Department of Family and Community Services & Raelson
[2014] FamCA 131
FAMILY COURT OF AUSTRALIA
| DEPARTMENT OF FAMILY AND COMMUNITY SERVICES & RAELSON | [2014] FamCA 131 |
| FAMILY LAW – CHILD ABDUCTION – Hague Convention – Application under the Hague Convention for the return of the children to the United States of America – Where the children have lived in both the United States of America and Australia from time to time – Whether habitual residence in the United States of America established – Whether requesting applicant acquiesced – Whether pursuit by requesting applicant of parenting proceedings in form and manner inconsistent with invoking right to summary return constitutes acquiescence – Residual discretion – Application by respondent for grant of permanent stay of proceedings |
| Family Law Act 1975 (Cth) Family Law (Child Abduction Convention) Regulations 1986 (Cth) |
Central Authority v Wageman and Anor (2012) 48 Fam LR 254
De L v Director-General New South Wales Department of Community Services (1996) 187 CLR 640
Dimer v Dimer, No 99-2-03610-7 SEA (Wa Sup Ct July 29 1999)
Director-General, Department of Families, Youth and Community Care v Thorpe (1997) FLC 92-785
Harris & Harris (2010) FLC 93-454
| Kilah v Director-General, Department of Community Services (2008) FLC 93-373 Laing v Central Authority (1999) 24 Fam LR 555 LK v Director-General, Department of Community Services (2009) 237 CLR 582 MW v Director-General, Department of Communities Services (2008) 244 ALR 205 |
P v Secretary for Justice [2007] 1 NZLR 40
Police Commissioner of South Australia v Temple (1993) FLC 92-365
RCB v Forrest (2012) 247 CLR 304
Re A (Minors) (Abduction: Custody Rights) [1992] Fam 106 (EWCA)
Re C (Abduction: Consent) [1996] 1 FLR 414
Re F (Hague Convention: Child’s objections) (2006) FLC 93-277
Re H (Abduction: Acquiescence) [1998] 2 AC 72
Richards v Director-General, Department of Child Safety [2007] FamCA 65
RK v JK (Child Abduction: Acquiescence) [2000] 2 IR 416
ZP v PS (1994) 181 CLR 639
| APPLICANT: | Department of Family and Community Services |
| RESPONDENT: | Mr Raelson |
| FILE NUMBER: | SYC | 7715 | of | 2013 |
| DATE DELIVERED: | 14 March 2014 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Kent J |
| HEARING DATE: | 7 March 2014 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Anderson |
| SOLICITOR FOR THE APPLICANT: | Legal Services Unit, Department of Family and Community Services |
| COUNSEL FOR THE RESPONDENT: | Mr Schonell SC |
| SOLICITOR FOR THE RESPONDENT: | Christopher Hughes & Associates Family Lawyers |
Orders
The application filed on 24 December 2013 be dismissed.
The interim orders made by Justice Loughnan on 8 January 2014 and on 28 January 2014 be discharged.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Department of Family and Community Services & Raelson 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 BRISBANE |
FILE NUMBER: SYC 7715 of 2013
| Department of Family and Community Services |
Applicant
And
| Mr Raelson |
Respondent
REASONS FOR JUDGMENT
Central Issues
By application filed on 24 December 2013 the Director-General, Department of Family and Community Services in the capacity of New South Wales State Central Authority (“the Central Authority”) under the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”) applied for final orders for the children, R born … November 2008, who is currently five years of age and M born … June 2010, who is currently three years of age, to be returned to the United States of America (“the USA”), a convention country within the meaning of the Regulations.
The requesting applicant under the Regulations is the children’s mother, Ms Raelson (“the Mother”) (aged 30, born … 1983), a resident and national of the USA, who also has Australian residency (by virtue of her marriage to the Father). The respondent to the application is Mr Raelson (“the Father”) (aged 29, born … 1985), a resident and Australian national who is currently residing with the children in Town C, NSW.
On the first return date of the application on 8 January 2014 Justice Loughnan made a number of Orders, including what may be conveniently described as the usual orders at the interim stage of an application such as this having regard to the content of the Form 2 application and the material in support of it. Otherwise the matter was set down for final hearing at the Sydney Registry on 28 February 2014. However, that hearing was subsequently vacated on 28 January 2014 when orders were made for the venue of these proceedings to be changed to the Brisbane Registry of this Court and for the matter to be listed for final hearing on 7 March 2014.
On 28 February 2014, the Father filed his Form 2A answer and cross-application. In response to the application the Father contended, in summary: that the children were not habitually resident in the USA immediately prior to 1 January 2013; that the children were not wrongfully retained in Australia on 1 January 2013; should the Court find that the children were habitually resident in the USA immediately prior to 1 January 2013, the retention was not wrongful as the Mother consented to the children remaining in Australia as at that date, or the Mother subsequently acquiesced to the children remaining in Australia; and that these proceedings constitute an abuse of process. As set out in his cross-application the Father sought orders that the application of the Central Authority be dismissed; and in the alternative, that the application of the Central Authority be permanently stayed.
In the manner in which the trial proceeded and was argued the following issues crystallised as the issues for determination:
a)Were the children habitually resident in the USA immediately before 1 January 2013, the date of alleged wrongful retention (reg 16(1A)(b))?
b)If that was the case, has the Mother acquiesced in the children being retained in Australia (reg 16(3)(ii))?
c)If acquiescence is established should a return order nevertheless be made (reg 16(5))?
d)Does the application constitute an abuse of process with the result that it ought be permanently stayed?
Disputed questions of fact – credit
The divergence between the versions of each of the parents relevant to the central issues made it necessary, and consistent with the observations made in MW v Director-General, Department of Communities Services,[1] that each of those deponents be cross-examined.
[1] (2008) 244 ALR 205.
Whilst I will record specific findings when discussing each of the issues to be determined I record, by way of overview, that in my judgment cross-examination of the Mother yielded the conclusion that the Mother is unreliable as a witness of truth. I found her to be prone to provide the answer she thought would advance her position rather than being forthright and frank.
For example, questions about the Mother’s use or abuse of drugs both historically and more currently permeates the issue of her intentions and conduct from time to time relevant to the question of habitual residence.
At paragraph 81 of her deposition attached to the affidavit of Mr S filed on 5 March 2014 in support of the application, in which the Mother provides her response to particulars in the Father’s affidavit of admissions he says were made by the Mother of an addiction to cocaine, the Mother deposes “I have never done nor been addicted to cocaine.” She there goes on to depose to an explanation as to why she told the Father a “lie” that she had in the past been addicted to cocaine and why she adopted and maintained that “lie” and re-told it to a number of medical health professionals.
Challenged about that in cross-examination the Mother asserted to the effect that she had only had to maintain this “lie” in the circle of the Father and his family and thus had only told medical health professionals in Australia the “lie” about her historical cocaine addiction as part of this adopted fabrication. The Mother positively asserted, by way of contrast, that she had never given any such history to any medical health practitioner in the USA.
However, exhibit 2 admitted in the proceedings is an extract from the records of one of the Mother’s USA-based physicians in which that physician records a history of “cocaine abuse/dependence in the past”. The likelihood is that appears only because that is the history the Mother gave to the physician. Further, exhibit 3 admitted in the proceedings, the records of Ms B, psychologist, includes a personality assessment inventory which the Mother completed. That inventory supports the conclusion that more than simply repeating, as opposed to expanding upon, the subject “lie” to Australian-based medical health practitioners is involved.
I found bizarre the Mother’s claims that when living in Australia the Father and his family had enlisted a medical practitioner to embark upon some kind of malevolent campaign to “over-medicate” her. The claim included that the Father’s step-father, Mr D, a pharmacist, was able to enlist the Mother’s treating medical practitioner to this endeavour because the medical practitioner was a friend of his. This inherently improbable and implausible claim became all the more so when the Mother admitted in cross-examination that she voluntarily chose to attend upon the same doctor post-separation, long after her alleged realisation of this doctor’s involvement and participation in a scheme which on her version would be completely contrary to her medical health.
An example of the Mother’s oral evidence departing significantly from her own affidavit evidence relates to what the Mother told or did not tell the Father when she left Australia for the USA with the children on 1 November 2011, an issue canvassed later in these reasons.
In her oral evidence under cross-examination the Mother advanced a proposition to the effect, for the first time and contrary to her affidavit evidence, that she had actually told or suggested or indicated to the Father prior to her departure from Australia with the children on 1 November 2011 that it was a possibility that she (and thus the children) may not return from the USA.
In paragraphs 35 to 43 of the Father’s affidavit filed 28 February 2014 he sets out in some detail his version of relevant communications and discussions at the time including reference to the written confirmation he received as to return flights to Australia for the Mother and children having been booked for their return on 4 January 2012.
In her affidavit in reply to the Father’s deposition the Mother nowhere asserts even the suggestion that she told or suggested to the Father she may not return. To the contrary, at paragraph 25 of that deposition, aside from referring to a letter dated 1 November 2011 that will shortly be discussed, the Mother says:
I felt that I needed to make them believe I wanted to return to Australia or else they wouldn’t let me leave. …
Thus the Mother’s affidavit version is that she contrived to lead the Father to believe her travel to the USA in November was for a temporary visit only.
The Mother’s version at trial that as at 1 November 2011 she had formed the intention not to return to Australia is inconsistent with the contents of the letter the Mother wrote dated 1 November 2011. The Mother attempted in oral evidence to explain the content of that letter as being part of her plan to lead the Father to believe she was returning to Australia, when she was not. However, the problem with that version is that the Father had already delivered the Mother and children to the airport in Brisbane (from northern NSW) on 1 November 2011 to enable them to depart Australia before he had even received the letter.
That letter is annexure “D” to the Father’s affidavit. Apart from being in general a letter of contrition for her conduct and full of apologies, it is, to say the least, disingenuous of the Mother to quote, in paragraph 25 of her affidavit for this application, only part of the sentence contained in the letter.
In paragraph 25 the Mother deposes:
… The letter does include the following passage and speaks to my feelings of isolation and home sickness:
‘… I have a desperate longing to be home and amongst loved ones who wish to have me around…’
The full sentence reads:
This coupled with the fact that I have a desperate longing to be home and amongst loved ones who wish to have me around, is why I’ve decided to go home for a visit.
(Emphasis added)
Relevantly, the letter also contains the following:
a)
“… My hope has always (and still is) been that we will work through
this.”
b)
“So while I am home I want you all to know that I look forward to
coming back with a new attitude and a new outlook on life.”
In my judgment the letter reflects the reality that at that time the Mother did in fact intend only to visit the USA and to return to Australia after that visit. Her attempts to portray the letter as being necessary as part of some connivance to cause the Father and his family to let her leave are rejected. Her attempts to portray the message contained in the letter, confirming all that the Father says about it being a temporary visit, as something else fundamentally damages the Mother’s credit.
In all the circumstances and given the importance of the issue, it fundamentally damaged the Mother’s credit that she would attempt to assert under cross-examination that she suggested or indicated to the Father prior to her departure on 1 November 2011 that she may not be coming back.
In this context it may also be observed that the Mother signed outbound passenger cards for the children confirmatory of them returning. She had told medical professionals of her plan that the trip to the USA was a visit. Accepting as I do the Father’s version referred to on this aspect there cannot be any doubt that both parents intended, as at 1 November 2011, that the visit of the Mother and the children to the USA would be just that, a visit and a visit of about 6 or 8 weeks duration whilst the Mother planned to undertake some therapy in the USA following which the Mother and children would return to Australia.
On this issue it is also relevant to note that neither in the present application nor in any evidence as to the parenting proceedings before me that the Mother commenced as will be further discussed did the Mother claim a date of final separation of 1 November 2011. The Father identifies as the date of separation the date when he learned of the Mother’s intention not to return in late November 2011. The Mother likewise adopts that date in her material and it is that date identified by the applicant as the date of separation in the Form 2 application.
In contrast to the Mother, having seen the Father undergo cross-examination, I do not hold the same or similar concerns with respect to his reliability as a witness. The one area where I considered the Father had reconstructed some of his evidence was on the issue of whether, when it was agreed the children would return to Australia on 25 August 2012, it had also been agreed that they would remain only until “over” or “after” Christmas 2012. The preponderance of evidence, I find, points to an agreement being that the children would be returned to the USA after Christmas 2012. I refer to the text messages the parties exchanged in July 2012 and the emails exchanged between Ms E, the Father and Mr D at the end of 2012. I accept that there was not a definite return date nor was there a defined “four months” but it would seem clear enough that the general agreement reached in about July 2012 is that the children would come to Australia on 25 August 2012, stay here to celebrate Christmas with the Father and the paternal family and then would be returned. Precisely when is open to debate. However, it would seem it was only after the children were here and indeed after Christmas 2012 that the Father communicated to the Mother that they would not be returning to the USA.
Much was sought to be made by way of an attack on the Father’s credit by reference to the oral evidence he gave in Apprehended Domestic Violence Proceedings heard in the Magistrates Court in July 2013. The transcript of that evidence is annexed to the Form 2 application.
At page 2, line 35 of the transcript there is reference to the Father referring to a “mutual agreement” but that is clearly a reference to the agreement that was reached for the children to travel to Australia in August 2012, not a reference to the duration of the visit. That is, the Father did not use the expression “mutual agreement” as to the children remaining in Australia. At the top of page 21 of the transcript the Father confirms that there was an agreement between the parents that the children would come and stay with his family for four months from August 2012. The Father confirms that it was to “December”. Specifically asked whether at that time the maternal grandmother would come and collect the children and take them back to America the Father answers, “there was nothing said about who was going to come and get them at that stage”.
Cross-examination on the topic thereafter continues until the questioner misquotes the Father in asking the question:
So when you said to the Court that there was a mutual agreement for them to stay in Australia that wasn’t true was it?
To that point the Father had not alleged that that was such a “mutual agreement” in terms of an agreement with the Mother. The questioner persists in putting propositions to the Father based on the incorrect premise that the Father had said there was a “mutual agreement” as between he and the Mother for the children to remain in Australia.
That issue aside, which itself does not in my judgment support a conclusion to the effect that the Father is overall not a credible witness, I found the Father to be a generally credible witness and my confidence in his reliability as against my lack of confidence in the Mother leads to the conclusion that on disputed issues of fact as between the parents the Father’s version is to be preferred to the Mother’s evidence.
Were the Children Habitually Resident in the USA Immediately Before 1 January 2013?
It is not in issue that from the time the parents met and married in California in early 2008 until their separation in late November 2011 they, and after each of their children were born, the children, habitually resided for some periods in Australia and for some periods in the USA.
The Mother, who was born in Town G, California, met the Father, an Australian national, while he was travelling in about January 2008. The parties commenced cohabitating in around February 2008, residing in the Mother’s residence in Town G. Two months later the Mother became pregnant with R. The parents subsequently married in March 2008 in Town G Courthouse in California. The relationship subsisted for approximately 3 years before the parties separated in late November 2011 in circumstances which will be further discussed.
When the Mother fell pregnant with R the parents agreed to move to Australia and to facilitate that move they decided to get married. The parties decided to move to Australia largely because the parents were unable to afford healthcare in the USA whereas in Australia antenatal care would be covered by Medicare. The parents travelled to Australia in May 2008 and resided with the Father’s parents until after the birth of R. In November 2008 R was born in Town C, NSW. In November 2008 the parents travelled to Town G, California with R for thanksgiving before returning to Australia for Christmas in mid-December 2008. On their return the parents resided at a property owned by the Father’s parents in H Street, Town C.
The Mother contends she was homesick in Australia and the parents agreed they would move back to Town G, California. On the Father’s version, in early 2009 the Mother said to him words to the effect, “I miss my friends and family back home. Can we go back there for a while?” The Father contends (and the Mother denies) that he replied in terms to the effect:
I’d like [R] to go to school in Australia, but between now and then, I’m happy to live between here and [Town G, California] so that we can all spend time with our family and friends in both countries.
In April 2009 the parents and R moved to Town G, California and resided with the maternal grandmother who provided them rent-free accommodation. During this time the Mother was a full-time student and also worked at a nightclub or bar, while the Father obtained part-time labouring employment. When the Mother fell pregnant with M the parties agreed they would move back to Australia. At the end of 2009 the parents and R returned to Australia to live. In June 2010 M was born in Town J, NSW.
In October 2010 the parents and children moved to Hawaii on the supposed basis of a “geographical compromise” as both parents would be half way between their respective families. This arrangement failed, partly because anticipated employment of the Father did not proceed, and in December 2010 the parents and children relocated to Town G, California and rented an apartment in Town G. The parties remained in Town G until September 2011 when they determined that they would return to Australia to live. In September 2011 the parents and children returned to Australia to reside in Town C, NSW.
It is not in issue that as at September 2011 when the parents returned to Australia to live they and their children then became habitually resident in Australia. That was expressly acknowledged by Counsel on behalf of the Central Authority at the outset of the trial of the application.
As earlier discussed, the Mother has given conflicting accounts, which I do not accept, as to the permanency or otherwise of her departure with the children on 1 November 2011 to the USA.
On the Father’s version, which I accept, the Mother and the children travelled to the USA to allow the Mother to obtain treatment for her mental health issues for a period of approximately six or eight weeks, before returning with the children to reside in Australia. The Father deposes that return air fares were purchased for the Mother and the children to return to Australia arriving on 4 January 2012 (an itinerary of those flights is annexure C to the Father’s affidavit). The Father maintains that he had conversations with both the Mother and maternal grandmother, where they discussed the Mother returning to Australia after her treatment. In particular, the Father deposes that on dropping the Mother to the airport on 1 November 2011 the Mother said to him words to the effect:
I promise you I’m only going to America to get well and I’ll be coming back with the children as soon as my therapy is finished. I still want us all to live in Australia as a family.
I accept the Father’s evidence.
The Father contends that approximately one month later, the Mother telephoned him and allegedly stated “I’m not coming back to Australia and you’ll never see the children again.”
I will shortly deal in more detail with the Father’s evidence as to his position but suffice to note here that the Father maintains he opposed such a course, but decided to continue working in Australia and regularly communicate with the Mother “in the hope I would be able to convince her to agree to the return of the children to Australia to live.”
In about February 2012 the parents agreed that the Father would travel to the USA in March 2012 to collect the children for a one month visit to Australia. The Father travelled to the USA in March 2012 to complete his “Green Card” application which had been on foot since about 2009. He collected the children and they returned to Australia. Four weeks later, as had been agreed, the maternal grandfather, Mr E, travelled to Australia and accompanied the children back to Town G, California.
On the Mother’s version, the parents agreed that in August 2012 the children would travel to Australia to stay with the Father and paternal family until “after Christmas” that year, a period of some four months. The paternal grandmother, Ms D, flew to the USA towards the end of August 2012 and returned to Australia with the children on 25 August 2012. The Mother maintains that after Christmas Day 2012 it became apparent that the children would not be returned to her as agreed. E-mails and text messages were exchanged between the parents and also between the maternal and paternal grandparents regarding organising airfares for the children’s return to Town G, California and who would fund those air fares. On the Applicant’s case the children were wrongfully retained in Australia from 1 January 2013 as the parents allegedly agreed that the children would return to the USA after Christmas 2012.
On the Father’s version in his evidence in these proceedings, there was no such agreement for the children to be returned after 4 months. He explains that his answers in the apprehended violence proceedings in this respect were a “mistake” in circumstances where he indicates he was taken by surprise about the topic being raised. I thought the Father’s explanation in this respect was unlikely given the surrounding text messages and emails before 25 August 2012 and after December 2012.
The Father’s version, which I accept on this aspect is that the children travelled to Australia at the request of the Mother because she could not cope with the children, work and her mental health/drug abuse issues.
He further contends that they had a number of conversations by telephone and text message and during one of those conversations, the Mother said words to the effect:
I am not coping. I can’t cope with going to school, I have no money and I’m constantly depressed and cranky with the children. I go out partying a lot to try and make myself feel better, but it only makes me feel worse. I really regret a lot of the decisions I’ve made. I think it’s best for the children if they come and live with you in Australia for at least 6 months.
At paragraph 75 of his affidavit filed 28 February 2014 the Father deposes:
When the children left the United States of America in August 2012, they were coming to Australia for at [sic] period of at least 6 months and I believed that during that period, [the Mother] would follow the children and come out to Australia to live. In those circumstances, only one-way flights were booked for the children for their flights back to Australia. At no time during my discussions with [the Mother] prior to the children returning to Australia in August 2012 was an agreement reached between [the Mother] and I that the children would definitely return to the United States of America at some stage in the future and I deny any contention that the children’s travel to Australia in August 2012 was only for a period of 4 months.
I consider it more likely than not that the agreement ultimately was that the children would be returned “after Christmas” as in soon after, but this does not mean there were not other discussions.
In any event, the Father maintains that during the period the children resided with him in Australia, he received several concerning telephone calls and text messages from the Mother. As at January 2013 the Father maintains he had significant concerns about the children returning to Town G, California to live with the Mother due to his perceptions as to her “mental instability” and he also formed the view at this point that the Mother would be returning to Australia to live. The Mother subsequently travelled to Australia in March 2013.
Whilst I deal below with events post-1 January 2013 in dealing with the issue of acquiescence, some of that discussion informs questions of parental intentions as at 1 January 2013 and is relevant to assessing the children’s circumstances and connections as at 1 January 2013, relevant to the issue of habitual residence.
Central Contentions of the Central Authority on the Issue of Habitual Residence
In LK v Director-General, Department of Community Services[2] the High Court extensively examined and considered the meaning of “habitual residence” in the context of the Regulations.
[2] (2009) 237 CLR 582, 595 [34].
At [34] of the judgment the High Court observed:
Thirdly, when considering where a child is habitually resident, attention cannot be confined to the intentions of the parent who in fact has the day-to-day care of the child. It will usually be necessary to consider what each parent intends for the child. When parents are living together, young children will have the same habitual residence as their parents. No less importantly, it may be accepted that the general rule is that neither parent can unilaterally change that place of habitual residence. The assent of the other parent (or a court order) would be necessary. But again, if it becomes necessary to examine the intentions of the parents, the possibility of ambiguity or uncertainty on the part of one or both of them must be acknowledged.
(Emphasis added)
The Central Authority, having acknowledged that the children were habitually resident in Australia on and from September 2011 when the family came to Australia to live for the then foreseeable future, focused upon “assent” in the paragraph referred to in contending that the children’s habitual residence had changed from Australia to the USA sometime after 1 November 2011.
Further, the Central Authority argued by reference to the affidavit evidence of the USA-based maternal grandmother, Ms E, that, in summary, statements made by the children to her; and the involvement of the children in activities in the USA; evidenced that they were “settled” in the USA sometime after 1 November 2011.
For the proposition that the Father could be taken to have given his “assent” to the Mother’s unilateral actions in changing the children’s habitual residence from Australia to the USA the Central Authority emphasised the following:
a)An email from the Father’s step-father Mr D to the Mother on 8 February 2012 (which the Father acknowledged in cross-examination he knew about) in relation to the March/April 2012 one month visit of the children to Australia which contained this:
…
[Ms D’s given name] (a reference to the paternal grandmother) and I had a long consult with a lawyer in [Town J, NSW] this afternoon. …
A few things emerged from the meeting, and I am happy to say that the results we got, are, as we see it, a “win-win” situation. I will list the main points in dot form.
The kids will NOT be able to be “held” here by [the Father], or anybody, against their will. [The lawyer] made it VERY clear to us that it would take a matter of only about a week and you would get a court order, (supported by the Hague Convention, which was ratified in 1994) enforcing the return of the kids to you in the unlikely event of the kids being held here against theirs, and your will. I think that this should set your mind at ease about their “non” return.
b)The fact that the Father pursued his “Green Card” application in March 2012 by travelling to the USA for that purpose and with that status the Father would be able to live and work in the USA;
c)The fact that the children were allowed to return to the USA at the end of the one month March/April 2012 visit;
d)The fact that the Father provided financial support to the children whilst they were in the USA;
e)The July 2012 agreement that the children would be in Australia from August 2012 only until “over Xmas” as referred to in one of the Father’s text messages. That is, that the Father acknowledged the children would be returning to the USA after Christmas 2012;
f)The fact that the Father had not sought to engage the Hague Convention at any time after 1 November 2011 to secure the children’s return to Australia.
As to the last point, implicit in the contention that the Father could have engaged the Hague Convention is the acknowledgment by the Central Authority that the children remained habitually resident in Australia, notwithstanding their departure with the Mother on 1 November 2011. That is consistent with the fact that the parties’ marriage remained intact as at 1 November 2011 (both parties pleading that separation occurred in late November 2011 when the Mother advised the Father she was not returning to Australia); and that the November 2011 travel to the USA had been agreed by the parents to be a temporary visit.
There is more than just irony involved in the Central Authority’s acknowledgement in the course of submissions by its Counsel that implicit in the contention that the Father could have legitimately engaged the Hague Convention is the acknowledgement that Australia would have been the appropriate forum in which parenting arrangements ought be determined. I will return to this topic later in these reasons when discussing discretionary considerations.
However, the point here is that as at the time of the subject email of 8 February 2012, the first in time of the events nominated by the Central Authority (other than the Father not instigating Hague Convention proceedings by then), there can be little doubt that the children in fact remained habitually resident in Australia.
In that context, as Mr Schonell of Senior Counsel for the Father highlighted, whilst the Father was aware of the email, the email reflects that the legal advice was obtained by Mr D and the paternal grandmother. The Father was not a party to the meeting or receipt of the advice nor is there evidence as to the instructions upon which the advice as described was given or based.
What the focus upon this email and indeed the other matters identified by the Central Authority overlooks, is that on the evidence all of these things occurred against an important underlying context.
Commencing at paragraph 45 of his affidavit filed 28 February 2014 the Father, having provided his detailed account of what was involved surrounding the travel of the Mother and the children to the USA on 1 November 2011, sets out in detail his response to the Mother having informed him, approximately one (1) month after, that she was not planning to return to Australia, that response being his immediate expression of opposition to that.
Attached to the affidavit of Mr S filed 5 March 2014 is the Mother’s affidavit in response to the Father’s affidavit.
As Mr Schonell of Senior Counsel highlighted in his submissions many of the paragraphs in the Father’s affidavit are either not directly responded to or no contrary evidence is offered by the Mother in her responses directed to these particular paragraphs. That is, credit issues aside, it can be concluded that the Mother has accepted, at least by omission, the Father’s version. Of course, given my credit findings the evidence of the Father is preferred in any event.
At paragraphs 45 to 47 the Father deposes, when the Mother told him in late November 2011 she did not propose to return to Australia:
45. I immediately expressed to [the Mother] my opposition to the abovementioned course. I did not agree with [the Mother] that the children should stay in America. I also did not believe [the Mother], given what she had said to me in the past, which was completely inconsistent with her abovementioned statement.
46. As I was, at that time, working on a full-time basis, (primarily for the purpose of being able to forward monies to [the Mother] to help in her and the children’s financial support), I decided to continue working and to regularly communicate with [the Mother] in the hope I would be able to convince her to agree to the return of the children to Australia to live.
47. I was optimistic that course would eventuate in circumstances where, prior to [the Mother] and the children travelling to [Town G, California] on 2 (sic) November 2011, [the Mother] and I had agreed that visit was only going to be a short term visit in order to allow [the Mother] to obtain therapy and, as deposed to above, return air tickets had been purchased for [the Mother] and the children.
In her affidavit in response, the Mother challenges only the frequency at which the Father sent money to support the children.
At paragraph 48 of his affidavit, the Father deposes:
48. I was also optimistic that [the Mother] would return to Australia with the children in the foreseeable future as notwithstanding the fact [the Mother] had advised me she would not be returning to Australia and that I would never see the children again, during the period from in about mid-December 2011 until the children, at [the Mother’s] request, returned to Australia to live on 25 August 2012, [the Mother] and I had many and regular discussions about reconciling our marriage and [the Mother] and the children returning to Australia to live.
(Emphasis added)
Not only does the Mother not deny those allegations in her response to those paragraphs but she offers no response at all in dealing sequentially with the paragraphs of the Father’s affidavit. Thus and given my preference for the Father’s evidence it can be accepted that from mid-December 2011 the parents were having many and regular discussions about reconciling their marriage and the Mother and the children returning to Australia to live.
At paragraphs 51 and 52 of his affidavit the Father deposes as follows:
51. In relation to [the Mother’s] and my discussions about reconciling our marriage in Australia, such discussions occurred, on average, once each week. Those discussions were substantially always initiated by [the Mother] and on each occasion [the Mother] raised the topic of reconciliation, [the Mother] said to me words to the effect:
‘We need to sort this out for the sake of the children, they miss you terribly. You won’t come and live here, so I’m going to have to move to Australia if we are to sort out our marriage and give the children a proper family life. Mom isn’t going to be happy about it, but I have to think of the children and do the best thing for their future.’
52. During some of the abovementioned telephone conversations, [the Mother] also said to me words to the effect:
‘I’m sorry for pushing you away. You are so good to me and I ruined it. I still believe that we all belong together and I’d like us to be one big happy family.’
Again in her response the Mother does not specifically dispute the essential contentions contained in the Father’s deposition. She challenges a later paragraph about the children’s home being in Australia but does not traverse the essential assertions contained in these paragraphs.
At paragraphs 54 and 55 the Father deposes:
54. On each of the occasions I said the abovementioned words to [the Mother], [the Mother] said to me words to the effect:
‘I’ll think about it, but I don’t really want them to go back to Australia until I’m ready to go with them.’
55. On 24 February 2012, I received an email from [the Mother] in which the following passage appears:
‘I want us to be a family again, the 4 of us.’
The Mother’s affidavit in response contains no response at all to these paragraphs. The Mother does acknowledge that she told the Father that she missed him and that “we belonged together for the sake of the children” in circumstances where it was clear to the Mother, as she acknowledged, that that could only occur if she returned to Australia.
The Father thereafter in his affidavit outlines his concerns and the reasons for them about the children’s welfare in the Mother’s care. The Mother acknowledges that she sent a text message to the Father on 25 July 2012 asking the Father “to come get the children”.
At paragraphs 72 and 73 of his affidavit, after referring to telephone conversations with the Mother after 25 July 2012, the Father deposes as follows:
72. During those conversations, [the Mother] said to me words to the effect:
‘I am not coping. I can’t cope with going to school, I have no money and I’m constantly depressed and cranky with the children. I go out partying a lot to try and make myself feel better, but it only makes me feel worse. I really regret a lot of decisions I’ve made. I think it’s best for the children if they come and live with you in Australia for at least 6 months.’
73. During the abovementioned conversations, [the Mother] also said to me words to the effect:
‘I really want to come back to Australia too. I need to get out of this place and I’m going to miss the children terribly, but I want to try and finish my course first. I know until I return to Australia, the kids will be well cared for by you and your family.’
In her response to these paragraphs, the Mother focuses upon what was agreed about the visit of the children in August 2012 and asserts that at no time did she ever tell the Father that the children were coming to Australia to live with him but she does not deny the conversations alleged by the Father and thus does not deny the statements that he records her making to him.
In summary, I accept the Father’s evidence that when the Mother told him, contrary to their agreement, that she intended to remain in the USA the Father immediately articulated his opposition to the children remaining in the USA.
I also accept the Father’s evidence that at all material times thereafter he maintained a position of being hopeful that the Mother would voluntarily return the children to Australia. I accept that his position was based upon regular discussions with the Mother in which she expressed hopes of reconciliation of the marriage and of the prospect of her and the children returning to Australia.
This and the other evidence of the Father I have referred to and which I accept supports conclusions that the Father cannot be taken to have ever given “assent” to the Mother’s unilateral actions in changing the children’s habitual residence. Moreover, acceptance of the Father’s evidence casts significant doubt on the Mother’s intentions from time to time.
I therefore do not accept that the facts emphasised by the Central Authority identified above, either alone or in combination, operate to constitute “assent”. I have earlier dealt with the February 2012 email. The fact that the Father completed his “Green Card” application in March 2012, an application that had been on foot for a long period, is not accompanied by any evidence of any plans by the Father to live or work in the USA. The Father’s evidence is to the contrary.
The fact that the Father recognised his obligation to assist in the day-to-day financial support of his children lends no support to the contention that he was thereby “assenting” to the Mother’s unilateral conduct.
Likewise, the Father’s voluntary return of the children at the end of the March/April visit and the fact he did not activate Hague Convention proceedings were in the context of his expectation, reasonable in all the circumstances referred to, that he might secure the Mother’s voluntary return of the children to Australia.
Whilst of course important, undue emphasis upon this issue of “assent” potentially distracts attention from the essential question posed in the heading above. That is, the question is not whether the children could be said to have become habitually resident in the USA at some point in time in the period between their departure from Australia on 1 November 2011 and their return on 25 August 2012. Strictly, the question is not even whether immediately before 1 January 2013 the children were habitually resident in Australia. The question, and what the Central Authority must establish, is whether immediately before 1 January 2013 the children were habitually resident in the USA.
As the High Court in LK emphasised, consideration of a wide variety of circumstances is permitted and the intentions of either parent is not to be given controlling weight.
At all material times these children were very young, and still are. Their respective capacities to form connections with places, rather than those caring for them from time to time, is to be acknowledged by reference to their young ages.
Immediately before 1 January 2013 the children had been living, since 25 August 2012, in Australia with the agreement of both parents. Over that period they were being cared for by the Father and his family, all living in Australia. Over that period the Father and his home in Australia and the paternal family were at the centre of the children’s lives and activities.
When the children returned to Australia on 25 August 2012 they were returning not only to the country of their birth but the place where they had been habitually resident from time to time historically. They were habitually resident in Australia as at 1 November 2011 as a consequence of their parents’ joint decision during their joint married lives to live with the children in Australia. The children had also spent a month in March/April living in Australia with the Father and his family.
In LK (supra) the High Court approved of statements in P v Secretary for Justice[3] at [44] in these terms:
… Rather, it is sufficient to observe that in P v Secretary for Justice, the effect of the decision in SK was described in the plurality reasons of the Court of Appeal of New Zealand (Anderson P, Glazebrook, William Young and O’Regan JJ) as holding that the inquiry into habitual residence is ‘a broad factual inquiry’. The plurality went onhttp:// - 61 to say in P:
‘Such an inquiry should take into account all relevant factors, including settled purpose, the actual and intended length of stay in a state, the purpose of the stay, the strength of ties to the state and to any other state (both in the past and currently), the degree of assimilation into the state, including living and schooling arrangements, and cultural, social and economic integration. In this catalogue, SK v KP held that settled purpose (and with young children the settled purpose of the parents) is important but not necessarily decisive. It should not in itself override what McGrath J called, at [22], the underlying reality of the connection between the child and the particular state.’
As the plurality rightly said, the search is for the connection between the child and the particular state. That being the nature of the search the plurality’s references to settled purpose are to be read as directing attention to the intentions of the parents. But as explained earlier in these reasons, the relevant criterion is a shared intention that the children live in a particular place with a sufficient degree of continuity to be properly described as settled. …
(Footnotes omitted)
[3] [2007] 1 NZLR 40.
Then at [45] the High Court observed:
… When it is also observed, however, that the resolution of the competing approaches has been to invite attention to whether presence at a place has a ‘degree of settled purpose from the child’s perspective’ (emphasis added), the difference in expression of the relevant considerations may not be great. …
(Footnotes omitted)
At no point could it be said that the Father deviated from his intention to live in Australia nor can it be concluded, for the reasons already outlined, that he ever gave “assent” to the Mother’s unilateral conduct of retaining the children in the USA.
The Mother left Australia on 1 November 2011 with the intention, as I have found it to be, that she and the children would return to Australia after the expected six or eight week period of her therapy. Whilst she informed the Father in late November 2011 of her then intention to remain in the USA, which effected the parents’ separation, on the findings already made it cannot be concluded that the Mother maintained a continuity of intention to remain in the USA or for the children to so remain.
Whilst it must be accepted (LK at [33]) that intentions can be ambiguous; and a person who has not formed a singular and irrevocable intention not to return to a place may still be described as no longer habitually resident in that place, relevantly here on the evidence which I accept the Mother throughout the period did not exhibit any concluded intention that the USA was to be her permanent home. Her conduct post-1 January 2013 which will be considered specifically under the topic of acquiescence is also informative of the Mother’s relevant intentions.
It may also be observed that the Mother’s affidavit evidence is redolent of her lack of financial stability in the USA which is unsurprising given that the parties had earlier recognised that it was not financially viable for the family unit to live in the USA which was at least part of their motivation for the decision to live in Australia as at the end of 2011.
Clearly the children had historically been habitually resident in the USA from time to time when their parents jointly decided during the marriage to live in the USA. It can be accepted that in the period between November 2011 and 25 August 2012 (interrupted by the month of April/May in Australia) they lived in the USA with all of the consequences of that in terms of the source of their care via the Mother and the maternal grandmother and the activities in which they engaged.
However, that ended with the parents’ joint decision that the children should spend an extended period in Australia commencing on 25 August 2012.
In all the circumstances I am not satisfied that the Central Authority has discharged its onus of establishing that immediately before 1 January 2013 the children were habitually resident in the USA.
On that basis the application is to be dismissed and it is strictly not necessary to engage with the other issues agitated on the hearing of the application. However, in case my determination as to habitual residence is reviewed and found to be wrong, I will deal with those other issues.
Obviously enough, habitual residence in the USA at the relevant time not being established, it follows that the Central Authority cannot satisfy the other elements in regulation 16(3)(1A)(c), (d) and (e) each of which rest on habitual residence being established. The Respondent Father’s contentions at trial proceeded on the footing that if, contrary to the Respondent’s position on habitual residence, this Court had found for the Applicant on that issue, these other elements were not in issue. The following discussion proceeds on a like basis.
Has the Mother Acquiesced in the Children Being Retained in Australia (reg 16(3)(ii))?
The following propositions, which may seem trite, are stated because of the manner in which the Central Authority addressed this issue (or at least my perception as to that approach) which seemed to at times blur some important distinctions or to confuse the test as to when acquiescence is established. The following propositions are distilled from Re H (Abduction: Acquiescence) [1998] 2 AC 72[4]; Director-General, Department of Families, Youth and Community Care v Thorpe (1997) FLC 92-785 per Lindenmayer J; Re A (Minors) (Abduction: Custody Rights) [1992] Fam 106 (EWCA); Kilah v Director-General, Department of Community Services (2008) FLC 93-373 (Bryant CJ, Coleman and Thackray JJ); Police Commissioner of South Australia v Temple (1993) FLC 92-365; Laing v Central Authority (1996) 24 Fam LR 555.
a)The onus of establishing acquiescence rests upon the respondent. Acquiescence must be proven by clear and cogent evidence.
b)The right to which acquiescence is directed is the right of the applicant parent to the immediate return of the children. It is not acquiescence in the child or children remaining permanently in the forum that needs to be established.
c)Acquiescence operates to effectively estop the applicant parent from demanding the immediate return of the child or is to be seen as waiver by the applicant parent of the right to immediate return.
d)The applicant parent must be shown to have the subjective intention not to insist upon a right to summary return. If that subjective intention is not established it is only if the words or actions of the applicant parent clearly and unequivocally show, and have lead the respondent parent to believe, that the applicant parent is not asserting or going to assert a right to summary return, and are inconsistent with such return, that acquiescence is established.
e)Words or conduct of the applicant parent (including passive inaction over time where action ought be expected) have the potential to inform the enquiry as to acquiescence in two ways. First, and most commonly, the court infers from the words or conduct (or both) that the applicant parent had the requisite subjection intention despite later claims by the applicant parent as to his or her intentions being otherwise. In so doing the court is determining as a fact that the applicant parent had the requisite subjective intention. Second, and perhaps less commonly, the words or conduct (or both) of the applicant parent may be sufficiently clear and unequivocal as to demonstrate that the other parent was lead to believe that the applicant parent was not going to insist upon summary return. Later claims that the applicant parent always secretly intended to seek summary return, even if true, will not displace acquiescence in those circumstances.
f)In both categories of case the context or contextual matters surrounding the words or the conduct may be important considerations in determining that clear and unequivocal acquiescence is established.
g)Acquiescence, once established is irrevocable. To conclude otherwise would render the acquiescence exception illusory because it will only arise when the applicant parent, who has previously acquiesced, has changed his or her mind and seeks immediate return. Prompt attempts to displace or withdraw acquiescence might be relevant to the court’s exercise of discretion, as might be the reasons for those attempts and indeed the consequences of acquiescence, but acquiescence once established cannot be revoked.
[4] As applied by Holden CJ in Commissioner, Western Australia Police v Dorman (1997) FLC 92-766 and SCA v Sigouras (2007) 37 Fam LR 364.
Counsel for the Central Authority, in both his written and oral submissions referred to a number of authorities seemingly to support a submission to the effect that acquiescence could be withdrawn. Counsel referred to Department of Health and Community Services, State Central Authority v Casse (1995) FLC 92-629; 19 Fam LR 474, per Kay J at p 82,311/ 480, citing the Court of Appeal in Re R (Child Abduction) (1995) 1 FLR 716 at 727, and Stewart-Smith LJ in Re: A (Abduction: Custody Rights) (1992) Fam 106 at 121. Followed by Forrest J in Department of Communities (Child Safety Services) v Garning [2011] FamCA 485, at [75]-[77].
As pointed out by Lindenmayer J in Thorpe’s case (supra), Kay J’s reference in Casse to “clear and unequivocal words and conduct” rather than “clear and unequivocal words or conduct” simply arises from a misquoting of the Court of Appeal in Re R (Child Abduction) (supra). Otherwise nothing in Casse is contrary to the above stated propositions. Each of these cases turn on their facts. His Honour focused upon the context in which the relevant words and conduct occurred and in finding there to be a state of confusion and emotional turmoil concluded, in effect, that the husband there did not have the subjective intention; nor could it be inferred; because it could not be concluded that the words and conduct were clear and unequivocal viewed in that context.
It is true, as the written submissions on behalf of the Central Authority emphasise, that the decision of Forrest J in Garning’s case (supra) was upheld on appeal to the Full Court and to the High Court. However, it may be observed that [75]-[77] of his Honour’s judgment, relied upon by Counsel for the Central Authority here, and the issue which was the subject of that discussion, was not the subject of either the appeal to the Full Court or to the High Court.
Nowhere in those paragraphs does his Honour actually find that acquiescence, once demonstrated, can subsequently be withdrawn or retracted. True it is that his Honour refers at [75] to “momentary acquiescence” but understood in context what his Honour was directing attention to was the relevant context in the case before him in which the relevant words or conduct, and the fleeting or momentary nature of them, was concerned. If, which I doubt, his Honour can be taken to have concluded that acquiescence, once established, can be withdrawn, then I respectfully disagree that this is an accurate statement of the law.
As I have attempted to highlight above, context in which words or conduct occurs will be relevant to determining whether the applicant parent had clearly and unequivocally acquiesced. In many cases there will often be more than one possible interpretation of the words or conduct in question and relevant context needs to be considered in interpreting the words or conduct. Thus in Re C (Abduction: Consent) [1996] 1 FLR 414 the fact the left-behind parent helped the abductor to pack or sell household items or, as in Dimer v Dimer, No 99-2-03610-7 SEA (WA Sup Ct July 29 1999) later shipped the belongings of the abductor and child to the country of refuge, not because those acts could not constitute acquiescence but because the context in which such conduct occurred lead to the interpretation that acquiescence was not established.
In this case what falls for consideration is the Mother’s words and conduct over a lengthy period where that conduct includes her instituting parenting proceedings to pursue remedies inconsistent with seeking a summary order for return, as will be discussed.
On the Mother’s version, she travelled to Australia on 4 March 2013 to retrieve the children, after acquiring sufficient funds to purchase an airline ticket. Upon her arrival, the Mother contends that the Father refused to provide the Mother with the children’s passports and informed her that he had commenced parenting proceedings to gain full custody of the children. I prefer the Father’s evidence that the Mother came to Australia to pursue reconciliation. The Mother has remained in Australia since March 2013.
On the Father’s evidence, he collected the Mother from the Brisbane airport on 4 March 2013, however, she was detained by the Australian Federal Police (“the AFP”) for some hours on the suspicion, later found to be unwarranted, that she was attempting to smuggle illicit substances. Annexed to the Father’s affidavit is a transcript of the recorded interview between the Mother and the AFP.
Relevantly, the transcript records the Mother telling the Australian Federal Police this:
No. I mean I’m sorry I didn’t mean to bring one pill in. I haven’t done them in months. I’m here to see my kids. The last thing that I’m gonna do is bring drugs into Australia. We’re trying to work out our marriage and trying to you know, I’m sorry. …
(Emphasis added)
Asked to confirm her address in Australia the Mother gives the Town C, NSW address, of the former matrimonial home at which the Father and the children were living and where she has continued to live. She confirms that to be her home address whilst in Australia. She then says this:
Well. I mean my husband and I are separated we’re working on our marriage so I go back and forth between here and [Town G, California] and so do the kids. So but while I’m here which I intend on being here for good, that’s my address.
(Emphasis added)
I accept the submissions of Mr Schonell of Senior Counsel for the Father that all of the extraneous evidence, and the evidence of the Father, demonstrates that the Mother had made a decision prior to 4 March 2013 when she arrived in Australia that she intended to return to Australia and that she intended to remain living in Australia on a permanent basis. It certainly does not demonstrate an intention to seek immediate return of the children.
In advancing the contention in cross-examination that she came to Australia to collect the children and return with them to the USA the Mother reluctantly acknowledged to the effect that at least part of her motivation to come to Australia was to attempt reconciliation. Moreover, her oral evidence was to the effect that she scraped together enough money for the cheapest possible airfare so that she could travel to Australia. How she would thus fund her immediate return with the children, if that were her intention, must be doubted. Whilst in her affidavit she refers to some assets being held here there is no convincing evidence that she had satisfied herself that would be able to access those assets before her arrival on 4 March 2013. Moreover, it is beyond doubt that by then the Father’s position was clearly known to her.
The Mother did not provide a plausible explanation in her oral evidence in cross-examination as to why she would tell the Australian Federal Police what she is recorded as telling them rather than saying she was here in Australia to collect her children, if that were her true intention.
The evidence confirms that after 4 January 2013 the Mother represented to medical practitioners in Australia that she intended to remain living here.
Upon her arrival in Australia, the Mother resided with the Father and the children in the former matrimonial home in H Street, Town C, NSW. Between 4 March 2013 and mid-May 2013 the Mother lived with the Father and children (Mother slept in master bedroom and Father in the lounge room) and the Father contends, on occasion the parents went on “dates” and engaged in sexual relations. The Mother acknowledges there were family outings and that the parents socialised.
This arrangement continued until an incident of domestic violence occurred on 17 May 2013 resulting in police initiated charges being laid against the Mother for harassment. Apprehended Domestic Violence proceedings occurred in the Magistrates Court in mid July 2013 which resulted in the Mother entering a plea of guilty and being released (without conviction) and sentenced to a six month good behaviour bond. An extract of the transcript of those proceedings (including the oral evidence of the Father) is annexed to the Form 2 application.
Following the incident on 17 May 2013, the Mother remained in the former matrimonial home and the Father and the children have resided with his parents in I Street, Town C. The Mother then initiated parenting proceedings.
On 24 May 2013 the Mother commenced parenting proceedings pursuant to Part VII of the Act by way of her Initiating Application filed in the Federal Circuit Court (“the parenting proceedings”). Those proceedings remained on foot at the time of hearing the present application.
Pursuant to her Initiating Application filed 24 May 2013, the Mother sought interim orders which provided, inter alia, for the parents to have equal shared parental responsibility for the children; for the children to live with the Mother and spend time with the Father each alternate week from 5.00pm Friday to 9.00am on Monday and, in each other alternate week, from 5.00pm on Monday to 9.00am on Wednesday; and also for the Father to be restrained from removing the children from Australia.
I note here that parental responsibility as defined in s 61B of the Act obviously extends to the power to determine where children live and also that upon filing of the application the statutory injunction in s 65Z of the Act as to any person taking the children out of Australia was engaged.
The Mother also sought as final (not interim) orders that she have sole parental responsibility for the children; that the children live with her; that she be permitted to relocate the children’s residence to the United States; and that the children spend time with the Father as agreed, in particular, in the United States at any time upon the Mother being given not less than 14 days’ notice, and not less than once each year in Australia (with the Mother to arrange such a trip and pay the costs associated).
On 14 June 2013 the Father filed a Response to the Mother’s Application which response was subsequently amended and re-filed on 4 March 2014.
The parenting proceedings were first returnable before Judge Spelleken on 18 June 2013. However, as a result of discussions undertaken by the parties, interim orders were made by consent in chambers on 12 June 2013. It is informative, relevant to the Mother’s intentions at the time she consented to those interim orders that they included detail as to events well into the then future such as for a family report to be prepared, for the children to spend supervised time with the Mother, for the children to attend their preschool, for the parents to submit to urinalysis screening and for the parents to keep each other informed of their contact details.
The letter to the Court, countersigned by the parties’ respective solicitors, in seeking that orders be made by consent details the relevant history and anticipated future events concerning parenting arrangements. Nowhere does there appear the slightest suggestion on behalf of the Mother that a summary return order was in mind and moreover the contents of the letter and the terms of the consent orders are utterly inconsistent with that.
It is also to be noted that the Mother joined with the Father in the appointment of a single expert psychologist to undertake a report. That process had to be funded by the Father. The parties attended for interviews on 26 June 2013. The family report, read before me, confirms that a great deal of detail was provided by each party in the interview process. Nowhere is there the slightest reference by the Mother that somewhere in the background was a potential Hague application. That is in the context of her discussing with the expert at some length future parenting arrangements.
In the course of the parenting proceedings process the Mother also underwent psychiatric evaluation, again funded by the Father. Again there is no suggestion of the Mother raising any prospective immediate return of the children to the USA.
On 12 November 2013 Judge Spelleken transferred the parenting proceedings to this Court and made further interim orders with the consent of both parties. Order 3 of those orders provided for the children to spend time with the Mother on a graduated basis starting with one day per week in November 2013 and extending to alternate weekends and one night per week by May 2014.
In accordance with the abovementioned orders the children are currently residing with the Father at the residence of the paternal grandmother and her husband at I Street, Town C, NSW, and spending time with the Mother from 10.00am on Tuesday to 4.00pm on Wednesday each week, and each alternate weekend from 10.00am Friday to 5.00pm Sunday.
The parenting proceedings are next listed for a directions hearing on 28 March 2014.
When on 24 May 2013 the Mother instituted her parenting proceedings she did not seek in that application any order under Part VII for summary return of the children to the USA pursuant to the principles enunciated by the High Court in ZP v PS (1994) 181 CLR 639. Nor did she seek to condition any orders she sought under Part VII on an application pursuant to the Regulations.
Nor did the Mother elect, rather than filing an application pursuant to Part VII of the Act, to herself make an application pursuant to regulation 14(1)(b) of the Regulations for a return order, that is, an order for the immediate return of the children to the USA; an application the Mother herself had standing to make.
I am mindful in expressing the above concerning the Mother’s standing that in RCB v Forrest (2012) 247 CLR 304, a case cited to me during the hearing of this application on another point, the plurality of the High Court observed of an application by a responsible Central Authority for a return order at [22] that “there is no provision in reg 14 for any other person to make such an application”. However, that issue did not arise in that case and in context the plurality were addressing questions of natural justice and procedural fairness in terms of representation of the subject children. The High Court’s attention was not directed to regulation 14(1)(b) or to regulation 16(1)(c) as the issue of standing did not arise in that case. The Regulations as they appear in their current form have been amended since the Full Court of this Court considered the Regulations in a previous form in A v GS (2004) 32 Fam LR 583. That the Mother had standing to bring an application herself under the Regulations is not in doubt.
It has been held that submitting an application for custody in the requested Stated, expressed to be without prejudice to the applicant’s rights under the Convention is not acquiescence (see RK v JK (Child Abduction: Acquiescence) [2000] 2 IR 416). However, here the Mother did not do that.
In Re H (Abduction: Acquiescence) (supra) the children were abducted from Israel to England. The father, an ultra-orthodox Jew, first turned to the Rabbinical Court in Israel. Only six months later, when that court’s orders had failed to result in the return of the children, did he apply to the English court under the Convention. The Court of Appeal held that the resort to the Rabbinical Court indicated that the father had waived his rights to immediate return and thus the acquiescence defence was established. However, that decision was overturned on the appeal on the basis that this interpretation of the facts did not reflect the father’s subjective intention. Clearly, as distinct from this case, in Re H the father chose a different route to secure the return of the children, consistently with his religious beliefs, and thus could not objectively be said to have waived his right to demand their return under the Convention. That is in stark contrast to this case.
In this case the alternate route selected by the Mother was not to the same destination as summary return. It was contrary to that. It was embarked upon five (5) months after the time of alleged wrongful retention and was pursued for seven (7) months before the present application was filed. It was pursued in a manner inconsistent with seeking summary return.
Viewed from the perspective of the Father there is no doubt that he was lead to believe that the Mother would not be pursuing a summary order for return. For a start, the February 2012 email emphasised by the Mother in her material renders it plain that the Mother was aware of the existence of the Hague Convention. It is not strictly necessary that the Mother was aware of her precise rights but in this case the Mother clearly had notice of the existence of the Hague Convention. She did, I find, pursue attempts at reconciliation with the Father following all that had been exchanged between them prior to her arrival here as I have already discussed.
It is only when the relationship again broke down with the unfortunate events in May 2013 that the Mother took formal action but all of that action, as I have outlined, was inconsistent with a summary order for return being sought. Indeed, on the Father’s case which I accept, the Mother never disclosed to the Father nor to the Federal Circuit Court, notwithstanding her duty of disclosure, anything about the Hague Convention proceedings even when she authorised them on 19 August 2013. Indeed the first the Father knew of this application was when he was served with it in early January 2014.
I reject the contentions on behalf of the Central Authority that all of the Mother’s words and conduct are to be viewed in the context that she was in a state of emotional turmoil such that acquiescence cannot be established. Whilst it may be accepted that there were times of emotional turmoil, for both parties, I do not accept that given the lengthy time period under discussion and the fact that the Mother herself instituted the parenting proceedings with the benefit of legal assistance and pursued those proceedings over many months, with all the consequences of that, that this can be put down to acting out of a sense of emotional turmoil.
To the contrary, I find this to be a clear case where acquiescence is established both because the subjective intention can be inferred and the same conduct lead the Father to believe and act on the belief, that summary return would not be sought.
Residual Discretion
As earlier noted in discussing habitual residence, implicit in the submissions made by the Central Authority is that when the Mother retained the children in the USA beyond the eight week period after 1 November 2011 the Father could have engaged the Hague Convention. That carries with it the implication that it would have given effect to the Convention for the children to be returned to Australia as a proper forum for parenting proceedings in relation to their welfare to be conducted and determined.
These young children have now been living in Australia since 25 August 2012. Notably, that is the longest period, by a significant margin, that they have lived continuously in any one place.
Since March 2013 they have experienced the care of both of their parents and their parenting arrangements have been regulated by orders since mid-last year.
Those parenting proceedings are advanced. There have been interim orders and some three family reports prepared from the single expert witness retained for that purpose.
No evidence was put before me to demonstrate when, if the children were immediately returned to the USA, parenting proceedings would likely be heard and determined in that jurisdiction. In my judgment consistent with the nature of this discretion identified by the High Court in De L v Director-General New South Wales Department of Community Services (1996) 187 CLR 640 the relevant discretionary considerations would not support a conclusion that a return order ought be made.
In this respect I am mindful that it is not necessary for “clear and compelling” reasons, in addition to the ground for not making a return order, to be established.[5] But in this case, for the reasons I have outlined, there are clear and compelling reasons for not making a return order.
[5] Richards v Director-General, Department of Child Safety [2007] FamCA 65 (Kay, Coleman and Boland JJ).
Application for Permanent Stay of Proceedings
In circumstances where I have determined that an order ought be made to dismiss the application it is not only unnecessary to engage with this contention but it can be seen that the proceedings having been dismissed, the substratum upon which the exercise of discretion, upon any relevant ground to grant a permanent stay, is removed. A stay was only sought in the alternative by the Father.
If a permanent stay of proceedings is to be sought in applications of this type such an application ought be advanced prior to the final trial of the application or at least before the substantive trial has been heard.
I therefore make only a couple of limited observations. Undoubtedly this Court has power to grant a permanent stay in applications of this type in exceptional circumstances. That was recently considered by the Full Court of this Court in Central Authority v Wageman and Anor (2012) 48 Fam LR 254 where the Full Court considered not only the relevant principles but the principles as they apply to applications under the Regulations.
In addressing this aspect as raised by the Respondent the Central Authority appeared to adopt the position, by reference to the Regulations, that having received a request it was bound to act and if negotiating a voluntary return could be ruled out as viable, that obligation dictated that an application for a return order be made.
This would seem to overlook some important judicial pronouncements on the role and duties of a Central Authority. In Laing v Central Authority (1999) 24 Fam LR 555 Kay J, as a member of that Full Court, observed at [93]:
…There is weight in the submission that the Central Authority needs to act to some degree as an honest broker. Its role may be likened to that of a Crown prosecutor who is required to put before the court matters which might assist the accused as well as matters which might lead to a conviction. The Central Authority’s obligation is not to secure the return of the child but to implement the requirements of the Convention.
After setting out the terms of regulation 5 as it then existed Kay J continued at [94]:
If in implementing the requirements of the Convention it obtains the return of a child who ought to be returned then it is carrying out its function. If it draws to the court circumstances which might lead the court to make an order other than the return of a child then it is also carrying out its function.
That statement has been cited with approval by subsequent Full Courts including in Re F (Hague Convention: Child’s objections) (2006) FLC 93-277 and Harris & Harris (2010) FLC 93-454. Indeed it can be seen that in RCB v Forrest (supra) the High Court at [22] cited with approval the judgment of Kay J in Laing and of the Full Court in Harris.
For the reasons already given I do not propose to say anything further on this aspect of the issues ventilated at the trial.
Conclusion
I order the application be dismissed.
Whilst it would seem to follow, for completeness, I will order that the interim orders made by Loughnan J on 8 and 28 January 2014 be discharged.
I certify that the preceding one hundred and fifty-five (155) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 14 March 2014.
Associate:
Date: 14 March 2014
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