DIRECTOR-GENERAL DEPARTMENT OF CHILD SAFETY and DW

[2005] FamCA 1409

[2005] FamCA 1409

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA
AT BRISBANE      No. BR1740 of 2005

BETWEEN:
  DIRECTOR-GENERAL
  DEPARTMENT OF CHILD SAFETY
  Applicant

AND:
  DW  
  Respondent Mother

BEFORE THE HONOURABLE JUSTICE WARNICK

REASONS FOR JUDGMENT

Dates of Hearing:              20 September 2005

Date of Judgment:            7 October 2005

Appearances:  Mr Parrot, solicitor, instructed by Crown Law, Solicitors, appeared on behalf of the Applicant

Mr Linklater-Steele of Counsel, instructed by Bevan & Griffin, Solicitors, appeared on behalf of the Respondent Mother

1. The child, born in May 2004 is the child of Mr R and Ms DW.  Between mid-July 2004 and the beginning of October that year the mother, father and the child were living in the United States of America but, on 4 October 2004, the mother returned to Australia bringing the child with her.  These proceedings are brought by the Director-General, Department of Child Safety, as “Central Authority” under the Family Law (Child Abduction Convention) Regulations 1986 for an order that the child be returned to the United States.

2. As is well recognised, applications of this nature involve the establishment of a number of propositions and may be also resisted on several bases.  In this instance there are really only two issues, the one strongly argued and the other, less forcefully so, by counsel for the mother.  Those issues are firstly, whether the child was habitually resident in the United States immediately prior to his removal and secondly, whether the father was exercising rights of custody.

3. I will deal directly with these two issues, before recognition of and such discussion as is necessary in relation to, the other steps which must formally be established.

Was the child habitually resident in the United States immediately prior to his removal?

1. background facts and contentions of each party

1. The mother was born in Australia and has retained her Australian citizenship.  The father was born in the United States of America.  The mother and father met in Florida in about May 2003 and not long after, commenced cohabitation.  The mother fell pregnant with the child in mid-August 2003.  However, the child was born in Australia.  It is of some relevance to an assessment of the mother’s intentions in returning to America after the child’s birth to note that she says the relationship with the father was always turbulent.  At one stage, before the child’s birth, there was a separation of about four weeks, during which the mother remained in the USA.

2. Both parties point to evidence of intention, particularly that of the mother, at various times, during the relationship and periods of separation prior to the child’s birth and afterwards, as bearing upon the answer to whether the child was habitually resident in the USA when he was removed from that country.

3. During the period of separation when the mother remained in the USA, she wrote to the father.  Among other things she said:

   “…I am still going home Jan/Feb, depending on the doctor’s advice…I will be returning to America to live in New York, living in an apartment by myself with our child.  I will give myself six months (till December-04) to see if I want to really stay and enjoy New York; without you and I together…”

4. The mother left the United States on 13 February 2004 to return to Australia.  There is no suggestion this was opposed by the father, though the purpose of and intentions of the parties about the duration of that return are not agreed.  The father says that he and the mother agreed that the mother travel to Australia because it would be more “cost-effective” to give birth there.  In addition, it was agreed that time apart would be beneficial to their relationship.  The mother denies that there was any agreement that she was to travel to Australia simply to secure a cost effective means of giving birth.  She says she advised that she was returning to live permanently in Australia.

5. The father says that before March 2004 the mother contacted him from Australia regarding the filing of her application for permanent residency in the USA.  In a letter she wrote on 1 March 2004 to American authorities, the mother asked to be excused for the lateness of filing her application because she was on vacation visiting her grandmother in Australia and had all intentions of returning to the USA to file her application before the expiry date.  She referred to a return airfare ticket back to the USA.  She also said:

   “Please also find enclosed a copy of confirmation of my residential address in New York, where I reside with the father to be of my child, due May …, 2004.”

6. There was also an application for a consular report of a birth abroad of a citizen of the United States forwarded to the father.  According to the mother, this was sent prior to the birth of the child and she says it was never completed or lodged.  However, a letter from the mother shows that on 9 March 2004, the mother was asking the father to organise a US passport for the child.

7. The child was born at Townsville, Australia in May 2004 and is an Australian citizen.

8. After the child’s birth, the mother sent the father an application for registration of birth, hoping the father would acknowledge his paternity, which he did.

9. In her affidavit filed in these proceedings on 6 September 2005, at paragraphs 27 and 28, the mother says that it was agreed after some discussion that the father’s parents would provide a ticket for her to travel to the USA for the father’s side of the family and the father to meet the child.  She deposes:

   “There was no suggestion made by the father that I could remain in the United States that I would be supported by him or that he would indeed be a father to the child.”

10. The mother says that the application to secure a US passport for the child was done to facilitate travel to the USA to visit the father and his relatives.  Again, the application was not completed or lodged.

11. In support of her argument now that her return to the USA with the child was for a visit only, the mother says that she informed Centrelink before leaving Australia of her intention to travel from Australia on 13 July 2004 and return on or about 12 October 2004.

12. A letter in evidence from Centrelink to the mother, as response to information apparently conveyed by the mother to Centrelink about a plan to travel outside Australia on 13 July 2004, includes the sentence “If your travel plans change and you no longer intend to return to Australia on the date your advised you should tell us as soon as possible.”  The mother says that she also informed Centrelink that it was her hope to try to rekindle her relationship with the father for her child’s sake.

13. The father says he finally asked the mother to return to the United States.

14. Material of the mother so far discussed arguably evidences the intention to visit the USA with the child for a defined period.

15. In paragraphs 18 to 20 of an affidavit filed 22 October 2004 in proceedings instituted by her in Australia, the mother contended that after the birth of the child the father pleaded with her for reconciliation and “he convinced me to come back to him.”  In paragraph 7 of the same affidavit she said “We finally separated on 28 September 2004)”.

16. As to whether the mother had a settled intention about residence during the period she was in the USA, the mother says that the ticket provided to her was a one-way ticket and she was uncertain about what arrangements would be made for her return.

17. She points out that the child was taken to the USA on an Australian passport.  He had a visa for a stay in the USA of 90 days.  The mother says that at no stage did the father make an application for an extension of the 90 day visa nor suggest that the mother should stay beyond the visa time.

18. The mother says that upon arrival in the USA she agreed to stay at the father’s residence.  While she was living there, she and the father were not residing as husband and wife.  The mother further says that after a short period of pleasantries following her arrival, it was again the case that the father’s behaviour was volatile and unpredictable.  She says she wanted to leave many times but had nowhere to go.  The difficulty about how she was to get home “dragged on and on” and as she thought it was likely to be her last visit, she basically decided to try to stay for the term of the child’s visa.  Further, the mother says that her “invalid” permanent resident card expired on 14 October 2004.

19. The father says that upon the mother’s arrival, cohabitation resumed.  He says he believed the mother’s return was to be permanent, as the parties had agreed to raise the child together in the USA.

20. In support of his contentions, the father points to the completion, within a few weeks of the mother’s return, by both parties of an application for state health insurance.  The application for health insurance listed the father as head of household.  The mother says the completion of the health insurance was nothing other than a means of ensuring she was covered during the time she was in the United States.

21. The father also points to the grant to the mother of permanent residence status.  A copy of a letter from the United States Department of Justice, Immigration and Naturalisation Service is attached to the father’s affidavit.  The mother says she never received that letter, of 2 October 2004.  However, she does recall making an application for the removal of the conditional basis of permanent resident status.

22. The father also points to employment taken by the mother in early September 2004.  The mother says she worked in order to gain sufficient funds to purchase the airfare to return to Australia.

23. The father relies upon supporting affidavits by relatives and friends.  These affidavits are couched in rather general terms and while they contain purported global effect of conversations, do not recount particulars of actual conversations or times.

24. The mother responds that she had little to do with a number of the deponents and she denies their suggestions.  I regard these supporting affidavits as of no assistance.

25. The mother moved to a women’s shelter on 2 October 2004 and left the USA with the child on 4 October 2004.  She says that she did ring the father after filing charges of violence against him, told him that she was sorry that things had not worked out and advised him that she would be returning to Australia to live.  The mother says that prior to her departure from New York no document of any sort relating to Court proceedings was served on her.  Nor did she otherwise receive notice of any court proceedings by the father.

26. The mother deposes in paragraph 49 of her affidavit filed 6 September 2005:

    “…at all times in July to October 2004 [the father] knew that I was going to return to Australia.  I did not leave [the father] in October 2004 because our relationship finished.  I left because it never started.”

1. conclusions of fact relevant to “habitual residence”

1. The evidence of the mother is inconsistent.  I think it reasonable to accept what she told the court in Australia in relation to her application for an interim residence order in October 2004, as more likely to be true than what she has told this court when directly confronted with an application that relied for success on habitual residence of the child in late September/early October 2004, being established as in the USA.

2. Therefore, while I do not find that the mother had the intention to live permanently in the USA with the father, I do find that she had the intention of taking up residence with the father to see how that “worked out”.

3. I see no reason why such an intention cannot be or at least become a settled intention.  In my view, when, with that intention, the mother took up residence with the father and remained in that residence for at least two months she, the father and the child became habitually resident in the USA.  I accept that, within a relatively short period of time after arrival, the mother may have become uncertain and concerned about whether the relationship was working out or would work out, but again this does not mean that she was not habitually resident with the child with the father at that time.

4. Acceptance of the wife’s intentions in returning to the USA, namely to resume cohabitation with the father, also is consistent with the father’s case.

5. The inferences to be drawn from what passed between the parties and what was apparently written by the mother to organisations such as Centrelink are not necessarily consistent one with the other.  There is some indication that the mother might be inclined to tell authorities matters which seem to advantage her in her dealing with those authorities.

6. In any event, insofar as material that pre-dates the mother’s return in July 2004 may evidence an intention of the mother merely to return to the USA for a visit, it is consistent with the mother’s own case that by the time she actually returned she had formed an intention to re-enter the relationship with the father and see how it “worked out”.

7. Again, as to inferences that might be drawn from events during the period that the mother spent in the USA with the child, the inferences are not necessarily consistent.  Some are consistent with an intention not to leave after the 90 days but others, such as the inaction on the part of both parents in relation to an extension of the child’s visa, could indicate an intention to depart at the expiration of that time.  On the other hand, the inaction might be consistent with a number of other factors, including dilatoriness and simple uncertainty of the mother as to what she wished to do.  None of the inferences militate against the finding earlier referred to, namely, that the mother arrived with the child in the USA intent on resuming the relationship with the father and seeing how it “worked out”.

1. the law and its application to the facts

1. I have regard to the authorities referred to by counsel for the Central Authority, State Central Authority v McCall 1995 FLC 92-552; Panayotides v Panayotides 1997 FLC 92-733 and in particular the statements in Re B (Minors: Abduction) (No.2) 1993 1 Fam Law R 993:

   “Although habitual residence can be lost in a single day, for example upon departure from the initial abode with no intention of returning, the assumption of habitual residence requires an appreciable period of time and a settled intention.  The House of Lords in Re J refrained, no doubt advisedly, from giving an indication as to what an “appreciable period” would be.  Logic would suggest that provided that the purpose was settled, the period of habitation need not be long…” (at p 995)

2. And, in Panayotides:

   “(5)         Habitual residence refers to the parents’ habitual abode in a country: which they have adopted voluntarily and for settled purposes as part of the regular order of their life for the time being whether it is of short or long duration.

   I expressly adopt the aforementioned observations and those of Kay J in the Department of Health and Community Service v Casse (1995) FLC 92-629, wherein his Honour said:

   ‘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.’” (at p 83,897)

3. In my view, the evidence supports the finding that within a few weeks of arrival and taking up residence in the father’s house (irrespective of what sleeping arrangements were put in place) at about the time application was made for State health insurance, the mother was residing with the father for the settled purpose of deciding whether she would persevere with that arrangement in the long term.  Having regard to the presence of both parents in the country (there being no doubt about the father’s habitual residence) the child acquired the habitual residence of his parents.

4. Although in reaching my conclusion I have not relied upon any orders made in the USA or the reasons for those orders, I note that the conclusion that I have reached in relation to habitual residence of the child accords with the findings of the Honourable Damian J Amadeo, Judge of the Family Court of the State of New York, County of Dutchess of March 2, 2005.

Was the father exercising rights of custody?

1. I accept the submissions on behalf of the Central Authority that at the time of removal of the child the father had rights of custody.  This was not really in issue, the question argued being whether the father was exercising those rights.

2. The mother’s argument in effect is that the father was not caring for the child.  In my view, where the parents are cohabiting with the child as a member of the household, the question of whether or not the father is exercising rights of custody does not fall to be determined upon the degree to which he was involved in the day to day tasks of child raising.  At the very least the father was, whether alone or jointly, providing a residence and parental presence for the child.  As was said by Boggs CJ in Friedrich and Friedrich 78F.3d 1060 (Sixth cir.1996) a decision of the United States Court of Appeals, sixth circuit, at page 1064:

   “The only acceptable solution, in the absence of a ruling from a court in a country of habitual residence, is to liberally find ‘exercise’ whenever a parent with ‘de jure’ custody rights keeps, or seeks to keep, any sort of regular contact with his or her child.”

3. This reasoning is also consistent with the conclusions reached by the Full Court of this court in Director-General, Department of Community Services v Crowe (1996) FLC 92-717, a case in which a mother was found to be exercising rights of custody even though the child had not been living with her for some time.

Other matters

1. Though I think nothing in this application turns on the particulars of other proceedings relating to the child I record an outline of them.

2. The father instituted proceedings on 7 October 2004 in New York, by petition, recording that it was made upon the emergency petition of the father verified 4 October 2004.  In those proceedings, orders granting temporary custody of the child to the father and requiring the mother to return the child to the father were made by the Family Court of New York on 18 October 2005.  A final order was made granting uncontested custody of the child to the father on 2 March 2005.

3. On 22 October 2004, the mother instituted proceedings in the Family Court of Australia at Townsville seeking an order for residence.  On 21 December 2004, the Family Court made an interim residence order in the mother’s favour, pending the determination in the Australian courts of any application brought by the father pursuant to the Hague Convention.  The mother also consented to an order that she not leave Australian nor take the child from Australia.

4. As to other matters relevant to the determination of this application, though in her material the mother made suggestion that the father was aware of her intention to return with the child to Australia and did not oppose that, no argument was presented that this was a matter in which the father had acquiesced in the removal of the child to Australia in early October 2004.

5. I find therefore that the child was wrongfully removed from the USA in October 2004.  Subsidiary to this conclusion I find that the child was habitually resident in the United States of America, a convention country, immediately before that removal.  Further, I find that the father had rights of custody in relation to the child under the law of the United States of America immediately before his removal and that the father was actually exercising those rights.  The child’s removal to Australia was in breach of those rights of custody.

6. No matters pursuant to subsection 3 of section 16 were raised.

7. Though the decision of the USA Department of Justice, Immigration and Naturalisation communicated on 2 October 2004, was that the mother’s request for the removal of the conditional basis of her permanent resident status was approved and she was deemed to be a lawful permanent resident of the United States, the balance of the letter stated certain actions to be attended to and referred to certain conditions.  Consequently, I do not regard the letter as evidence that currently the wife retains permanent resident status in the United States.  However, it was not argued that she could not return to the USA on other bases.

Conclusion

1. In the circumstances, an order should be made for the return of the child.  No submissions were made that the particulars of orders proposed by the Central Authority were inappropriate.

ORDERS

1. That the child, J, born … May 2004, be returned to the country of the United States of America  and for the purposes of giving effect to this order:

   (a)That the said child be returned on or before 19 October 2005;

   (b)That pending the said child, J, born … May 2004, returning to the United States of America, the Respondent mother, Ms DW, continue to be restrained and is hereby injuncted from removing or attempting to remove the said child from the Commonwealth of Australia;

   (c)That pending the return of the said child, J, born … May 2004 to the United States of America, the respondent mother, Ms DW, … 1973, continue to be restrained and is hereby injuncted from changing the residence of the said child, J, born … May 2004, from the premises where Ms DW and the said child are currently residing namely, …;

   (d)That until further order, the respondent mother Ms DW born … 1973 surrender forthwith to the Registrar of this Honourable Court all current passports relating to herself and the said child, J, born … May 2004;

   (e)That subject to sub-paragraph (f) below, the Commissioner of the Australian Federal Police and all Federal Agents of the Australian Federal Police retain the names of the respondent mother, Ms DW, born …1973 and the said child, J, born … May 2004, on the PACE Alert System at all international departure points in Australia;

   (f)That the said child, J, born … May 2004, and the respondent mother, Ms DW, be removed from the PACE Alert System by officers/agents of the Australian Federal Police upon receipt of a letter from an officer of the Department of Child Safety advising of the travel arrangements made for the said child to return to the United States of America, from 12.00am on the date nominated for the said travel in the letter;

   (g)That the Marshall of the Family Court of Australia and the Commissioner and all Federal Agents of the Australia Federal Police and Officers of the Police Forces and Services of the various States and Territories are required and empowered to take all necessary steps to give effect to these orders;

   (h)That to facilitate the return of the said child, J,  born … May 2004 to the United States of America, the Registrar of the Family Court shall, upon receipt of a letter from an officer of the Department of Child Safety advising of the travel arrangements made for the said child to return to the United States of America, release to the person nominated in the letter, all current passports relating to the child for the purposes of the said child’s return to the United States of America; and release the respondent mother’s passport to her or her nominee upon request;

   (i)That the respondent mother, Ms DW, pay all the necessary expenses associated with returning the child to the United States of America, including the cost of airfares and departure taxes (if any) for the child to travel from Cairns International Airport or Brisbane International Airport to the United States of America, and in the event the respondent mother fails or refuses to pay these expenses, the respondent mother pay to the applicant the necessary expenses incurred by or on behalf of the applicant and Mr R, in returning the child to the United States of America, within two business days of the applicant making a written demand for reimbursement of the said expenses;

   (j)That liberty to apply be granted to the applicant to seek any further orders necessary to allow it to make such arrangements as are necessary to facilitate and ensure the return of the child in accordance with this order.

2. That there be liberty to apply.