to maintain meaningful and consistent contact with me, I wanted [the child] returned and was willing to purchase airline tickets for the mother to bring the child back to the United States”.
On 29 September 2016 the mother and father had a conversation on Skype to the following effect:
[Father]:“I cant do this anymore.”
[Mother]:“Maybe you are just grieving or bargaining. Maybe nothing has actually changed from your initial position two weeks ago. You have been miserable with me and couldn’t stand to stay with me…”
[Father]:“If you come back, you and [the child] can live in the house and I will live somewhere else or something. Let’s trial it for two years. I am scared you won’t like it in [City G] and will force me to move to Australia, so that is why I am suggesting a two year trial.”
[Mother]:“What about your proposal in the email, saying you would move to Australia or [State M] or ‘wherever’ if, after a six month trial, things weren’t working in [City G]?”
[Father]:“I will not hold myself to that. I have made a mistake. I should have never let you force me to let you and [the child] go. I have given up enough.”
[Mother]:“What would happen with your girlfriend?”
[Father]:“I haven’t really thought about it yet. She doesn’t know that I am asking you to give us a try again… I guess I am just going to have to give her up too. Its going to break her heart…”
[Mother]:“I see.”
[Father[:“I see an okay or passable life with you, I see a happy life with [Ms K], but I still love you…”
[Mother]:“You are being so inconsistent. We only just got here. We have not even been here for two weeks and now you are changing the ‘rules’ again.”
[Father]:“Just come back.”
[Mother]:“I have an appointment to see a specialist, [Prof D], in Sydney about my hormone issues.”
[Father]:“So what, just come back here before the appointment.”
[Mother]:“I want this specialist’s advice because he is a world leader and his expertise is not available in the US.”
[Father]:“You are being so selfish and hurting me by staying there. If you don’t come back to the US to care for [the child] I will bring her back here and put her in care while I continue to work full-time.”
On 1 October 2016 the mother received an email (dated 30 September 2016) from the father requesting that she and the child return to the United States by 1 November 2016. The mother and child had only been in Australia for 16 days. Again because of its importance, I set the full text of the email out in Schedule 3.
In [18] of his second affidavit, the father, somewhat disingenuously, states that the reason that he terminated what he referred to as the trial period was because he observed that the child missed him and was needy and that further the mother was not facilitating electronic communication to his satisfaction. He formed the view that ultimately the mother had no intention of honouring her promise for the father to be a consistent parental presence in the child’s life. This is to be contrasted to the contemporaneous communications to the mother where the father indicates his needs aren’t being satisfied by the child being in Australia and that the father is being destroyed by the fact that she wasn’t with him. Paragraphs [17] and [18] of the father’s second affidavit sets out what the father says his motivation was for requesting the child’s return to the United States. Given what is in the father’s email, as set out in Schedule 3, I am unable to accept the evidence he gives about that motivation.
It is clear from the father’s email of 1 October 2016 that he had dramatically changed his position. He “needed to feel safe” and he was “currently incapable” (the father’s emphasis) of considering anything that did not involve the child being with him in his arms. The father also in the email acknowledges that the mother had decided before leaving the United States that the United States was not her home (although the father asserted that it really was her home). The father also in the email says that he can no longer “do it”. That is a reference to granting the mother the trial period in Australia to which he had previously agreed.
On 8 October 2016 the mother received a text message from the father in the following terms:
[Mother’s name] – I had someone that said they loved me, [I infer that that is a reference by the father to the father’s girlfriend, Ms K] would do anything to make me happy and I have broken her heart, pushed her from my mind because I want you. I want you. YOU. I’m asking you back because YOU are supposed to be the person who saves me. No one else. YOU. The question is – are you going to save me? Our relationship? Our family?
On 11 October 2016 the mother received an email from the father, the text of which is set out in Schedule 4. Having received this email, the mother said that she felt coerced to purchase the tickets to go back and that she was unable to describe her concerns of returning to the United States without the support of her family. The mother texted back to the father, “I will do as you directed”.
At this time the mother’s belongings had been waiting to be shipped to Australia but had not left the warehouse in the United States . The mother organised for her and the child’s belongings to be transported back to the father’s home.
On 12 October 2016 the child became an Australian citizen. The father says that this occurred without his consent and is in breach of the orders made 31 August 2016 which provided he have “sole legal decision-making of the parties’ minor child”. When completing an application for Australian citizenship by descent form, the mother, when answering a question on the form “Has this parent been excluded through a court of law from having custody or parental responsibility for [the child]”, wrote “No”. The father asserts “this is fraud”. It is not clear to me that the expression “custody and parental responsibility” in Arizona has an identical meaning to “parental responsibility” for “major long term issues” as those expressions are defined in the Family Law Act 1975 (Cth). If it did then arguably a decision about the child becoming an Australian citizen is a decision about a major long term issue. However it is not clear to me from the affidavit of Ms N (attorney practising in family law in Arizona) that the order of 31 August 2016 excluded the mother from applying for Australian citizenship for the child. The application form for Australian citizenship by descent was filled out by the mother as the child’s “responsible parent”. The mother clearly had day to day parental responsibility for the child once the child had relocated to Australia with the mother. The application, on its face, does not require the father’s consent. The mother did not interfere in anyway with the child’s American citizenship.
By an email dated 14 October 2016, the mother confirmed that she and the child were returning to the United States on 30 October 2016. The email sent by the mother to the father under the subject “Flights” was in the following terms:
Hi Darling
Hope you’ve had a good sleep. And I love you. Will message when we get up.
All booked! Just waiting for the email with itinerary to forward to you, said it takes 30 mins. But I’m going to bed.
So here are the flight details copied and pasted from the booking page”
[the flight details which were pasted referred to a flight from Sydney to Los Angles and then onto [City G] on 30 October 2016]
[Ms Gurner]
The father paid approximately $1,900 for airline tickets for the mother and child to return.
On 16 October the mother responded to a text message from the father to “Skype me”. The mother says that she initiated the Skype call and she and the father had a conversation to the following effect:
[Father]:“Do you know how hard it has been for me with you out of touch for 24 hours? Do you know how much I have given up for you?”
[Mother]:“Yes.”
[Father]:“Tell me what I have given up.”
[Mother]:“I know what you’ve given up.”
[Father]:“SAY HER NAME.”
[Mother]:“[Ms K].”
[Father]:“All that woman wanted to do was love me and look after me. I’ve given up my hero – and my chance at happiness because I choose you.”
[Father]:“[The child] has to come back. I can’t be without her. She comes back or there’s Court.”
The mother says that she felt bullied and disrespected in this conversation. The mother says “I worried that I had to reassure him that I was coming back”.
On 18 October 2016 the father texted the mother with words to the effect:
I have one simple answer – we have to try. It is our only chance and I will pay the price in pain to have my beautiful [mother’s name] be my person. Pay the price – give up [Ms K], who represented no more pain, happy relationship, etc. Pay the price – get back into our relationship, where I anticipate being hurt. In the hopes we find a way to happiness. Pay the price – losing [Ms K] (she’s gone) and possibly losing you even after working hard not too. Ending up alone and with no one. The list can go on imagine.
On 19 October 2016 the mother sent a text to the father stating, “Please give me some space today”. The mother however says that at 9.30am she received a text from the father with words to the following effect, “You need to talk to me right now. I just called the shippers”. The mother says the father then immediately called her on her mobile and a conversation to the following effect took place:
[Father]:“I am so scared and anxious that you are not coming back, I need proof! You have to call the shippers and authorise me on the account to find out what’s happening. I’m scared that you’re not returning here and I need help. You have to call them and let me talk to them.”
[Mother]:“I have not interrupted the shipment. I think you may need help [father’s name]. Why don’t you call your therapist or the crisis line? Maybe see a doctor?”
On 27 October 2016 the father sent an email to the mother indicating that his deadline was “absolute” and that if the mother did not return the child to the United States, “I will have no other choice than to use the full power and might of the legal system to compel her return”.
On 27 October 2016 the mother sent the father the following email:
I’ve decided that it’s in the best interests of [the child] that she stays with me in Australia.
I’m not catching the flight on the 30th.
I want you to continue to have a meaningful relationship with [the child] but in the light of our history, I don’t share your optimism about a future between you and I.
I will continue to facilitate Skype between you and [the child] on a regular basis.
On 28 October 2016 the father sent an email to Mr L, with a copy to the mother, indicating that he had told the mother on 28 September that he intended to invoke “my discretionary clause that requires [the child] to be returned to the United States with a deadline of November 1, 2016”. The father further told Mr L about his apprehension that the mother was not going to return the child to the United States and inquired about the procedures that were necessary to attempt to register the orders made in the United States “with the Australian legal system”.
On 31 October 2016 the father filed a petition in the Superior Court of the State of Arizona in and for the County of J for enforcement of the Temporary Orders and for the return of the child to the United States.
On 1 November 2016 the mother commenced proceedings in the Family Court of Australia at Parramatta seeking an order that the child reside with her in Australia.
Upon their arrival in Australia, the child and the mother commenced residing with the mother’s parents and sister in a five bedroom house in I Town. The child’s room was set up with a bed, toys, books, clothes and a few of her favourite items from the United States. One of the living areas in the house was converted into a playroom and there is a back garden and a swimming pool at the house.
At [115] and following of her affidavit but giving evidence as at 27 February 2017 not 27 October 2017, the mother says since moving to Australia the child is “thriving with all the love and attention her grandparents and aunt lavish on her. She is enjoying the Australian way of life and is loving all the new experiences. She is happy. She appears more confident, less hesitant and physically stronger”. She often says to me: “I like all the huge trees, Mummy.” It appears her communication skills have improved. [The child] is now toilet trained”. She gives evidence of the child spending time with her extended maternal family and of a usual routine which the child has developed. The mother also says that the child has formed friendships since her arrival in Australia. Given the lack of specificity as to the date by when these things were achieved, I can place little weight on this evidence.
On 14 November 2016 the father filed with the US State Department an application pursuant to the Hague Convention on the Civil Aspects of International Child Abduction for the immediate return of the child to the United States.
The temporary orders of 31 August 2016 provide, inter alia, that the orders would be registered with an Australian court of appropriate jurisdiction. Those orders have not been registered in the Family Court. It was an agreed fact that the orders were incapable of registration under s 70G Family Law Act because (notwithstanding Arizona is a reciprocating jurisdiction for the purposes of that action, that section does not allow the registration of interim orders and the Temporary orders that were made on 31 August are interim orders). The parties did not attempt to have mirror orders made in Australia prior to the child coming to Australia and I have no evidence to indicate the father sought that those mirror orders be made (although that may well have happened in the proceedings that took place at the Parramatta Family Court which have been stayed pending the result of these proceedings).
The United States have signed the Hague Convention on Parental Responsibility and Protection of Children but it has not yet been ratified, therefore any registration of orders under the Hague Convention on Parental Responsibility and Protection of Children is not available in this matter.
Conclusion
The Department points to the following matters in support of a finding that the child’s habitual residence at the date of the mother’s retention of the child in Australia was the United States:
124.1.Prior to her leaving the United States she lived all her life with her parents in her own home in the United States;
124.2.She is a citizen of the United States. Although the mother obtained Australian citizenship for the child, that appears to have been obtained by deception with the mother not revealing to the Australian authorities when applying for Australian citizenship for the child that there was in existence the temporary order which gave the father “sole legal decision-making of the parties’ minor child”;
124.3.According to the father, the child was a “long-time a member of City G Mother’s Playdates and she has long standing friendships with other children”;
124.4.Before leaving the United States the child was involved in swimming lessons and spent regular time with the paternal grandparents with whom the father says she had a strong relationship.
The mother in her affidavit and annexure “P” confirms a variety of activities the child was involved in in the United States and refers to her various connections with life in the United States prior to her leaving the United States.
In addition, counsel for the Department points to the following facts:
126.1.The father was an American citizen and save for a period of time between March and October 2009 has lived in the United States all his life;
126.2.That the parties were married in the United States and lived together in the United States between 2010 and August 2016;
126.3.The father remains determined to continue living in the United States.
Counsel for the Department also argues that it could not be said that the mother had a “settled intention” of living in Australia on the date that she retained the child because:
127.1.The parties were in the midst of ongoing family law proceedings in the United States;
127.2.The mother had agreed in the temporary orders that the father have sole discretion to require her to return the child to the United States and had agreed with the father to cooperate with him to give effect to that provision;
127.3.The mother consented to the father having sole decision making in respect of the child;
127.4.When the father did request the child be returned to the United States, the mother agreed to this and booked the necessary return flights to the United States;
127.5.In January 2015 the mother told her therapist that she “occasionally misses Australia, and that her parents visit often, but does not plan on moving back”.
Counsel for the Department argues that it is not open to the mother to unilaterally change the habitual residence of the child from the United States.
It is submitted by counsel for the Department that in order for the child to acquire habitual residence in Australia, the child would generally need to live in Australia for an “appreciable period”. Counsel for the Department also points to the fact that the orders which allowed the child to leave the United States were “temporary orders” which indicates that the mother must have known that it was an interim arrangement.
Counsel for the Department points to the fact that the request the father made for return of the child was only 16 days after the child arrived in Australia.
The parties agree that the child, at the age of three, is not capable of forming an independent intention regarding her place of residence.
Counsel for the Department put emphasis on the fact that the mother agreed to the father’s request to return the child. He submits that that action establishes that the parties were ad idem as to the meaning of the orders in the Arizona court and it meant that the mother recognised that until at least the proceedings were finalised in the United States, that country remained the place of the child’s habitual residence. He also points to the fact that both the mother and father contemplated “mirror orders” being put in place in Australia.
Counsel for the Department referred to Commonwealth Central Authority & Cavanaugh (2015) FLC 93-682 at 80,581 where the Full Court said, “a court should be slow to find that children do not have habitual place of residence”.
Counsel for the Department drew a distinction between the facts in this case and the facts in LK saying that there was no basis in LK upon which the mother could be obliged to return the child to Israel as the agreement to return was dependent upon the parties effecting a reconciliation, which clearly would have required the mother’s agreement. In this matter, the mother had no say in whether or not to return to the United States and the father could in his sole discretion require the return of the child to the United States.
Counsel for the Department submits that in this case the steps taken by the mother to establish a new and permanent home for the child in Australia are inconsequential – the mother and child live with the mother’s parents and sister and the mother is unemployed (although she has applied for a “casual, remote” job at the University of Newcastle). She is dependent upon her parents and social welfare for support.
Counsel for the Department submits that no weight can be attached to the submissions made in the mother’s case outline that “the mother has established important connections with Australia” and that “the child has integrated into life in Australia”.
It is not disputed that prior to 12 September 2016, when the child left the United States, the child was habitually resident in the United States. There is no doubt that up until 12 September 2016 the child’s real connection was with the United States.
The question is whether or not the child was still habitually resident in the United States on 27 October which was the date that the parties agree that there was no longer consent by the father for the child to be in Australia and consequently a retention by the mother of the child in Australia against the father’s wishes. For that retention to be wrongful, the child still had to be habitually resident as at that date in the United States.
As the High Court said in LK, individuals do not always act with a clearly formed and singular view of what it is they intended or hoped that the future would hold. Sometimes their intentions are ambiguous.
Counsel for the Department suggested that the father’s use of the word “relocate” in his first affidavit was an unfortunate use of that expression. The use of the word “relocate” however was not inappropriate given that the word “relocate” is used in order 10 of the Temporary Orders.
A fair reading of what I concede is an overly detailed exposé of the relevant evidence in this matter lead me to conclude that:
141.1.The father’s intentions significantly changed; and
141.2.The mother’s intention, whilst they went on a journey, started and ended in the same place, namely that she had clearly formed a singular view that she intended and hoped for a future in Australia.
I find that the mother, when leaving the United States on 12 September 2016, had the settled intention not to return to take up long term residence back in the United States. I find that the settled purpose of the parents on or about 12 September 2016 was to allow the child to travel with her mother to Australia for the purposes of establishing a residence in Australia albeit for a trial period. The intention was that that trial period be an indefinite period but on the basis that the child would regularly come back to the United States to spend time with the father commencing Easter 2017. It was a further condition that in the event the father formed the view that the mother’s mental status was such that she was not able to properly fulfil her parental responsibilities and in particular her responsibility to facilitate a meaningful relationship between the father and the child, then he could unilaterally and in his sole discretion, require the mother to return the child to the United States.
What then happened was the father, after only 16 days, decided that his own personal needs were such that he was unable to tolerate living without the child being physically present with him. In that context and as part of the ambiguity in his motivation, he proposed to the mother that they would attempt to reconcile.
On the basis of that exhortation by the father, the mother fleetingly agreed to return on the basis she would attempt a reconciliation. The Department submits that this was in fact an indication by the mother that she understood that she was bound by the order made in the Superior Court of Arizona to abide by the father’s unilateral command at any time that she return to the United States with the child but I am not prepared to infer that that was what led the mother to write the “Hi darling” email on 14 October 2016. It is more likely given the tone in which that email was written, that her primary motivation was that she had at that point momentarily entertained the possibility of a reconciliation.
I find that when the mother left the United States on 12 September 2016 she ceased to be habitually resident in the United States and by 27 October 2016 had become habitually resident in Australia notwithstanding the fact that she had not been back in Australia for an “appreciable period”.
I find that the parents as at 12 September 2016 had a shared intention that the child would live in Australia for an indefinite period which could be properly described as settled.
Accordingly, I find that as at 27 October 2016 the child was no longer habitually resident in the United States and had become habitually resident in Australia, notwithstanding the child had not been in Australia for an “appreciable period”.
It follows that the child’s retention in Australia was not wrongful because the necessary condition contained in Regulation 16(1A)(b) of the Regulations was not satisfied.
THE EXCEPTIONS UPON WHICH THE MOTHER RELIES
If my conclusion about the child’s habitual residence is incorrect, then the requirements of subregulation 16(1A) are satisfied and the child has been wrongfully retained in Australia. Consequently, subregulation 16(1) of the Regulations provides that the court must make an order to return the child subject to subregulation 16(3).
As indicated, the mother argues that the court may refuse to make a return order on the basis that there is a grave risk that the return of the child would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation (Regulation 16(3)(b)) or alternatively, the return of the child would not be permitted by the fundamental principles of Australia relating to the protecting to the protection of human rights and fundamental freedoms (Regulation 16(3)(d)).
The mother abandoned submissions based on Regulation 16(3)(a)(ii). That exception requires the mother to establish that the father had either consented or subsequently acquiesced in the child being retained in Australia after 27 October 2016.
It is agreed that after that date the father neither consented nor acquiesced the child being in Australia.
GRAVE RISK AND INTOLERABLE SITUATION
The mother relies upon subregulation 16(3)(b) of the Regulations submitting that the court should find that there is an applicable exception to refuse to make a return order because there is a grave risk that the return of the child under the Convention would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.
The onus of proof in establishing the facts relevant to Regulation 16(3)(b) rests with the mother.
If that exception is made out, the mother requests that the court exercise its discretion and decline to order the return of the child to the United States.
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 to 418:
41. In 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.
42. Necessarily 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.
43. Because 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.
44. These 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.
45. That 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 & RSP (2003) FLC 93-152, the Full Court discussed at 78,508 whether or not these statements by the High Court in JLM altered what a previous Full Court in Gsponer v Director-General, Department of Community Services (VIC) (1989) FLC 92-001 had said about the interpretation of Regulation 16(3)(b) of the Regulations 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 that the High Court in JLM had restated the approach to be taken under s 16(3)(b):
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] as set out above].
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.
During final submissions, counsel for the mother indicated that his instructions were that the mother had made a decision not to return to the United States even if the court made an order that the child was to return to the United States. Given that statement by counsel for the mother, I required the mother to give evidence about her intentions if a return order was made and counsel for the Department cross examined the mother in relation to that issue.
At paragraph [110] of the mother’s affidavit, she gives the following evidence:
110. On a longer term basis I am concerned that if [the child] was ordered to be returned to the United States, [the child] would be at risk of psychological harm or be placed in an intolerable situation. I believe that [the child’s] mental health would be impacted detrimentally if she was removed from my care. I believe that she would fret and become stressed. I believe that her toilet training and sleep might regress. [The child] has not spent a night away from me. If I returned to the United States I would have no income to support [the child], may have no access to marital savings or assets, no social support and no place to live…
Initially, the mother said that she would be very fearful to return to the United States and that it would be incredible hard for her to function there. The mother said that her mental health issues have significantly improved while she has been in Australia that she would be concerned as to the availability of appropriate medical care in the United States. She went on to say “I don’t see how I could go back and be responsible for [the child’s] care. I am so fearful to return to that environment of manipulation and abuse for any length of time and I am so fearful of what it would do to [the child] to return to have the decision made there. I am terrified of that result”. However, in cross examination, after agreeing that she would put the child’s interests ahead of her own interests and stating that it would not be in the child’s best interests to return to the United States without her mother, the mother said “I don’t know” when asked whether she would return to the United States if an order was made for the return of the child. She also said “I don’t know” when asked if she would place the child’s interests before her own and return to the United States with her so that the child had a mother caring for her. The mother said that she was acting in the child’s best interests as it was important that she have a “healthy and strong” mother.
Having observed the mother, I am unable on the balance of probabilities to make a finding that the mother would not return to the United States with the child if an order was made for the child to return to the United States, nor has the mother on the evidence established that there are in fact personal circumstances which genuinely preclude her from returning with the child (see Director General, Department of Families, Youth & Community Care v Bennett (2000) FLC 93-011 at 87, 230).
The mother’s mental health
As previously mentioned, soon after the child’s birth the mother was diagnosed with postnatal depression and the mother also developed symptoms of PMDD.
It is part of the mother’s case that the likelihood of a regression in her mental health, if she is forced to return to the United States because the child is returned to the United States, will expose the child to psychological harm or otherwise place the child in an intolerable situation.
It is part of the father’s case that he has significant concerns about the mother’s mental health and her capacity to parent the child in his absence. He says that she has clinical depression and anxiety.
Before the mother became pregnant with the child, in January 2012 she commenced attending upon a psychologist, Dr H. She says that she did so due to feeling depressed and unsatisfied with her life. She states at paragraph [28] of her affidavit that she “often delved into the stresses of work and the difficulties I had with my mother-in-law with Dr H”. The mother says that when she tried to raise these issues with the father they would end up arguing and he would be dismissive and unsupportive of her. The father says that he has always been supportive of the mother’s treatment.
In 2014 the mother says that she became depressed and sought medical assistance from her gynaecology nurse practitioner, Ms O. The mother says that at this time she expressed to the father her desire to return to Australia but he would become angry. In November 2014 she says that she made a plan with her parents and sister for them to visit them in City G every three months to support her. At this time, the mother also sought assistance from endocrinologists, psychiatrists and her gynaecologist. The mother admits that at this time she was struggling to manage caring for the child.
In 2015 the mother says she attended upon psychologists, Dr P and Dr Q to assist with the marital concerns she had.
The father annexes (annexure N) to his affidavit sworn 15 March 2017 copies of treating doctors reports of the mother in the United States which he had required the mother to provide him prior to him allowing the mother to leave the United States with the child:
171.1.On 27 January 2015 the mother attended upon Dr R who notes that since the birth of the child the mother’s “depression has become worse” and that her “mood becomes much worse” when ovulating. “When depressed, she experiences fatigue, bouts of crying, stress eating, and has had thoughts of suicide, namely cutting her wrists with a razor blade. However she has never come to the point of actually going through with sad thoughts”. The doctor notes that the mother tries to socialise with a mother’s club. “Since moving to [City G], [the mother] says she occasionally misses Australia, and that her parents visit her often, but does not plan on moving back”.
171.2.On 28 July 2015 the mother attended upon Dr S. On this occasion her chief complaint was noted as “depression” but denied “suicidal and homicidal ideations, ruminations, intention and plans”. On this date she was diagnosed with “Major depressive disorder, in partial remission, Premenstrual dysphoric symptoms, h/o Postpartum depression; Borderline personality traits”.
171.3.On 10 August 2015 the mother attended an outpatient psychology initial intake session. The mother reported that “she currently feels “bogged down in thoughts”, frequent “rumination”, “catastrophizing” and feels she frequently “jumps to the worse conclusions”. Moreover, she reported feeling sad, frequent crying, difficulty concentrating, excessive guilt and an inability to complete daily tasks. [The mother] denied any suicidal/homicidal ideation or self-harming behaviors. She stated her symptoms of anxiety, depression and “distorted thoughts” have improved over the last six months … Despite her current symptoms, [the mother] stated she is more functional now and that hiring a live in nanny has helped her to take time out from child caring duties to care for herself”. The mother also reported concerns with her relationship with the father, expressing that he has had to contribute more in terms of caring for the child. The mother also reported “a long history of anxiety and depressive symptoms. She stated at 16 years old she was diagnosed with Panic Disorder with Agoraphobia. During this time, [the mother] report she received individual therapy, CBT, from a psychiatrist and since this time she no longer struggles with panic attacks … At 22-years old, [the mother] reported experiencing depressive symptoms … since she was 22-years old she has been “on and off” multiple psychiatric medications for depression”. The mother reported that she has some “good friends from her mothers’ group that she enjoys talking too [sic], however, she stated she misses her close friends in Australia. [The mother] also stated she had a really good close friend in [City G] that just recently moved which has impacted her social support. She also stated she would like to go back to Australia to visit her family, but her husband does not feel that her moods are stable enough to go … she stated she misses her family and wants her daughter to spend more time with them”. The mother was assessed at this session with major depressive disorder and premenstrual dysphoric disorder.
171.4.On 31 August 2015 the mother attended upon outpatient psychiatry and psychotherapy. She reported that “she has been feeling good and doing well” and on 2 September 2015 it was noted that she was “doing very well” and “relates resolution of her anxiety” and depression.
171.5.On 10 September 2015 the mother reported that her anxiety had increased along with “sadness, lethargy, difficulty thinking clearly and concentrating”.
171.6.On 2 October 2015 the mother attended upon Dr R who noted that the mother reported that the child was a “good “litmus test” for her mood, as when she is in a good mood she notices how [the child] is attracted to her, and when she is in a bad one, that [the child] avoids her. She is able to appreciate now, how when she was feeling depressed that her mind was more closed off, and that she was convinced that she should leave [City G] and return back to Australia. But now she realizes that her mental problems would likely have even followed her there”.
171.7.On 8 August 2016 the mother commenced attending upon Dr T, psychologist.
Since the mother’s return to Australia she has been regularly attending upon her GP, Dr U. On 24 October 2016 Dr U referred the mother to a psychologist.
Prof D, the mother’s treating Gynaecologist and Reproductive Endocrinologist, opined in a report dated 25 October 2016 that the mother had received some “fairly poor treatment” in the United States for her long standing PMDD. The doctor expressed surprise at some of the medication the mother had been prescribed and surprise that the mother had not been prescribed other particular medication. After a long conversation with the mother at the end of October 2016 Professor D opined in October 2016 that whilst he initially had the mother agree to undertake some conservative and less invasive therapy, the doctor suspected that the mother would need in the end to have her uterus, tubes and ovaries removed.
In a report dated 5 December 2016 Professor D opined that the mother’s severe pre-menstrual tension had markedly improved since his first consultation with the mother but that report also confirmed that Professor D’s initial view that surgery was required was confirmed and that surgery for the removal of the mother’s uterus, tubes and ovaries was planned.
The mother told me in oral evidence that she had had that surgery approximately two weeks prior to the hearing before me.
Since the mother has been in Australia she has seen her treating psychologist, Ms E, on eight occasions. In October 2016 the mother’s presenting symptoms were grief, severe stress, hyper-arousal, motor recklessness, sleep disturbance and decreased appetite further complicated by symptoms of PMDD. Ms E says the mother’s ongoing treatment was leading to overall improvement in her symptoms.
Discussion
The mother submits that I should make a finding that her returning to the United States will result in a recurrence of a detrimental and debilitating affect to the mother’s mental health. The mother submits that she would have no access to the types of treatment that she has been able to access in Australia. She submits that the therapy that she did have in the United States did not alleviate her depression and anxiety. She submits that I would find that forcing a return to the United States would create a situation where she would re-experience the severe depression that she had whilst in the United States. The height of the submission made by counsel for the mother was “there can be no greater event for a child than extreme depression and suicidal ideation leading to the possibility of the death or incapacity of a parent…. [of] a very young child who has primarily bonded to a mother”.
The father says that the mother would be able to continue her current treatment regime in the United States. He says that until they are divorced, she is entitled to cover under their family health insurance plan in the United States (although he says he is unsure if her current treatment is covered by that plan).
Given the evidence of Professor D, it is likely that the mother’s surgery will lead to significant improvements in the mother’s chronic difficulties arising from her hormonal imbalance. In the event that the mother returned to the United States, she would no longer be living with the father although I concede that she would need to deal with the father on an ongoing basis in respect of parenting issues concerning the child. I however have insufficient evidence to conclude in the mother’s favour that she would be unable to seek ongoing psychological assistance.
The mother also points to what she asserts is an intolerable situation for the child should she return to the United States with the child. The mother says she “struggled with social isolation” after arriving in the United States in March 2010. She was initially unable to work but then found work. She ceased work shortly prior to giving birth to the child and says the father prevented her from obtaining a part time job. The father disagrees with this assertion. The father says the mother would be able to return to her employment in the United States.
The mother says that she did not feel supported by the paternal grandparents while in the United States. The mother says that she didn’t know anyone in City G so joined a book club to attempt to make some friends. She says the friends she made in this club have all now left City G.
The mother has always been the child’s primary carer. The mother says that the father spent much of his spare time alone, rather than spending time with the mother and the child. She says he has spent more time with the child through Skype conversations since she has been in Australia than when they lived in the United States. The father is employed full time by two different employers. He says that his work is flexible, allowing him to care for the child full time with the assistance of his family should the mother not return to the United States.
I am mindful that the Superior Court of Arizona stands ready to hear and determine parenting and financial disputes between the parties if a return order is made.
I am unable to find that if a return order is made, there is a grave risk of psychological harm to the child arising from difficulties in the mother’s mental status. Nor am I able to find that had an order for the return of the child been made that there would be a grave risk that the child would be exposed to an intolerable situation.
PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS
Regulation 16(3)(d) provides that a court may refuse to make a return order if a person opposing the return establishes that:
(d) the return of the child would not be permitted by the fundamental principles of Australia relating to the protection of human rights and fundamental freedoms
The Full Court of the Family Court in McCall & McCall; State Central Authority (Applicant); Attorney-General (Intervenor) (1995) FLC 92-551 said that subregulation 16(3)(d) requires not simply that the return of the child would be incompatible, even manifestly incompatible with human rights and fundamental freedoms but that these rights and freedoms simply do not permit the child’s return at all. The Full Court noted that this provision was intended to cover the “rare occasion that the return of a child would utterly shock the conscience of the court or offend all notions of due process”. The Full Court in Bennett quoted McCall with approval.
Counsel for the mother however submits that the High Court in DP: JLM said that any “narrow construction” (referring to Regulation 16(3)(b) of the Regulations) must be rejected. The exception is to be given the meaning its words require. By logical extension, counsel for the mother submits that no gloss should be put on the words in Regulation 16(3)(d) (seemingly implying that the Full Court had done so in McCall and in Bennett). Counsel for the mother also referred to paragraph [38] of DP: JLM where the court when approaching the task set by Regulation 16(3) quoted “it is necessary to avoid adopting unspoken stereotypes of the kinds of cases in which the Regulations or the Convention can be invoked”.
Counsel for the mother then argues Australia and the United States are both signatories to the United Nations Convention on the Rights of the Child and the relevant Articles of application in this matter include Articles 3 and 9, the relevant text of which are as follows:
Article 3
1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
…
Article 9
1. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child's place of residence.
Counsel for the mother referred to the reasoning in McCall and Murray v Director, Family Services, ACT (1993) FLC 92-416. Murray identified that Article 11 and Article 35 of the United Nations Convention on the Rights of the Child “contemplates the negative impact on children of their abduction or non-return and the necessity of States concluding or acceding to bilateral and multilateral agreements to prevent such occurrences”. The relevant Articles state:
Article 11
1. States Parties shall take measures to combat the illicit transfer and non-return of children abroad.
2. To this end, States Parties shall promote the conclusion of bilateral or multilateral agreements or accession to existing agreements.
...
Article 35
States Parties shall take all appropriate national, bilateral and multilateral measures to prevent the abduction of, the sale of or traffic in children for any purpose or in any form.
Counsel for the mother drew attention to the fact that since the decisions in the McCall and Murray cases the Family Law Act has been amended to include as an object under Part VII of the Family Law Act “to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989”[1] and accordingly the United Nations Convention on the Rights of the Child has been adopted and given recognition by the Family Law Act.
[1] Family Law Act 1975 (Cth) section 60B(4).
Counsel for the mother submitted that the relevant circumstances relied upon in relation to this exception are:
191.1.the mother is not returning to the United States due to her physical and psychological health, depression and anxiety; and
191.2.the child’s best interests require at this time that the child remain in the care of her mother who is her primary carer; and
191.3.separation from the mother is not required to protect the child from abuse or neglect; and
191.4.a decision has already been made by the child’s parents as to the child’s place of primary residence, i.e. Australia, with her mother.
It is further argued in those circumstances Article 20 of the United Nations Convention on the Rights of the Child and regulation 16(3)(d) given their plain meanings, as required by DP;JLM enliven the exception so that the return of the child to the United States would not be permitted by the fundamental principles of Australia relating to the protection of human rights and fundamental freedoms.
There are a number of difficulties with these submissions, not the least of which is that nothing that has happened since 1995 has changed what the Full Court said in McCall, namely, that I would need to find not simply that the return of the child to the United States would be manifestly incompatible with her human rights and fundamental freedoms, but that those rights and freedoms simply do not permit the child to be returned to the United States.
In this matter there was no illicit transfer or non-return of the child, the relocation was all done in a transparent and honest way and with the full knowledge of the father and approval of a Court order.
There is no substance to the submission based upon the fact that in June 2012 an addition was made to the objects and principles underlying Part VII Family Law Act.
As discussed during submissions, the addition of the object is only to Part VII Family Law Act. The Convention on the Rights of the Child is not referred to in Part XIIIAA Division 2 which is the Division under which the Regulations are made.
The mother provides no evidence that a return to Arizona would be one that would utterly shock the conscience of the court or offend all notions of due process. The mother does not establish any exception based on subregulation 16(3)(d) of the Regulations.
CONCLUSION
It follows from the above reasons that had it not been for the finding that I have made in relation to the issue of habitual residence, an order for the return of the child would have been made. Given my finding in relation to habitual residence, the application of the Department filed 21 December 2016 for the applicant and the respondent to make such arrangements as are necessary to ensure the return of the child to the United States is dismissed.
On 23 December 2016, Loughnan J made the following Orders:
1.That until further order the Respondent, [Ms Gurner] born … 1976, her servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the said child, [B] born … 2013, from the Commonwealth of Australia and it is requested that the Australian Federal Police give effect to this order.
2.That until further order, the Respondent, [Ms Gurner] born … 1976, be restrained from leaving the Commonwealth of Australia and that the Australian Federal Police give effect to this order.
3.That until further order, the names of the Respondent, [Ms Gurner] born … 1976, and the said child, [B] born … 2013, be placed upon the Watch List in force at all points of arrival and departure in the Commonwealth of Australia.
4.That unless the Court orders otherwise, the order placing of the names of the Respondent, [Ms Gurner] born … 1976, and the said child, [B] born … 2013, on the Watch List shall lapse 12 months from the date the names were placed on the Watch List.
5.That until further order, the Respondent, [Ms Gurner] born … 1976, surrenders forthwith to the Registrar of the Family Court of Australia, all current passports and air tickets relating to herself and the said child, [B] born … 2013.
6.That the Respondent, [Ms Gurner] born … 1976, be served with sealed copies of the Application and the annexures and of these orders no later than the close of business on 5 January 2017 and that the application be returnable before this court for hearing on 9 February 2017.
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.
I shall discharge the orders made on 23 December 2016 but remake Orders 1 to 5 which are to remain in place for a period of 28 days from the date of these orders (which is the period under the Rules in which the Department is entitled to appeal the order) or until the parties earlier agreement.
I certify that the preceding two hundred (200) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 13 April 2017
Associate:
Date: 13.4.2017
SCHEDULE 1 – Father’s first email of 28 August 2016
I am happy to revisit anything. However, I believe the asset division holds no secrets we can turn to our advantage. Neither does my income, you figured out how much you thought you’d need and we went with that – I did not feel it has extra that can be trimmed off. I worry it won’t be enough, which means I will feel the need to make up any shortfall, further reducing my available funds for travel. Look as much as you want, but you must not fall into the trap of sacrificing finances to get through the short term. Or to avoid things you fear will be unpleasant or hurtful. Your savings, in my opinion, should not be used lightly – there will be many expenses setting yourself back up at home. A car will take a large chunk. Furniture. Clothes appropriate to the season and climate. That money will vanish quickly. Let me know what you find when you revisit the plan.
Having my family go without seeing [the child], and [the child] without seeing them in return, is unacceptable. I am already anticipating that Thanksgiving this year isn’t going to happen for her, it would be too traumatic. Same for Christmas. I would anticipate me coming for Christmas (if I am welcome) or January/February at the latest. But then she must come back for Easter – enough time should have passed that she will have settled in. It is vitally important that we keep her connection to family alive, that is a requirement for me. I felt terrible that your folks didn’t see her as often as I felt they should – had we not gone through the woes of illness we did, I had expected us to go to them repeatedly and/or them come here. There should have been many visits and I regret that there weren’t to this day – that is why I always offered to pay for them to come, practically begging them to. I will not allow that to happen with my family.
I have thought more on this. We have to face the fact that after you leave with [the child], I will become a stranger to her. She is too little for it not to happen. I will Skype every day. I will try to be as available for her as I possibly can – but by the time I see her in Australia, she will have grown into someone I do not know. And while she will know who I am, she will not feel comfortable with me and I will feel like I do not know her. What she has for breakfast. Her favorite clothes. What toys she plays with. We’re going to smell different to each other! Everything is going to change. This means you will remain critical to making my time with her as fulfilling as possible, as safe for her emotionally as possible. You will have to remain the bridge between the two of us, until she is old enough to maintain that connection by herself. And be able to communicate to me those things I will need to know.
If you were staying, if you remained in City G, then I would have 50/50 (or nearly that) with [the child] and be able to maintain that connection on my own. I am going to lose that connection if you leave. I see no other way – if you insist you have to return to Australia, insist on taking [the child] away from me and severing my connection to her – then the price you will have to pay is being that bridge, traveling with her to me and staying with us.
I realize this place – our house, [City G], America – is likely to only bring you pain. Just as I would think it too traumatic to bring [the child] back before Easter, I feel the same for you. I would spare you both that, those of us here will suffer that cost for you. But after that you must be strong enough to face coming here, to staying here with our daughter so that she feels safe among people she remembers but will still see as strangers. I do not feel you can hold up the example of your parents visiting and how she reacts to them, that ignores the situation – that [the child] is here, at home where she feels safe, with two parents to support her. You cannot cast her adrift while she is still so young.
It is no longer only a question of money (which remains a concern), but of [the child’s] wellbeing when here. I am hopeful you agree, but will await your response.
SCHEDULE 2 – Father’s second email of 28 August 2016
Hi [Ms Gurner]
My initial thoughts on the document, I’d like to discuss with you – email or voice/in person is fine.
Premise: Provide as reliable method as possible to safe guard [the child] from your illness returning in a …/scope/capacity that renders you unable to be a reliable and caring parent.
Thoughts:
*This is not a document to “punish” you for being sick. It should be the opposite, this should be a document you are glad to have – something that insures [the child] is taken care of when you are unable to think clearly and make the right choice for her wellbeing. It may be a stretch of thought, but if you could look at this as something useful to you as well it might make this easier. We both want the absolute best for [the child], this is something designed to guard her against irrational behaviour. From both of us, potentially.
*This document should bind both of us, make sure neither of us can make foolish emotional decision. The provisions should be fair, shouldn’t favour me over you and shouldn’t let either of us abuse the spirit of the agreement.
*This should not be a hair-trigger agreement. I do not want one failed ‘test’ or ‘measure’ meaning she is yanked out of your care – that isn’t fair. Or needed I hope.
*I acknowledge everyone gets sick, everyone has bad days. Even a bad week, something no different than the flu – everyone needs help sometimes. Real illness, mental health, whatever.
*This document would be if your illness manifests in such a way that it is not a week, or even two weeks down. But weeks upon weeks, month, possibly months. A persistent debilitation.
*I would even be open to helping through rough patches. You’ll have your mum and dad (and sissa even) at first, but as time passes the situation may change. You move to Sydney, they can’t come and stay with you to help with [the child], whatever. If I am in a situation where I can come and stay to help for a few weeks or a month to see if we can get you over the hump I’d like to be able to offer to do that. That is my level of commitment of keeping [the child] with you. I want this to succeed.
*I am on the fence about whether a week on and a week off, like you’ve been having, counts as debilitating. [The child] deserves better care than that, but I am sensitive to the fact that two weeks a month of having great Mummy and two weeks a month of having sick Mummy probably still add up to a “good” month in her eyes. I’m conflicted and need to think on that more – and welcome your thoughts.
*The tests or measures of your health/capabilities need to be frequent enough we catch a downward slide for monitoring without being such a burden you come to resent the checks. Or resent them very much.
*I hope you can acknowledge that the chances of you voluntarily telling me you’re on a downward slide are essentially nil. Intentionally lying – I wouldn’t blame you, knowing what is at stake. Unintentionally lying – to yourself. I’m fine, I’m ok – when really you’re not. It is my hope that you will be able to be my partner in this, but I have to operate under the principle you won’t ever voluntarily tell me you can’t handle taking care of [the child]. Were I in your shoes, I might do the very same.
*The checks should be for you and for [the child], once she is old enough (if she isn’t already). Your will-to-power attitude means you could really long enough to pass a check, so multiple avenues for verification would be a good way to ensure compliance.
*One [sic] the recall is triggered, there is no further discussion on where [the child] lives (which country). If we end up enforcing this agreement, then [the child] lives permanently in America. With whom? If you are prepared to come back, then 50/50. If you’re not, then some other agreement we should consider drafting now.
Scenarios the document should try to handle:
*The obvious: You’re bedridden, you can’t do anything, you’re unable to function. Something akin to the first few months after [the child’s] birth, when you were well and truly distraught and unable to manage anything at all.
*The less obvious but still clear: You’re depressed/emotional such that you can’t take care of [the child] and rely on your folks, or daycare, or some other caregiver while you “cave” or otherwise absent yourself. Our daughter should not be raised by anyone but you or me for an extended period of time. You want a weekend off, that’s fine. You want a week off, that needs to be discussed/monitored – because it means you’re not coping with something.
*The borderline: One week you’re the greatest Mum on the earth. The next week you’re crying, depressed and unable to cope. Repeat cycle. This one concerns me the most as I fear, given your current diagnosis, as the most likely. I am certain you do not want [the child] growing up with a mother who is on again/off again with her emotions. Perhaps this one should exist as a condition, but not be enforced until you’ve finished all the available treatment plans you had discussed ending with hysterectomy? After that, if your on/off cycle continues then this scenario is triggered? I’m a little unconvinced on this, but I want to try to address it.
*The unexpected: We are both undoubtedly grateful that your anger and resentment when being ill was directly entirely/solely at me. I watched carefully, you never took out those emotions on [the child]. But at some point we have to consider that she is going to grow up and become a possible target. When she is eight, twelve or even sixteen – if at any point your illness suddenly includes her as a viable target for outlet we need to protect her from growing up with the same sort of emotional abuse I endured.
*The unknown: The scenarios we cannot anticipate, the realities we cannot imagine – I’d like some language that lets us handle those. Perhaps via mediation or court proceedings.
*The choice: Right now [the child] is too little to be able to make an informed choice on about what happens. Even if she was, I am pretty sure she would choose you (who wouldn’t) to be with. However, as she gets older she is going to need the right to make a choice for herself. She will one day be a young woman of two words, two countries. She only gains the right to self-determination at 18, which may be an eternity if she is unhappy with this arrangement we are crafting her for. I would like to be able to give her that choice before 18 for an endless variety of reasons. I also want the ability to make this choice to not be one she can use against either one of us – as a threat or bribe. My initial thoughts were when she was going to enter 7th grade (which is usually a different school here) and 9th grade (also a different school).
*Violation of parenting plan: If suddenly you stop letting me see [the child], will not travel or whatever – I would like to be able to use this recall document to return her here for 50/50 split.
I am not sure I want to require all of the scenarios, this is just my thoughts as I begin thinking about what the document should look like.
I love you. I hope I will always love you. I could not keep myself strong enough to stay in our marriage, which I will likely regret the rest of my life. For the love I bear you, and [the child], I will let you both leave me – something else I will likely regret for eternity. But I have to guarantee her safety, and if that means causing you pain…that is just one more regret I will carry among many.
SCHEDULE 3 – Father’s email dated 30 September 2016
I know you don’t want to read more email – but this is the best way for me to communicate my thoughts, they cannot be misheard and can be reread as many times as needed.
I am afraid – I feel like you’re going to come up with solutions that don’t involve you coming back to [City G].
I do want to be able to talk possibilities; I promise one day I will be able. But you have to acknowledge that I am currently incapable of considering anything that does not involve [the child] being here in [City G] within the next month (by November 1 in my arms) and a sense of normalcy/safety returning to my life. No more fear about [the child] being away, being kept away from me or me denied the ability to see and touch her.
I want you here too, but I cannot force you to be. I can only ask – please come back to me. Please come back and work with me to try to save our family.
You have asked too much of me, I have given too much and right now I have no room left to give. I have no room for compromise or negotiation, not right now. You have taken too much from me, you need to give some back.
I will commit everything I have to make this right between us in therapy, throw myself whole-heartedly into the process in any way needed – but [the child] must be here. Once I feel safe, there will be room for discussion on what happens, where we might live, whatever you may feel you need to live a happy life. We can discuss it together.
Everything starts here, then when I become more capable we can discuss other possibilities. Together, as equals in our relationship.
I am destroyed. Letting [the child] go has destroyed me in a way I did not think possible. I will need time with her, with her here where I am safe before I can consider anything else. I will want you here. I will want to be able to spend time with you, if we can reach that point where both of us are comfortable with that. I miss you.
You lived here for over six years. You have friends. You have support – you saw it pouring forth as you were leaving. Bring one or both of your parents with you if you want. You are the one that decided this wasn’t your home, when it really is.
It is time for you to make sacrifices for our family, a small possibly temporary sacrifice to save it.
You said that you weren’t ready to say no to our family, but that has been essentially your only comment. My only hope, the only thing I am risking all I have left is a simple statement that you’re not ready to give up on us – but that’s it. You’ve even stopped saying you love me, once again – just like old times. Just like old times, I am in the dark and alone.
If you really meant that you aren’t ready to give up on us, are willing to do what it takes – then you need to start by telling me that you’re coming back, telling me when you’re coming back.
If you want to show me good faith, then agree to return well before the November 1 date I provided – the longer you are aware is that much longer I have to find strength to endure being away from [the child], for dealing with my fears and for dealing with your emotional retreat away from me. The longer we have to wait to be together, to see if we can truly rebuild. The two days right before you left shows we still have that connection. I believe our family can be rebuilt, if we try.
Find the courage to sacrifice for our family, like I always have.
If it is too hard to open up to me over Skype, without a therapist to help in the process so be it. But you need to put me at ease with returning my daughter and committing to try to make this work. I need more than the hope a single comment you’ve made can give.
I tried to do it your way, I tried to give you everything you wanted. I couldn’t do it. Now you need to try it my way, to give me enough to survive on while we attempt to save our family.
I am afraid.
I beg you find the love you hold for me and ease my fears. Please – please – take away my fears. You can do it so easily.
I love you [Ms Gurner]. I hope and pray that doesn’t make me a fool – I trust you.
SCHEDULE 4 – Father’s email of 11 October 2016
Hi [Ms Gurner],
I recognize you are tired today. Anxious. My heart aches that you feel this way, I have tried to do my part to alleviate what anxiety I can. But I have needs that must also be met, I will not sacrifice my own needs to ease yours and this is the time they should be addressed.
With the doctor’s appointment locked and unable to move up, I need you to pick a date for your return.
My only requirement is that you and [the child] are back in my arms by November 1st. There is no room for discussion on this maximum return date, please do not ask me for more time. Obviously I would prefer it be sooner than that, I hope that you will chose something well in advance of that date – but I will accept whatever date you pick.
In my mind, this is a joyous process and one that you will want to share with me – it represents the reuniting of our broken family. It begins the process of restoring our relationship, the chance for us to grow and become something greater than we ever were before.
I will accept if you do not share that view and find this process painful or scary. I have fears too.
I need you to discuss the return date with me, what plans we should make. I will accept if you do not wish to involve me in planning, but I need to be kept informed.
Once the date has been selected, any discussion about it had, then I will need you to purchase tickets to return on the selected date by this Friday (10/14, [City G] date). I would joyously welcome you buying them sooner, but I will accept if you wish to wait until the deadline. It is time to end my wait for knowing when you and [the child] will return.
I hope you noted I have used specific language to communicate how I feel about this. If I said need, that means I need this to happen – it is not open to discussion and represents the best flexibility I can currently offer. If I said I accept something, that means I realize my hopes may not be shared by you and that going against my hopes will hurt me, but I understand if you must and will take that pain. Where appropriate, I also shared outright my hopes and dreams for what this means – they are not flowery words, but exactly what I am hoping and feeling.
I love you. I want to be with you, in every way I have said and every way you can think of. I want to hug [the child] and never let go – then pull you into the hug! I want my family back, so we can start rebuilding, healing and growing.
Key Legal Topics
Areas of Law
-
Family Law
-
Administrative Law
Legal Concepts
-
Judicial Review
-
Jurisdiction
-
Injunction
-
Procedural Fairness
4
13