DEPARTMENT OF FAMILY AND COMMUNITY SERVICES & KAYASINGHE

[2018] FamCA 697

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF FAMILY AND COMMUNITY SERVICES & KAYASINGHE [2018] FamCA 697

FAMILY LAW – CHILD ABDUCTION – Hague Convention – Application by the Secretary of the Department of Family and Community Services for the return of the child to Sri Lanka – Where the mother travelled to Australia with the child – Where the parties initially agreed that the child would remain living in Australia – Where the father later formed an intention that the child be returned to Sri Lanka – Where the Court finds that the child was not habitually resident in Sri Lanka at the time of his alleged wrongful retention in Australia – Application dismissed.

Family Law Act 1975 (Cth) ss. 111B
Family Law (Child Abduction Convention) Regulations 1986 (Cth) reg. 1A, 2, 16
Hague Convention on the Civil Aspects of International Child Abduction art. 1, 3

Balev v. Baggott, 2016 ONCA 680 (CanLII)
David B v Helen O (1995) 625 N.Y.S.2d 436
Director-General, Department of Families & BW (2003) FLC 93-150
Director-General, Department Of Communities (Child Safety Services) & Rolfston [2010] FamCAFC 149
Kilah v Director-General, Department of Community Services (2008) FLC 93-373
Korutowska-Wooff v. Wooff, 2004 CanLII 5548 (ON CA)
LK v Director-General, Department of Community Services (2009) 237 CLR 582
Punter v Secretary for Justice [2007] 1 NZLR 40
Re B (A Child) (Reunite International Child Abduction Centre and others intervening) [2016] AC 606
Re F (A Minor) (Child Abduction) [1992] 1 FLR 548 CA
Secretary, Department of Family and Community Services & Padwa (2016) FLC 93-701
Zotkiewicz & Commissioner of Police (No. 2) (2011) FLC 93-472

APPLICANT: Secretary, Department of Family and Community Services

RESPONDENT: Ms Kayasinghe

FILE NUMBER: SYC 3007 of 2018

DATE DELIVERED: 11 September 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: McClelland J

HEARING DATE: 2 July 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Dr Barnett

SOLICITOR FOR THE APPLICANT: FACS Legal, Department of Family and Community Services

COUNSEL FOR THE RESPONDENT: Mr Cummings SC

SOLICITOR FOR THE RESPONDENT: Powe & White Family Lawyers

Orders

1. The application of the Central Authority filed on 14 May 2018 be dismissed.

2. The orders made on 22 May 2018 be discharged.

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 & Kayasinghe 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

FILE NUMBER: SYC 3007 of 2018

Secretary, Department of Family and Community Services

Applicant

And

Ms Kayasinghe

Respondent

REASONS FOR JUDGMENT

Introduction

1. By way of a Form 2 Application filed on 14 May 2018, the Secretary of the New South Wales Department of Family and Community Services, in their capacity as the State Central Authority (“the Central Authority”), has sought orders seeking the return of the child X, born in 2016 (“the child”) to Sri Lanka, pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”).

2. That application was filed on behalf of Mr B (“the father”), who maintains that the child has been wrongfully retained in Australia by Ms Kayasinghe (“the mother”), and seeks the child’s return.  The application contends that the child has been wrongfully retained in Australia since on or about 5 September 2017, or, as subsequently amended, in the alternative, 21 October 2017.

3. The mother says that, at the time of the alleged wrongful retention, the child was not habitually resident in Sri Lanka and, accordingly, the Central Authority has not established the jurisdictional basis for the application of the Regulations. The mother therefore seeks that the application by the Central Authority be dismissed and that all previous orders made in these proceedings be discharged.

4. The Central Authority have not satisfied the Court that, as at the date of the alleged wrongful retention, the child was habitually resident in Sri Lanka.  On that basis, I have made orders as sought by the mother.

Background

1. The father was born in City C, Sri Lanka in 1986.  At the time of the hearing, he was aged 31 years.

2. The mother was born in City C, Sri Lanka in 1990.  At the time of the hearing, she was aged 28 years.

3. In 1998, at the age of 18 years, the mother immigrated to Australia and in 2000, the mother obtained Australian citizenship.

4. In 2009, the parties met when the father was studying in Melbourne.

5. In 2010, the father returned to Sri Lanka.

6. In February 2012, the mother moved to Sri Lanka with a view to commencing a relationship with the father.

7. Between 2012 and 2013, the parties made periodic trips between Sri Lanka and Australia.

8. In 2013, the parties were married in Sri Lanka.

9. On 8 January 2015, the parties applied for an Australian partner visa for the father, with a view to him obtaining permanent residency.  The mother was the sponsor of that application.  A provisional visa was issued to the father on 19 October 2015.  At paragraph 10 of his Affidavit, the father stated that he made that application “as the option (possibly) of living in Australia had been discussed” between he and the mother.

10. In May 2015, the mother fell pregnant with the child.

11. In September 2015, the maternal grandmother travelled to Sri Lanka.  The mother travelled back to Australia with the maternal grandmother.  The mother remained in Australia for the remainder of her pregnancy.

12. Between November and December 2015, the father travelled to Australia to see the mother.

13. In early 2016, the father travelled to Australia for the birth of the child.

14. In 2016 the child was born.  At the time of the hearing, he was 2 years and 5 months old.

15. On 17 May 2016, the parties and the child returned to Sri Lanka.  Between May and August 2016, the parties and the child lived with the paternal grandparents in Sri Lanka.

16. In August 2016, the father signed a one-year lease for an apartment in City C.  The parties and the child resided at that apartment for a period of 3 or 4 months, before returning to reside with the paternal grandparents.  The parties continued to utilise the City C apartment on weekends.

17. In early 2017, the parties celebrated the child’s first birthday in Sri Lanka.

18. On 9 April 2017, the parties and the child visited the maternal grandmother in Australia.  They travelled with only two suitcases.  During that time, the father made two visits to Melbourne.  The father could not recall the number of days that he stayed in Melbourne on each occasion, but stated that he usually went there for the weekend. 

19. During the course of April 2017, the parties experienced difficulties with their relationship and the mother proposed that they attend counselling.  In early May 2017, the parties attended counselling with a Mr G.

20. In mid-May 2017, the father was informed that his father had suffered a heart attack in Sri Lanka.

21. The father returned to Sri Lanka on 31 May 2017.  The mother acknowledges that she initially planned to return to Sri Lanka with the child in June 2017, but remained in Australia.

22. The mother contends that the parties separated on 17 May 2017.  This is disputed by the father.  I will subsequently discuss the content of communications between the parties during the period May to October 2017, which reflects the state of their relationship, at that time.

23. In the period subsequent to May 2017, the mother and father agreed to sell some of the child’s possessions that were located in Sri Lanka, including a cot, a swing set and a car seat.  The father also packed up some personal items of the mother and the child, with a view to them being transported to Australia.

24. On 5 September 2017, the mother emailed the father, advising him that she wanted a divorce.

25. On 12 September 2017, the Department of Immigration confirmed that it had been provided with information that the spousal relationship between the parties had ceased.  The father’s Australian partner visa was revoked.

26. On 2 October 2017, the father’s solicitors wrote to the mother seeking the return of the child to Sri Lanka, by no later than 21 October 2017.

27. Between 20 November and 4 December 2017, the father travelled to Australia.  The mother did not allow the father to spend time with the child.

28. On 25 December 2017, the maternal uncle received a text message from the father's friend, which was shown to the mother.  She found that text message threatening and intimidating.

29. On 12 February 2018, the child commenced early learning at Avondale Early Learning Centre in H Town NSW.

30. On 14 May 2018, the Central Authority commenced these proceedings.

Evidence

1. The Central Authority relied upon the following:

   a)Form 2 Family Law (Child Abduction Convention) Regulations Application filed on 14 May 2018;

   b)Amended Form 2 Family Law (Child Abduction Convention) Regulations Application dated 27 June 2018;

   c)Affidavit of Ms D filed on 22 May 2018, annexing the Affidavit of the father dated 17 May 2018;

   d)Affidavit of Ms D filed on 26 June 2018, annexing the Affidavit of the father dated 25 June 2018; and

   e)Affidavit of Ms E filed on 27 June 2018, annexing the Affidavit of the father dated 26 June 2018.

2. The mother relied upon the following:

   a)Form 2A Answer and Cross Application filed on 20 June 2018;

   b)Affidavit of the mother filed on 18 June 2018;

   c)Affidavit of Ms F (the maternal grandmother) filed on 18 June 2018; and

   d)Proof of Evidence in respect to living, social and work arrangements for the child and the mother in the period from April 2017 until October 2017 (Exhibit “2”).

3. Both the father and the mother were cross-examined.

Proposed orders

1. By Amended Application dated 27 June 2018, the Central Authority sought orders for the return of the child to Sri Lanka.  In the Amended Application, the Central Authority contended that:

   4. The said child has been wrongfully retained in Australia since on or about 5 September 2017, or, in the alternative on or about 21 October 2017.

2. In providing details concerning the child’s retention, the Central Authority contended that:

   (u) On 5 September 2017, the Respondent [mother] sent an email to the father advising him that she wanted a divorce and would not be returning to [Sri Lanka] with the child.

   (v) On 2 October 2017, the father’s solicitors sent the Respondent [mother] a letter requesting that she make arrangements for the child to return to [Sri Lanka] no later than 21 October 2017, failing which he would seek to activate the provision under the Hague Convention.

3. The operative order sought by the Central Authority was to the following effect:

   That the Applicant and the Respondent … make such arrangements as are necessary to ensure the return of the said child … forthwith in the company of such person and upon such conditions as this Court deems necessary pursuant to the provisions of the Family Law (Child Abduction Convention) Regulations 1986.

4. The mother sought the following order:

   That the application made pursuant to the Family Law (Child Abduction Convention) Regulations be dismissed.

5. The mother also sought that all previous orders made in these proceedings be dismissed.  The only orders previously made with ongoing effect are those of 22 May 2018.

The law

1. In terms of the operation of the Regulations, s 111B(1) of the Family Law Act1975 (Cth) (“the Act”) relevantly provides:

   (1) The regulations may make such provision as is necessary or convenient to enable the performance of the obligations of Australia, or to obtain for Australia any advantage or benefit, under the Convention on the Civil Aspects of International Child Abduction signed at The Hague on 25 October 1980 (the Convention) but any such regulations shall not come into operation until the day on which that Convention enters into force for Australia.

2. Regulation 1A of the Regulations provides:

   (1) The purpose of these Regulations is to give effect to section 111B of the Act.

   (2) These Regulations are intended to be construed:

   (a) having regard to the principles and objects mentioned in the preamble to and Article 1 of the Convention; and

   (b) recognising, in accordance with the Convention, that the appropriate forum for resolving disputes relating to a child's care, welfare and development is ordinarily the child's country of habitual residence; and

   (c) recognising that the effective implementation of the Convention depends on the reciprocity and mutual respect between judicial or administrative authorities (as the case may be) of convention countries.

3. Article 1 of the Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”) provides that its objects are:

   a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and

   b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.

4. Regulation 2(2) of the Regulations provides:

   The removal or retention of a child is wrongful in the circumstances mentioned in Article 3 of the Convention.  [Emphasis in original].

5. Article 3 of the Hague Convention provides:

   The removal or retention of a child is to be considered wrongful where –

   a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and

   b) at the time of the removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

   The rights of custody mentioned in sub-paragraph a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.

6. Regulation 16(1A) provides that 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].

7. Regulation 16 of the Regulations provides that where a child has been wrongfully removed or retained and proceedings are commenced within one year after that child’s removal or retention, the Court “must”, subject to specified exceptions set out in regulation 16(3), order the return of the child forthwith.

8. In setting out the exceptions to the mandatory obligation to order the return of a child, regulation 16(3)(a) includes where the “person opposing return” establishes that:

   (a) the person, institution or other body seeking the child’s return:

   (i) was not actually exercising rights of custody when the child was removed to, or first retained in, Australia and those rights would not have been exercised if the child had not been so removed or retained; or

   (ii) had consented or subsequently acquiesced in the child being removed to, or retained in Australia …

9. Regulation 16(5) provides that, even if the party opposing the return establishes that one of the exceptions set out in regulation 16(3) exists, the Court nonetheless may exercise its discretion as to whether or not it should make an order for the return of the child.

Issues

1. The primary issue in this matter is whether, immediately prior to the alleged wrongful retention, the child was habitually resident in Sri Lanka.  The Central Authority bears the onus of establishing that to be the case.

Date of alleged wrongful retention

1. As noted above, regulation 16(1A) sets out several jurisdictional pre-conditions to a finding that a child has been wrongfully removed to, or retained in, Australia, for the purposes of the Regulations. In these proceedings, the Central Authority carries the onus of establishing, on the balance of probabilities, that immediately before the mother’s alleged wrongful retention of the children in Australia, the children’s place of habitual residence was Sri Lanka: Zotkiewicz & Commissioner of Police (No. 2) (2011) FLC 93-472 (“Zotkiewicz”) at 85,749. It is therefore necessary to determine when the alleged wrongful retention of the child took place.

2. The application of the Central Authority filed on 14 May 2018, which commenced these proceedings, listed the date of alleged wrongful retention as 5 September 2017.

3. In giving oral evidence at the hearing, the father confirmed that he sought that the child be returned to Sri Lanka after he saw his lawyers in October 2017.  The father’s evidence, in that respect, is as follows:

   Question: Well, after September, that’s – well, not quite, but certainly from October on, would – you certainly said that you wanted [the mother and the child] to come back; that’s right, isn’t it? After you saw your lawyers - - -?

   Answer: After I got the email from her saying she wants to separate. She - -

   Question: And after you saw your lawyers?

   Answer: Yes.

4. That email sent by the mother on 5 September 2017 is set out at Annexure “RAMSP-5” to the Affidavit of the father, which is attached to the Affidavit of Ms D filed on 26 June 2018.  That letter is lengthy and makes clear to the father that, at that time, the mother didn’t see “a future for us as a couple”.

5. However, the father’s oral evidence to the effect that he changed his intention regarding the mother and the child living in Australia after he was advised by the mother that she wished to terminate their marriage is not consistent with the written evidence.  On 8 September 2017, the father sent a long message to the mother (Exhibit “1” at page 27) which included the following:

   Before I left u told me to go fix my things that’s exactly what I’ve been doing going to work etc.  I don’t want to give u false promises and say I will move to this day that day to Australia and have u curse me again or be a disappointment.  My parents can’t hold me here.  My mother is always ready for me to go.  Dad isn’t.  But he can’t keep me.  And he can say whatever but he is not keeping me.  I’m here to grow up know my family business and make it towards something good so I can leave it with [Ms Kayasinghe] and be up and down.  Mostly live in Australia. …

6. That communication was sent three days after the father received the mother’s communication that she sought a divorce, being the date that the father initially contended that the mother had wrongfully retained the child in Australia.  The father’s communication does not state a demand or even a desire for the mother to return with the child to Sri Lanka.  To the contrary, it contemplates the father structuring his business such that he can spend time in Australia and, indeed, “Mostly live in Australia”.

7. As indicated in the above extract from the transcript of the father’s oral evidence, the father states that his intention that the mother and the child remain in Australia changed after he consulted with solicitors.  That is the basis upon which the Central Authority has filed an amended application, claiming that the date of wrongful retention is either 5 September 2017 (when the mother informed the father that she wanted a divorce) or, in the alternative, on or about 21 October 2017 (the deadline for the return of the child given to the mother in a letter from the father’s solicitors).

1. In circumstances where any alleged change of intention on the father’s behalf was not communicated to the mother until on or about 2 October 2017, when she received the letter from the father’s solicitors, there is no reasonable basis for the assertion that wrongful retention occurred on or about 5 September 2017.

2. The letter from the father’s solicitors to the mother dated 2 October 2017 (Annexure “RAMSP-3” to the Affidavit of the father annexed to the Affidavit of Ms E filed on 27 June 2018) read, as follows:

   We act for [the father] in relation to family law matters.

   We are instructed that you have communicated to our client that you consider you have separated.

   We are further instructed that on or around 5 September 2017 without our client’s consent you overheld the child … in Australia and outside of his habitual place of residence which is [Sri Lanka].

   You are to make arrangements for [the child] to return to [Sri Lanka] no later than 21 October 2017.  If you do not, our client will seek to activate the provision under the Hague Convention on the Civil Aspects of International Child Abduction and seek an order that [the child] be returned pursuant to that convention.

   If you intend to voluntarily return [the child] to [Sri Lanka] please advise no later than 4pm on 7 October 2017 (AEST).

3. Accordingly, on the basis of the content of that letter, I will now consider whether the child had ceased to be habitually resident in Sri Lanka in the period immediately before 21 October 2017: Director-General, Department of Families & BW (2003) FLC 93-150 at 78,490.

Habitual residence

1. In Re B (A Child) (Reunite International Child Abduction Centre and others intervening) [2016] AC 606 at [27], Lord Wilson JSC (with whom Baroness Hale of Richmond DPSC and Lord Toulson JSC agreed) said:

   A child’s habitual residence in a state is the internationally recognised threshold to the vesting in the courts of that state of jurisdiction to determine issues in relation to him (or her).

2. His Lordship further added at [28]:

   A child’s habitual residence is also the thread which unites the provisions of [the Hague Convention]. This Convention applies to a child habitually resident in a contracting state immediately before his wrongful removal or retention: article 4. It is the law of that state which dictates whether his removal or retention was wrongful: article 3(a). It is that state to which, subject to exceptions, other contracting states must order the child to be returned: article 12.

3. In Korutowska-Wooff v. Wooff, 2004 CanLII 5548 (ON CA), the Court of Appeal for Ontario stated:

   The term "habitually resident" is not defined in the Convention. However, the English courts have provided Canadian courts with guidance on the interpretation and application of this term in the cases of Re J. (A Minor) (Abduction: Custody Rights), [1990] 2 A.C. 562 (H.L.), and R. v. Barnet London Borough Council, [1983] 2 A.C. 309 (H.L.) … The principles that emerge are:

   • the question of habitual residence is a question of fact to be decided based on all of the circumstances;

   • the habitual residence is the place where the person resides for an appreciable period of time with a “settled intention”;

   • a “settled intention” or “purpose” is an intent to stay in a place whether temporarily or permanently for a particular purpose, such as employment, family, etc.;

   • a child’s habitual residence is tied to that of the child’s custodian(s).

4. I accept those principles as being of assistance in the consideration of this case.  In respect to the fourth principle, in LK v Director-General, Department of Community Services (2009) 237 CLR 582 (“LK”), the High Court commented at 594[27]:

   The younger the child, the less sensible it is to speak of the place of habitual residence of the child as distinct from the place of habitual residence of the person or persons upon whom the child is immediately dependent for care and housing.

5. As this case concerns a very young child, in determining whether the child was habitually resident in Sri Lanka at the time when he was retained in Australia, it is inevitably the case that the situation of the mother, as his primary carer, must also be considered.

The Parents Intentions

1. In LK, the High Court noted at 596[34] that:

   … it may be accepted that the general rule is that neither parent can unilaterally change that place of habitual residence.

2. In this matter, the mother contends that, after the parties physically separated in mid May 2017, it was their joint intention that the mother would live permanently in Australia with the child. The evidence of the father is to the effect that, until he received an email from the mother on 5 September 2017, advising that she wanted a divorce, or, alternatively after he obtained legal advice on 2 October 2017, the father was agreeable to the mother remaining in Australia while the parties attempted to resolve difficulties in their relationship.  

3. The task of identifying the respective intentions of the mother and the father in this matter is assisted by an examination of electronic communications that occurred between them in the period between February 2017 and the date of the alleged wrongful retention, being 21 October 2017.

4. The mother contends that the father was well aware that shortly after arriving in Australia, it was her intention to remain living there with the child.  In response to questions from Counsel for the Central Authority regarding her intentions at that time, the mother agreed that she and the father did not have a concrete plan for the future and that she was indicating to the father that their marriage was not over and that she was open to working it out.  The mother further agreed that in her communications, she was referring “to a situation where [she was] predominately in Australia and [the father was] either flying between Sri Lanka and Australia or [she and the child] are spending a lot of time in either place”, as characterised by Counsel for the Central Authority.

5. As  will explain, I am satisfied that, at the time the mother travelled to Australia in April 2017, it was not her intention to remain permanently in Australia with the child, but that she did form that intention shortly after arriving in Australia.

6. The mother contends that she was of the view that she and the father had separated upon receiving Facebook messages from the father on 17 May 2017, when he was in Melbourne and she was in New South Wales, which are set out at paragraph 40 of her Affidavit, as follows:

   “U can stay here it’s just going to make me miss both of you and that’s going to kill me.”

   “Ok I understand okay hun u do what u wish I will find a way after.”

   “If you won’t come back I will understand”

   “It will kill me to go and live without both of u but I will somehow do it.”

   “I understand that life wasn’t fair for U in [Sri Lanka].”

   “I have to find a way to live there without both of u.  It’s something I have to prepare myself for.”

   “Yeah I get it you will be here I will go there and find a way to travel.”

7. The mother sets out her response to those messages, as follows:

   If you want it to work then u need to give me a chance to get us set up here and a life here with support, decent things for [the child] to do, safety for both [the child] and I, a chance to build a life together not all over the place there… if that is too much then fine I understand.  But I cannot stay in a marriage like this anymore.

8. The father responded to that communication with the question: “So u mean to say you want me to go alone to [Sri Lanka]?” to which the mother responded with words to the effect of: “Yes”.

9. The parties further engaged in electronic communication that day regarding the mother’s understanding that the father wanted to start a business in Australia and offering her assistance in relation to the same (Exhibit “1” at page 11).  The mother further stated: “but i also need u to know that i feel like i also need to be given a chance to show what i can do and feel strong and happy as a person”.  The father responded: “Yeh I understand -- So I guess your wanting me to go without you”.  That is a reference to the father returning to Sri Lanka without the mother and the child.  The mother responded to that communication: “honestly I’m leaning towards staying here -- because i am not happy there and not happy with the way i get treated over there -- with no friends, nothing for [the child] to do and absolutely no support”.

10. After further communication, including the mother saying to the father: “why don’t you give here [Australia] a go then?” (Exhibit “1” at page 11) the father stated: “U can stay here it’s just going to make me miss both of you and that’s going to kill me”.

11. That communication continued, as follows (Exhibit “1” at page 12):

    The father: How r u going to go to work a job here and then take [the child] for walks?  Play dates? Ur gym? U will have to work full time and our son will be at a childcare.  Or whatever call those places people put the kids and go to work …

    The mother: no my parents will support me –- actually

    The father: U will have to move to the city

    The mother: i will work part-time -- no i won’t be moving to the city -- actually

12. Further, the mother’s contention that it was the father’s intention for her and the child to continue living in Australia on a permanent basis, rather than for a “time-limited” stay, is supported by the following further electronic communications between the parties on 17 May 2017 (Exhibit “1” at page 10):

    The father: If your [sic] not coming I’m going to stop looking for something in [City C] I don’t see a point living alone in [City C]

    The mother: ok – well when r u coming next

    …

    The father: I can’t come this year again 

13. These communications are consistent with the mother’s understanding that the father agreed to her and the child continuing to live in Australia on a permanent basis, including, at least, beyond the end of that year.  The father acknowledges the mother’s intention to live in Australia did not challenge her, in that regard.

14. Further, on 12 June 2017, the father enquired: “so if I get an apartment in Aug u will still be in Australia right?”  The mother responded: “I will -- Yes I’m not coming” (Exhibit “1” at page 21).

15. The father states that, at the time he left Australia on 30 May 2017 to return to Sri Lanka, the mother provided no indication that she wanted to end the parties’ relationship or to stay in Australia permanently.  In his Affidavit dated 3 January 2018 and annexed to his Form 2 application, the father states that: “[The mother] did mention that she did not want to come back but she did mention that she would think about it”.

16. The father further stated, at paragraph 15 of that Affidavit, that he was opposed to the mother and the child staying behind in Australia and that he “never consented to [the mother and the child] staying in Australia for good, and at no point did [he] express that [he] was comfortable with [the mother and the child] remaining in Australia to live permanently”.

17. That characterisation of the father’s understanding of the mother’s intention is, with respect, inconsistent with the evidence in this matter.  For instance, while it is clear that while he was not happy with the situation, the father assisted in facilitating the mother and the child remaining in Australia, by selling some of the child’s possessions in Sri Lanka.  On or about 31 July 2017, the parties had a conversation on Facebook, which is set out at paragraphs 56 to 57 of the mother’s Affidavit, as follows:

    The mother: please ask about the key for the cot and the net.  I can’t sell the cot without the key.

    The father: Will do

    The mother: Also I will sell the swing as it’s only for up to 2 years and even if [the child] comes for holidays it’s pointless as he is a bigger 18 month old

    The father: Key is there will check the net

    The mother: So we have no use for it.  Okay cool.

18. The father also assisted the mother in facilitating the sale of the child’s car seat in Sri Lanka.  That is confirmed by a Facebook message sent by the father on 11 August 2017, wherein he offered to drop the car seat somewhere “if u can ask them to sell it for u”.

19. It is to be noted that the sale of certain of the items including, for instance, the baby swing, could be reflective of the fact that the child was growing too large to use it.  However, it is of note that, insofar as the mother acknowledged the possibility of returned to Sri Lanka, she specifically stated that it would be for the purpose of “holidays”, rather than with a view to living there.

20. In communications that occurred on 25 August 2017, the parties discussed steps being undertaken by the father to pack various items to send to the mother in Australia.  That exchange of messages (Exhibit “1” at page 26C) was as follows:

    The father: I will try this weekend to start packing ur boxes.  Is the old boxes which came in okay?

    The mother: Yes you don’t need to pack you can keep all my stuff in the room and they’ll pack.  I am happy to pay for them to do that.  I also want [the child’s] yoghurt maker (unopened one), his animal waffle machine, milk frother packed.  Basically anything I can use as I cannot afford to buy anything new and I don’t get government funding either

    The father:. So they will bring boxes?

    The mother: Yes

    The father: when I get some free time will do u and tell u

21. This communication is significant because, even though it was the case that when the parties travelled to Australia in April 2017, they did so with only two suitcases, it is clear that by 25 August 2017, the father was assisting the mother by arranging for other personal items to be transported to her.  The father’s communications on that occasion, which occurred just two weeks prior to the time that he asserts the mother wrongfully retained the child in Australia, are inconsistent with his statement that it was his expectation that the mother and the child would return to Sri Lanka after a “time-limited” visit to Australia or after he expressed his desire for them to return.

22. In that respect, in Re F (A Minor) (Child Abduction) [1992] 1 FLR 548 CA (“Re F”), the United Kingdom Court of Appeal held that, despite the fact that the parties had purchased return tickets, the trial judge was entitled to find that the parties had intended to emigrate from the United Kingdom to Australia.  An important aspect of the trial judge’s findings was the fact that the parties had shipped their personal belongings to Australia.  In that respect, Butler-Sloss LJ said:

    … the number of packing cases, in itself, is compelling evidence contrary to the suggestion of a holiday, even an extended one. The point about the tickets, in my judgement, is not sufficient to displace the evidence to the contrary.

23. By analogy, the evidence that the father facilitated the shipment of the possessions of the mother and the child to Australia is consistent with an intention on the part of the parties that the mother and the child would continue to reside in Australia on a permanent basis, rather than for a period only up until the point when the father stated that he was no longer content for that to occur.

24. Moreover, even if the father’s intention was, as he contends, that he could require the mother to return with the child to Sri Lanka, the mother was entitled to assume that, in the interim, until that unilateral decision of the father occurred, she would continue to live in Australia on an indefinite basis.  In other words, irrespective of whether it was the intention of the father for the mother and child to continue living permanently in Australia or simply on an open ended basis until he decided otherwise, it was entirely reasonable for the mother to take steps to integrate her life and that of the child in Australia and, hence, to become habitually resident in Australia and otherwise, no longer habitually resident in Sri Lanka.

25. The mother’s assertion that the father had accepted her intention to remain living in Australia with the child is further evidenced by several electronic communications that he sent to her expressing his intention to similarly relocate to Australia.  For instance, on 17 May 2017, the following exchange took place (Exhibit “1” at page 16):

    The mother: … i’m not going to sacrifice any more of my life by giving u time -- in [Sri Lanka] -- so please tell me your plan -- clearly we cannot work things out …

    The father: Least [sic] come with me to close my [business] -- So then at least I can come [to Australia] --Don’t make me go there [Sri Lanka] alone

26. The mother responded to that communication from the father by inquiring “how long” three times, to which the father responded:

    So have to sell everything -- If I can’t then will have to bring a few more containers sell whatever to break even -- Then come back with nothing and work at coles 

27. The mother responded by repeating her question: “how long -- do u know!!??!” to which the father responded: “Maybe till end of the year”.  The father further responded: “I want to god knows I want to I can’t just leave my company and com [sic]”.  Later in the conversation, the father said: “I want to come to Australia but how can I give a date I wud like to live here [Australia] too life is good here”.

28. In a series of electronic communications on 11 June 2017 (Exhibit “1” at page 19), the parties discussed the father’s business relationship with his parents:

    The father: … There’s so much I can do in Aussie babe -- So much -- With u by my side I can do so much -- Fuck this country [Sri Lanka] -- Don’t worry though I’m saving up 

    The mother: Yeah I’m tired of being by your side and then your mum being on your right hand -- I didn’t marry for that

    The father: Saving enough to send it to Australia and start a business without a loan

29. In a further communication sent that day (Exhibit “G” to the mother’s Affidavit), the father stated to the mother: “I love u and I will do whatever it takes to keep our little family together and settle in Australia – Just give me some time”.  The mother responded: “well I’m not risking it and coming back – It’s not worth it for me – And it’s not what’s best for [the child]”.

30. In a further communication with the mother that appears to have been sent at about that time, the father complained about certain business activities he had with his father and stated: “I want to invest in Aussie and build a life there … Trust me” (Exhibit “1” at page 20).

31. During the course of the proceedings, I asked the father a series of questions in respect to that communication, for example:

    Question: Do you think your wife was entitled to trust what you were saying as being accurate?---

    Answer: Sorry?

    Question: About a third of the way down, you say “trust me”. Well, you say: “I want to invest in Aussie, and build a life there - - -?”

    Answer: ---Yes.

    Question: And then there’s a response from the mother. And then you say “trust me”?---

    Answer: Yes.

    Question: Do you think she was entitled to trust what you were saying as being accurate?

    Answer: ---Yes.

32. The communication between the parties subsequent to 11 June 2017 indicates concern on the part of the father about leaving his business commitments in Sri Lanka and also about being “stuck” in Sri Lanka.

33. Further, in communications sent on 27 July 2017, the parties discussed grievances they had in respect to their relationship, during the course of which the mother stated: “Also angry that you lied about moving here in 3 years”.  The mother further stated: “A week before confirming my pregnancy -- You said no to coming to Aus”.  The father responded: “I want to come to Australia” (Exhibit “1” at page 26A).

34. Relevantly, in LK, the High Court made the following statement at 595[34]:

    … 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.  [Emphasis added].

1. The above communications of the father are significant because they are inconsistent with his assertion that he repeatedly restated his request for the mother to return to Sri Lanka.  To the contrary, the communications are a representation by the father to the mother that it is his intention to join her in Australia.  Based on those representations, in the context of the earlier representations to which I have referred, the mother was entitled to assume that the father would, at some point, travel to Australia to build a life there.

2. In contending that the mother had also contemplated returning to Sri Lanka, Counsel for the Central Authority referred the mother to her communications with the father regarding the assistance he was providing in packing possessions of hers and the child’s to send to Australia.  In response to an assertion by the father to the effect that she had planned the sale of her personal items in Sri Lanka prior to travelling to Australia, the mother stated: “as I said once I see genuine change and I’m not going to be under your family”.

3. The mother disagreed with the proposition put to her by Counsel for the Central Authority that she was “thinking, potentially, about going back to [Sri Lanka]”.  I accept that that is one possible interpretation of the mother’s statement.  However, another possible interpretation is the mother intending to convey that she would consider reconciling with the father in the future, but would avoid being “under” his family by remaining in Australia.  I accept the mother’s evidence, which is consistent with the second of those interpretations and will further discuss the parties’ evidence in relation to their attempted reconciliation below.

4. The mother’s evidence was given in a clear and concise manner and she demonstrated a preparedness to acknowledge propositions put to her by Counsel for the Central Authority, even where those propositions were potentially contrary to her interests.  The mother was, however, consistent in her assertions that, in the period subsequent to 17 May 2017, it was her intention that she and the child would remain living in Australia.  The mother’s direct responses to questions and lack of embellishment is consistent with the mother providing a truthful response.  The mother’s response that it was her intention to remain in Australia with the child is also consistent with the communications between her and the father, to which I have referred, in the period subsequent to 17 May 2017. 

5. Ultimately, divergence of parental intention is not uncommon in Hague Convention proceedings. As noted above, in LK at 596[34], the High Court recognised that, in examining the intention of the parties:

   … the possibility of ambiguity or uncertainty on the part of one or both of them must be acknowledged.

6. In that respect, in challenging the Central Authority’s contentions, it is not necessary for the mother to establish that there was a “joint determination that the child was no longer to be habitually resident in [Sri Lanka]”: Director-General, Department Of Communities (Child Safety Services) & Rolfston [2010] FamCAFC 149 (“Rolfston”) at [96].

7. In summary, for reasons that I have explained, I am of the view that in the period subsequent to 17 May 2017, it has been the mother’s intention to reside permanently in Australia with the child.  The mother has made that intention known to the father.  In communications with the mother, the father has acknowledged that to be her intention and he has taken steps to facilitate the mother and the child remaining in Australia, including by assisting to transport their personal items here.  Indeed, the father acknowledges that until he received an email from the mother on 5 September 2017 or, alternatively, until he received legal advice on 2 October 2017, it was his intention that the mother would continue to reside in Australia. 

8. This is confirmed in the following exchange between Senior Counsel for the mother and the father, as follows:

   Question: As at 27 July 2017, when communicating with your wife and child who are living in Australia, you are saying - - -?

   Answer: Yes, I said I want to come to Australia.

   Question: - - - without any – without any qualification or reservation, and none of the things that you just said, “I want to come to” - - -?

   Answer: Yes.

   Question: And so that’s the expression of your then desire to come to Australia; correct?

   Answer: Yes.

   Question: And the reason you wanted to come to Australia is because [the mother] and [the child] were living there; correct?

   Answer: Yes.

9. Further, on 28 July 2017, the father sent an electronic communication to the mother saying:

   I want [the child] to school there

   I can get a [sic] apartment and we can have a life of our own trust me I have got it into my head now

10. When asked about that communication, the father responded to the following questions from Senior Counsel for the mother:

    Question: “I want [the child] to school there” means “I want [the child] to school in Australia,” doesn’t it?

    Answer: Yes. Yes.

    Question: No – no difficulty about that - - -?

    Answer: Yes, on this - - - yes, but - - -

    Question: That’s a very simple proposition?

    Answer: I have spoken to her about other decisions. But right now, here, yes, I have said that. Yes.

    Question: You have spoken to her about other decisions? Where in the five lever-arch files would we find - - -?

    Answer : No, it’s not under - - -

    Question: Please, wait for my question. Where in the five lever arch files would we find one word about [the child] going to the British school in [City C]?

    Answer: No, there isn’t.

    Question: Not one page. Not one word. Correct?

    Answer: Yes.

    Question: You are telling her in July that, yes, you want [the child] to go to school in Australia?

    Answer: Yes.

    Question: Whatever you might have decided subsequently?

    Answer: Yes.

11. Even if the father’s evidence to the effect that his consent to the mother remaining in Australia was conditional upon the mother agreeing that the parties relationship would reconcile it does not preclude the possibility of the mother and the child losing habitual residence in Sri Lanka. It is clear that an agreement between parents for one of the parents and the child to be in a destination country for a temporary or conditional period is nevertheless capable of constituting a “settled purpose” or being reflective of a “settled intention” in terms of those concepts as they were discussed in LK.

12. Moreover, establishing the intention of the parties is not the end of the inquiry.  In LK at [28], the High Court said that “intention is not to be given controlling weight” in deciding habitual residence. As noted, the Full Court in Secretary, Department of Family and Community Services & Padwa (2016) FLC 93-701 (“Padwa”) at 81,308, consistent with LK, found that the trial judge fell into error in having “predominated” parental intention over other, more pertinent, considerations.

Issue of reconciliation

1. As set out in Rolfston at [99], the desire of either or both of the parties to reconcile their relationship is one matter that should be taken into consideration, in terms of the “very wide range of circumstances” of each case.

2. At the hearing, the mother agreed with Counsel for the Central Authority that, while she had raised issues of concern that she believed were adversely impacting upon the parties’ relationship, in or about May 2017, she said to the father words to the effect of: “I want to give you a couple of months in which you can address some of my issues”.  The mother agreed that in referring to a period of a couple of months, she had on a number of occasions mentioned August 2017 as an aspirational deadline.  In a communication to the father, which the mother agreed she sent shortly after he returned to Sri Lanka on 30 May 2017, the mother stated: “I said lets talk in August once I see what’s up with your plans yet u r expecting everything this month” (Exhibit “3” at page 14).  In a further communication, which is stated to have occurred in June 2017, the mother also referred to her intention that the parties would “talk in August” (Exhibit “3” at page 16).

3. In agreeing that, in the period subsequent to 17 May 2017, the parties engaged in communications with a view to exploring the possible reconciliation of their relationship, the mother agreed that, as a sign of affection in a communication in May 2017, she said to the father: “I love you and you know that” (Exhibit “3” at page 1).  In a further communication dated 25 May 2017, the mother stated: “but I would like to work it out but from my end it will take a while and a lot to earn my trust” (Exhibit “3” at page 2).  In a further communication dated 6 July 2017, the mother said: “Love u”, to which the father responded: “love u hon I’m glad we don’t fight at all now”.  The mother responded: “same so glad”  (Exhibit “3” at page 4).  The mother acknowledged that those communications showed that the parties’ relationship, as at that date, was “in a bit of a better space” than had been the case in mid-May 2017.

4. Further, the parties had agreed to attend counselling with Mr G in Australia in May 2017.

5. The mother agreed that her communications to the father to that effect were intended to convey her sentiment that she was prepared to review the status of the parties’ relationship after a period which, I accept, could have been until August 2017.  In this way, I do not accept her evidence that the parties separated on 17 May 2017.  Their relationship was clearly salvageable, at that point.

6. Nevertheless, despite the parties’ communications discussing the possibility of reconciliation which, at times, included displays of affection, the mother states that her intention was to remain with the child in Australia, regardless of whether she and the father reconciled.  The mother states that at all times after 17 May 2017, she made it clear to the father that she did not intend to return to Sri Lanka with the child and that he agreed to that.  I accept that to be the case.

An “appreciable period”

1. It is potentially significant that the period that the child was in Australia, before the date that he is alleged to have been wrongfully retained, was approximately six months.  

2. In Zotkiewicz at 85,765, the Full Court said:

   We also do not discern from anything said in LK that there has been any departure in Australia from the proposition that in order to find someone is habitually resident in a place they must generally have lived there for an “appreciable period”.

3. However, their Honours went on to say at 85,765: “What amounts to an ‘appreciable period’ will differ from case to case”.

4. In that respect, the Full Court noted, at 85,765, the decision of Butler-Sloss LJ in Re F (A Minor) (Child Abduction) [1992] 1 FLR 548 CA (“Re F”) at 555, where his Lordship said:

   The judge was entitled to make the finding that the family did intend to emigrate from the UK and settle in Australia. With that settled intention, a month can be, as I believe it to be in this case, an appreciable period of time.

5. Moreover, it is also of note that, in Padwa at 81,314, the Full Court held that the period of time that a child spent in a country was “not determinative” of whether the child had become habitually resident in that country.

6. In LK, the High Court made it clear that a child can lose habitual residence in one country before becoming habitually resident in another country. In that respect, the High Court said at 594[25]:

   But even if place of habitual residence is necessarily singular, that does not entail that a person must always be so connected with one place that it is to be identified as that person’s place of habitual residence. So, for example, a person may abandon a place as the place of that person’s habitual residence without at once becoming habitually resident in some other place…

7. Indeed, circumstances may be such that a person abandons or loses their habitual residence in a single day.  In that context, in Wenceslas & Director-General, Department of Community Services (“Wenceslas”) (2007) FLC 93-321, the Full Court said at 81,556:

   It is true, as counsel for the mother pointed out, that the authorities make clear that a place of habitual residence “can be lost in a single day” … For example, Lord Brandon of Oakbrook (with whom all the other members of the House of Lords agreed) said in In re J (a Minor) (Abduction: Custody Rights) [1990] 2 AC 562 at 578, “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” ...

8. In summary, the intention of the parties and the length of time that the child is in the destination country are important considerations, but are not determinative of whether there has been a change in habitual residence.

9. In this matter I have determined that, even accepting the father’s characterisation of the mother’s stay in Australia, there was a settled intention on the part of both parties that the mother remain in Australia with the child up until the point in time where, according to the father, he determined that the mother was not committed to a reconciliation of their relationship. In circumstances where the parties had that settled intention, the period of time that the mother and child were in Australia before the alleged wrongful retention, that is between May 2017 and October 2017, was sufficient for there to be a change in habitual residence from Sri Lanka to Australia or, as I will discuss, at least for the mother and child to lose habitual residence in Sri Lanka.

10. The task becomes one of determining whether that occurred.

Broad factual inquiry

1. In the American decision David B v Helen O (1995) 625 N.Y.S.2d 436 at 439, it was observed:

   A curious feature of the Convention is that although the term "habitual residence" is a critical predicate term it is undefined in the Convention. In addition, because Hague Convention proceedings are relatively infrequent there is only a small body of case law in the United States that has sought to define the term and its applicability to a variety of factual situations. As noted by one court, the apparent intent is for the concept to remain fluid and fact based, without becoming rigid.  [Emphasis added].

2. To similar effect, in LK at 599[44], the High Court cited, with approval, the statement of principle adumbrated by the New Zealand Court of Appeal in Punter v Secretary for Justice [2007] 1 NZLR 40 (“Punter”) that “a broad factual inquiry” was required to determine whether there had been a change in a child’s place of habitual residence.  The High Court said:

   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 [[2005] 3 NZLR 590] held that settled purpose (and with young child the settled purpose of the parents) is important but not necessarily decisive. It should not in itself override what McGrath J called at [22], the underlying reality of the connection between the child and the particular state.  [Emphasis added].

3. In this matter for reasons that I have set out, I prefer and accept the evidence of the mother that, after 17 May 2017, she did not contemplate returning with the child to live in Sri Lanka. However, even if I am wrong in respect to that evidentiary finding, the mother’s consideration of a possible return to Sri Lanka would not have precluded the child becoming habitually resident in Australia or, at least, ceasing to be habitually resident in Sri Lanka. 

4. This is made clear by the High Court in LK, where it was confirmed that the task before the Court in an application under the Hague Convention is to determine whether the child has ceased to be habitually resident in the country from which they departed.  A determination that the child became habitually resident in the destination country would necessarily result in that conclusion, but it is not necessary for the mother to establish that fact.

5. In that respect, there are parallels between the case of LK and this case. The case of LK concerned children who had travelled with their mother from Israel to Australia.  The mother and the children travelled on return air tickets and the father remained in Israel.  The father agreed to the mother and the children travelling in the hope that, during the period that the mother and children would spend in Australia, the parties would be able to achieve a reconciliation of their relationship.  In that event, it was understood that the mother and the children would return to Israel.

6. The Full Court of the Family Court had found that the mother had not shown a settled intention of abandoning her habitual residence in Israel before the date that the children were due to return.  Therefore, according to the Full Court of the Family Court, Israel remained the children’s place of habitual residence immediately before they were retained in Australia: Kilah v Director-General, Department of Community Services (2008) FLC 93-373.

7. However, the decision of the Full Court was overturned on appeal. The High Court found that, despite the “absence of a final decision positively rejecting the possibility of returning to Israel in the foreseeable future”, the mother had engaged in a course of conduct consistent with establishing Australia as the children’s place of habitual residence: at 595[33].  As stated above, the High Court explained that determining the habitual residence of a child involves a broad factual inquiry, looking at the connection between the child and the particular state: at 599[44].  Nevertheless, it was confirmed that the context in which the conduct of the travelling parent occurred is an important consideration: at 594[26].  In that case, it was relevant that the mother’s conduct occurred in the context of her having claimed to have settled in Australia.

8. In setting aside orders for the return of the children to Israel, the High Court  concluded, at 601[49]:

   Where, as here, the parent’s intentions at the time of departure from Israel were expressed conditionally (to live in Australia unless…) and the mother took the steps she did, both before and after arrival in Australia, to establish a new and permanent home for the children in Australia, it should have been found that the children were not habitually resident in Israel in July 2006. The possibility that they might again take up habitual residence in Israel (if their parents were reconciled) does not deny that they had ceased to be habitually resident there. Whether they were habitually resident in Australia when the father asked for their return need not be decided…  [Emphasis added].

9. In terms of the conduct of the mother in LK in acting upon her intention that she would remain living in Australia with the children, the High Court noted the following to be of relevance, at 595 [30] to [33]:

   … In Australia she soon sought and obtained Centrelink benefits, the two older children started school and the next oldest was enrolled at preschool, the older children joined a soccer club and took music lessons. Later, with the assistance of her parents and the local Jewish community, she rented and furnished a home for her to live with the children.

   All of these steps (except the last) were taken before the father asked, in July 2006, for the children to be returned to Israel. All of the steps identified are consistent with, indeed support, the view that by registering the children as Australian citizens and enrolling the older ones in school before she left Israel, the mother was then set upon a course from which she did not thereafter deviate: to move to Australia unless the father decided (contrary to the then state of affairs between them) to live with her and the children.

   Because the possibility of reconciliation and return was not excluded when the mother left Israel, it may be said that her intentions, when she left, were to that extent ambiguous.  Even accepting that to be so, because the notion of habitual residence does not require that it be possible to say of a person at any and every time that he or she has a place of habitual residence, it is important to recognise that a person may cease to reside habitually in one place without acquiring a new place of habitual residence. 

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

1. In this case, I have found that, in the period between 17 May 2017 and 21 October 2017, it was the mother’s intention to live in Australia with the child.  That remains her intention.  For the reasons that I have explained above, I am also satisfied that, until he obtained legal advice on or about 2 October 2017, it was also the father’s intention that mother and child would remain in Australia.

2. It is therefore necessary to examine the extent to which the mother had, immediately before the date of alleged wrongful retention, being 20 October 2017, taken steps to integrate the child into life in Australia.

3. As previously noted, given the child’s young age, the circumstances of the mother are also relevant to the consideration of that issue.  Appropriately, and consistent with model litigant principles, Counsel for the Central Authority permitted the mother, at the hearing, to provide a Proof of Evidence (Exhibit “2”) in relation to steps that she had taken to integrate herself and the child into life in Australia in the period between arriving there in April 2017 and 21 October 2017.  Relevantly, those steps were, as follows:

   Living arrangements

   From arrival in April 2017 and continuing, [the child] and I have lived with my mother and stepfather in their four-bedroom house in [H Town], NSW.

   …

   [The child] has a playroom in which he has his toys and games.…

   …

   Daily activities

   -    Swimming once a week during summer

   -    Playgroup once a week … 

   -    Walks in the pram to see and feed ducks

   -    Local park for playtime (weather permitting)

   -    Beach days

   -    Playgroup Christmas party in December

   -    Church every Saturday (Sabbath School 0 – 4 year old) from 9:30 am to 10:30 am.

   -    Every Saturday he spends the morning after church until lunch time with my uncle and myself.

   -    Indoor play includes story time with myself or my mum an independent play.

   -    Playgroup outing to see Miniature trains.

   -    [The child] also has a baby pool and slide in our garden which is fully fenced.

   -    I often take [the child] to feed the kangaroos.

   -    He has recently (this year) been going to a sports program with me once a week

   Who cares for [the child]

   -    When I am unable to care for [the child] due to work commitments or not being at home, my mother takes care of [the child].  [The child] is never left alone with anyone else.  My stepfather and uncle do play with [the child], but he has never been left alone with anyone other than my mother.

   My Work

   -    I worked for an Australian … company – [Company J].  While I lived in [Sri Lanka], I worked for them as a … consultant from June 2013.  They continued to employ me when I moved here, under the same contract but in [Sri Lanka] currency.  This is below the minimum wage in Australia but I accepted it as I needed the money and it allowed me to work from home and care for [the child].  I resigned in January 2018, to care for [the child] and commence study. 

   -    I was able to work for them in [Sri Lanka] because they have their … centre in [Sri Lanka].

   -    While I work, I cared for [the child].  My work was quite flexible where I could watch him and work on my laptop.  The only time I needed someone to care for [the child], was when I needed to make calls to clients or potential clients.  During this time, my mother cared for him.

   -    My mother work shift duties.  She is a [health professional], so I worked around her availability.  She also has set days off, and therefore I am able to plan around her.

   Social life

   -    I have many friends and relatives in Australia some of whom I have known all, or most of my life as I grew up here.  Some we have met since April 2017. 

   -    From the time of our arrival we have socialised with friends who also have children around [the child’s] age.  There are 3 families who we often socialise with.  1 family is a school friend with 3 girls from 1.5 years to 9 years of age, the other is a friend from playgroup who has 2 boys (3 and 4 years), and the other is a friend from the gym who has a 1 and 4 year old. 

   -    We often meet at the lake, park or each other’s houses.

   -    [The child] also spends time with my uncle and cousins on weekends and family occasions.

   -    Playgroup once a week

   -    Sabbath school every Saturday for 0 – 4 year olds

   Holidays

   -    We went [overseas] with [the father’s] permission from 3 – 9 August 2017.  We went to the zoo once and [the beach] daily.

   -    [The child] also had a day trip to [local] zoo.  [The father] was present.

4. In terms of the “broad factual inquiry” required by LK, the High Court quoted the decision in Punter, where it was held that, in determining the degree to which a child has become assimilated in a country and whether such assimilation can be said to amount to “habitual residence”, the following non-exclusive list of matters are relevant:

   a)Living arrangements;

   b)Schooling arrangements;

   c)Cultural integration;

   d)Social integration; and

   e)Economic integration.

5. I will consider each of those matters in sequence.

6. In considering the child’s living arrangements, I am satisfied that, in the period since April 2017, the child has lived with the mother and his maternal grandmother and step-grandfather in their four-bedroom home in H Town NSW.  The mother was assisted in caring for the child by the maternal grandmother and it is reasonable to infer that the child had and has a close relationship with the mother, as well as his maternal grandmother and step-grandfather.

7. Consistent with the child continuing to live in that home, the father has facilitated sending personal items needed by the mother to care for the child in Australia.  This includes, for instance, a yoghurt maker.  The sending of such items is inconsistent with the child returning to reside in Sri Lanka and more consistent with the child remaining in Australia.

8. While the child is not of school age, it is relevant that, in the period between April 2017 and October 2017, the child attended playgroup once per week.  It is also relevant that until 2 October 2017, the father contemplated the child commencing school in Australia.

9. In terms of the child’s cultural arrangements, it is relevant that he attends Sabbath School for zero to four year olds every Saturday.

10. In terms of the social integration of the child, it is relevant that he visits his maternal uncle every Saturday after church.  The child also accompanies his mother when they visit friends, including friends with young children with whom the child can interact.

11. It is also relevant that the child attends swimming once per week.

12. In terms of economic integration, it is relevant that during the period from April to October 2017, the mother was employed in Australia by an Australian company, albeit with that company also having some presence in Sri Lanka. The prospect of the mother working in Australia was specifically contemplated by the parties as early as 17 May 2017.  The prospect of the mother working and then actually obtaining employment in Australia is consistent with an intention to remain in Australia on a long term, rather than a short term basis.

13. Having regard to those matters, I am satisfied that immediately before 21 October 2017, the integration of the mother and the child into life in Australia was such that they were, at that time, habitually resident in Australia.  As a result, they cannot be said to have been habitually resident in Sri Lanka at that time.

14. For completeness, as noted earlier, I am satisfied that it was the common intention of both the mother and the father in the period between 17 May 2017 and 2 October 2017, that the mother would continue to live in Australia with the child on an open ended, rather than time restricted, basis.  In those circumstances, the mother and the child, who was in her care, ceased to be resident in Sri Lanka at least from the time that the father facilitated the sale of certain of the child’s possessions and packed certain possessions of the mother and the child, with a view to sending them to Australia.  As noted, the parties engaged in discussions regarding the sale of the relevant possessions on or about 31 July 2017 and discussed the father assisting with packing boxes containing personal items of the mother and the child on 25 August 2017.

15. In other words, even if I am wrong in determining that the child was habitually resident in Australia immediately before 21 October 2017, the Central Authority has failed to satisfy me, on the balance of probabilities, that as at point in time, the child was habitually resident in Sri Lanka.

Conclusion

1. As a result of my finding that the child was either habitually resident in Australia or, at least, had ceased to be habitually resident in Sri Lanka, immediately before 21 October 2017, the Regulations do not apply to the circumstances of this case.

2. It is therefore unnecessary to consider the remaining issues that were traversed during the course of these proceedings.

3. Accordingly, I dismiss the application by the Central Authority and discharge the orders made on 22 May 2018.

I certify that the preceding one hundred and fifty-six (156) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McClelland delivered on 11 September 2018.

Associate: 

Date: 11 September 2018