Department of Family and Community Services & Padwa
[2016] FamCA 215
•24 March 2016
FAMILY COURT OF AUSTRALIA
| Department of Family and Community Services & Padwa | [2016] FamCA 215 |
| FAMILY LAW – HAGUE APPLICATION – Habitual residence – Whether a child can have two habitual residences – Where the parents reside in and are habitually resident in separate countries – Where the child lived with the mother in one country – Where the parents agreed for the child to attend school in the father’s country for a period of time – Where one of the parents is habitually resident in a non-Convention country – Where neither of the parties are habitually resident in Australia – Where the child has been retained in Australia by neither parent, rather by court order made solely for the purposes of the Hague proceeding – Where the evidence is contradictory – Whether the rules of evidence apply in a Hague application – Does Regulation 29 permit the court to hear objection to the material relied upon by the Applicant – Where the applicant adduced evidence-in-chief orally – Where the court permitted cross-examination – Where there is extensive cross-examination in a proceeding under the Regulation does it cease to be “a summary proceeding”? – Where findings of credit were critical to the determination – Where the left behind parent was not accepted as a witness of truth – Where the left behind parent attended at court throughout the hearing and informed the court he did not wish to participate as a party rather he would participate as a witness in the Applicant’s case. |
Armstrong v Armstrong [2003] EWHC 777 (Fam)
Browne v Dunn (1893) 6 R 67
Commonwealth Central Authority & Cavanaugh [2015] FamCAFC 233
Director-General, Department of Families, Youth and Community Care & Bennett (2000) FLC ¶93-011
Director-General, Department of Communities & Fraser (2010) 43 Fam LR 216
Director-General NSW, Department of Community Services & JLM (2001) FLC ¶93-090
Hanbury-Brown & Hanbury-Brown (1996) 130 FLR 252
Ikimi v Ikimi [2001] EWCA Civ 873
In the Marriage of M A & J C Panayotides (1996) 21 Fam LR 446
Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361
LK v Director General, Department of Community Services (2009) 237 CLR 582
MW v Director-General Department Community Services (2008) 244 ALR 205
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Re B (A Child) (Habitual Residence: Inherent Jurisdiction [2016] UKSC 4
In re C.L. (a minor); J.S. v. C.L., transcript, 25 August 1998
Re V (Abduction: Habitual Residence) [1995] 2 FLR 992
Wenceslas & The Department of Community Services (2007) FLC ¶93-321
Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)
Family Law (Child Abduction Convention) Regulations 1986 (Cth)
Evidence Act 1995 (Cth)
| APPLICANT: | Secretary, NSW Department of Family and Community Services |
| RESPONDENT: | Ms Padwa |
| FILE NUMBER: | SYC | 8533 | of | 2015 |
| DATE DELIVERED: | 24 March 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Le Poer Trench J |
| HEARING DATE: | 23 February 2016; 9, 10, 11 March 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Hartstein |
| SOLICITOR FOR THE APPLICANT: | Department of Family and Community Services |
| COUNSEL FOR THE RESPONDENT: | Mr Richardson |
| SOLICITOR FOR THE RESPONDENT: | Barkus Doolan |
Orders
The application filed 24 December 2015 is dismissed.
I set aside Orders 3 and all its sub-orders of the Orders made on 24 December 2015 by Johnston J, placing the child K (female) born … 2009 on the Watch List, and I direct the Australian Federal Police to do all things to give effect to this order.
I order the Registrar of this Court to release to the Respondent mother Ms Padwa the Dutch and Indonesian passports for the child K (female) born … 2009, which are held by the Court pursuant to order 3.4 of the Orders made on 24 December 2015 by Johnston J. The release of passports is not to occur before 12 noon on Thursday 31 March 2016.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Department of Family and Community Services & Padwa has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 8533/2015
| Secretary, NSW Department of Family and Community Services |
Applicant
And
| Ms Padwa |
Respondent
REASONS FOR JUDGMENT
Introduction
Before the court is an application filed by the delegate of the Australian Central Authority, seeking the return to The Netherlands of a child, K (“the child”), born in 2009, pursuant to the Family Law (Child Abduction Convention) Regulation 1986, hereafter called “the Regulation”. The Application Form 2 was filed on 24 December 2015.
This case has been extraordinary for a number of reasons. Firstly there was an application for summary dismissal prosecuted by the respondent to the application. That matter was dealt with following a day of hearing time. I delivered a written judgment in determination of same on 8 March 2016. Secondly, having dismissed the summary dismissal application the hearing then proceeded on 9 March 2016 and did not conclude until 11 March 2016. Thirdly, three witnesses, including the respondent, were required for cross-examination. The father of the subject child, called as a witness by the applicant, was also permitted to give some oral evidence-in-chief responding to affidavits, sworn by the respondent, her husband, her mother and her friend and served by the respondent after the father had responded to her Form 2A Response.
None of the defences, which are commonly seen as pursued in hearings of this type were pursued by the respondent. Her case was wholly restricted to a challenge under Regulation 16(1A)(b). That regulation is as follows:
FAMILY LAW (CHILD ABDUCTION CONVENTION) REGULATIONS 1986 - REG 16
Obligation to make a return order
(1) If:
(a) an application for a return order for a child is made; and
(b) the application (or, if regulation 28 applies, the original application within the meaning of that regulation) is filed within one year after the child's removal or retention; and
(c) the responsible Central Authority or Article 3 applicant satisfies the court that the child's removal or retention was wrongful under subregulation (1A);
the court must, subject to subregulation (3), make the order.
(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;
The aspects of sub-regulation (1A)(b) which are the focus of this determination are whether the subject child was habitually resident in The Netherlands immediately before removal to Australia. The respondent says that if the court determines that the child was habitually resident in The Netherlands on the relevant date then the court would also find the child was, at that same time, also resident in Indonesia. The application of the Convention (thus the Regulation) only arose when the child was brought to Australia by the respondent and at that time the child was in her Indonesian habitual residence. As a consequence of those unique circumstances, the respondent says the child was not habitually resident in a convention country immediately before the alleged wrongful retention. Both those cases will be considered in these reasons.
The facts relied upon to support each party’s case, which will be canvassed in these reasons, require a determination of fact as to whether the child was, on or following 25 October 2015, wrongfully retained in Indonesia OR was on or from 19 December 2015 wrongfully retained in Australia.
Indonesia is not a convention country. By application of Regulation 16(1A)(b) the child could only be found to have been “wrongfully retained” if it is established that she was habitually resident in The Netherlands on or after 19 December 2015, notwithstanding she had been living in Indonesia with her mother since October 2015.
This determination requires the court to consider matters of credit where there is conflict between the father and the respondent on a relevant issue of fact.
The High Court in MW v Director-General of the Department of Community Services (2008) 39 Fam LR 1, enlivened the opportunity for cross-examination in cases heard under the Regulations. The following was said:
[45] Section 98 of the Act states that the rules of court may provide for evidence of any material matter to be given on affidavit at the hearing of proceedings other than divorce or validity of marriage proceedings. The Family Law Rules 2004 (the Rules) are so drawn as to require evidence-in-chief to be given by affidavit: r 15.05. But exercise by the Family Court of its general powers expressed in Pt 1.3 of the Rules would have allowed an order permitting cross-examination of the appellant; such leave might properly have been limited by the Family Court to particular areas of dispute.
[46] Cross-examination in interlocutory applications generally is not to be encouraged. But an application for a return order under reg 16 of the Regulations is a special type of proceeding. It is apt to achieve what in Australia is a final result upon the application for return of a child to another Convention country. To emphasise these matters is not to encourage the amplitude of the evidence to which the House of Lords referred in Re M (children) (abduction: rights of custody). The oral evidence in that Convention application was heard over 2 days.21
Before proceeding to take any oral evidence in the hearing I asked the father, who was physically present in the court, to step forward in the court for the purpose of allowing me to ascertain from him the role he wished to play in the hearing. He informed me he wished to appear only as a witness in the case and not as a party. Notwithstanding that election I noted that the father was present in the body of the court for the whole of the hearing.
Before progressing further with this judgment, I wish to record my disappointment that a proper mediation was not arranged in this matter prior to the court having to determine the dispute. I raised with the legal representatives and the parties the probable consequences flowing from the determination of the dispute. I foresaw that if the application was successful the child would return to The Netherlands and thereafter it would be unlikely the father would permit the child to leave the Netherlands (in the absence of a court order made by a court of competent jurisdiction) until she was old enough to elect for herself. That would deny her the opportunity to explore and learn the culture and language of the country in which her mother and siblings lived and in respect of which she was a citizen. If the application failed then the child would return with the mother to Indonesia and it is unlikely she would be permitted to travel to The Netherlands until she was old enough to elect to do so for herself. Thus she would be denied the opportunity to experience the world in which her father lived and in respect of which she was also a citizen.
I was told that there had been an informal mediation conducted by the respondent’s father-in-law. I understand he had no formal qualification as a mediator nor was I told he had any experience as a mediator.
On 22 February 2016 the respondent filed a Form 2A Answer and Cross Application.
By the case outline document provided by the respondent it is made clear that the issue to be determined is whether the child was habitually resident in The Netherlands “immediately before the child’s removal to, or retention in, Australia” (see Regulation 16(1A)(b)). The case outline document provides notice that the respondent contends the subject child’s place of habitual residence was, at the relevant time, Indonesia. Further, the case outline document says it will be contended that the mother has not retained the child in Australia. It is stated that the child’s retention in Australia arises only through the process of the proceedings commenced by the applicant in this Court.
The respondent has a secondary argument, should the court find that the child was habitually resident in The Netherlands at the relevant time, and that is that the child had two habitual residences, namely the Netherlands and Indonesia. If the court was to make that finding then the respondent says the application should be dismissed. The consequence would be that the respondent could then return the child to Indonesia.
Background facts
So far as it is relevant at this time the following further facts are stated and appear to be uncontroversial.
The subject child K was born in 2009 in Amsterdam, The Netherlands. The mother of the child is Ms Padwa (“the respondent”) who was born in 1982. It appears not to be an issue that the respondent is an Indonesian citizen and resident.
The father of the child is Mr S (“the father”) born in 1986. He is a resident and citizen of The Netherlands.
The applicant claims “the child was wrongfully retained from The Netherlands in Indonesia on or around 25 October 2015 and was wrongfully retained in Australia from 19 December 2015”.
The Netherlands is a convention country, as indeed is Australia, however, Indonesia is not a signatory to the United Nations Convention on the Civil Aspects of International Child Abduction 1980.
The mother and father married in 2007. The child was born in 2009 and thereafter has lived in both Indonesia and in The Netherlands. It is a matter of dispute (in small compass) between the parents as to the time the child has lived in each of those countries and the circumstances under which that occurred.
The mother’s case is that the parties separated in July 2012. In May 2013 the parties entered into a parenting plan agreement in The Netherlands. This was noted by the relevant court in The Netherlands and was entered into at about the time of the parties’ divorce.
In 2014 the mother gave birth to her second child. Mr S is not the father of that child.
In 2015 the mother gave birth to her third child. Again, Mr S is not the father of that child.
On 17 October 2015 the child K arrived in Jakarta. Mr S says that the child was to return to The Netherlands after a short holiday with the respondent in Indonesia. The child was not returned to The Netherlands on 24 or 25 October 2015 as the father had anticipated.
On 18 December 2015 the child and the mother travelled to Australia for the purpose of a holiday. Notice of the intention to do so was provided to the father by the respondent.
On 24 December 2015 orders were made in the Family Court of Australia, ex-parte, which orders restrained the mother from removing the child from Australia pending the determination of the subject proceedings.
The Application was listed for hearing on 23 February 2016. On that day there were issues about availability of the father for cross-examination and there was pressed for determination, as a preliminary issue, an application by the respondent for the summary dismissal of the Application filed 24 December 2015.
On 8 March 2016 I handed down a judgment dismissing the Respondent’s summary dismissal application and confirmed the hearing dates for this application to commence on 9 March 2016.
issues
The issues in this case can be usefully distilled as:
· How should the proceeding be conducted once the parties both elect/seek leave to cross-examine witnesses relied upon by the other? Does the nature of the proceeding change from interlocutory and summary in nature to one of final hearing?
·In a circumstance where the applicant elects to call oral evidence from the “left behind parent” in answer to the affidavit evidence of the respondent, is the relevant evidenced of the respondent which is not specifically denied, deemed to be admitted?
·Does the operation of Regulation 29 exclude the ability for the court to hear and determine objections to the admissibility of evidence relied upon by the applicant based upon the Evidence Act and the law of evidence applicable in the Family Court of Australia?
· Once a party elects to cross-examine a witness or witnesses relied upon by the other party, do all the “Rules of Evidence” become applicable to the determination? Specifically if the applicant choses to cross-examine some of the respondent’s witnesses and not others in relation to a relevant fact does that mean that the relevant evidence of the witness stands as “uncontested evidenced” even though it may be in direct conflict with the evidence of the applicant and/or the “left behind parent”?
Evidence
As will be seen elsewhere in these reasons, the respondent sought to have the court rule on objections made in respect of the evidence relied upon by the applicant. My ruling in relation to that application was that Regulation 29 operated to make all of the documents relied upon by the applicant admissible as evidence in the hearing, leaving the court to consider the weight to be given to that evidence.
Having determined that application I enquired of the applicant whether there was any reason why I could not have reference to the written objections provided by the respondent (exhibit R3) in considering the weight which might be applied to relevant evidence. The document may also be of assistance in determining the relevance of a particular segment of written evidence. The applicant responded that there was no reason why the court could not use the list of objections in that manner. I have therefore had regard to the document.
In order to determine this application it has been necessary to very carefully consider the evidence of each of the father and the respondent. To that end, this judgment incorporates a far more extensive recall of the evidence than would normally be expected in a judgment determining a dispute brought pursuant to the Regulation. The determination will, according to the submissions, require a finding in relation to which of the parties’ versions of fact about the circumstances in which the subject child has lived since her birth in 2009 and again following July 2013, when the parties signed a “Parenting Plan” document in The Netherlands as part of a process of divorcing. It is asserted that all that evidence is necessary to establish where the child was habitually resident immediately before the alleged wrongful retention in either Indonesia on about 25 October 2015 or in Australia in December 2015.
The evidence relied upon by the applicant to establish that the subject child was habitually resident in The Netherlands immediately before a wrongful retention in either Indonesia on or about 25 October 2015 or in Australia on or about December 2015 is as follows.
The applicant’s case is contained in a Form 2 Application filed on 24 December 2015 and supporting affidavit evidence.
The assertions of fact stated in pages 1 to 6 of the application rely upon the evidence which appears in the balance of that document attached to an affidavit sworn by Mr V on 24 December 2015.
Appearing on page 30 and 31 of the application is a document titled “Consent Letter for Minors Travelling Abroad”. This is a document which the father and the applicant have specifically relied upon as important. By this document the respondent and the father jointly state that the subject child has their consent to travel with Ms N. Under a heading “Contact Information During Trip” the following appears “I/We hereby give my/our consent that the aforementioned minor and accompanying person make a visit abroad to Indonesia during the period from 16 October 2015 (date of departure) flight departure Flight GA89 until 25 October 2015 (date of return) Flight No return flight GA88.” The form is dated 15 October 2015 Jakarta and 16 October 2015 Amsterdam. There is no issue from the respondent that she signed that document on or about that date. As will be seen later in the evidence of the respondent she says she had no choice but to sign the document as the father had made it clear to her he would not permit the child to leave The Netherlands without the respondent signing the document.
The applicant relies on an affidavit of Mr V sworn 31 December 2015. That affidavit annexes documents received on 30 December 2015 by
Mr V. Such documents being received by email via the Australian Commonwealth Central Authority. Annexure “B” is an affidavit sworn by
Ms B (Advisor Dutch Central Authority International Children’s Issues). In that affidavit it is asserted by the deponent that the child “has her habitual residence with her father in Amsterdam.” It further asserts “as the minor was born in The Netherlands and the habitual residence of the minor has always been The Netherlands, Dutch law is applicable.” Under a heading “Conclusion” the deponent says “According to Dutch law the parents of [the child], Mr [S] and Ms [Padwa] share parental authority since the birth of [the child] and still continue to do so.”
Annexure “C” to the affidavit of Mr V is titled “Order of the Court”. It purports to be a translation of an order made by the District Court of Amsterdam. It is an order of divorce. The order further includes the following words “The parties have come to mutual arrangements, as provided in the voluntary agreement and parenting plan attached to this order, which arrangements will form part of this order as detailed in the below.” That statement appears to be connected with the decision of the court which includes the following “The Court: - determines that the arrangements, as concluded between the parties in the voluntary agreement and parenting plan attached to this order are to be regarded as repeated and inserted herein and form part of this order.” The order is dated 21 August 2013.
Annexed to the affidavit and marked as annexure “E” is a document in the English language consisting of two typed pages bearing the hearing “Parenting Plan”. It purports to be a translation of a two page document which immediately follows same.
During the hearing it was conceded that the annexure “E” to the affidavit of
Mr V was not an accurate document. Exhibit “A1” in the proceeding was tended as the complete document together with translation.
The translation of exhibit “A1” suggests that the form is an adaptation of a pro forma document. Reference to “the minor children” and reference to “the children” in the body of the document, in circumstances where the respondent and the father in this case were the parents of one child only, speak to that probability.
The document clearly is entered into between the respondent and the father. It is clearly in relation to the parenting of the child. Towards the foot of the first page of the document the following question appears “Have the parents talked to their child about the divorce and the consequence that the divorce will have for the children? If so, how did they do this? And if not why not?” In answer to those questions the following information appears in a manner which suggests it relates specifically to the father and the respondent. “Not yet, the parents will tell [the child] when the mother actually moves to the Hague and [the child] stays with the father.” In the respondent’s oral evidence she informed the court that the English interpretation of those words was incorrect or alternatively not sufficiently expansive for the Dutch word which was translated to the English word “when” also has the meaning of “if”. The respondent’s evidence is that at the time the agreement document was prepared there was a possibility that she might be residing in the Hague at some time thereafter. The evidence is not clear as to when the parenting plan document was prepared. On the evidence before the court it is entirely conceivable that the document, in part or entirely, may have been prepared at an earlier time than 31 July 2013 (the date of its signing). Again, the respondent’s oral evidence supports a conclusion that by 31 July 2013 she considered it improbable that she would be in the future living at The Hague.
On the second page of the parenting plan document appears a heading “Principal Place of Residence”. Thereunder the following appears “The minor will have her principal place of residence with the father. The father will be entitled to child benefit.” The respondent in her oral evidence provided an explanation for this which was connected to the father’s then occupation (a student) together with shift work. I will refer to this evidence at a later time should that be necessary.
On the second page following the abovementioned quote appears a table under the heading “The Care for the Minor is Arranged as Follows”. The table then sets out a routine which sees each of the parents being responsible for the care of the child at some time each day of the week, with the exception of Saturday where the child would spend the whole of the day and evening with the respondent. It is important to remember that the child was not yet four years of age at the time the agreement was signed. It is conceded that the child had been living more time with the respondent in Indonesia prior to the parenting plan being signed. To the extent that the father does not agree with that proposition I find it to be so as asserted by the respondent. Exhibit R5 being a schedule of dates the child lived in Indonesia with the respondent, such dates being taken from the child’s passport show the child, until November 2013 had lived in Indonesia for approximately 24 months and in The Netherlands for approximately 15 months. The mother’s evidence was that she could only obtain a three month visa to stay in The Netherlands and when she did stay there she stayed with the father. It is also to be remembered that the separation date nominated by the respondent is July 2012.
On 31 July 2013 it is common ground that the child was not attending school. The agreement provided for “The (public) holidays will be divided as follows - Spring holiday mother; May holiday mother; Summer holiday mother Indonesia; Autumn half term holiday father; Christmas holiday father; Special days - Birthday child both; Birthday father/mother - F/M; Father’s Day/Mother’s Day - F/Marriage”. There is no evidence to establish how long a period each of the public holiday periods may have been.
There is a further provision in the document in relation to holidays. It provides as follows “The parental contact arrangements and holidays will be determined by agreement for each calendar year in the month of October, for the next calendar year.”
On the third page of the document there is a heading “School/Further Education.” There under the following appears “The parents agree that a school/further education will be chosen by agreement. The contacts with school will be maintained by the father. The father will keep the other parent informed about these contacts.” Under the heading “Finances” the following appears “None of the parents is able to pay child maintenance at the moment. The costs of the education will be borne by the father. The travel expenses related to education will be borne by the father.”
At the foot of the third page of the document the following heading appears “Changes”. Thereafter the following is stated “This plan is tailor-made and is subject to change in accordance with the development of the children. The parents may point out that due to the development of the children or a change in the situation of the parent, the agreements need to be reconsidered”.
The applicant relies on an affidavit by Mr G affirmed 8 January 2016. The deponent annexes copies of an email received on 6 January 2016 from the Dutch Central Authority. The documents include “Divorce agreement between [Mr S] and [Ms Padwa] registered with the municipality of Amsterdam on 10 September 2013, together with the corresponding translation.” The English translation provides for the financial settlement between the parties following their divorce.
Also annexed is a translation of an application made by the father to the Amsterdam District Court on 11 December 2015. That application requests, inter alia, that the father have sole custody of the child. The document is not signed by the father but in fact by his attorney. The document states facts clearly asserted on behalf of the father, however, as the father has not signed the document better evidence of the content is to be found in those statements made directly by the father and which form part of the evidence. I will refer to those matters later in these Reasons.
On 17 February 2016 Mr G affirmed an affidavit which annexed documents received by the applicant. A Certificate of School Registration dated 23 November 2015 in respect of the subject child is annexed to the affidavit. The certificate shows details of the child and names the father as the responsible person. No other detail of the respondent appears in the registration form. A copy of a school report for the child dated 9 February 2015 is included.
On page 23 of the annexure to the affidavit is a translated document recording an “Official Report”. This document records that the father on 4 December 2015 stated “I wish to file a report against my ex-wife named [Ms Padwa] born [in] 1982 … for the abduction of my minor daughter (Section 279, sub-sections 1 and 2 of the Dutch Criminal Code) and for hiding my minor daughter while abducting her (Section 28 sub-section 1 of the Dutch Criminal Code).”
Also annexed to the affidavit are a series of testimonials clearly solicited by the father to include in the material to be provided to this court. None of the makers of the statements were cross-examined. However, none of the statements go to the issue in dispute between the parties, that is, the habitual residence of the subject child immediately before the alleged retention.
Statement of the father signed 21 February 2016
Although this document is drawn in the nature of an affidavit it was not sworn or affirmed, rather it was signed by the father and dated 21 February 2016 in Amsterdam. When the father gave oral evidence in the trial he informed the court, under his oath, that the content of this document was correct.
The relevant information contained in this affidavit which touches on the issue of the child’s habitual residence immediately before the alleged wrongful retention are as follows:
· K, the subject child, was born in Amsterdam in 2009.
· The parties married in the same month in which the child was born in Amsterdam.
· In April 2010 the parties and child moved to a studio apartment in Amsterdam.
·The respondent held a European Country Y student visa which expired in summer of 2010. Sometime thereafter the father, respondent and child travelled to Indonesia for a six week holiday. Thereafter the respondent and the child remained in Indonesia and the father returned to The Netherlands to arrange the papers for their return. The father says “it was clear to and agreed by both of us that [the child] would stay in The Netherlands.” This statement appeared to be connected to the previous sentence dealing with the time when the child would commence her first year in school. The father says that the respondent intended to live in The Netherlands “where her daughter lived”. The respondent and the father divorced on 10 September 2013. He claims a joint decision that he would be responsible for the child and she would live with him. He said the respondent intended to focus on obtaining Dutch citizenship through a relationship with a Mr J.
·The father says it was not possible for the child to attend pre-school in The Netherlands “because her mother would travel to Indonesia with her from time to time”.
The father said “[The mother] and I decided that the best opportunities for [the child] were in Amsterdam. [The mother] herself was for most of her life educated in Europe and wanted the same for [the child]. After visiting schools in Amsterdam we decided with [D School] since its education methods were in line with our expectations” … “it was also the closest school to my then current address.” “Due to [the mother’s] bad health and her still being unable to remain in The Netherlands we had decided that I would take all responsibilities with [the child] upon me. Even when [the mother] remained in The Netherlands I would bring [the child] to school and pick her up. At the beginning [the mother] would pick up [the child] for lunch, but since [the child] enjoyed her lunch time with her friends so much we decided that she would stay in school during lunch like the other kids.”
The father says that he and the respondent agreed on an after school care facility. Each Tuesday the father and the child would have dinner with her class mate O and her parents.
The father and the child now live with the father’s partner Ms R and her younger brother A (born in 1999). The child K attends school and after school care and has not changed those facilities even though the father has moved his residence.
The father says “despite our divorce agreement, I agreed with [the mother] for [the child] to spend my holidays with her, with her mother in Indonesia to encourage contact with her family there. As a family we spent a holiday with the three of us in Indonesia in 2010, Paris 2012, Brussels 2013, Portugal 2013 and Indonesia and Singapore from 18 August until 2 September 2014. … At the end of summer in 2015 I visited the family in Indonesia as well in order to pick up [the child] to return her home and start school.”
Since January 2014 the child has spent the following times in Indonesia:
·16 October 2015 to 25 October 2015;
·7 July 2015 to 15 August 2015;
·24 April 2015 to 10 May 2015;
·12 December 2014 to 8 January 2015; and
·9 July 2014 to 2 September 2014.
(These dates are now subject to the evidence in exhibit R5).
The father says that he financially assisted the respondent in various ways until mid-2014.
The father says that by the end of 2014 it was time to move the respondent’s and her brother’s belongings to Indonesia. “Amongst these things were no things of [the child], only of [the mother] and her brother.” (There is serious dispute about this evidence).
During 2015 the father moved his residence to that of his partner Ms R. Since moving there the child has made friends in the neighbourhood. The respondent has visited that residence and met Ms R.
Commencing at paragraph 30 of the statement, the father says that “since [the mother] had found financial dependence in [Mr M], she had suddenly wished for [the child] to move to Jakarta with her …” “…[the mother] had apparently single-handedly contacted a Dutch school in Jakarta and had informed … about enrolling [the child] there for the 2015–2016 school year. She had simply emailed me if I wanted to send her the required documents for enrolment, which I did not. (There is serious dispute about this fact). I replied that we would have to talk about this on the phone and we scheduled a phone call. I explained to [the mother] that [the child’s] sudden relocation would have a negative influence on her development. [The child] had just been allowed to go onto the next year because she did excellent in school, despite her difficulties with regard to language. [The child] had already started to build her own life in the Netherlands and I saw no reason why Jakarta would provide her with more opportunities than The Netherlands. Thus I wished that we continue to honour our original parenting plan we agreed upon at the divorce” … “[The mother] agreed to [the child’s] continued education at [D School] but asked me in return if I could bring [the child] to Indonesia for the summer holidays in order for [the child] to spend time with her mother, [Mr M] and his daughters. I sacrificed my own holidays to fulfil [the mother’s] wish. I agreed to literally dropped [sic] [the child] off in Indonesia at the start of the holiday and pick her up again and stayed for a week at the end of the summer. [The child] and I returned in time for commencement of [the child’s] new school year. During my stay in Indonesia [the mother] had signalled that she and [Mr M] were planning a winter holiday in Sydney with all the kids. [The mother] would send me a holiday schedule about this.”
The father sets out further information about the “autumn school holidays”. He had suggested that the child not go to Indonesia during those holidays but go during the Dutch winter holiday. He then says “it was then that [the mother] suddenly said that she had already booked flight tickets for the autumn holiday. I was shocked and explained to her that she cannot just schedule tickets without consulting me. I demanded to see the flight schedule she had booked for [the child].”
The father continued to set out his perspective of the respondent having booked air travel for the child during the autumn school holiday. He was highly critical of that action.
The father said “I made it very clear that I would not agree with [the child] flying to Jakarta from 16 until 25 October if [the mother] did not take [the child’s] health and personal schedule into account. We agreed that I would take time off from work on Friday 16 October to bring [the child] to the airport if [the mother] made sure that [the child] would return well before or on Sunday 25 October. They would try their best to reschedule the flight as such. I had also forwarded all the necessary paper work to [the mother] for her to sign since [the child] was not only flying without one of her parents, but without her parents at all, being accompanied by her grandma. Customs and Immigration are very strict with regard to children travelling under other circumstances than with both their parents. I received a signed letter of consent from [the mother] which I signed and handed over to [the child’s] grandma at the airport.”
The father says “On 25 October within two hours of [the child’s] departure from Jakarta [the mother] called me on my mobile phone from [Mr M’s] number. I could not understand her clearly at first but it became clear very soon. She apologised saying that she could not let [the child] return as per our agreement if I would not send her a written agreement that [the child] would go and live with her starting the schoolyear [sic] 2016-2017. I could also send her this by mail she said and then of course she would return [the child] the following day. I told her I would not have her use our daughter to blackmail me into signing anything and said that if [the child] would not arrive the following day I would myself notify the authorities of what had happened. If [the mother] wanted to talk about changing our long standing agreement we can do so once [the child] had returned safe and sound the following morning as we had agreed. The conversation quickly turned heated.”
The father thereafter sets out what has occurred since 25 October 2015. He said “I have never given permission for [the child] to remain in Indonesia after
25 October.”
The father annexed many documents to his statement, one of which is a copy of an email chain between Mr M (the respondent’s husband), the father and the respondent. On 12 October 2015 in an email from the father to the respondent he is clearly annoyed by the arrangements made, without consultation with him, for travel by the child to Indonesia for October 2015.
The father has included a copy of an email chain between the respondent and the Dutch School in Jakarta. This commences with an email from the respondent to the school management team in the following words “Our daughter [K] born [in 2009] will move to Jakarta in August 2015. We will enroll [sic] her to [the Dutch School] because she has a Dutch background and speak Dutch already. She goes to school in Amsterdam (basis school) group 2. Next semester she will go to group 3. Please let us know when we can visit the school and what kind of requirement to enroll [the Dutch School]. Thank you.” That email chain commences on Thursday 22 January 2015. On Friday 23 January 2015 the respondent forwarded the chain to the father with the following orders “Hi [Mr S], please check this out. Thanks cheers [Ms Padwa].”
Also attached to the father’s affidavit is an email chain commencing Monday 15 June 2015 with the respondent writing to the father attaching fourteen attachments. The message says “Hi [Mr S], please help me to check if anything missing. I think you have to write a letter as well. Many thanks, [Ms Padwa].” The father responds quickly (within three minutes) with the words “Hi [Ms Padwa], we eill [sic] have to talk first. Let me knoe [sic] when you have time.” The respondent responded within two minutes saying “I can talk now if you want.” Then again some twenty minutes later the respondent wrote “[Mr S], I am at the office. I can call you anytime to your mobile. Please let me know via email when you can talk today. My phone doesn’t work. So please let me know via email.”
Affidavit evidence relied on by the respondent
The respondent filed on 22 February 2015 a Form 2A Answer and Cross Application. That document contained the respondent’s asserted relevant facts and was verified by affidavit. The relevant evidence touching on the issue for determination in the Form 2A Application is as follows.
The respondent is the mother of the subject child K. She is a citizen of Indonesia. She has no intention to live in Australia.
The child is an Indonesian citizen and a citizen of Holland. She travels between those two countries on a European passport and an Indonesian passport.
The respondent commenced a relationship with the father in 2007. They were married in 2009 in Amsterdam, following the birth of the child. At the time of the marriage the father was studying and working part-time. The respondent was employed as a business analyst at Z Company.
The respondent and the father separated in July 2012. A divorce was approved in September 2013.
Following the birth of the child the respondent remained living in Amsterdam for three months. However, she was required to travel out of The Netherlands every ninety days as a consequence of her visa status. She did that travel accompanied by the child. The respondent claims that she at no time agreed to the child becoming habitually resident in any country in which she was not able to live permanently.
At the time of the child’s birth the respondent held a permit which permitted her to work in Country Y. When the child was about three months of age the respondent and the child left Amsterdam and moved to Country Y. The father did not accompany them for that purpose. He remained living in Amsterdam. The respondent and the child visited the father in Amsterdam and he visited them in Country Y. The respondent says she provided for all the child’s day-to-day needs following her birth. The respondent denies the father’s assertion that he was the primary carer for the child.
Until October 2013 the respondent spent only two nights away from the child. There were extended periods of time when the respondent and the child were based in Indonesia.
In August 2010 the respondent and the child moved to Jakarta. When she made that move she said to the father “You know I can provide a better life for [the child] in Jakarta that is where my family is. That is where I can source work. I will have better support there. I will ensure [the child] maintains a link with Holland and I will pay for and arrange for her to visit you in Amsterdam 4 times a year.” The respondent asserts the father agreed with that arrangement.
Thereafter when the respondent and the child visited Amsterdam they stayed with the father in his apartment. This was a financial necessity as the respondent was paying for all of the child’s expenses including international travel.
Although having lived apart for quite considerable periods the respondent and the father formally separated in 2012.
The respondent set out in paragraph 21 the dates where the child lived in Amsterdam (or was present there), the dates they were present or lived in Country Y and the dates they have resided in Jakarta Indonesia. Those dates are as follows:
·“Amsterdam: 11 October 09 to 14 February 10; 3 November 10 to 14 February 11; 4 July 11 to 1 October 11; 1 February 12 to 30 April 12; 10 August 12 to
7 November 12; 2 May 13 to 30 July 13; 5 November 13 to 9 July 14;
27 August 14 to 12 December 14; 9 January 15 to 24 April 15; 11 May 15 to
5 July 15 and 17 August 15 to 17 October 15.·[Country Y]: 15 February 2010 to 8 July 2010;
·Jakarta: 9 July 2010 to 2 November 2010; 15 February 11 to 3 July 11;
2 October 11 to 31 January 12; 1 May 12 to 9 August 12; 8 November 12 to
1 May 13; 31 July 13 to 4 November 13; 10 July 14 to 26 August 14;
7 December 14 to 13 January 15; 25 April 15 to 16 May 15; 5 July 15 to
19 July 15 and 17 October 15 to 18 December 15.·Sydney: 20 July 15 to 15 August 15 and 19 December 15 to current date.”
The respondent asserts that dates specified mean that the child has spent, during the course of her life, more time in Jakarta than in any other country. (see now exhibit R5 for the dates the child was in Jakarta as extracted from her expired passport which was retained by the father and produced at the trial).
The respondent says that following the final separation in 2012 she and the father reached an amicable divorce settlement. At the time she said to the father “I’ll arrange for [the child] to stay with you in Amsterdam. I support her undertaking that travel but her home is Jakarta”, or words to that effect. She also said “[The child] and I are returning to Jakarta as I have more jobs [sic] opportunities in Asia. My family lives in Jakarta and you know I want to build my life in Jakarta. We will visit about 4 times a year…”
From 2011 the child attended “… Pre-School in Jakarta until October 2013”. During that time she travelled between Amsterdam and Jakarta with the respondent to spend time with the father. The respondent asserts that the child was settled in life in Indonesia in October 2013.
The respondent says that the child and she returned to Amsterdam when the child was due to commence school in 2013. Both stayed with the father in his studio apartment between 5 November 2013 and February 2014. During that time the father said to the respondent “I agree in July 2014 [the child] will return and live with you in Jakarta and attend a Dutch school in Jakarta. I really appreciate you giving me a year of [the child] in Amsterdam to practice her Dutch.” The respondent replied to the father “I am returning [the child] to Amsterdam on the understanding that she is only to go to school here for a short time to assist her language development. She remains in my primary care and she will spend all holidays with me back home in Jakarta.” The respondent says the father replied “Yes that is fine.” The respondent says she would never have agreed to the child remaining in Amsterdam in the event that she was to remain there for an extended period and not return to live in Indonesia. The respondent says she told the father at that time “She can have this short time in Amsterdam but she is returning to Jakarta as I want her to attend music, ballet/dance, karate and swim lessons. You can’t give her this opportunity as you work six days a week and just don’t have the time and no one of your family can help you with this. She has all the family support network in Jakarta.”
In May 2014 the respondent travelled to Amsterdam and spent a holiday period with the child. During that time and when in Amsterdam the father said to the respondent “Give her another year at school in Amsterdam to improve her Dutch and then she can return to Jakarta.” The respondent said she very reluctantly said to the father “I don’t think it is a good idea that she spends so much time at day care and cared for by your mother in Amsterdam but I will give her one more year at school. She will continue to spend holiday breaks with me, she will then be returning home to be with me.”
Thereafter the respondent said she and her husband Mr M began providing funds to the child to permit her to participate in extracurricular activities in Amsterdam. She also met the majority of the cost of flights for the child between Amsterdam and Jakarta. She also undertook most of the travel to accompany the child.
On 27 August 2014 the respondent returned the child to Amsterdam and at that time said to the father “She gets one more year of schooling in Amsterdam but the holidays will be spent at home with me and her family in Jakarta. I will see her in October to pick her up for the school holidays. I am trusting you to honour our agreement.”
In October 2014 the respondent was scheduled to collect the child for school holidays. At that time she had complications with a pregnancy. She was unable to travel. In November 2014 her first son was born prematurely. He was hospitalised for ninety nine days. She contacted the father in October and told him that she was unable to travel because of the pregnancy. He did not offer to do the travel with the child. The respondent said to him at that time “I will travel in December and pick her up as hopefully I can travel by then.” The respondent did collect the child in December 2014 from Amsterdam and took her to Jakarta.
On 8 January 2015 the respondent took the child to Amsterdam to commence her last semester of school in Amsterdam. At that time she said to the father “Our agreement is for her to return to Jakarta after this semester. Jakarta is her home. I agreed only for her to remain in Amsterdam temporarily to assist her with Dutch language development.”
In January 2015 the respondent says she arranged with the father to “return by post” the child’s possessions from Amsterdam to Jakarta. There were also some “old belongings” that were transferred by ship to Jakarta. Forty-two boxes arrived in Jakarta from Amsterdam in March 2015.
In March 2015 the respondent enrolled the child in the Dutch School in Jakarta. The father provided to the respondent all of the documents to enable her to be enrolled in the school. The respondent annexed to her Form 2A a copy of the enrolment form and email communications from the father forwarding the documents required to be submitted for the enrolment. The respondent says “[The father] agreed to her enrolment at [the Dutch School] and supported her enrolment in [the School] by providing those documents.” The documents annexed and marked “B” were documents which had been largely annexed to the statement of the father which has been set out earlier in these reasons.
On 26 April 2015 the respondent collected the child from Amsterdam and returned her in May 2015 after a short break from her school.
When the respondent delivered the child to the father on that occasion she said to him “She has a few weeks left and she is returning home to Jakarta. She has a brother and another sibling on the way … she need to be with me, her mother as we always agreed. She is not happy here … she says she spends all her time by herself and you are working and never around … we agreed to her only being in Amsterdam for a short time. She has had her time here. It is time to honour the agreement we reached. I have been more than reasonable.” The respondent also said to the father “Have you read the brochure about [the Dutch] School in Jakarta. It has great opportunities.” The father replied to the respondent “I haven’t read it but will … sounds ok.”
In July 2015 the father travelled to Jakarta (on a flight which had been booked by the respondent and paid for by her). He delivered the child. When he arrived in Jakarta he said to the respondent “I think [the child] will stay another year or two years in Amsterdam.” The respondent replied “[Mr S] we had an agreement … this is all too much. I don’t agree. I have a big holiday planned with my children and you know my son has been in hospital and I am pregnant again. It is not fair to spring this on me. I am not agreeing to this.” She also said to the father “I am going to Sydney to get married. Let me enjoy this please.” “Put something in writing but I am not agreeing to anything. I agreed to extend the period of schooling in Amsterdam but this has to end. He [sic] home is in Jakarta.”
The respondent says that in August 2015 the father returned to Jakarta to collect the child. At that time she said to him “I’ve been thinking about what you have said. I asked for something in writing if you wanted to vary our agreement. You provided nothing. She can go back with you for a few more months, and do a little more schooling but she is coming to live with me as we agreed … I’ll collect her in October. I have so much going on with my impending pregnancy … you know we had an agreement and you have to stop changing your mind. It is not fair. I have been more than prepared to be reasonable.”
From August 2015 to October 2015 the respondent says the child was in school in Amsterdam.
In October 2015 prior to departure by the child to Indonesia the father said to the respondent “I want to keep her for another year.” The respondent replied “That is not the agreement.” The father said “She needs more time to learn Dutch.” The respondent said “We had an agreement. I have honoured that agreement and given her time in Amsterdam with you and a little longer. She needs to come home to me and be with her brothers.” The respondent further said “I don’t accept this. We had an agreement. I am her mother. I did what you asked. You need to honour the agreement. Her home is not Amsterdam, it is Jakarta with me. [The child] was only in Amsterdam for her schooling until a period of time. I can’t live in Amsterdam and I won’t agree to this.”
The respondent purchased a return flight from Amsterdam to Indonesia. It was a fully flexible flight. Prior to the flight the father asked the respondent “Sign some paperwork to allow [the child] to leave The Netherlands without any problems.” The respondent said she was concerned the father was planning to unilaterally vary the terms of the parenting agreement. On 7 October 2015 the respondent sent a text message to the father to tell him she was in labour and that she had already purchased the tickets for the child. The respondent felt trapped by the father’s conduct. Between 12 October 2015 and 16 October 2015 the father in an email said to the respondent “It is my right to cancel the trip”. Because of the respondent’s physical condition (about to give birth) her mother travelled to Amsterdam to collect the child.
The child arrived in Jakarta on 17 October 2015.
On 25 October 2015 the respondent informed the father the child would not be returning to Amsterdam. She said to him “She is my daughter. We had an agreement. It is not healthy for her to spend all her time in day care while you work. I am at home and I can care for her. You are well aware she will be going to a Dutch school in Jakarta. Until I get something from you in writing as to your proposed agreement I’m honouring our original agreement and [the child] will stay with me. You need to stop this game playing. I am putting [the child] into school.” Thereafter the respondent enrolled the child in a private school in Indonesia.
On 18 December 2015 the respondent travelled with the child to Australia. She informed the father at the beginning of 2015 of her travel plans. On
26 December 2015 she was served with the orders made by this court on
24 December 2015. The respondent only has permission to remain in Australia for ninety days pursuant to a “one year tourist visa (multiple entry)”.
On 18 January 2016 the respondent returned to Indonesia as she has two sons in Indonesia. Those children do not have passports. The respondent has commenced proceedings in Jakarta for parenting orders in relation to the subject child.
The respondent relies on an affidavit sworn by herself on 22 February 2016. In that affidavit she provides the following further relevant evidence.
Prior to the child’s travel to Indonesia in October 2015 the father said to the respondent “You sign the documents I require you to sign as the airport requires it or [the child] is not coming and I will cancel the trip.”
The respondent raises a concern that should she return to The Netherlands for the purpose of spending time with the child (should the application of the Central Authority be successful) she would be arrested. This arises from material provided which illustrated that the father had commenced proceedings in The Netherlands under the Dutch Criminal Code against the respondent for “hiding his daughter”.
The respondent replies to an assertion by the father as follows “In spite of the fact that we were married [the mother] had to leave the country. [The child], however, was allowed to stay.” The respondent asserts that notwithstanding that statement the child did leave The Netherlands with the respondent and remained in her care in Indonesia until November 2013 (see exhibit R5 for particular dates).
In relation to the conversations between the father and the respondent before they signed the parenting agreement in about July 2013 the respondent says the father said to her “Let’s just do an agreement … we won’t be able to follow it as you and [the child] are living in Indonesia”. The respondent says that she and the father met with a lawyer to draw up a parenting plan. She says the father said “Just draw up a basic document. We’ll sign whatever it is we need to sign.” The respondent says “We signed up an agreement to say that I would live in Holland. The agreement in effect provided that [the child] would be with her father Monday to Friday in the mornings, Monday to Friday during the day with me and Monday to Thursday in the evenings with [the father]. It also confirmed that [the child] would be with me all day Saturday and Sunday as well as Friday evenings.” [The father] said “You need to say she will be with me in the evenings as it is my house but you stay with us anyway.”
The respondent says that at that time the parents had not discussed schooling. However, they agreed to make the decisions as to schooling as joint decisions.
The respondent says the agreement was impossible to perform because at the time neither she nor the child were living in Amsterdam. The respondent says “I would not have signed an agreement if it meant that [the child] lived in Amsterdam. I would not have signed an agreement that would have prevented me making any decisions concerning [the child].” The respondent says the agreement was not translated for her. She obtained no legal advice in relation to the agreement. She would not have signed the agreement had she known it would provide for the child’s place of residence to be other than Jakarta.
Under a heading “[The Child’s] Indonesian Passport” the respondent says that in about June 2010 the father, the child and she travelled from Amsterdam to the Indonesian Embassy and provided documents required to obtain formal citizenship for the child in Indonesia and to obtain her passport. The respondent says, with the agreement of the father she collected the passport from the Embassy when it was ready. The respondent says at that same time “We applied for [the child’s] Dutch passport.” Both passports expired in 2015. Both were renewed at the same time in 2015.
Annexed to the affidavit of the respondent and marked as annexure “B”, the respondent provides evidence to support her statements contained in paragraph 37 of the Form 2A document. She says the email attached and marked as “B” facilitated her request for the child’s personal documents so that enrolment could be effected in the Dutch school in Indonesia. This material was also the subject of cross-examination of the father as to its provision. The respondent says these documents were provided at her request.
Under the heading “Travel by [the Child]” the respondent sets out details of the dates of travel to and from Indonesia.
The respondent says that on 17 May 2015 she travelled with the father, the child and another person called Ms H to the airport (in Amsterdam). This travel was by train and also present was the father’s partner Ms R. During that trip the respondent said to the father “When are you going to send me the updated school reports so I can confirm her enrolment in school. We are arranging handover from [the child’s] school to the school in The Netherlands.” The father said “Yes I will send you the rest of the documents.” The balance of the respondent’s evidence suggests that there is a misprint in the conversation just recorded and the last words spoken by the respondent should be “in Indonesia”.
Affidavit of Mr M sworn 22 February 2016
Mr M is the husband of the respondent herein.
Mr M deposes that he met the respondent in August 2013. Shortly after meeting her he says she told him “[The child] and I live here however I have agreed to let her go and stay with her father for a year to attend school in Holland and work on her Dutch language skills. Jakarta is her home but I owe her that. I want to make this work. It is hard when her father lives on the other side of the world. I hope it can work out. She has not spent more than two nights apart from me since her birth but I know it is important that she have a relationship with her father.”
In January 2014 Mr M, whilst visiting the respondent in The Netherlands, met the father. In a conversation with the father Mr M was told by the father “[The mother] and I have always worked well as parents. I know [the child] will have to return to Jakarta but a year here will help her language and she will see her mum in the holidays.” At that time Mr M said to the respondent “It is great you and [the father] can parent this way and you don’t need to write things down formally.”
In May 2014 Mr M had a conversation with the respondent where he said “I know you have a lot on your mind with the pregnancy but are you sure about agreeing to another year in Holland is ok.” The respondent replied “If it makes [the father] happy, I will work it. We have to parent for the rest of our lives it is two years in [the child’s] life. She will be back home before we know it and also I will have her in the holidays.”
In early 2015 Mr M was present during a conversation between the respondent and the father. He heard the father say “She needs to attend the Dutch school as I am concerned about her language skills.” Mr M said that he and the respondent agreed that a Dutch school would be positive for the child as it gave her the benefit of both her parent’s languages. This conversation was about the parents planning for the child’s schooling in Indonesia.
By June 2015 Mr M said the respondent had made arrangements for the child to attend the Dutch school in Indonesia. In July, a few days before the father and the child were coming to Indonesia the respondent took a phone call from the father in Mr M’s offices. Mr M was present during the phone call. The father said “I want her to stay another year or two.”
Mr M observed the respondent became upset. She said to the father “We had an agreement [Mr S]. I have already given you another year.” Thereafter the respondent said to Mr M “I feel he is trapping me. I have to work with him but this is such a bad time with the baby and our wedding. I don’t like that he has changed the plans.”
In mid-2015 Mr M was present and heard conversations between the respondent and the father about the child returning to Jakarta. He heard the father say “Yes she will return to Jakarta and go to school there.”
Mr M says that he has on no occasion heard the respondent say any words that indicated she approved or agreed to the child living in Holland.
The respondent and Mr M were married in July 2015. Following the marriage Mr M said he advised the respondent to sign a written agreement with the father. The respondent said to him “If it makes [the father] happy for a few more months [the child] can go back for a few months, she can live with us from October.”
Mr M said that when the father was in Indonesia in July 2015 he stayed with the deponent. Mr M was present during conversations between the father and the respondent. He heard the respondent say to the father “We had an agreement [Mr S] and Indonesia is her home. I don’t agree to her remaining in Holland. You are changing our deal. I don’t agree with it. This is unfair. You know I have a lot on my mind.”
Affidavit evidence of the maternal grandmother Ms N
On 22 February 2016 Ms N swore an affidavit before a Notary Public. The affidavit has been prepared in the English language. There is no evidence it has been translated into any other language. There is no evidence to suggest the deponent was not able to understand the written English language. The deponent is the mother of the respondent.
The deponent was present and heard discussions between the respondent and the father. She heard the father say “I understand that Indonesia is her home but it would be good if she could do a year or so schooling in Holland to work on her Dutch.” This conversation, the deponent says, was about the child.
In 2013 the deponent says the respondent and the child were living with her. The deponent spoke to the respondent about schooling in Indonesia. At that time the respondent said to the deponent “[The father] and I have agreed that [the child] will do a year of schooling in Holland.” In July 2014 the respondent told the deponent “[The father] has asked for [the child] to stay another year. … [The father] is a good man and we have a very good relationship. We have an agreement and I trust [the father].”
In October 2016 the deponent travelled to Amsterdam to collect the child and travel with her to Indonesia. The deponent met the father at the departure airport. The father gave the deponent forms to present to the immigration so that she could leave the country with the child.
Affidavit of Ms E
The deponent met the respondent in 2013 through a work connection. Sometime thereafter in a conversation the respondent said to the deponent “I have agreed to [the child] undertaking school for twelve months in Amsterdam … I will head there for a few months.”
In July 2014 the deponent asked the respondent “When is [the child] coming back home here?” The respondent said “[The father] would like to have another year so that [the child] can improve her Dutch.”
In January 2015 the deponent spoke with the respondent who told her “I have just dropped [the child] to Amsterdam. Only a few months to go and she will be back. I have made plans for her to go to school here.”
Affidavit of Ms H sworn 22 February 2016
The deponent professes to be a friend of both the respondent and the father. She met the respondent in December 2012. She now lives in Amsterdam and has contact with the child and the father. From the time the deponent met the respondent she was told by the respondent “[The child] and I live in Jakarta but we undertake a lot of travel to The Netherlands as I am supportive of the relationship [the child] has with her dad.” At no time did either the respondent or the father ever say to the deponent that the child lived in The Netherlands.
In mid-2014 the deponent had a conversation with the respondent in which the respondent said “[The father] and I have agreed to [the child] undertaking a year of study in The Netherlands.”
In February 2014 the deponent was requested by the respondent “Please help [the father] with [the child] as he works and studies.” The deponent then says “[The father]and I agreed that when asked, I would care for [the child] when [the father] could not during the school week/weekend and I did.”
The deponent says that following the child’s attendance at school in Holland she had a discussion with the father about the child’s future schooling in Jakarta. The deponent says the father told her “[The mother] is making the arrangements for her to go to school in Jakarta. She will attend a Dutch school.”
In early 2015 the respondent said to the deponent “[The father] has agreed to [the child] going to the Dutch school in Jakarta.”
In 2015 when the respondent was returning to Jakarta the deponent travelled to the airport with the father and Ms R. She was present when the respondent and the father were discussing the child’s relocation and schooling whilst on a train trip. She heard the respondent ask the father “Can you send me the updated school report for [the child]. I know you have sent the other documents but for the formal transition to the school in Jakarta they require the further report.” The deponent heard the father respond “Yes I will get onto it.”
Exhibits
The following are relevant to the determination of fact required for this matter.
Exhibit “A1”
A translated English version of Parenting Agreement (also referred to as the “parenting plan” in these reasons) entered into between the father and the respondent on 31 July 2013. This exhibit has been referred to earlier in these reasons and I do not repeat that description at this point. This document had been created by the father and is his translation. On the face of the document there is nothing to suggest it is other than a copy of an original letter which was received by the father in the English language. It was following the tender of this document that the father told the court it was not a copy of an original letter. Later the original Dutch version of the letter and the attested translation to the English language was provided to the court (see exhibit A9).
Exhibit “A4”
An unsigned letter dated 19 April 2012 on the letterhead of
D School, Amsterdam acknowledging receipt of enrolment application. The letter is addressed “To the Parents/Caretakers of [the child]”.
Exhibit “A5”
A copy of an email dated 22 January 2015 from the respondent to the father. This email responds to an email from the father dated 20 January 2015 attaching a document which was an invoice (not attached) involving shipping of goods to Indonesia.
Exhibit “A6”
This is an email to an officer at the Attorney General’s Office in Australia from Ms B, Advisor Dutch Central Authority International Children’s Issues. This responds to an email about questions in relation to criminal charges and a warrant for arrest against the respondent in The Netherlands. The email then says “Please be informed that De Dutch Public Prosecutor and Dutch Police decided to give preference to the civil route above the criminal route. Therefore the civil route is the only procedure pending.” Part of this exhibit consists of a translated mediation session between the father and the respondent on about 17 July 2013. No objection was taken to this document by either party. The mediator, known as EB points out that “conversation reports are only intended for private use and that they should never be introduced in judicial proceedings.” Nonetheless the following particular matters are noted. “You have also decided that [the child] will go to school in Amsterdam and will start in October 2013, [D] School .... [The mothr] may wish to live in The Hague, with her new friend/partner. It is all unclear and rather complicated. He is in a position to arrange a residence permit for her. Also it is a complicated relationship. The new friend/partner has trouble with you guys going on a holiday with the three of you. (Or have gone?) [The mother] will have to decide whether they will live in The Hague or remain in The Netherlands by starting a new study or return to Indonesia or … then can the parenting plan be made. Enclosed I am sending you a concept parenting plan.”
There is no translation certificate on the document and having regard to other evidence in the case it is probable that the father has translated the document himself. This objection was not raised. There are aspects of the statements referred to above which are consistent with the evidence provided by the respondent. The official translation was tendered later as exhibit A10.
Exhibit “A8”
This consists of a letter from Ms F a person who I accept is legally qualified in The Netherlands. She sets out her understanding of the operation of the mediator of the type met by the respondent and the father for the mediation which is referred to in Exhibit “A7”. She then sets out her knowledge of what occurs once a parenting plan has been signed by the parents.
Exhibit “A9”
This is a translation duly performed by a qualified translator of a letter from the D School to the parents of the child dated 19 April 2012. A copy of the same letter, without official translation, is contained in Exhibit “A4”. When Exhibit “A4” was tendered the Court was not informed that the document had been created by the father as his own translator. There is no discernible difference in the meaning of the two documents.
Exhibit “A10”
This is an official translation of the document forming part of Exhibit “A7” being the father’s translation of the mediation agreement.
Exhibit “A11”
This is a copy of a text message which was sent by the respondent to a person called “X”. It is exhibited because it contains the following “We are fine, especially your …, she is doing great. N very happy to play and enjoy all the things here. But I guess she miss you guys too and her home N of course [the father]. Well she is might not be the only one. Hope [the child] and me will be home soon again.” The document appears to be dated 25 August 2013.
Respondent’s exhibits
Exhibit R4 is a printout of documents provided by the father to the mother on 7 April 2015 and 7 May 2015. The documents were uploaded by the father to a website called XXX. It is the mother’s evidence that these documents were requested to enable the mother to enrol the child in an Indonesian school.
Exhibit R5 is a list of dates between 6 July 2010 and 17 October 2015 when the child was in Jakarta. Attached to that list is a copy of the child’s expired passport with the dates corresponding to the dates in the schedule being the first page of Exhibit R5. The applicants agree that the dates contained in the schedule are the dates during which the child was in Jakarta.
Oral evidence of the father
The father gave oral evidence on both 9 and 10 March 2016. The relevant portions of that evidence are as follows:
Evidence-in-chief
The father confirmed that he asked the Netherlands Central Authority to make an application to the Australian Central Authority on his behalf. He confirmed that the statement he signed on 21 February 2016 (read by the applicant in this case) contained a statement which was true. He confirmed that thereafter he received some affidavits sworn by the respondent, her husband Mr M, her mother Ms N, her friend Ms E and also Ms H. He sought an opportunity to respond to those affidavits.
The father was then asked about the mother’s affidavit sworn 22 February 2016. He was taken to paragraph 6 and asked to look at sub paragraphs (d) through (m). He confirmed those paragraphs addressed matters relating to the divorce. In relation to paragraph 6(e) the father said the content was untrue. In relation to paragraph 6(f) the father agreed that he and the respondent attended upon the Legal Aid Office in Amsterdam, however, the balance of the way the respondent explained it was untrue. In relation to attendances on the mediator in 2013 the father said there were two appointments, one on 17 July and the other on 29 July. The sessions were conducted in the English language. Those present were the father, the respondent and the mediator. The mediation was finished on 31 July 2013. On 31 July 2013 the father said documents were signed. That occurred at the mediation office. Once again the mediator, the respondent and the father were the only persons present.
In relation to paragraph 6(g) of the respondent’s affidavit sworn 22 February 2016 the father said “we did not sit down with a lawyer to draw up a parenting plan”. He denied that after meetings with the mediator he ever had a meeting with a lawyer.
The father denied the content of paragraph 6(h) of the mother’s affidavit. He said “we had decided upon a school by 2012”. The father tendered a copy of a letter in the English language, that letter addressed to parents of the child and was dated 19 April 2012. It became Exhibit A4.
The father was taken to paragraph 18 of the respondent’s affidavit. In that paragraph the respondent said she annexed a copy of an email she had sent to the father confirming arrangements for the collection of the child’s personal belongings. She then described what those belongings were. In response to that assertion the father identified emails between he and the respondent dated 20 January 2015 and 22 January 2015. Those documents were marked as Exhibit A5. The email of 20 January 2015 from the father to the respondent asked for a better description of the goods being shipped from the Netherlands to the mother in Indonesia. The respondent responded “the description of my stuff are clothes, shoes, baby stuff, books. Just private old stuff that people have.”
The father was taken to Annexure C to the affidavit of the respondent. That annexure was a schedule of international travel for the child following her birth until 4 November 2013. The father was taken to an entry for the period from 15 February 2010 until 8 July 2010. This is a period during which the respondent asserted she was living in Country Y with the child.
In answer to an objection taken by the respondent to further questioning about this period of time it was conceded that the father’s statement dated 21 February 2016 was an answer to the material provided by the respondent in the Form 2A Response under her sworn statement. That being so, objection was taken to the applicant seeking to broaden the line of question to that which departed from what was necessary to answer new material contained in the sworn affidavit of the respondent dated 22 February 2016. The question was not pressed.
The father was taken to the affidavit of Mr M sworn 22 February 2016. He was asked to look at paragraph 17 of that affidavit. He was asked about the statement “In early 2015, [the mother], [the father] and I began planning the schooling in Indonesia”. In response to that statement the father said “We never planned anything for [the child] with the three of us with regard to her schooling and all the parenting arrangements I planned with my ex-wife. The statement is simply untrue. She was already attending her school in the Netherlands and there was no reason why we would plan any other schooling arrangement.”
The father was taken to paragraph 18 of the Mr M affidavit. The father denied he had said “I want her to stay another year or two.” The father agreed the conversation took place and that the conversation was about “[The mother’s] wish for [the child] to attend the school in Jakarta and we discussed ….” [The mother] had told me that she wanted [the child] to move to Jakarta and she had indicated this by email and this was followed by this telephone and we simply talked about it and then I said “I don’t think it is wise that [the child] would move abroad just yet because she’s just well because it would be negatively influence her development in school.” Eventually during that call “[The mother] and I agreed that she would stay in Amsterdam and she asked me then if I could bring [the child] during the summer holiday to Indonesia so she could at least spend the whole summer with [the child] before she was returned to school the following year.”
The father was taken to paragraph 24 of the affidavit. In that paragraph Mr M said that he was present and heard a conversation between the father and the respondent. The father denied that the statement of what Mr M heard was correct. The father said “this conversation did not take place”. The father said that what was said in the conversation was as follows “[The mother] called me that evening through [Mr M’s] phone and she told me that she would not have [the child] returned home after the holiday unless I would send her a written confirmation that [the child] could live in Jakarta school year, 2016/2017, and ‑ ‑ ‑ ... and she said, “Well, you can also send it by email” ... I replied by saying that, if – if she wanted to discuss anything with regard to the agreements we already had, we could do this, but I would – under no conditions do this while she would use [the child] as a – as a tool to – as leverage basically in this conversation and I told her that I will be open to talk with her about the arrangements once [the child] returned to the Netherlands. Then, after that, the discussion got heated.”
In the Fraser Justice Murphy held that based on the conclusion reached that the children had abandoned habitual residency in New Zealand and had yet to acquire any habitual residency the Central Authority’s case failed.
Determination
In determining the question of habitual residence it is instructional to start with a record of where the child resided from her birth. She was born into a family in which, because of The Netherlands laws of residency, the respondent says (and there is no issue on this fact) she was only able to remain within the boundary of The Netherlands for a maximum of 90 days under the only visa available to her.
The respondent says that from October 2009 (the birth of the child) until 6 July 2010 she lived inside The Netherlands for periods of up to 90 days at a time. Between 15 February 2010 to early July 2010 she and the child lived mainly in Country Y although during that time she and the father visited each other from time to time (probably frequently). Then between 6 July 2010 until 4 November 2013 the child lived with the respondent in Indonesia for approximately 24 months and with both parents in The Netherlands for approximately 15 months. Given those dates; given that the child (a citizen of both Indonesia and The Netherlands) was at all times living with the respondent (as the only constant parent attending to her care), an Indonesian citizen; given that there was no controversy between the parents as to where the child lived from time to time; given that the father also lived with the respondent and the child for a significant proportion of that time; the question posed is what would the habitual residence of the child have been at November 2013?
In my view, having regard to the cases cited above, the child was probably habitually resident in Indonesia (if the amount of time she spent living between the two countries was the determinant) or alternatively she had two habitual residences. There was no suggestion she was not living a settled life in each country. If attendance at an educational facility is the determinant then again Indonesia wins the day as I accept the respondent’s evidence that the child attended pre-school in Indonesia.
What then has changed since November 2013 which might impact upon the determination of where the child is a habitual resident?
There has been a signing of a parenting plan. That was signed in July 2013. By November 2013 it had substantially been discarded by the breach of its provisions caused by impossibility of fulfilment. The parenting plan, at its centre, required for the child to spend more time with the respondent than with the father. That became impossible to fulfil when the respondent was unable to live in The Netherlands. To the extent that the father suggests that the parenting plan has some legal effect I reject such a case. I accept that the parenting plan was entered into because the parties thereto believed it was a necessary requirement to enable the parties to be divorced under Dutch law. I accept the evidence of the respondent to the effect that the father had assured her that the agreement would have no binding effect upon her. Even if that conclusion was wrong, the agreement was so wide in its terms it could not be said to be binding upon the parties in 2016. Apart from anything else it provided for the parties to agree upon the arrangements for the child to spend time with each of the parties in October of each year. There is no evidence that such action ever took place.
As I have said, I accept the evidence of the respondent on the conversations between the parties about why the child was in The Netherlands and for how long she was there. I find that the parties had agreed for the child to spend the first year of her formal education in The Netherlands. The agreement provided that after that first year, she would thereafter continue her education in Indonesia (probably at a Dutch speaking or Dutch school). During the period the child attended school in The Netherlands the agreement was that she would live under the care of the father during school term and during the school holidays she would live with the respondent. That holiday time would be spent in a country of choice by the respondent. I accept that mostly the school holiday time, where the child was with the respondent was spent at the respondent’s home in Indonesia or at some place outside of The Netherlands.
After November 2013 the evidence satisfies me that the child has spent more time living in The Netherlands and attending school there than she has spent outside of The Netherlands. I am satisfied she has spent a significant amount of the time she has spent outside of The Netherlands (during school holiday time), in Indonesia. (I note that the child has now been in Australia since about 18 December 2015, a period of more than 3 months. I do not consider that has created a new habitual residence for her. It is merely a regrettable outcome of this unfortunate circumstance she finds herself in).
Until about mid-2015 I find that the child’s continued attendance at school in The Netherlands has been a matter of consensus between her parents, although from the respondent’s side her agreement was reluctantly given.
The question then requiring determination is: Have the changed circumstance, since November 2013 changed the child’s habitual residence?
In my view there has been no change to her habitual residence during that time. The child either remains as a habitual resident of Indonesia or alternatively she remains a habitual resident of each of Indonesia and The Netherlands.
If the parents’ intentions are important in the determination of habitual residence, then I find the respondent has at all times considered herself and the child, to be habitual residents of Indonesia. I find the father has probably regarded the child as being a habitual resident of The Netherlands since the conclusion of 2013, however, he knew that the child had to be returned to Indonesia to live with the respondent under the terms of their agreement.
One of the matters I raised with the applicant during submissions was why the court could not consider this case as analogist to a situation where an Australian family living abroad (say in the UAE) send a child to boarding school in the UK because the father’s employer paid for the educational expenses of the child and because the parents both wanted the child to experience education in a boarding school in the UK. Would the child lose the habitual residence status of the parents because he/she spent more time in the UK at school than with the parents in the UAE? If you add to that scenario a separation between the parents so that one lives in the UAE and the other in France and the child splits time for school holidays evenly between the parents does that change the habitual residence of the child again?
I have accepted the respondent’s evidence where she says the agreement between the parents was that the child would live in Indonesia with her and spend the first year of her school life in The Netherlands. Thereafter at the request of the father that time was extended until mid-2015 when he failed to (and I find would clearly have refused refused) honour his side of the agreement and return the child to Indonesia to continue her schooling there.
If therefore, in the scenario posed above, the answer is that the child’s habitual residence had not changed by attending boarding school in the UK then the same ought also apply to the circumstances of this child. The one significant difference is that the child is clearly too young to attend a boarding school in The Netherlands and has lived in the care of the father. In the circumstance of this case where there was a clear agreement that the child residing with the father was for the school terms only and was to be limited to the first year of the child’s schooling, I conclude that living with the father in The Netherlands, as has occurred, did not change the habitual residence of the child.
As a consequence of accepting the evidence of the respondent and her witnesses, I must conclude that the father has (if he ever honestly believed to the contrary) deliberately led the respondent to believe, from July 2013 until October 2015, that he agreed with her stated position that the child lived in Indonesia with the respondent and her family and was only living with the father during school term pursuant to the agreement or any extension thereof, as asserted by the respondent. To allow a person to be able to rely upon deliberate misleading and dishonest behaviour to achieve a situation which he says now prevails, (i.e. that the child has only one habitual residence and that is The Netherlands), would work contrary to the legal principles applying to persons who litigate in Australian courts.
In a case where there is more than one possible outcome based upon the facts accepted by the court, the court ought move less cautiously in settling upon an outcome which favours the party who has been the subject of deliberate deception. In this case that means the court should err on the side of the respondent to the extent that a number of conclusions are available upon the same set of facts and determine the case upon giving greater weight to those matters which favour the respondent’s case.
So far as hearings of cases under the Regulation are concerned, as I said earlier, this case has been extraordinary. One aspect of the departure from the usual conduct of such a hearing has been an extensive opportunity for me, as a trail judge, to be able to form conclusions about the credit of each witness.
No doubt the applicant would say that the respondent has also acted in a deceitful manner. This was the subject of a submission by the applicant. The applicant says the respondent acted dishonestly by signing the consent form which the father required her to sign before the child left The Netherlands on 16 October 2015. The deceit was said to arise in two ways. Firstly the consent referred to the child having a holiday in Indonesia and would return on 25 October 2015. Secondly the respondent did not intend to return the child on 25 October 2015.
The answer to that submission must be that it is made out, however, I accept the explanation of the respondent that it was necessary to do that in order to have the child travel to Indonesia. The father had unilaterally determined at that time that he should be the one and only parent who would determine where the child spent time and travelled to. That was contrary to the very agreement he said he was adhering to (see the parenting plan document). Further, the respondent was candid about agreeing that she had acted in a deceitful manner to the father as he alleges. No such candour was evident in the father’s evidence.
If there be room for the court to exercise a discretion having regard to the best interests of the child in the determination of this matter, I would exercise that discretion in favour of the respondent. I would do so because I consider the father has acted in such a deceptive and dishonest manner in his conduct since the separation in July 2012 that I consider were the child to be returned to The Netherlands he would ensure the respondent’s contact with the child would be so limited and controlled by him so as to ensure the child did not, until she was much older, travel outside of The Netherlands. On the other hand, the evidence suggests (and probably establishes) the respondent has shown a far greater commitment to the child having a life with both parents and if it is possible to put in place, through court orders entered into and emanating from both the Indonesian Courts and also the courts of The Netherlands, a regime of time for the child to live with each parent on an equitable basis, then I consider the respondent has the dedication and parental drive to achieve that end.
Lest it be unclear from the above conclusion, I make the following findings.
The child was born in The Netherlands. She has citizenship of two countries namely The Netherlands and Indonesia.
Between the time of her birth and July 2013 if the child had only one habitual residence it was Indonesia where she spent most of her time and was by any measure settled there. If I be wrong in that conclusion then I find she had during that period two habitual residences.
Until about mid-2012 the parties were still in a marriage relationship. The respondent says separation occurred about that time.
In mid-2013 the parents of the child decided to divorce in The Netherlands.
On or about 31 July 2013 I find the parties entered into an agreement which was titled a “parenting plan”. That document did not evidence an agreement which the parties had made relevant to where the child would live into the future. That document was entered into, at least on the respondent’s part, based upon representations from the father that it had no purpose other than to enable the divorce to go through the Dutch courts. To the extent that it is necessary to find so, I conclude the father regarded the document only as a means to enable the Dutch court to grant a divorce. He did not regard the parenting plan as binding himself or the respondent.
Sometime about mid-2013 the parents agreed that the child could have her first year of formal schooling in The Netherlands. To that end she would live under the care of the father and would have school holiday time with the respondent.
That agreement did not change the habitual residence status of the child at that time.
It was, at the time of the agreement for the child to spend the first year of her formal schooling in The Netherlands, the joint intention of the parents that at that end of that year the child would return to live with the respondent in Indonesia and continue her schooling in that country. She would spend school holidays (perhaps up to four times each year) with the father in The Netherlands.
When the first year of the schooling for the child in The Netherlands concluded in 2014 the father requested that the agreement be extended so as to allow her to have another year in school in The Netherlands in order to consolidate her ability to converse in the Dutch language. The respondent (reluctantly) agreed to that extension.
In January 2015 the respondent made arrangements to enrol the child in a Dutch school in Indonesia. She sent copies of the enrolment form to the father and requested he sign the document. She also requested he provide documents in his possession and control necessary to enable the enrolment to be completed.
On 7 April 2015 and 7 May 2015 the father loaded onto a site called XXX documents which the respondent could access, copy and provide to the selected school.
In June 2015 the father had still not signed the enrolment form for the school.
In July 2015 the father again asked the respondent to extend the time for the child to remain in The Netherlands. The respondent at that time agreed to a short extension only.
In October 2015 the respondent arranged travel for the child from The Netherlands to Indonesia. That time was represented to be 16 October 2015 to 25 October 2015. At that time, however, the father advised the respondent it would be necessary to have the respondent sign a document which evidenced the travel. The respondent showed resistance to sign the document on the ground that it had never been required before.
The father threatened the respondent that if she did not sign the document it was within his right to cancel the trip.
It was a feature of the travel which the child was to undertake that she was to travel with her maternal grandmother and not with one of her parents.
The respondent deliberately led the father to believe she would only keep the child for the school holiday period, however, she intended not to return her to The Netherlands.
The father stated his reason for requiring the travel document to be signed by the respondent was to satisfy border control in The Netherlands that the travel was authorised. I am satisfied that the father had an another motivator in requiring the document signed and that was he understood the respondent was getting to the stage of no longer agreeing to the child attending school in The Netherlands. He anticipated the document may work in his favour should there be a contest between the parents thereafter.
The respondent arranged for the child to attend another school in Indonesia which did not require the father to sign the enrolment form. She attended that school until about 18 December 2015 when she was brought to Australia for a holiday by the respondent.
If I be wrong in my conclusion that both parties intended that the child would stay in The Netherlands only for the first year of her education when they made their agreement, then I conclude that the father, by his actions and words, deliberately intended to mislead the respondent into believing he was proposing to adhere to the original agreement reached between them and have the child schooled in Indonesia as soon as she had completed the first year of her formal schooling in The Netherlands together with any extended period to which the respondent would agree.
It was in reliance upon the word of the father given in the agreement that the respondent joined in the action necessary to have the agreement implemented.
To the extent that it is necessary to find, I find the child was settled while in the care of the father and attending school in The Netherlands. She attended school there and I accept she was engaged in activities and relationships in that time.
The fact that the child was settled in The Netherlands during her time in school did not alter the settled environment she had enjoyed and continued to enjoy in Indonesia. The actual amount of time she spent in Indonesia, although less than it had been before 2013, did not change anything for the child so far as the Indonesian environment is concerned.
The child was only four years of age in November 2013 when she commenced her schooling in The Netherlands. She was six years of age in October 2015.
The habitual residence of the child as a young child is to a degree determined by the intentions of parents. The extent of the degree of impact is governed by the findings of fact by the court.
In this case the father has his habitual residence in The Netherlands. The respondent has her habitual residence in Indonesia. The parents, by construction, agreed that through the agreement for the child to spend her first year of formal education in The Netherlands, together with any subsequent agreed extension thereto, would not change their joint intention that the child would continue to live and be a habitual resident of Indonesia. As such on 25 October 2015 and on any subsequent date, it could not be said the child had been “wrongfully retained” from a convention country as is a requirement for the Regulation (16(1A)(b)) to operate.
The normal application of law governing the way in which parties in this country conduct themselves, their commerce and their ordinary aspects of community life, must apply to the determination of matters under the Regulation to the extent that such considerations are not specifically excluded. People who lure others into bargains which require them to alter their positions to their detriment only to find they did so as part of a ruse to achieve an unintended outcome for the advantage of the deceiver, ought not have the advantage of application of Regulations, such as those currently under consideration, where there is available to the court to find alternate remedies which do not cater to such despicable behaviour.
In making these findings and in reaching a conclusion in this case, I have done so heavily relying upon the evidence of the respondent. I have been very impressed by the respondent as a witness of truth and unimpressed with the veracity of the father as a witness. I find that the father prevailed upon the mother to agree to extend the time which she had originally agreed the child could attend school in the Netherlands using the development of the child’s skill to speak and read the Dutch language as a tool to secure that extension. I am satisfied the respondent innocently consented to the father’s entreaties trusting in an aspect of the father’s character which was clearly lacking, i.e. that he was a person who would keep his word.
The father has, I am satisfied, used that innocence reposing in the mother, to his advantage, and I would think probably to the disadvantage of the child.
I conclude there is enough evidence, when considered in totality, to form the conclusion that had the respondent insisted at the conclusion of the first year of schooling that the child return to live with her and be schooled in Indonesia, the father would not have complied with his bargain and return the child for that purpose at that time.
The innocence of the respondent, which the father took advantage of, caused her to inform him that she would be bringing the child to Australia in December of last year. The father, armed with information about the operation of the UN Convention on the Civil Aspects of International Child Abduction, was able to quickly marshal the services of The Netherlands Central Authority and trap the child in Australia at that time. It is probable that no regard was had by him to the consequences of that action for the child other than the outcome which he required, namely the compulsory return of the child to The Netherlands. The outcome has been that the respondent has had to return to Indonesia in order to parent her infant children, who could not travel to Australia. The child has been parented by the mother of her step-father for the last three months while this case was heard and now determined.
It is the aspect of the respondent’s innocence which in part makes her evidence so compellingly believable. If that is coupled with the view of the respondent promoted by the father that she would willingly, in relation to a child of four years of age, who she had predominantly parented as a single parent since the child’s birth, give up the ability to care for the child on a full-time basis given every other aspect of her parenting effort (financial support of the child, paying for travel to and from Indonesia, regular communication with the child) simply defies credibility. That position is re-enforced when the respondent was seen giving her evidence with conviction and no indication that she was fabricating her evidence as she gave it.
The action taken by the respondent of sending to the father the enrolment forms for the child to attend a school in Indonesia is entirely consistent with the evidence which the respondent gives of the agreement. Further, the fact that the respondent sent the documents in January 2015 again is supportive of her evidence. The upload of documents to the XXX site by the father in 2015 again is corroborative of the respondent’s case.
The way in which this court has been used by the father to achieve an outcome to his advantage gives rise to a conclusion that there is at foot an abuse of process as suggested by the respondent. I wish to state that I ascribe no fault to the Central Authority in this respect as I see they had no real choice but to conduct the proceedings in the manner in which they have.
If the conclusion just reached be wrong then I find that the child had two places of habitual residence. This concept was recognised by the High Court of Australia in LK and the courts of Convention countries which will clearly have to deal with this possibility more and more as the peoples of the world become more mobile and the concept of world citizenship and a multi-homed way of life emerges.
Given the fact that there is not a dispute as to the habitual residence of each of the parents and given the very young age of the child, I consider that if there is to be a concept of two habitual residences this case fits that notion well.
In the event that the child was in one of her habitual residence sites on 25 October 2015 the Regulation would not be operative because she was not habitual resident in a Convention country.
To the extent that the applicant relies upon a wrongful retention in Australia, such cannot be wrongful again because the child was not habitual residence in a Convention country immediately before she arrived in Australia. Further, it would make a nonsense of the Regulation as neither of the parents intended or did retain the child in Australia.
In the conclusion I find that the application must fail and will be dismissed.
I certify that the preceding four hundred and eighty-seven (487) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench delivered on 24 March 2016.
Associate:
Date: 24 March 2016
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