DEPARTMENT OF FAMILY AND COMMUNITY SERVICES & SVOBODA

[2012] FamCA 1108

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF FAMILY AND COMMUNITY SERVICES & SVOBODA [2012] FamCA 1108

FAMILY LAW – CHILD ABDUCTION – HAGUE CONVENTION – where the mother removed the children from the Czech Republic – where the central issue was whether the children were habitually resident in the Czech Republic at the time of the removal – where they were found not to be.

Family Law (Child Abduction Convention) Regulations 1986 (Cth)

LK v Director-General, Department of Community Services (2009) 237 CLR 582
In re J. (A Minor)(Abduction: Custody Rights) [1990] 2 AC 562

APPLICANT: Director-General, Department of Family and Community Services

RESPONDENT: Ms Svoboda

FILE NUMBER: SYC 3731 of 2012

DATE DELIVERED: 21 December 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 26 November 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Hartstein

SOLICITOR FOR THE APPLICANT: Department of Family and Community Services

COUNSEL FOR THE RESPONDENT: Ms Barnett

SOLICITOR FOR THE RESPONDENT: Catalyst Family Lawyers

Orders and Notations

1. The application of the Director-General, Department of Family & Community Services filed 26 June 2012 be dismissed.

2. The interim orders of 28 June 2012 (that the mother be restrained from leaving Australia and removing the children from Australia, and the children’s names be placed on the airport watch list) be discharged.

3. In the event the father wishes to make an application in the Family Court in this Registry under the Family Law Act 1975 (Cth) for parenting orders, any such application is to be expedited.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Department of Family and Community Services & Svoboda(No. 2) 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 3731 of 2012

DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Applicant

And

MS SVOBODA

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. The Central Authority seeks orders for the return of the children P born in October 2008 and V born in November 2009 (“the children”) to the Czech Republic pursuant to the provisions of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”).

2. The mother initially opposed the application for two reasons. Firstly, she said the children were not habitually resident in the Czech Republic at the time she removed them. In the alternative, she opposed the children’s return to the Czech Republic raising the defence that it would present a grave risk of harm to the children if they were to be returned to the Czech Republic (reg 16(3)(b) of the Regulations). The mother’s claim of grave risk was abandoned at the hearing.

DOCUMENTS RELIED UPON

1. The Central Authority relied upon:

   3.1.Form 2 Application filed 26.06.2012

   3.2.Affidavit of Ms M sworn 3.08.2012

   3.3.Affidavit of Ms M sworn 4.10.2012

   3.4.Affidavit of Ms M sworn 19.10.2012

   3.5.Affidavit of Ms M sworn 8.11.2012

   3.6.Two affidavits of Ms M sworn 13.11.2012

2. The mother relied upon :

   4.1.Form 2A Response filed 2.08.2012

   4.2.Mother’s affidavit sworn 31.07.12

   4.3.Mother’s affidavit sworn 26.10.2012

   4.4.Affidavit of Ms R sworn 9.10.2012

   4.5.Affidavit of Ms R sworn 31.07.2012

   4.6.Affidavit of Mr H sworn 28.07.2012

   4.7.Affidavit of Mr R sworn 31.07.2012

   4.8.Affidavit of Ms RR sworn 18.07.2012

CREDIT

Mother

1. The mother gave evidence in a forthright manner most of the time. Some of what the mother says is corroborated by contemporaneous records, the authenticity of which was not challenged. I will indicate in discussion where I have difficulty accepting parts of the mother’s evidence.

Father

1. The father gave evidence by video link from the Czech Republic. Those in the court who were responsible for organising the video and audio, which worked seamlessly, are to be congratulated. It was as if the father was in the court room. I thank the court staff, both in Sydney and Canberra, who worked out of hours, not only on the day of the hearing but on a previous occasion to test the link between Australia and the Czech Republic.

2. The father gave evidence in a forthright manner but there were parts of the father’s evidence I do not accept which I detail below.

3. The mother criticises the father for not complying with the mother’s request to make a Freedom of Information application to get access to his Centrelink records. That request was made close to the hearing. In Ms M’s affidavit sworn 13 November 2012, the father says that he has tried “to get to Centrelink online, but I spent [a] lot of time and effort to get the information, but I have to write all this other things in this matter so I gave up in order to finish all this other writing in time.” I accept that explanation.

Conclusion on credit

1. Both parents gave evidence from their own perception and memory of how events occurred and I do not generally accept one parent’s evidence in preference to the other’s evidence. Where there is an important contradiction in the evidence between the mother and the father, I will attempt to make a finding based upon whether one version is corroborated or contradicted by other objective evidence or is inherently likely or unlikely. I should also say that although both parents were cross examined, that cross examination was limited in time due to the curtailed nature of the proceedings. There was a significant amount of written material filed by both parties. Both parties accepted that no inference was to be drawn from the lack of questioning on any particular matter.

CHRONOLOGY

1. The mother was born in Australia in 1976 and is currently aged 36. She is an Australian citizen.

2. The father was born in the Czech Republic on in 1979 and is currently aged 33. He is a citizen of the Czech Republic. He is also a permanent resident of Australia.

3. Around 2006, the father relocated to Australia.

4. The parents met in January 2008. The mother fell pregnant shortly after that time.

5. The parents married in September 2008 in Australia.

6. The parents’ first child P was born in Australia in October 2008 and is currently aged four. The child P is a citizen of Australia, and a citizen of the Czech Republic.

7. On 17 July 2009, the parents had a physical altercation in a car while driving to S. The police attended and the father was taken into custody.

8. In October 2009, a Protection Order was made in favour of the mother against the father.

9. The parents’ second child V was born in Australia in November 2009 and is currently aged three. The child V is a citizen of Australia and a citizen of the Czech Republic.

10. In September 2010, the children were issued Australian passports.

11. The father asserts that around November 2010 the parents agreed to move to the Czech Republic.

12. In early 2011, the parents relocated to the Gold Coast in Queensland.

13. The mother asserts that it was not until July 2011 that the parents agreed to move to the Czech Republic.

14. The parents relocated to the Czech Republic on 1 October 2011, initially living with the paternal grandmother.

15. The parents moved into the father’s apartment in the Czech Republic around the middle of November 2011.

16. On 14 December 2011, the parents had the altercation which is referred to below. The father reported the incident to the police.

17. In February 2012, the father enquired about enrolling the children into preschool.

18. On 11 February 2012, the mother purchased tickets to return to Australia without the father’s knowledge.

19. The parents separated on 2 March 2012 when the mother covertly removed the children from the Czech Republic.

20. Around June 2012, the mother stopped initiating telephone contact between the father and the children. The father says the mother refuses to answer his phone calls. The mother denies this.

21. On 28 June 2012, I made interim orders that the mother be restrained from leaving Australia and removing the children from Australia, and I ordered that the children’s names be placed on the airport watch list.

22. I note this matter had been listed for hearing on two previous occasions, but both days had to be vacated. The first because the mother decided that she wanted to raise the defence of grave risk, and the second because of an illness in the family of the former counsel for the applicant.

Family violence

1. The parents were together a little over four years. It was an agreed fact that the relationship between the parents was volatile throughout that time.

2. The mother says the father started being violent towards her after the birth of the older child. She says that around December 2008 or January 2009, the father “started to use physical punishment on [her]”, smacking her or pushing her head. She said this happened almost daily. Around the middle of 2009, the mother says the father slapped her in the face. I am unable to make a finding about how much of this is true. I accept, however, that there was a level of family violence in the relationship between the parents.

3. There was one major incident of family violence which was documented that occurred in July 2009. The parents were in the car together, with the older child in the back seat. The parents argued over stopping at a particular shop. The father drove up to S.

4. On the mother’s version, she says that the father stopped the car suddenly and came around to the passenger side and tried to pull her out of the car by her feet. She pushed the father off her and closed and locked the door. She then called the police. The mother attempted to drive off, but the father jumped on the bonnet of the car. He managed to open a door by reaching through a gap in a window.

5. The father agrees the parents argued. He says the mother “started to scream [and] swear at me, she started to punch me in the head and pull my hear [sic] from behind while I was driving.” He says he narrowly avoided a traffic accident. He pulled over. He says the mother kept trying to punch him but he “kept [the mother] away from [him] with [his] left hand holding her by her blouse”. He says he held the mother “until she would calm little bit [sic] down”. He then drove to S. He agreed he stopped the car, and attempted to get the mother out of the vehicle, by offering his hand. He said the mother started to kick him “so [he] had to defend [him]self”. He agrees the mother locked the doors and drove off. He said he jumped on the roof racks. He says the mother was driving in a “crazy” manner, “accelerating to go very fast”. The father says he managed to get into the car, and started to drive home. He discovered the mother had rung the police. A short time later, the police pulled the parents over. The father says that the fact he had “held [his] hand on her chest and torn her necklace” was taken as a “sign of violence”.

6. There is no dispute the police were involved in this event. They were sufficiently concerned to take court action on the mother’s behalf and seem to have accepted the mother’s version sufficiently to have concluded that the mother had a reasonable fear arising from the father’s behaviour. A Protection Order was issued against the father in favour of the mother. During her oral evidence, the mother agreed that the parents had never separated at this time, and the Protection Order was made in circumstances where they were and remained an intact couple.

7. There was another significant incident of family violence in the Czech Republic on 14 December 2011 which is discussed in detail below as it was a pivotal event in the mother’s decision to leave the Czech Republic with the children.

THE LAW

1. Regulation 16(1) of the Regulations provides that a court must (subject to discretion in reg 16(3)) make an order for a child’s return if the court is satisfied the child’s removal or retention is wrongful. Subregulation 1A provides:

   (1A)   For subregulation (1), a child's removal to, or retention in, Australia is wrongful if:

   (a)    the child was under 16; and

   (b)    the child habitually resided in a convention country immediately before the child's removal to, or retention in, Australia; and

   (c)    the person, institution or other body seeking the child's return had rights of custody in relation to the child under the law of the country in which the child habitually resided immediately before the child's removal to, or retention in, Australia; and

   (d)    the child's removal to, or retention in, Australia is in breach of those rights of custody; and

   (e)    at the time of the child's removal or retention, the person, institution or other body:

   (i)    was actually exercising the rights of custody (either jointly or alone); or

   (ii)    would have exercised those rights if the child had not been removed or retained. [emphasis added]

2. The mother accepts that if I find the children were habitually resident in the Czech Republic immediately before their removal, the Director-General is entitled to the order which he seeks. The issue in this case is whether the children habitually resided in the Czech Republic immediately before the mother removed them from the Czech Republic.

3. The High Court has considered the applicable principles when determining habitual residence in LK v Director-General, Department of Community Services (2009) 237 CLR 582 (“LK”) (particularly at paragraphs 21 to 46).

4. The following propositions emerge:

   42.1.A person can have:

   42.1.1.a place of habitual residence;

   42.1.2.no place of habitual residence (having abandoned an old place of habitual residence without acquiring a new one) (LK at paragraph 25);

   42.1.3.although unlikely, more than one place of habitual residence.

   42.2.A consideration of habitual residence in the context of a case under the Regulations may “tend in favour of finding that a child does have a place of habitual residence…” (LK at paragraph 26).

   42.3.A question about the habitual residence of a young child is usually answered by asking what is “the place of habitual residence of the person or persons upon whom the child is immediately dependent for care and housing” (LK at paragraph 27).

   42.4.Whilst a parent’s intention will usually be relevant and sometimes very important, “intention is not to be given controlling weight” (LK at paragraph 28).

   42.5.“… individuals do not always act with a clearly formed and singular view of what it is intended (or hoped) that the future will hold. Their intentions may be ambiguous” (LK at paragraph 29).

   42.6.A person can be said to have abandoned residence in a place without having formed “a singular or irrevocable intention not to return” (LK at paragraph 33).

   42.7.At paragraph 34 the High Court said:

   …when considering where a child is habitually resident, attention cannot be confined to the intentions of the parent who in fact has the day-to-day care of the child. It will usually be necessary to consider what each parent intends for the child. When parents are living together, young children will have the same habitual residence as their parents. No less importantly, it may be accepted that the general rule is that neither parent can unilaterally change that place of habitual residence. The assent of the other parent (or a court order) would be necessary. But again, if it becomes necessary to examine the intentions of the parents, the possibility of ambiguity or uncertainty on the part of one or both of them must be acknowledged.

   42.8.Habitual residence is a “broad factual inquiry” (LK at paragraph 44) and “should be treated as a question of pure fact” (LK at paragraph 36) … “to be decided by reference to all the circumstances of any particular case” (LK at paragraph 39, quoting from In re J. (A minor) (Abduction: Custody Rights) [1990] 2 AC 562 at 578).

   42.9.Habitual residence “will fall for decision in a very wide range of circumstances” and no list of possible matters nor any “predetermined hierarchy of importance” is appropriate (LK at paragraph 35).

   42.10.Habitual residence requires a “settled purpose” or settled intention which does not necessarily involve an intention to live at a place permanently or indefinitely. (LK at paragraphs 37 and 38).

   42.11.The plurality at paragraph 39 refer to the statement in In re J. (A Minor)(Abduction: Custody Rights) [1990] 2 AC 562 by Lord Brandon of Oakbrook where his Lordship said at 578-579:

   …there is a significant difference between a person ceasing to be habitually resident in country A, and his subsequently becoming habitually resident in country B.

   His Lordship continued:

   A person may cease to be habitually resident in country A in a single day if he or she leaves it with a settled intention not to return to it but to take up long-term residence in country B instead. Such a person cannot, however, become habitually resident in country B in a single day. An appreciable period of time and a settled intention will be necessary to enable him or her to become so. During that appreciable period of time the person will have ceased to be habitually resident in country A but not yet have become habitually resident in country B.

   42.12.At paragraph 40 the High Court quotes Waite J in Re B (Minors) (Abduction) (No 2) [1993] 1 FLR 993 at 995 with approval:

   Habitual residence is a term referring, when it is applied in the context of married parents living together, to their abode in a particular place or country which they have adopted voluntarily and for settled purposes as part of the regular order of their life for the time being, whether of short or of long duration.

   All that the law requires for a ‘settled purpose’ is that the parents’ shared intentions in living where they do should have a sufficient degree of continuity about them to be properly described as settled. [emphasis added by the High Court]

   42.13.Further the High Court at paragraph 44 quoted with approval a statement by the plurality in P v Secretary for Justice [2007] 1 NZLR 40:

   Such an inquiry should take into account all relevant factors, including settled purpose, the actual and intended length of stay in a state, the purpose of the stay, the strength of ties to the state and to any other state (both in the past and currently), the degree of assimilation into the state, including living and schooling arrangements, and cultural, social and economic integration. In this catalogue, SK v KP held that settled purpose (and with young children the settled purpose of the parents) is important but not necessarily decisive. It should not in itself override what McGrath J called, at para [22], the underlying reality of the connection between the child and the particular state.

   42.14.“The relevant criterion is a shared intention by the parents that the children live in a particular place with a sufficient degree of continuity to be properly described as settled” (LK at paragraph 44).

HABITUAL RESIDENCE

1. The mother gave evidence about changing agreements between the mother and the father as to the amount of time they were going to spend in the Czech Republic. Her evidence was that prior to getting on the flight to the Czech Republic the agreement was they would come back in six months time or at worst, the father would allow her and the children to come back in six months time, if he had to stay for work. She then said there was an agreement after they arrived that they would only be staying for three months and then finally a unilateral announcement according to the mother by the father that they were not coming home.

2. Both parents point to parts of the evidence to support their respective contentions in relation to the lack of habitual residence or the existence of habitual residence in the Czech Republic. The father points to evidence he says supports the propositions that the parents ceased habitually residing in Australia and became habitually resident in the Czech Republic. The mother points to evidence she says supports the opposite propositions.

1. It is not disputed by the mother that she voluntarily left Australia with the father and the children to move to the Czech Republic.

2. I do not accept the mother’s assertion that the parents first agreed to move to the Czech Republic in July 2011. I accept the father’s contention that the parents planned their departure from Australia over a considerable period. Around November 2010, the mother sent a Facebook message to her friend Ms E saying “I’m moving overseas with him next year and I’ll be staying on the central coast for a week mid feb [sic]. Would love to see you before I go.”

3. In January 2011, the mother sent a Facebook message to her friend Ms B saying the parents were moving to “[Gold Coast] and then to Czech.”

4. The mother in her affidavits sets out conversations she said she had with the father which, if accepted, would lead to a finding that the parents had only gone to the Czech Republic for a short period of time with a mutual intention to return to Australia after that short period of time.

5. There are a number of reasons that the mother gave that the parents had agreed they would go to the Czech Republic and they were as follows:

   49.1.For the father and the children to spend time with the father’s relatives;

   49.2.For the father to find and assist his brother;

   49.3.For the father to renovate his apartment to assist him in releasing it;

   49.4.For the father to work in a business with his cousin for a short period of time to make enough money for a deposit for a house in Australia.

6. At paragraph 45 of the mother’s affidavit sworn 31 July 2012 the mother says that she and the father were talking about going to the Czech Republic and that that conversation took place on 20 July 2011. The mother deposes that the father said to her “my brother is missing”. The mother said that there were further conversations about what they could do and the father said that they “ha[d] to go now” and the mother said the father “should go and help [his brother]”. She then started to look for flights online and one way tickets were bought for the whole family on 30 July 2011 for departure on 30 September 2011.

7. The mother contacted the police in the United Kingdom inquiring about the father’s brother prior to their departure. At paragraph 49 of her affidavit sworn 31 July 2012 the mother gives evidence that on 15 August 2011 (I note the actual email which is Annexure KS(2)AG to the mother’s affidavit sworn 25 October 2012 is dated 14 August 2011) she sent an email to the G police. She provides a copy of the email that she got back. She deposes to a conversation that she had with the father and provides a copy of a further email she sent to the police on 14 August 2011.

8. The father denies his brother was “missing” at the relevant time. He says his mother told him at the end of 2010 (not in July 2011) that she had not been able to contact his brother at the end of 2010 (not in July 2011). The father’s evidence is that his brother was not missing at all at the time alleged by the mother. The father says that he had been in contact with the brother since January 2011 and his brother was in fact back in the Czech Republic in August 2011. Annexure KS(2)AG to the mother’s affidavit sworn 25 October 2012 is an email dated 14 August 2011 which the mother sent to the G police.

9. In the first email by the mother to the police on 14 August 2011, the mother gives her address as “Australia currently but shortly moving to the Czech Republic”. The text of the email says, “My brother in law has recently gone missing and was last seen on the streets of [G]. He is suffering from paranoia and we are very concerned for his wellbeing. We want to locate him before we fly over to bring him home. How exactly does that work?” The mother goes on to give further information. I have evidence that the father’s brother’s home is the Czech Republic and a reference to flying over is to fly over to G and bring him back to the Czech Republic. The mother has annexed a copy of an email she received on 14 August from the Police seeking that she provide them with some further detailed information about her brother-in-law.

10. On the same day the mother replies in an email to the police that her husband was hesitant to do that at the moment until they found out a bit more about the procedure and stated that they were both concerned about his current state of mind and did not want him to think that people were “after him”. The mother goes on to write that they were due to arrive in the Czech Republic at the end of August and would be able to fly over to the United Kingdom in October. She ends by saying that they cannot get there any faster. This second email is a contemporaneous record by the mother of a conversation she says she had with the father on 14 August 2011. In his oral evidence, the father asserted that he did not know why the mother had contacted the police, and it was not based on anything he had said to her.

11. This exchange of emails shows that in the mother’s mind she thought the father’s brother was missing in August 2011. It is very difficult to reconcile the evidence of the mother and father about this issue. The contemporaneous record produced by the mother is that the parents were concerned about the location of the father’s brother in August 2011.

12. I find that as at 14 August 2011 the father did not know where his brother was but also did not want the police approaching him. I find that the mother has not fabricated a conversation with the father when writing the second email to the police on the 14 August 2011 and that the father did say to the mother on that day that he was hesitant to provide the police with further detailed information about his brother and that he was concerned about his brother’s state of mind.

13. The mother says at paragraph 53 of her affidavit sworn 31 July 2012:

    Both children were enrolled in daycare at [A] ELC … on the Gold Coast during 2011 and when we left I had a conversation with the director about our being away from a few months and wanting spots for the children on our return. The director told me they would make space available for the children.

14. The mother was not challenged about this evidence. It is supportive of the mother having in her mind that the move to the Czech Republic was not for an indefinite period.

15. There is a dispute as to the extent to which the parents divested themselves of furniture and household effects, prior to leaving Australia. The mother deposes the parents argued over whether to store items or to sell them. She says that although she wanted the items to be stored, the father said storage would cost too much money.

16. In the mother’s affidavit sworn 25 October 2012, she says that the parents “had been discussing the possibility of selling the car” and that the father “signed the registration papers giving [the maternal grandmother] authority to dispose of the vehicle in our absence. In the end we did not sell the car…” As is explained below, the fact that the car was not sold is not to be taken as a lack of a wish to do so.

17. The mother in her affidavit filed 26 October 2012 annexes, for another purpose, a letter from Centrelink dated 16 September 2011 upon which she had made certain handwritten notes. Her oral evidence was that they were notes about budgeting, and how much money the parents had in cash prior to their departure.

18. The mother said that “Account à Mum 2250” might have had something to do with having the parents’ bond money returned to them via the maternal grandmother. The mother said that if she been able to sell the parents’ car within two weeks, she would have disposed of their motor vehicle for $1,300. She considered whether giving away her washing machine to a friend T to “hang on to” or to sell it. The mother agreed that “Change Add = Cot $” probably meant that she was going to change her Gumtree advertisement to add the cot to that advertisement to sell it online, although she did not know how much she was going to sell it for. The mother says she wanted to take the car seats with her, but said that they were not up to the European standard and so she had considered selling one of them because she realised on their return it wouldn’t be big enough for the youngest child.

19. The mother was unclear about what “bond email a/c closed 1450” meant. She said that it may have been about the parents receiving their bond back and the mother made a note for the bond to be emailed and an account to be closed. I note this figure is different to the $2250 that was to be returned to the parents via the maternal grandmother.

20. The mother was considering selling her surfboard to her brother for $300 (but she said it was worth “quite a lot more than that”). She said she decided to keep her surfboard.

21. What flows from these notes and the mother’s evidence about these notes is that before the mother left Australia she took steps to dispose of most of the parents’ furniture and household effects.

22. The mother’s evidence that the parents stored items with her brother, her mother, and two friends does not accurately describe what happened to the bulk of the possessions of the parents. I accept the mother left her dive gear, a chest full of clothes, a box of photos and family videos, her CD collection, the children’s books, “keepsakes and trinkets” and some kitchen utensils and appliances, her surfboard (referred to above), stereo and electrical equipment, the parents’ book collection, and personal documents such as tax returns.

23. The father says, and it does not seem disputed, that the children’s books, toys and clothes were given to the maternal uncle because he had a young child. He also says the parents gave an LCD television to the maternal grandmother as an early Christmas present. The maternal grandmother also took some bedding and towels because she did not own much. The father says, and I accept, the two book shelves were given to the maternal grandmother over a year before the parents departed.

24. Annexed to Ms M’s affidavit sworn 13 November 2012 is an email from one of the parents’ friends, F, to the father, dated 24 January 2012. In the email, F says “Ive [sic] been trying to sell your stuff… Ive [sic] sold most… Left over with the baby bed, washing machine and vacuum… so I got you 100$ [sic] for printer [and] 200$ [sic] for screen.”

25. In oral evidence, the mother agreed that she had left her washing machine, vacuum cleaner and cot with F. She said she wasn’t aware that F had sold those items. She said that she had left those possessions with F as a form of compensation for helping the parents move, but that F had told her he would not sell the items.

26. The father says, and I accept, that the parents sold their computer and computer desk, landline telephones, stereo system with speakers, the children’s beds, mattresses, big leather couch, lamps, dressing table, hat rack, office table, dining tables and chairs, and computer screen

27. The mother bought each of the family members a one way ticket to the Czech Republic. The mother attempts to explain why in her affidavit sworn 31 July 2012, she says:

    I then started to look into flights online and I found out that if I waited a few days there would be a sale on and I would be able to get the four of us over to the Czech Republic much more cheaply than if I booked the flights immediately. There were also certain conditions attached to the tickets such as they had to be one way and only certain dates were available and you had to book so many days in advance.

28. In her affidavit sworn 25 October 2012, the mother says that she had found flights online, and got Flight Centre to match the price. She says:

    Flight Centre matched the bestflights.com.au fare but as a condition of the airfare cancellations and changes would incur additional costs and charges. Whilst we agreed that we would be returning to Australia in early 2012 and at the latest by March 2012, [the father] and I had not chosen a particular return date and as we did not want to incur these fees and charges we decided it would be better to purchase one way tickets and then do the same thing for our return trip, i.e. find the best online prices…

29. The father’s case disputes the mother’s version. The father says that the parents “booked flight tickets through Flight Centre with no special conditions… we have booked this fly [sic] tickets through them as they would beat the flight tickets by $1 only but [the mother] got $50 towards her travel insurance… The tickets were of normal price as they were only one way... The tickets back would be much more expensive if booked separately…”

30. I am unable to resolve the conflict in the evidence about the economics of buying a single ticket on special versus return tickets. The mother’s evidence shows however that, even on her case, the timing of any return to Australia was uncertain.

31. At the commencement of oral submissions counsel for the mother relied heavily on communication that the mother had had with Centrelink prior to her leaving Australia.  The mother asserts that this indicates the mother’s plan to return to Australia in early 2012.

32. Centrelink’s letter to the mother dated 16 September 2011 (annexure KS(2)A at page 17 of the mother’s affidavit sworn 25 October 2012) contains the sentence, “you have advised us that you intend to return to Australia by 29 March 2012”. Curiously, the mother in her evidence says that she did not give that advice at all to Centrelink. She says she did not advise them of any particular return date. The mother says that a few days prior to the 16 September 2011 she rang Centrelink to inform them she was going overseas for awhile. She says the Centrelink officer told her “you don’t need to tell us anymore, I can see on the screen that your husband has already called and advised us of your travel plans.” The mother says she found this surprising, since the father had not told her he had contacted Centrelink. The mother asked the father what he told Centrelink, and she says he said that he advised Centrelink the parents were “leaving for 6 months and then coming back.” When the mother got the letter from Centrelink, she was of the view that the “advice” referred to in the letter was the information the father had given Centrelink not the information she had given Centrelink. She says that her understanding is that the father received a separate letter addressed to him to the same effect.

33. This evidence does not sit easily with the mother’s belief that the father tricked her in going to the Czech Republic and that he wanted to stay there for good. It is inherently unlikely that the father would have rung Centrelink and given them this information if he at all times intended to stay in the Czech Republic. It is also inherently unlikely that a Government department would give one person confidential information that another person had given them or send a letter to a person with information in it provided by another person (even in circumstances where one person says in a telephone call that they are the spouse of the other). An email sent to the mother by Centrelink on 27 October 2011 (page 40 of the mother’s affidavit sworn 25 October 2012) is an example of how an employee of Centrelink has been very careful to ensure that Centrelink only gave personal information to the individual entitled to receive it. As already mentioned, the mother has not been able to get access to the father’s Centrelink information. Given the state of the evidence, I cannot accept the return date of 29 March 2012 was given to Centrelink by the father. It is highly likely that it was given to Centrelink by one of the parents and I find the mother gave that date to Centrelink. Ironically, that finding still assists the mother’s case. To further emphasise the ambiguity of the mother’s intentions, I note that the date (29 March 2012) mentioned in Centrelink’s letter of 16 September 2011 to the mother is also inconsistent with the date the mother says she entered upon the Smart Traveller notice (30 April 2012) which I now discuss.

34. Annexure K to the mother’s affidavit sworn 31 July 2012 is a notice to the Australian Government Smart Traveller completed by the mother. The notice is undated. It is a document apparently completed by accessing a form on a Government website. In that document the mother indicates that the travel time is short term holiday/business to Czech Republic and she is a visitor or tourist with a planned date of arrival in the Czech Republic being 30 September 2011 and a planned date of departure from the Czech Republic of 30 April 2012. The mother’s evidence (which was not tested) is that she completed the entry on the Australian Government website “before leaving Australia”. The notice was probably completed by the mother after the end July 2011 because the mother knew that she was leaving Australia on 30 September 2011 after she had purchased the tickets at the end of July 2011. In this document the mother is saying that she expects to be in the Czech Republic for a period of seven months.

35. At the airport, the mother completed the outgoing passenger card for each of the children and herself by filling in the part of the card which is under the heading “Australian resident departing permanently”. In her affidavit sworn 25 October 2012, the mother said that as the parents “passed through Sydney Airport on our departure for the Czech Republic [the father], the children and I were very rushed as a result of industrial action at the airport which almost caused us to miss our flight… Because we were rushed and did not know the exact date we were returning home I recall having a conversation with [the father] in the customs hall to the effect:

    Me: (referring to the outgoing departure card) “It asks for a return date, what should I put?”

    [The father]: “Just hurry up we’re going to miss the flight, just put anything.”

    It was at that point that I completed the departure cards for the children and myself and ticked “section F” indicating Australian citizen departing permanently. This was rushed and in an effort not to miss our flight.”

36. In oral evidence, the mother said they were not late to the airport. The bags that the parents were taking overseas were checked in without any difficulty. She said the woman who checked them in told her there was trouble with baggage and customs on that day.

37. The parents and the children entered the part of the airport into which only outgoing passengers are to go as soon as their bags were checked in. The mother was unable to say how much time elapsed between having the bags checked in and the flight leaving. The mother gives as a partial explanation as to why she cannot remember how long it was, the fact that the children were very ill and had to be given a dose of antibiotics because she was not allowed to take the open bottle through security.

38. The father agrees the children were sick and says that he was “worried that we should not fly”. However he says that there were “no problems at the airport when we were there” and that “the whole process from check in was very smooth, we have [sic] had plenty of time for everything.” I am prepared to accept the mother was preoccupied with the state of the children’s health and administering medication to the children and that there was a level of disruption in the departure hall because of the industrial action by baggage handlers and customs officers.

39. Counsel for the mother submitted that I could infer that it was easier to tick the part of the card that said the family was leaving permanently than to tick the part of the card that said the family were leaving temporarily because if the mother ticked the card saying that they were leaving temporarily then the card requires a return date to be filled out. There is some force in that argument, given the ambiguity in the mother’s mind about a precise return date.

40. The father however is entitled to point to the mother’s completion of the outgoing passenger cards for herself and the children as a contemporaneous record made by the mother of the mother’s intention at the time she left Australia (although it needs to be balanced against the other strong evidence that the mother points to in her favour as detailed above of her lack of intention to leave permanently).

1. The mother says that within a week of arriving in the Czech Republic that she realised she had made a mistake. She says she sent emails to her family to let them know she wanted to come home straight away. The father accepts that the mother disclosed those thoughts to him and says he explained to her that those thoughts were “silly”. He seems to accept that the mother said to him that she did not like it in the Czech Republic and that “we must go back”. He says that the reason that she didn’t like it was “it is cold (nearly winter time) and she does not know anybody”.

2. The mother gave oral evidence that when the father became aware she was desperately unhappy and wanted to go home he begged her, “don’t leave, everything’s going to be better once we move into the flat and once I start this employment”. The mother further asserted in her oral evidence that the father agreed at that time that they would only stay in the Czech Republic for three months. I note that at [62] and [64] of the mother’s affidavit of 31 July 2012, the mother sets out conversations she says she has with the father (which the father says are fictitious) but the mother does not depose that the father agreed to a return within a particular period of time, but rather that he said to her “give it some time” and “just stay here”. Notwithstanding that, the mother’s version is otherwise corroborated by three important emails that the mother sent to Centrelink in October 2011 after she had arrived in the Czech Republic.

3. At page 47 of the mother’s affidavit sworn 25 October 2012, she annexes an email from herself to International Services at Centrelink dated 11 October 2011 (10 days after the parents’ arrival in the Czech Republic). I do not set out the text of the email in full but it is partly in the following terms:

   I have a problem that i [sic] need help with. I can only do it with your assistance though. I recently left Asutralia [sic] with my husband and are [sic] currently in the czech republic [sic]. This was supposed to be a stay of a few months but now it appears he has brought us over here on false pretences and wants us to stay for good. He also has turned abusive and myself and my two children are australian [sic] citizens and I want to get us back home.

4. The mother then goes on to make an inquiry about how she can have her benefits changed in a way that the father might not understand it is her intention to try and get the children back home. The mother goes on to say, “It is absolutely horrible here and Im [sic] angry that I allowed him to trick me into bringing the kids here for a while as he assured me everything would be good”.

5. The mother was asked about the expression “he also has turned abusive” in the context of a long history of family violence. It was suggested “turned abusive” is a misleading expression given the long history of a volatile relationship, as I have discussed above. The family violence in this matter is cyclical and the father could have “turned abusive” even if there had been periods of earlier abuse with subsequent periods which were more tranquil.

6. The mother further indicates that she wants to get herself and the children home as soon as possible and wants to do that before the father can organise Czech passports for the children which he was doing as of 11 October 2011. The mother ends the email by saying “for the love of god do NOT mention anything to hime [sic] about me contacting you regarding this as he will kill me Im [sic] sure”. I take the statement by the mother to be a figure of speech rather than any assertion that the father had made any such threat or that there was a potential risk the father would do so. I find that on 11 October 2011 the mother did not want Centrelink to communicate with the father about her wanting her benefits restored so that she would be in a position to be able to return to Australia with the children early in 2012.

7. The mother writes to Centrelink again on 20 October 2011 in the following terms:

   Im [sic] not sure if you received my below correspondence or not but I just wanted to let whoever reads these to know that its [sic] all ok. I think I was just freaking out being here its really different and I didnt [sic] understand what was happening but its all ok now. We are due to come back home early next year.

8. Again this email was confirmatory of the mother having a conversation with the father where he assured her they would go back early in the new year (in 2012).

9. On 21 October 2011 the mother sent an email to Centrelink because her normal payment had been reduced. In it she says, inter alia:

   … Im [sic] staying here with the kids and my husband for our intended three months and then returning home and was counting on my payments to be able to do that. If something has been changed for some reason I need to fix this as soon as possible otherwise we wont [sic] have enough money.

10. This is again confirmation that the mother had decided to attempt to wait it out in the Czech Republic upon a promise by the husband that she would be able to return to Australia in a short period of time. The mother however seemed less than confident that the father would fulfil the promise he gave her. I find the mother had concluded that the father was simply saying something in order to placate her.

11. In an email sent by Centrelink to the mother on 27 October 2011, the officer from Centrelink is very careful to “not leave any personal information on [the mother’s] answering machine or with a third party.”

12. The mother in her oral evidence said, “I never accepted the Czech Republic as our home, neither did my children”.

13. It is not in dispute that the family stayed with the paternal grandmother upon arrival in the Czech Republic but shortly thereafter moved into an apartment owned by the father.

14. Another matter to which the mother points is the communication between herself and her aunt regarding financial assistance. The mother in paragraph 65 of her affidavit sworn 31 July 2012 say:

    About a week after we arrived my aunt [Ms N] in Australia….telephoned me and offered to send me $10,000 to help us with a deposit on a house when we returned to avoid us having to stay in the Czech Republic for the purpose of earning money. I spoke to the father about this but he refused to accept the assistance.

    This evidence supports the other evidence of the mother that shortly after arriving in the Czech Republic she sent emails to her family to let them know she wanted to come home straight away.

15. The affidavit of Ms M sworn 13 November 2012 puts into evidence a text message that the mother forwarded to the father on 10 October 2011 (nine days after the move to the Czech Republic) in the following terms:

    “My aunty [Ms N] said if we change our minds and want to go back she will pay for all of us and give us bond money as well. Something to consider”.

16. The father relies on the expression “change our minds” in the 10 October 2011 text message from the mother as evidence that as at 10 October 2011 both parents had a plan in their minds, and a shared intention to stay in the Czech Republic and the mother was referring to a possible change of intention if they decided to do so and told the father that her aunty would back them doing so.

17. The mother during oral evidence confirmed that she sent that text message and said that she had been made that offer by her aunt before they left Australia. The mother’s explanation as to her use of the expression, “change our minds”, was that she was referring to changing their minds about staying in the Czech Republic “with the view to save money for a deposit for a home.” I accept the mother’s explanation that “change our minds” relates to changing their minds about staying any time in the Czech Republic at all.

18. Both parents point to the fact that maintenance and repair work was done in the unit in the Czech Republic as supportive of their respective contentions. This however is ambivalent in terms of the question of intention. The father’s evidence is that he patched, painted, recarpeted and refurnished the apartment. He said that over time he intended to do a renovation which would have rejuvenated the kitchen and the bathroom.

19. It is the mother’s case that the motivation for upgrading the amenity of the unit was so that it could be more easily relet to a tenant. The father says it was to increase the amenity for the family of the family’s new home in Czech Republic.

20. Objectively the fact that some work was done to the unit is not indicative one way or the other as to whether or not the mother’s story should be believed that their intention was to go and renovate the unit so that it could be relet to tenants. An upgrading of the unit is just as consistent with the father’s case that he wanted to improve the amenity of the unit as an owner occupier.

21. The children obtained citizenship certificates from the Czech Republic as well as birth certificates.

22. The children were registered with a Czech general practitioner.

23. The mother relies upon an email to Ms H dated 25 November 2011 which is annexure L to the mother’s affidavit sworn 31 July 2012 as evidence of the amount of work the mother had put into her business and that she intended to continue working upon her business when she returned from overseas. The mother’s email to Ms H is some confirmation that at least in the mother’s mind, she was at the end of November 2011, only in the Czech Republic for several months.

24. The mother says an incident of family violence on 14 December 2011 crystallised her resolve to covertly leave the Czech Republic with the children. The mother got angry when the father without reference to her purchased a flat screen television for what he thought was a good price. The mother asserted that the father “called me a ‘slut’ in front of the children, came at me and threw me against the wall. He lifted me up against the wall and put his hands around my throat and started to strangle me. I was fighting to breathe. The father’s brother was in the house and managed to pull the father off me.” The mother asserted that her neck was “really red and [her] throat was still very sore. [She] had trouble talking and eating.” The father’s version is that he used a martial arts hold to limit the mother’s ability to be physically aggressive towards him. During oral evidence the father demonstrated how he held the mother by the jaw with both his hands and not around her throat. The father agreed that his brother intervened to stop him holding the mother in the way he did. Even on the father’s version I accept that the mother could have had her throat stretched so as to have caused it to be red and very sore. The mother could have formed the view that by the father holding her jaw in the way he did, he was attempting to interfere with her breathing. I do not find however that the father had attempted to strangle her. The mother was not entirely blameless in this incident. I find that the mother was acting in a very aggressive manner towards the father and the father who has martial arts training used a hold on her around her jaw with both of his hands to disable the mother from further aggression. After the parents were separated by the father’s brother, I accept the father’s evidence the mother continued the altercation and she caused him some damage to his eye and face with her fingernails. The father subsequently made a police report about that injury.

25. I accept that the mother was shaken by the incident on 14 December 2011 and it fortified the mother’s intention to leave the Czech Republic with the children. She had also reached the conclusion that if the father knew she had made that decision he would attempt to prevent her leaving and certainly attempt to prevent her leaving with the children.

26. In her affidavit sworn 25 October 2012, the mother says that she “went to the Ministry of Foreign Police and tried to report the incident. An officer advised me that my matter was not the type that his department dealt with and that I would need to speak to the local Police. As I did not speak any Czech, the officer found an English speaking local Police officer and gave me his contact details. He also indicated that the officer only worked in the local Police station one day per week and as such it was almost impossible for me to coordinate going to the Police station to report the incident without causing [the father] to become suspicious. In addition, as I was caring for the children and [the father] quizzed them about our activities I could not afford to have them with me whilst speaking to the Police in fear that they would advise their father.”

27. In her oral evidence, the mother said that she went to the Ministry of Foreign Police “several weeks after the incident”. She said the local police station was “well across town, very long way to walk to” and although she had planned to go and speak to someone there, the father would come home unexpectedly so it “proved impossible” to walk 5 kilometres and report the incident. I accept the explanation by the mother of her perception of the difficulties she faced in engaging the local authorities following the incident on 14 December 2011.

28. The mother agreed that she wrote to Mr C, the person who celebrated the marriage of the parents, by email on 15 December 2011 in which she says, inter alia:

    Anyway I hope you are well. It is cold over here and not half as nice as home but we are settling in as much as we can and learning and experiencing new things so thats [sic] always nice. Take care. Best regards, [mother and father’s first names].

29. Counsel for the Department read this email to the mother during cross examination. The following exchange occurred:

    COUNSEL: On the 15 December 2011, you sent an email to [Mr C] - which can be found your Honour at page 22 of the applicant’s affidavit of 13 November - and you said… [quoting the extract from the email as referred to in the preceding paragraph]. That’s what you said?

    MOTHER:     Well [Mr C] was the celebrant that married ---

    COUNSEL: But that’s what you said isn’t it? Can you just answer my question?

    MOTHER:     Sorry, that’s correct.

30. The father wishes to rely on this email as proving the mother was “settling in” but when read in context, it is qualified by the words “as much as we can”.

31. I note that that email was written by the mother the day after the incident of family violence being the event which I accept was the final nail in the coffin of her marriage and the reason why she finally decided to leave her husband and plan in a clandestine way to leave the Czech Republic with the children.

32. The parents signed up to an internet service with a minimum 24 month contract (the father says, and the mother does not dispute, that the father signed the internet service agreement, and the mother signed for the router). Annexure E9 to Ms M’s affidavit sworn 4 October 2012 is an internet contract the parents entered into on 14 November 2011. The father says the mother signed for the router when it was delivered on 16 November 2011. Annexure EP18 to Ms M’s affidavit sworn 4 October 2012 is a document from a telecommunications company dated 16 November 2011, which bears the mother’s signature. The document is in Czech and has not been translated. The mother sent the father a text message on 16 November 2011 saying “the roter [sic] is here.”

33. The affidavit of Ms M sworn 8 November 2012 annexes a letter from the Czech Office for International Legal Protection of Children dated 7 November 2012. The letter says “The ministry [of Interior of the Czech Republic] confirmed that the mother asked for a temporary residence permit for a family member of an EU citizen…. The above mentioned application of the mother was granted on 29-11-2011 until 29-11-2016.”

34. The father bought car seats for the children a couple of months after arriving in the Czech Republic.

35. The mother attended playgroup with the children.

36. The father entered an agreement to complete a job for an initial period from 6 February 2012 until 31 March 2012 (although as emphasised during his oral evidence, that was at a rate of the equivalent of AUD $2.50 per hour). The father obtained further contract employment after the mother and the children had left the Czech Republic.

37. In February 2012, the mother “started making enquiries to leave through the Consulate in Poland and the Embassy in Austria”. Annexure M to the mother’s affidavit sworn 31 July 2012 is a bundle of consular-in-confidence documents. It is unclear who is the author of those documents. A document dated 10 February 2012 says “[the mother] advised that she plans to escape as soon as possible to Australia…[the mother] advised that she does not plan to inform her husband about her departure. She stated that she is searching for consular support in providing safety for her children and herself during the transfer to Australia in case her husband organises some action against her.”

38. The parents were in the Czech Republic for five months prior to the mother covertly moving the children from the Czech Republic to Australia.

39. It is not in dispute that the mother acted covertly and grossly misled the father in order to get the children out of the Czech Republic. On 2 March 2012, the mother sent the father a text message saying “We are up the mountain at lana s [sic] cottage beautiful but no reception. Kids are all asleep and we are drinking so hope you get this and see you in the morning.” The information in this text message was deliberately untrue. On 3 March 2012 after the mother had left the Czech Republic, the mother sent the father a message saying “It is over between us. I will not put up with your abuse any longer. I am on my way home. I’m sure the kids will hope to see you soon. As for me I could not care less. I want a divorce.”

40. The mother did not engage with legal processes in the Czech Republic in order to apply for an order that she be able to return to Australia with the children.

41. Upon the mother’s return to Australia, on 6 March 2012 the mother went to X Centrelink office. She spoke to an officer at the reception desk and explained to her the circumstances. The officer handed her a crisis application payment form and explained that the mother might be eligible for crisis payments. The mother completed the form and returned it to the reception staff. A copy of the form is annexure KS(2)F to the mother’s affidavit sworn 25 October 2012. The mother was then assigned a Centrelink social worker who took her to an office and reviewed her application form. Whilst the social worker was talking to the mother, the officer took information from the mother that led to the officer preparing the report which is Annexure M to the mother’s affidavit sworn 31 July 2012. In the social worker’s report dated 9 July 2012 (in respect of the mother’s contact with the social worker on 6 March 2012), the social worker records that, “[The mother] advised that she moved to the Czech Republic in October 2011 with her husband: [The father]”. Although the conversation deposed to by the mother between herself and the social worker was initially objected to and excluded, that evidence was given during cross examination. It is the mother’s contention that the social worker explained to her in order to get crisis Centrelink benefits, the mother had to have left her permanent place of residence. The mother’s case is that the mother told the social worker that the Czech Republic had not been her permanent place of residence but the social worker employed by Centrelink proceeded on the basis that it was in order to ground the application for a Centrelink crisis benefit. The mother says that she acquiesced in that happening. I find it inherently unlikely these things happened in the way described by the mother. A far more probable explanation of the mother’s receipt of crisis benefits was that she told the social worker that she had been permanently residing the Czech Republic with the father and her children but had had to leave because of family violence.

1. In relation to the word “permanently” on the outgoing passenger card and the notion of permanent residence as used by Centrelink for crisis benefits, counsel for the mother submitted that those concepts of “permanently” and “permanent” are different from the concept of “habitual”. The difficulty with that submission is that “habitual” is a weaker test than “permanent”. The circumstances of the completion of the outgoing passenger card is discussed above. I do not place great weight upon what the mother told the Centrelink social worker to get crisis benefits for herself and the children as probative of the accuracy of the proposition that the mother resided permanently in the Czech Republic.

2. Annexure KS(2)H to the mother’s affidavit of 25 October 2012 is a copy of the parent’s joint bank account with St George in Australia which they did not close when leaving Australia. The mother relies upon this document as evidence that the parents did not have a permanent intention to leave Australia. The parents however were withdrawing funds from that account whilst they were overseas and by the time the mother came home there was only a small amount left in that account. The fact that that account was not closed at the time the parents left Australia does not speak one way or the other to the issue as to whether or not the parents had a permanent intention to leave Australia.

3. The mother points to the fact that the mail was only redirected from 21 September 2012 until 23 March 2012 (annexure KS(2)Y to the mother’s affidavit sworn 25 October 2012). Again, the inference to draw from that is ambiguous. On the one hand it could mean that the parents were coming back and did not need their mail redirected once they came back, but on the other hand, it could have meant that they concluded after six months there was no mail they would need to have redirected to them. In the context of this confined hearing, those competing propositions were not tested.

4. The children did not start day care in the Czech Republic. The children were going to pre-school one day a week whilst they were in Australia. When asked why in the first four months in the Czech Republic the children did not go to pre-school, the father said it was because the mother did not want them to attend. He said that the mother wanted to “focus on her studies and her business.” As mentioned, the children were attending a play group with their mother. The father said he made inquiries in February 2012 about having the children go to pre-school (which the father referred to as “kindergarten” in Ms M’s affidavit sworn 4 October 2012) but because the Czech Republic school year starts in September, he was not able to achieve that. The father says the Principal of the pre-school “referred [him] to the regular date of enrolment in April 2012” and the children would begin attending on 1 September 2012. In his oral evidence, the father also said the Principal told him that in some cases children could start earlier in the year if the pre-school had a spot for them.

5. The mother did not commence work upon arriving in the Czech Republic nor attempt to obtain any employment.

6. The father gave evidence in English without the assistance of an interpreter. His spoken English is good. I accept the mother is unable to converse in the Czech language. The mother did not take any lessons to improve her skills in the Czech language in the time she was in the Czech Republic.

Conclusion about the parents ceasing habitual residence in Australia

1. Counsel for the mother relies upon the statement by the High Court that people do not always hold settled or unambiguous intentions and they do not always act with a clearly formed and singular view as to what will occur in the future (relying on LK at paragraph 29). The mother concedes that she and the father took a number of steps which would indicate that they were leaving Australia for a significant period of time. However, counsel for the mother submits that these steps such as selling personal effects and moving out of their residence on the Gold Coast, do not establish that they were abandoning their habitual residence in Australia.

2. I find the father has established habitual residence in the Czech Republic.

3. Prior to leaving Australia, the mother said things which indicated she intended to return to Australia and did things which gave her the option of coming back to Australia just in case things did not work out for her. Nonetheless looking at the evidence as a whole, I find that the mother did abandon their habitual residence in Australia. The real issue in this case is whether or not any new habitual residence was acquired by the mother in the Czech Republic.

4. As discussed above, it is possible for the mother to abandon her place of habitual residence and not acquire a new habitual residence in the Czech Republic even though she was in the Czech Republic for five months.

5. I accept the mother reacted badly almost immediately upon arriving in the Czech Republic. I find she wanted to come home and was placated by the father who said she could if she stayed for a time. When the incident on 14 December happened, the mother says within two weeks of that incident she “made the decision that the only way [she] was going to get home to Australia was if [she] left the father and made the arrangements [herself] and just did it.” Annexure KS(2)AN to the mother’s affidavit sworn 25 October 2012 is the mother’s e-ticket to return to Australia. The tickets were issued 11 February 2012. The mother, for a period of two months after what she says was a major incident of domestic violence, waited to buy tickets. Her explanation for waiting was she was trying to get the cheapest flight. Annexure KS(2)H to the mother’s affidavit sworn 25 October 2012 is a bank statement from the parents’ joint Australian bank account. It indicates that on the 27 January 2012, the mother had available to her $4312.74. The mother did not use this joint money to buy tickets. I infer that the mother was apprehensive about the father discovering that she had used the joint account to purchase the tickets to leave the Czech Republic. The mother said the father locked her out of their laptop. I note that the Centrelink Social Work Report (Annexure M to the mother’s affidavit sworn 31 July 2012) records that “[the mother] advised that her family pooled money together to get her and children back to Australia safely”.

6. The mother did not act in this case with a clearly formed and singular view. Her intentions were ambiguous.

7. Whilst the strength of the father’s ties to the Czech Republic were strong, the mother did not form any such ties. The mother was born in Australia, had lived the majority of her life in Australia, had not lived in the Czech Republic before and at all relevant times had intended to return to Australia. There was no significant cultural, social, or economic integration by the mother into the Czech Republic. In reality, the mother did not establish a sufficient connection with the Czech Republic for her to become habitually resident there.

8. I find that although the mother may have abandoned her habitual residence in Australia she had not by the time she had removed the children from the Czech Republic, acquired a new habitual residence in the Czech Republic.

9. Although the father had acquired a new habitual residence in the Czech Republic, given the mother had not, there was never a shared intention by the parents for the children to live in the Czech Republic with a sufficient degree of continuity for any intention to be properly described as settled. The father cannot unilaterally acquire a new habitual residence for the children.

10. Given the age of the children their habitual residence is the place of the habitual residence of their parents. Given their mother had not acquired habitual residence in the Czech Republic, although I should favour a finding that the children have a habitual residence somewhere as at 2 March 2012, I find on the facts of this case they did not. The children were born in Australia, and did not through the common actions of both their parents acquire a connection with the Czech Republic sufficient for a finding that they were habitually resident there as at 2 March 2012.

11. Accordingly, the application of the Director-General will be dismissed.

12. In the event the father wishes to make an application in the Family Court in this Registry under the Family Law Act 1975 (Cth) for parenting orders, any such application is to be expedited.

I certify that the preceding one hundred and forty-three (143) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 21 December 2012.

Associate: 

Date:  21 December 2012