Director-General, Department of Communities, Child Safety and Disability Services and Ibbott (No 2)

[2015] FamCA 698

FAMILY COURT OF AUSTRALIA

DIRECTOR-GENERAL, DEPARTMENT OF COMMUNITIES, CHILD SAFETY AND DISABILITY SERVICES & IBBOTT (NO 2) [2015] FamCA 698

FAMILY LAW – CHILD ABDUCTION – Hague Convention – Habitual residence – Whether the child’s habitual residence was Ecuador immediately before the date of alleged wrongful retention – Habitual residence in circumstances where the mother and very young child came to Australia via a scholarship the mother received from the Ecuadorian Government for the mother to undertake study – Determined that the child remained habitually resident in Ecuador.

FAMILY LAW – CHILD ABDUCTION – Hague Convention – Rights of custody – Whether the concept of “inchoate rights of custody” in English law has application when determining rights of custody under the Family Law (Child Abduction Convention) Regulations 1986 (Cth) – Determined that the concept of “inchoate rights of custody” is not legitimately part of Australian law.

FAMILY LAW – CHILD ABDUCTION – CHILD ABDUCTION – Hague Convention – Consent – Whether the mother had given consent, within the meaning of the Family Law (Child Abduction Convention) Regulations 1986 (Cth), to the child remaining in Australia for a fixed period of 2 years – consent not established.

FAMILY LAW – CHILD ABDUCTION – CHILD ABDUCTION – Hague Convention – Acquiescence – No basis for any conclusion that acquiescence established.

FAMILY LAW – CHILD ABDUCTION – CHILD ABDUCTION – Hague Convention – State Central Authority establishes the requirements for a return order to be made.

Care of Children Act 2004 (NZ)
Family Law Act 1975 (Cth)

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

Anderson v Paterson [2002] NZFLR 641, sub nom A v A
Artso & Artso (1995) FLC 92-566
Cooper v Casey (1995) FLC 92–575
Department of Communities (Child Safety Services) v Fraser (2010) 43 Fam LR 216
Department of Communities (Child Safety Services) v Rolfston [2010] FamCA 264
Department of Health & Community Services, State Central Authority v Casse (1995) FLC 92-629
Director-General, Department of Community Services v Crowe (1996) FLC 92-717
Director-General, Department of Families and BW (2003) FLC 93-150
Director-General, Department of Families v P (2001) FLC 93-077
Hanbury-Brown & Hanbury-Brown (1996) FLC 92-671
HI v MG [2000] 1 IR 110
J and Director-General, Department of Community Services (2007) FLC 93-342
LK v Director-General, Department of Community Services (2009) 237 CLR 582
McB v E [2011] Fam 364, sub nom JMcB v LE C-400/10 [2011] 1 FLR 518
MW v Director-General, Department of Community Services [2008] 82 ALJR 629
P v Secretary for Justice [2007] 1 NZLR 40
Re B (A Minor) (Abduction) [1994] 2 FLR 249
Re B (Minors) (Abduction) (No 2) [1993] 1 FLR 993
Re F (Abduction: Unmarried Father: Sole Carer) [2003] 1 FLR 839
Re J (A minor) (Abduction: Custody Rights) [1990] 2 AC 562, sub nom C v S (A Minor) (Abduction: Illegitimate Child) [1990] 2 FLR 442
Re K (a child) (abduction: rights of custody) [2014] 3 All ER 149
Soysa v Commissioner of Police [2011] FamCAFC 39
State Central Authority and LJK (2004) FLC 93-200

APPLICANT: Director-General, Department of Communities, Child Safety and Disability Services

RESPONDENT: Mr Ibbott

FILE NUMBER: BRC 5440 of 2015

DATE DELIVERED: 21 August 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 14 August 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Green

SOLICITOR FOR THE APPLICANT: Crown Law

COUNSEL FOR THE RESPONDENT: Mr Shoebridge

SOLICITOR FOR THE RESPONDENT: Odyssey Lawyers

Orders

IT IS ORDERED:

1. That the child, B born … 2012, be returned to Ecuador; and for the purposes of giving effect to this order:

   (a)       The said child leave the Commonwealth of Australia on or before Friday         4 September 2015;

   (b)       The said child arrives in Ecuador on or before Saturday 5 September     2015;

   (c)       Pending the said child returning to Ecuador, the Respondent Father      continue to be restrained and an injunction is hereby issued, restraining      him from removing or attempting to remove the said child from the           Commonwealth of Australia;

   (d)       Pending the said child returning to Ecuador, the Respondent Father      continue to be restrained and an injunction is hereby issued, restraining      him from removing or attempting to remove the said child from the           premises where she is currently residing with the Mother, namely C     Street, Suburb D in the State of Queensland;

   (e)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 Father, Mr Ibbott born … 1989, and the child, B (female) born … 2012, on the Family Law Watchlist at all international departure points in Australia;

   (f)The child, B (female) born … 2012, and the Respondent Father, Mr Ibbott born … 1989, be removed from the Family Law Watchlist by officers/agents of the Australian Federal Police upon receipt of a letter from an officer of the Department of Communities, Child Safety and Disability Services advising of the travel arrangements    made for the said child to return to Ecuador from 12.00 am on the date nominated for the said travel in the letter;

   (g)       The Marshal of the Family Court of Australia and the Commissioner and         all Federal Agents of the Australian 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)Liberty to apply be granted to the Applicant to seek further Orders       necessary to allow him or officers of the Department of Communities,    Child Safety and Disability Services to make such arrangements as are      necessary to facilitate and ensure the return of the child, the child B born … 2012, to Ecuador,    in accordance with this order and pursuant to the Central Authority’s obligation under regulation 20 of the Family Law (Child Abduction Convention) Regulations 1986 (Cth).

2. Paragraph 1 of the Orders of Judge Coates of the Federal Circuit Court of Australia in proceedings between Mr Ibbott and Ms Barritz (BRC10172/2014) now transferred to this Honourable Court be discharged.

3. Paragraphs 1, 2, 4 and 5 of the Orders of the Honourable Justice Kent made 26 June 2015 be discharged.

4. There be liberty to apply.

5. All other applications be dismissed.

NOTATION:

A.The name of the child, B (female) born … 2012 was originally placed on the Family Law Watchlist in proceedings between Mr Ibbott and Ms Barritz (BRC10172/2014).  These Orders effectively overtake and discharge any prior interim injunction previously made in these proceedings or in the proceedings BRC10172/2014 restricting anyone removing the child, B (female) born … 2012, from the Commonwealth of Australia.

B.Further, these Orders overtake any previous Orders regarding the placing and maintaining of names mentioned in the above paragraph on the Family Law Watchlist.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Director General, Department of Communities, Child Safety and Disability Services & Ibbott has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 5440 of 2015

Director-General, Department of Communities, Child Safety and Disability Services

Applicant

And

Mr Ibbott

Respondent

REASONS FOR JUDGMENT

1. By Application in Form 2 filed on 17 June 2015, the Director-General, Department of Communities, Child Safety and Disability Services as the State Central Authority under the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”) applies for orders including an order under reg 14(1)(a)(i) that the child, B (“the child”) born in 2012 and currently aged two years nine months be returned to the country of Ecuador.

2. The requesting applicant under the Convention is the child’s mother, Ms Barritz (aged 34, born in 1981) an Ecuadorian national.  The mother is currently in Australia and residing with the child at C Street, Suburb D, Queensland.

3. The respondent to the application is the child’s father Mr Ibbott (aged 25, born in 1989) an Australian national.

4. The parents have never cohabitated nor have they ever married.

5. For reasons which will be further outlined I prefer the evidence of the mother to that of the father where their respective versions diverge and that preference is reflected in the following discussion of centrally important facts.

6. The mother first came to Australia from Ecuador on a student visa in January 2012 in order to undertake an English course at the F University.  In about January 2012 the mother and the father met and commenced a three month relationship albeit that they never cohabitated or married.  On the mother’s version, the relationship ended in about April 2012 when she advised the father that she was pregnant and the father “… told me that he didn’t want to have a baby or have anything to do with a baby and told me to get an abortion”.[1]  The mother refused to have an abortion and subsequently returned to Ecuador in June 2012.

   [1] Mother’s affidavit annexed to the Form 2 Application filed 17 June 2015 at paragraph 14, page 22.

7. The child was born in Ecuador in 2012.  The mother’s evidence, which I accept, is that after the birth of the child she made attempts to contact and engage the father in the child’s life but the father refused any involvement.  Indeed he initially refused to acknowledge paternity, and following an application by the mother, orders for DNA testing were made by the Provincial Court of Justice of Guayas, in Ecuador on 14 February 2013.  The father subsequently acknowledged his paternity of the child, following which the mother caused his name to be added to the child’s birth certificate and the father’s surname was added to the child’s name.

8. Following a subsequent application by the mother to the court in Ecuador the father was ordered by that court, on 14 February 2013, to pay to the mother USD$86.50 per month by way of child support.  The mother’s evidence, which is not disputed by the father, is that no such payments were made.[2]

   [2] Mother’s affidavit annexed to the Form 2 Application filed 17 June 2015 at paragraph 23, page 23.

9. The mother was awarded a scholarship in mid-2013 under the Universities Program of the Government of Ecuador to undertake post-graduate study at a “well respected overseas university”.  A condition of this scholarship is that the mother returns to Ecuador upon completion of her studies in order to work for the Ecuadorian Government for four years.  Annexures “DBF-08” and

   
   

   “DBF-09” to the applicant’s material are copies of letters from the Embassy of Ecuador and the Ecuadorian Institute of Academic Credit and Scholarship outlining the mother’s receipt of the scholarship and its conditions.  The mother provides evidence, which I accept, that should she fail to meet the conditions of the scholarship, she will be obliged to repay the funds received from the Ecuadorian Government.

10. Having obtained the scholarship the mother contacted the father to discuss the prospect of her coming to Australia with the child to study at the F University.  It is the mother’s position, which I accept, that the father encouraged her to do so and “offered to meet the child’s living expenses while were [sic] in Australia.”[3]

    [3] Mother’s affidavit annexed to the Form 2 Application filed 17 June 2015 at paragraph 29, page 23.

11. It was on the basis of the father’s offer of financial assistance to meet the child’s living expenses whilst the mother and the child were in Australia that the mother applied to undertake her study at the F University.[4]

    [4] Mother’s affidavit annexed to the Form 2 Application filed 17 June 2015 at paragraph 30, page 23.

12. I interpolate here that the father did not fulfil his promise to meet the child’s living expenses.  His evidence was less than precise but, putting it at his highest, demonstrates only some partial contribution by the father to such costs. 

13. With the father’s encouragement the mother arranged to take up her scholarship by undertaking a course of study at the F University commencing July 2014. 

14. The mother and child arrived in Australia from Ecuador on 11 July 2014 travelling on a student visa valid from 25 June 2014 to 1 September 2016.  The study undertaken by the mother was due to be completed in June 2016.

15. On the mother’s evidence, which I accept, it was never her intention to remain in Australia with the child beyond the term of her study and the father was always aware that their stay in Australia was temporary.

16. It is the mother’s position that she decided in early November 2014 to return to Ecuador and thus to discontinue her studies for a range of reasons including the difficulties she encountered concerning the father’s behaviour towards her coupled with the fact that the father had not provided and was not providing the financial support he had promised.

17. On the mother’s evidence, which I accept, she advised the father in early November 2014 of her intention to return to Ecuador with the child.

18. On 11 November 2014 the father filed an Initiating Application in the Federal Circuit Court seeking parenting orders with respect to the child.  A copy of the father’s Initiating Application is annexed at page 92 of the Form 2 Application.

19. On 9 December 2014 the mother attempted to leave Australia with the child and return to Ecuador but was prevented from so doing by the Australian Federal Police as the father had caused the child’s name to be placed on the Family Law Watchlist.

20. On 3 February 2015 Judge Coates in the Federal Circuit Court ordered that until further order the child’s name be placed on the Family Law Watchlist for a period of two years, and his Honour also ordered the mother to file a Response to the father’s Initiating Application.  The mother was unrepresented at that stage and filed her Response on 18 February 2015, which is annexed at page 121 of the Form 2 Application.

21. The father resists this application on several grounds.  The bases of that resistance, as articulated by the father’s counsel at the hearing, differed in some respects from the Case Outline filed on 11 August 2015 on behalf of the father in advance of the hearing.  In summary and paraphrased form, the father’s articulated case is:

    a)As at 9 December 2014 the child was no longer habitually resident in Ecuador, hence any retention of the child in Australia on that date did not constitute a wrongful retention within the meaning of subregulation (1A) of reg 16;

    b)As at 9 December 2014, the date of the alleged wrongful retention, the mother did not possess sole rights of custody and neither parent at that time had the unilateral right to determine the child’s place of residence;

    c)The mother had consented to and/or acquiesced in the child remaining in Australia within the meaning of reg 16(3)(a)(ii);

    d)The residual discretion in subregulation (5) of reg 16 thus enlivened, that residual discretion should be exercised in favour of refusing the return order; or delaying the effect of that order until mid-2016. 

22. Obviously, if the applicant does not establish the requisite element in terms of the child’s habitual residence; or that retention of the child was in breach of the mother’s rights of custody; then the State Central Authority will have failed to satisfy the Court that the child’s retention on 9 December 2014 was wrongful within the meaning of subregulation (1A) of reg 16.  In that event it would be unnecessary to consider consent or acquiescence or the residual discretion. 

Cross-examination and credit assessment

1. The affidavit evidence of the mother, on the one hand, and that of the father, on the other, on centrally important factual issues in dispute on this application was such that it was necessary to permit each of them to be cross-examined on the hearing of this application, rather than proceeding to determine this application “on the papers.”

2. The mother has a reasonably good command of written and spoken English but she was nevertheless provided with the assistance of a NAATI Accredited (Level 3) Spanish interpreter (Ms E, registration number …) when the mother gave oral evidence under cross-examination.  In the result, the mother demonstrated an ability to deal with the great majority of the questioning of her and required only limited assistance from the interpreter on some occasions in the course of giving her evidence.

3. In my judgment the mother was an open and forthright and thus convincing witness in answering questions in cross-examination.  She demonstrated a capacity for accuracy as to dates, times and periods, which was not a capacity demonstrated by the father in comparison.

4. Moreover, cross-examination of the mother did not demonstrate, in my judgment, any reason to doubt the reliability or accuracy of the mother’s evidence generally.  She was challenged about having asked the father to marry her.  I am comfortably satisfied that, as the mother said, a message she sent the father to that effect was a joke.

5. Unfortunately, in respect of the father, cross-examination did demonstrate significant reason to doubt the reliability of his evidence.

6. A centrally important issue (if not the single most important issue) agitated by the father on his affidavit evidence for this application was that even before the mother came to Australia in July 2014, it had been agreed or determined in advance as between the parents that the mother’s move to Australia with the child was intended by the mother to be a permanent move.  That is, that the mother left Ecuador with the established intention to reside in Australia permanently when she came here on 11 July 2014. 

7. For example, each of paragraphs 7, 9, 10 and 11 of the father’s affidavit filed 6 August 2014 contain unequivocal assertions to that effect.  Indeed, in paragraph 9 the father swears that it was never intended by the mother that she would return to Ecuador to live with the child after coming to Australia.

8. Such unequivocal assertions did not appear to survive the scrutiny of

   
   

   cross-examination.  On my assessment the father gave vague and conflicting and at times internally inconsistent answers about what and when any agreements had been reached between the parents and their content.

9. In stark contrast to the father’s affidavit evidence on this application on this issue, is paragraph 1 of the father’s affidavit filed in the Federal Circuit Court on 11 November 2014 in support of his parenting application (“the parenting affidavit”).  Importantly, it was the father himself who prepared that affidavit when he was acting on a self-represented basis.  Paragraph 1 is as follows:

   I moved from Adelaide at the start of July 2014 to look after my daughter [B] who is now 2 years old, as her mother was moving to Brisbane to study for two years from Ecuador.  Since then i [sic] have had shared custody of the child with her mother.  I wish to have more time to be part of the child’s life as i [sic] was expecting her to be in Australia for the next 2 years at which time her mother and i [sic] would have to come to some sort of arrangement that is in the best interest of the child.

   (emphasis added)      

10. None of the assertions about the mother’s extended or permanent stay plans; her employment in Australia post-study; or plans for the mother and child to remain in Australia, as appears in his affidavit material in this application; is asserted by the father in the parenting affidavit.

11. In cross-examination before me the father was, understandably, unable to offer any rational explanation to reconcile the obvious divergence between what he swore to be the truth in paragraph 1 of the parenting affidavit, and his affidavit evidence in these proceedings, on such a centrally important issue.

1. I did not otherwise find the father to be a convincing witness as regards other disputed issues of fact, for example, as regards the divergence between the parents as to the extent to which the father participated in the child’s care from the time of her arrival in Australia in July 2014.

2. Accepting, as I do, that paragraph 1 of the parenting affidavit more closely approaches the truth; and that paragraph 1 is irreconcilable with the father’s sworn assertions on the same centrally important issue in these proceedings; and having seen and heard the father tested in cross-examination on disputed issues such as care arrangements and more generally; I am unable to conclude that the father is a credible witness or that his evidence in these proceedings, at least where it diverges from that of the mother, or is not otherwise corroborated, can be relied upon in preference to the mother’s evidence.

3. Moreover, given my assessment of the mother as a reliable, careful and convincing witness I assess that the mother’s evidence is to be preferred to that of the father wherever there is divergence between them on disputed issues of fact.

4. This determination will be reflected in further references to factual matters relevant to the issues to be determined on this application.

5. It follows from my acceptance of the mother’s evidence that the mother’s agreement to bring the child to Australia was conditional upon the father providing the financial support he had promised; a promise he did not ultimately fulfil.  It could not be said of any agreement that the mother had agreed, come what may, that she and the child would remain in Australia for a certain two year period.

6. For example, it could not be suggested that the mother had agreed that she and the child would remain in Australia if, for any reason, her funding sourced to Ecuador via the scholarship ceased or diminished.

7. Necessarily, given the unknowns the mother had to explore whether she could successfully establish circumstances here for herself and the child and that imperative was not displaced by any antecedent conditional plan, hope or expectation that the mother would be in Australia for a fixed period of two years, come what may.

8. Having accepted the mother’s evidence in preference to that of the father, I accept the mother’s evidence that the father was domestically violent towards her in the respects she outlines in her evidence.[5]

   [5] Affidavit of mother attached to the Form 2 Application at paragraph 34, affidavit of mother filed 4 August 2015 at paragraph 233.

Was the child habitually resident in Ecuador immediately before 9 December 2014?

1. There is no issue that upon her birth in Ecuador and thereafter the child was habitually resident in Ecuador, as was the mother.  Prior to the child’s birth her parents had never cohabitated anywhere.  They have never cohabitated.

2. Against the background that it is established that the child was habitually resident in Ecuador, the question in issue on this application is whether, immediately before 9 December 2014, the child had ceased to be habitually resident in Ecuador.

3. In LK v Director-General, Department of Community Services (“LK”)[6] the High Court extensively examined and considered the meaning of “habitual residence” in the context of the Regulations.

   [6] (2009) 237 CLR 582.

4. The High Court approved of statements in P v Secretary for Justice[7] (“Punter’s Case”) at [44] in these terms:

   …Rather, it is sufficient to observe that in P v Secretary for Justice,

   the effect of the decision in SK was described in the plurality reasons of the Court of Appeal of New Zealand (Anderson P, Glazebrook, William Young and O’Regan JJ) as holding that the inquiry into habitual residence is “a broad factual inquiry”. The plurality went on to say in P:

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

   As the plurality rightly said, the search is for the connection between the child and the particular state. That being the nature of the search the plurality’s references to settled purpose are to be read as directing attention to the intentions of the parents. But as explained earlier in these reasons, the relevant criterion is a shared intention that the children live in a particular place with a sufficient degree of continuity to be properly described as settled…

   (footnotes omitted)

   [7] [2007] 1 NZLR 40.

5. At [45] the High Court observed:

   …When it is also observed, however, that the resolution of the competing approaches has been to invite attention to whether presence at a place has a “degree of settled purpose from the child’s perspective” (emphasis added), the difference in expression of the relevant considerations may not be great…

   (footnotes omitted)

6. As the High Court in LK emphasised, consideration of a wide variety of circumstances is permitted and may be necessary to the determination of the question of habitual residence.  The intentions of either parent and the question of “settled purpose” is not to be given controlling weight.

7. At [34] of the judgment the High Court made reference to young children having the same habitual residence as their parents in the context of cases where parents live together.  Notably, in this case these parents have never lived together.  

8. The child, born in 2012, was only some 20 months of age upon her arrival in Australia in July 2014.  It would be illusory to consider concepts such as “strength of ties to the state” and “assimilation into the state” and “integration” divorced from the reality that such a young child’s capacity to form connections with her environment independently of her carers is limited, if it exists at all.

9. The child is a very young child who must look to others for her daily care and support.  As will be further discussed, in addressing rights of custody, under Ecuadorian law from the time of the child’s birth the mother possessed sole rights of custody in relation to the child.  These features combine to make the habitual residence of the mother significant in the inquiry as to the child’s habitual residence. 

10. As is made clear by the approval by the High Court in LK of the passage from Punter’s Case earlier referred to, identification of a settled purpose is but one of the relevant factors falling for consideration in the “broad factual inquiry”; settled purpose may be important but not necessarily decisive and should not override “… the underlying reality of the connection between the child and the particular state” (LK at [44]).

11. In LK the High Court emphasised that in considering “settled purpose” as a factor, attention is to be directed to whether presence at a place has a degree of settled purpose from the child’s perspective.

12. Even if it could be said of the mother that she came to Australia with the settled intention to study here for a fixed period of two years (and I have already recorded that in my judgment the mother could not be taken to have intended to come here for two years come what may, irrespective of the father’s failure to fulfil his promise of financial support), this cannot be characterised as a case where any such settled intention includes an intention not to return to the country of origin, “a very important” intention where it exists (LK at [28]).

13. This distinction is highlighted in some cases in the United Kingdom including those referred to by the High Court in LK at [40]. Thus in Re B (Minors) (Abduction) (No 2)[8] Waite LJ, referring to the House of Lords’ decision in Re J (A minor) (Abduction: Custody Rights)[9] and other authorities observed:

    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, sub nom C v S (above) refrained, no doubt advisedly, from giving any indication as to what an ‘appreciable period’ would be.[10]

    [8] [1993] 1 FLR 993.

    [9] [1990] 2 AC 562, sub nom C v S (A Minor) (Abduction: Illegitimate Child) [1990] 2 FLR 442.

    [10] Also cited in Cooper v Casey (1995) FLC 92–575.

14. In LK the High Court emphasised that the question in that case was not whether the mother and children had assumed habitual residence in Australia; but the question was whether the mother and children had ceased to be habitually resident in Israel as at the time of alleged wrongful retention in Australia.  Nevertheless, as LK makes plain, intentions, including intention to abandon a place of habitual residence by an intention not to return at the time of leaving, are relevant considerations in the assessment of intention to live in a particular place “with a sufficient degree of continuity to be properly described as settled.”

15. In my judgment, having regard to the centrally relevant facts outlined below, it cannot be said of the mother that she and the child left Ecuador with any intention other than to return to Ecuador.  The expression “appreciable period of time” must, by necessary inference, be informed by the particular circumstances of the case including the degree of stability of circumstances achieved in the time frame relevant to the particular case.  In LK the High Court used the descriptor “sufficient degree of continuity to be properly described as settled” which likewise obviously imports stability of circumstances as a relevant consideration in informing “degree of continuity”.

16. On the facts of this case the mother and child never achieved such a stability of circumstances after coming to Australia on 11 July 2014 and until early November 2014 (when the mother decided to return to Ecuador) or until 9 December 2014 (when the mother attempted to return to Ecuador), for it to be concluded that the mother and child lived in Australia with a sufficient degree of continuity to be properly described as settled.

17. For example, as early as September 2014, only some two months after her arrival on 11 July 2014, the mother commenced to seek counselling support from student counselling at the F University by reason of her anxiety produced by stressful events obviously relating to her circumstances and her interaction with the father.  The level of conflict between the father and the mother is evidenced by the mother subsequently having to seek police intervention to retrieve certain documents from the father, including the child’s passport.

18. Notably it was not until after the father had instituted his parenting proceedings that the father commenced to pay child support, in about April 2015, other than providing “in kind” material support otherwise and contributing to child care costs of the child’s day care centre.

19. The mother was born in Ecuador and has lived the majority of her life there and regards Ecuador as her home.[11]

    [11] Paragraphs 7 and 8 of mother’s affidavit filed 4 August 2015.

20. The mother entered Australia on a student visa with the child being classed as a co-applicant.[12]  The visa is valid for a stay only until 1 September 2016 when the mother must then leave Australia. 

    [12] Mother’s affidavit attached to Form 2 Application Annexure “DBF”.

21. The ability of the mother to travel to Australia is the result of a scholarship sourced to Ecuador via the Ecuadorian Government.  Under the terms of that scholarship the mother is bound to return to Ecuador at the end of her study program.[13]

    [13] Mother’s affidavit filed 4 August 2015 at paragraph 51.

22. I am satisfied on the mother’s evidence that she travelled to Australia with the child for the temporary purpose of studying in Australia and with the intention that at the end of that time she and the child would return to Ecuador. 

23. In other words, the mother’s stay in Australia was always linked to her undertaking a temporary course of study. 

24. Moreover, it cannot be reasonably concluded that the mother ever decided that she would remain in Australia for the two year period referred to, come what may.  This was always predicated upon, as but one example, the promises of financial support from the father, amongst other things relevant to the mother achieving stability of circumstances here.

25. It is a condition of the mother’s visa that she studies whilst she is in Australia.[14]  I am satisfied that it was never the mother’s intention to remain in Australia after she completed her University study.[15]  Consistent with the mother regarding Ecuador as her home and that she always intended her stay in Australia to be temporary:

    [14] Annexure “DBF” to the mother’s affidavit attached to Form 2 Application – Condition 8202.

    [15] Mother’s affidavit filed 4 August 2015 at paragraph 19.

    a)The mother brought only limited possessions to Australia and left significant possessions in Ecuador including furniture and household effects and a motor vehicle;

    b)The mother has at all material times remained liable to pay tax in Ecuador;

    c)The mother maintains her Ecuadorian drivers licence and her Ecuadorian motor vehicle insurance for her motor vehicle in Ecuador; 

    d)The mother does not have a motor vehicle in Australia;

    e)The mother maintains and uses a bank account in Ecuador;

    f)The mother contributes to superannuation in Ecuador and maintains health care benefits in Ecuador;

    g)The mother continues to make payments to student loans sourced to Ecuador;

    h)The mother established life and accident insurance policies in Ecuador before she left Ecuador with the child;

    i)The mother has the promise of a position with the Department of Education in Ecuador upon her return; and whilst in Australia she has been invited to apply for two positions in Ecuador and the mother responded to one of those;

    j)The mother maintains the child’s links to Ecuador, amongst other means, by speaking to her in Spanish; by reading Spanish books to the child and accessing DVDs from Ecuador to assist the child’s comprehension of the Spanish language;

    k)The mother maintains almost daily Skype communication with her mother in Ecuador as well as with her five brothers in Ecuador and other family members on a weekly basis.

26. On the evidence of the mother, which I accept, when she left Ecuador with the child she had no intention to settle in Australia.  Rather, her concluded intention was to return to Ecuador with the child.  That is, after her temporary absence in Australia it was her intention that she and the child would continue living in Ecuador as was the position prior to July 2014.

27. It is clear that the mother did not leave Ecuador for her temporary relocation to Australia with the slightest intention of abandoning Ecuador as the habitual residence of herself or of the child.

28. As paragraph 1 of the father’s parenting affidavit earlier referred to implicitly reveals, the father was well aware at all material times that the mother intended for herself and the child to be temporarily in Australia whilst the mother studied; and intended that she and the child return to Ecuador thereafter. 

29. The acknowledgement by the father in paragraph 1 referred to is an acknowledgement that only if some different or other agreement could be negotiated by him at the end of the mother’s period of study would it be otherwise than the mother’s intention to return to Ecuador with the child being carried into effect.  However, on the mother’s evidence which I accept, such a prospect was never in her contemplation.

30. In the preceding discussion on the topic of settled intention I have largely focused upon the mother’s intentions (and not the intentions of the father) on the basis that (as outlined below in dealing with rights of custody) only the mother possesses rights of custody under the law of Ecuador.

31. In LK the High Court focused upon the mother’s intentions at the time she left Israel. Here, the added and important factor, is that when she left Ecuador undoubtedly it was only the mother who possessed any rights of custody within the meaning of the Regulations. That is, the mother had sole rights of custody.

32. I accept the submission of the State Central Authority, in reliance upon the judgment of Lord Brandon of Oakbrook in Re J (A minor) (Abduction: Custody Rights)[16] for the proposition that where a child is in the sole lawful custody of the mother the child’s “situation with regard to habitual residence will necessarily be the same as hers”.  I accept the submission that only the intentions of a person who possesses, under the law of the child’s habitual residence, the right to determine the child’s place of residence that are relevant to the inquiry as to intention.

    [16] [1990] 2 AC 562, sub nom C v S(A Minor) (Abduction: Illegitimate Child) [1990] 2 FLR 442.

33. The mother’s purpose in coming to Australia was to undertake study and to afford the father and child an opportunity to establish some relationship.  Her intended length of stay in Australia was co-dependent with her study as well as the circumstances here being such that she could maintain the intention to undertake and complete a two year course of study.  At all material times the strength of the mother’s ties remained overwhelmingly to Ecuador and not to Australia.

34. Accepting as I do the mother’s evidence, the degree of her assimilation into Australia was limited and she retained her strong connections with Ecuador.  The mother and the child were only here for about three and a half months before the mother determined, in early November, to return to Ecuador. 

35. Moreover, it cannot be said of the mother and child, on the mother’s evidence which I accept, that within that time frame referred to the mother had achieved stability of circumstances.  Financial issues between the mother and the father and personal interaction issues as between them was a feature of the period referred to and was productive of instability throughout that period.

36. From the child’s perspective it would be illusory to speak of her assimilation into Australia, given her tender age, divorced from the reality that she looked to and depended upon adults for her sources of support.  I accept the mother’s evidence, in preference to that of the father, as regards care arrangements for the child in the three and a half months following her arrival to Australia and until the mother decided in early November to return to Ecuador.  That acceptance means that at all material times the mother remained the primary carer of the child.  The mother says, and I accept, that it was only in about September that the child commenced to spend some overnight time with the father (generally Tuesdays overnight) and that in general the child spent overnight periods with the mother.  On Fridays the mother did not study and thus the child was with her throughout that day, and on other week days was in child care.  I accept the mother’s evidence that for day time periods on either Saturday or Sunday the child would spend time with the father or his family, whilst the mother attended to her studies.  Otherwise, the child was in the mother’s care.

37. I accept the submissions of the State Central Authority to the effect that the mother never achieved stability of circumstances in living in Australia sufficient for it to be said that she had assimilated to life in Australia.  Those reasons include what the mother says about the lack of financial support from the father (not a complete lack but insufficient) and the degree of conflict between the mother and the father as it quickly developed and evolved over time in the relatively short period referred to.  It is clear that the mother remained primarily dependent upon her scholarship, and thus Ecuador, for the sources of her financial support whilst in Australia following July 2014 and thus the same may be said of the child.

1. Arrangements for the child to receive Australian citizenship effected the child’s ability to access Medicare and other benefits here, but otherwise the father’s financial support of the child was limited to contributions to child care expenses and other expenses for the child but by no means can it be said, on the mother’s evidence which I accept, that the father was solely responsible for the child’s financial needs in the period following July 2014 as she says was the basis, or an important factor, in the mother and child coming to Australia.

2. In my judgment the State Central Authority has discharged the onus of proving that immediately before 9 December 2014 the child was habitually resident in Ecuador.

Rights of custody

1. The applicant relies upon the evidence of a lawyer expert in the law of Ecuador, Mr G (Spanish with English translation) annexed at “DBF-06” and “DBF-07” to the affidavit of the mother filed on 4 August 2015.

2. Mr G’s evidence demonstrates that the mother is the only person under Ecuadorian law to possess parental authority in respect to the child.  That parental authority includes the right to decide the place of residence of the child.

3. As the rights possessed by the mother include the right to determine the child’s place of residence, this amounts to “rights of custody” within the meaning of the Regulations.[17]

   [17] J and Director-General, Department of Community Services (2007) FLC 93-342; and reg 4 of the Regulations.

4. As pointed out by counsel for the State Central Authority, as both Australia and Ecuador are parties to the 1996 Hague Children’s Convention, any argument that the father acquired any parental responsibility under Australian law by virtue of the child’s presence in Australia is met by s 111CS of the Family Law Act 1975 (Cth). Section 111CS(2) provides:

   (2) The circumstances in which parental responsibility for a child is attributed to a person, or extinguished, by operation of law (without the intervention of a court or appropriate authority) are governed by the law that applies in the country of the child’s habitual residence.

5. However, counsel for the father, in reliance upon the first instance decision of Morgan J in State Central Authority and LJK (“LJK”)[18] advanced the proposition that by reason of the father’s participation in the child’s care from the time of her arrival in Australia on 11 July 2014, the father had acquired rights of custody in the form of inchoate rights by reason of him carrying out duties and enjoying privileges of a custodial or parental character. 

   [18] (2004) FLC 93-200.

6. In LJK Morgan J determined that the subsequent marriage in the United States of America (“USA”) of the mother and father in that case rendered void a prior Australian custodial order in favour of the mother. In the alternative, in reliance upon English authority concerning “inchoate rights” Morgan J determined that the father had acquired inchoate rights of custody. In other words, that the father had “rights of custody” within the meaning of the Regulations, in circumstances where the father was the requesting applicant in the application for a return order considered by her Honour.

7. It ought be emphasised that in this case the father does not advance the concept of “inchoate rights” to qualify himself as a requesting applicant under the Regulations. In this instance the father advances the concept of his asserted “inchoate rights” by way of challenge to the State Central Authority’s contention that the mother solely possesses the right to decide where the child lives and/or as a challenge to the State Central Authority’s contention that the child’s retention in Australia amounts to a breach of the mother’s rights of custody.

8. That important distinction aside, and with respect to Morgan J, it does not appear that her Honour determined the question of rights of custody in accordance with the approach endorsed by the Full Court of this Court in J and Director-General, Department of Community Services (supra) as further outlined below.

9. That approach required, first, the determination of the father’s rights in relation to the child (if any) under the law of the USA. That is, a right or rights recognised at law. Next, it would be necessary to determine, as a matter of Australian law under the Regulations, whether any such rights amounted to “rights of custody” within the meaning of the Regulations.

10. It would seem that in taking the endorsed approach, at the first stage Morgan J would have confronted what would appear to be an insurmountable difficulty that it would not seem that the concept of inchoate rights of custody is a concept which finds acceptance or application in the law of the USA. Even if that difficulty could be overcome, at the second stage it would have been necessary to determine (as a matter of Australian law in applying the Regulations) whether, if the father had rights, those rights were rights of access or rights of custody, a distinction in the Regulations which was at the forefront in the High Court’s determination in MW v Director-General, Department of Community Services[19] further referred to below.

    [19] [2008] 82 ALJR 629.

11. The extension by English courts of the concept of custody rights to include “the inchoate rights of those who are carrying out duties and enjoying privileges of a custodial or parental character which, though not yet formally recognised or granted by law, a court would nevertheless be likely to uphold in the interests of the child concerned…” derives from Re B (A Minor) (Abduction).[20]

    [20] [1994] 2 FLR 249.

12. In that case the father, who did not have any rights in relation to the child under the local law of Western Australia, had been caring for the child with the agreement of the mother.  He consented to the maternal grandmother bringing the child to the United Kingdom for an extended holiday on the condition that the legal position was formalised.  A consent order was drawn up which would give the father sole custody, but due to technical difficulties this was not registered with the Court, which was necessary for the agreement to have legal effect, until after the grandmother’s departure.

13. In a majority decision, the English Court of Appeal held that there had been a wrongful removal.  Waite LJ held that the concept of custody rights in the Convention was not necessarily restricted to rights propounded by law or conferred by a court order but could also include inchoate rights. 

14. Subsequent English cases clarified that the test for determining the existence of inchoate rights is whether there is a reasonable prospect that a court would perfect those rights, if asked to do so.[21]

    [21] See, for example, Re F (Abduction: Unmarried Father: Sole Carer) [2003] 1 FLR 839.

15. Following the decision by Waite LJ in Re B (supra) the concept of inchoate rights as defined by Waite LJ was adopted in a number of subsequent cases in England and in New Zealand[22] but was rejected by the majority of the Supreme Court of Ireland[23] and by the European Court of Justice.[24]

    [22] See, for example, Anderson v Paterson [2002] NZFLR 641, sub nom A v A.

    [23] HI v MG [2000] 1 IR 110.

    [24] McB v E [2011] Fam 364, sub nom JMcB v LEC-400/10 [2011] 1 FLR 518.

16. It is notable that even in England the concept has been restricted to cases where the father is the primary care-giver of the child or is sharing that care-giving with someone other than the mother otherwise possessing sole rights of custody.  Inchoate rights came to be recognised in England only where the mother had abandoned the care of the child to the father.

17. Counsel for the father did not suggest that beyond the single judge decision of Morgan J in LJK referred to there had been any other case in Australia adopting the concept of inchoate rights.  Counsel for the State Central Authority contended to the effect that researches do not reveal that there has been any other case in Australia applying the concept.

18. Helpfully, counsel for the State Central Authority made reference to a relatively recent decision of the United Kingdom Supreme Court, the decision in Re K (a child) (abduction: rights of custody) delivered on 15 May 2014.[25]

    [25] [2014] 3 All ER 149.

19. In that case Hale LJ (with whom Kerr, Clarke and Hughes LLJ agreed) addressed the concept of rights of custody under the Convention and specifically whether rights of custody under the Convention was to be interpreted as including “inchoate rights”.

20. Commencing at [23] of that judgment Hale LJ traces the history of English cases on “inchoate rights”. 

21. In tracing the history of English authority Hale LJ makes it clear that in English law the concept of inchoate rights applies, with respect to an unmarried father having no rights of custody under the law of the place of habitual residence, only where the father is the primary carer for the child or the mother (possessing rights of custody) has “abandoned” the care of the child to the father or delegated sole care to the father.

22. Commencing at [28] of the judgment Hale LJ refers to the treatment of the concept of “inchoate rights” in other state parties to the Hague Convention.  She refers to the position in New Zealand (at [28]); to Canada (at [29]); to Ireland (at [30]) and Australia (at [31] and [32]).

23. Notably in that analysis, Hale LJ identifies that outside of England and Wales, New Zealand and Canada are the only jurisdictions where the concept of “inchoate rights” has received support; with the concept having been rejected in Ireland [30]; no authority in the USA being revealed to have endorsed its application [33]; or indeed any authority from a non-common law country so doing [33].

24. Indeed at [57] of the judgment Hale LJ makes reference to there being “very little support” for the concept of inchoate rights amongst state parties to the Convention.

25. The comprehensive analysis undertaken by Hale LJ would indicate that the concept of inchoate rights has not found support as part of the law of Ecuador, the subject child’s country of habitual residence, and reference has already been made to the evidence of Mr G as to the applicable law in Ecuador.  Counsel for the father did not provide any authority, or any expert evidence for that matter, to support the proposition that the concept of inchoate rights forms part of the law of Ecuador.

26. At [33] of her Honour’s judgment, Hale LJ also identifies the distinction between what her Honour describes as “incoming” (requested) and “outgoing” (requesting) abduction cases within the jurisdictions her Honour identified and referred to.  Her Honour there notes that New Zealand has recognised the concept for outgoing (requesting) cases; and Canada has recognised it for an incoming (requested) case from England and Wales (thus as part of the law of England and Wales but not necessarily part of Canada’s law).

27. With respect to Australia only the decision of Morgan J is referred to but at [32] it is noted that the decision of the High Court in MW v Director-General, Department of Community Services (“MW”)[26] would appear to be at odds with the concept of inchoate rights. 

    [26] (2008) 82 ALJR 629.

28. At [59] of the judgment Hale LJ expresses the following conclusion or principle as to the application of inchoate rights under English law:

    59.How then may the people who possess that strictly limited category of rights be defined, consistently with the principles and purposes of the Convention and the Regulation? In my view the ‘continuum’ as described in Re B is imprecise. It risks disrupting the important distinctions drawn in the Convention between rights of custody and rights of access and between those who do and those who do not have something which can plausibly be termed a right. I would define such people thus. (a) They must be undertaking the responsibilities, and thus enjoying the concomitant rights and powers, entailed in the primary care of the child. Thus, for example, our law recognises the obvious truth that people who are actually looking after a child, even if they do not have parental responsibility, may ‘do what is reasonable in all the circumstances of the case for the purpose of safeguarding and promoting the child’s welfare’ (Children Act 1989, s 3(5)). (b) They must not be sharing those responsibilities with the person or persons having a legally recognised right to determine where the child shall live and how he shall be brought up. They would not then have the rights normally associated with looking after the child. (c) That person or persons must have either abandoned the child or delegated his primary care to them. (d) There must be some form of legal or official recognition of their position in the country of habitual residence. This is to distinguish those whose care of the child is lawful from those whose care is not lawful. Examples might be the payment of state child-related benefits or parental maintenance for the child. And (e) there must be every reason to believe that, were they to seek the protection of the courts of that country, the status quo would be preserved for the time being, so that the long-term future of the child could be determined in those courts in accordance with his best interests, and not by the pre-emptive strike of abduction.

    (emphasis added)  

29. Even if the concept of inchoate rights were to be embraced, applying that concept or principle in the manner described by Hale LJ at [59] of her Honour’s judgment quoted above would not result in the father here being described as having acquired inchoate rights, even if that concept is part of the law of Ecuador.

30. The father has never had the primary care of the child.  Such caring responsibilities as he has had have been shared with the mother, the person with the legally recognised right to determine where the child should live under the law of Ecuador.  It cannot be suggested here that the mother has ever abandoned the child’s care or delegated a primary caring role to the father.

31. There is, in my view, an even more fundamental difficulty with the father’s argument in this respect in that it would obviously be at odds with the decision of the High Court in MW (a case of the High Court decided subsequently to the decision of Morgan J referred to) to give effect to the concept of inchoate rights.

32. In MW the child lived in New Zealand primarily with his mother, but had extensive contact with his father.  Under the terms of an access order made by the New Zealand Family Court in December 2000, the child spent every second weekend and half of school holidays with the father.  After a breakdown in relations between the mother and father in 2006, the mother departed with the child for Sydney, without telling the father. 

33. The State Central Authority applied for orders requiring the return of the child to New Zealand under the Regulations. The application stated that the father had custody rights because of the order granting him access made by the New Zealand Family Law and because, as he was living with the child’s mother when the child was born, he was a joint guardian. The plurality in the High Court (Gummow, Heydon and Crennan JJ) held that the State Central Authority had failed to establish its case that the father was a guardian of the child and could therefore determine the child’s place of residence by reference to the Care of Children Act 2004 (NZ).

34. Further, the plurality held (with Gleeson CJ agreeing on this point) that the State Central Authority failed in its reliance upon the order granting the father access as the source of the father’s custodial rights, including a right to determine the child’s place of residence  Their Honours referred to the terms of the access order conferring “rights of access” to the father in accordance with reg 2(1) but determined that such an access order was not addressed to and imposed no prohibition on, in the absence of consent by both parents, the removal of the child from the jurisdiction of the New Zealand court that made the order.  That is, that the access rights conferred no “right of veto”.[27]

    [27] [21], [76], [78], [82] and [84].

35. In J and Director-General, Department of Community Services (2007) FLC

    
    

    93-342 (“J’s Case”) the Full Court of this Court examined in some detail how an Australian Court determines rights of custody within the meaning of the Regulations. At [33] to [37] the Full Court observed:

    33.      In support of these grounds (which were largely argued together) Counsel for the mother submitted that in order to determine whether a removal or retention in any particular case was a removal in breach of the rights of custody of a person – in this case the father - with the result that the removal would be a removal for purposes of the Convention, the Court must follow a three stage process which, as described in Counsel’s written submissions, is as follows:

    “5.5.1The first task is to establish, on the evidence before it, what rights, if any, the father had under US law in relation to the child at the time of [removal or] retention;

    5.5.2The next stage is to resolve, as a matter of Australian law under the Regulations (being the law of the forum where the Convention has been invoked), whether they amount to ‘rights of custody’ within the meaning of the Regulations;

    5.5.3Finally, the question is whether or not the [removal or] retention of the child was in breach of those rights. The answer to this final question determines whether or not the [removal or] retention was wrongful within the Regulations.”

    34.      In support of his contention for this three stage process Counsel relied on the English decisions of Re F (A Minor) (Abduction: Custody Rights Abroad) [1995] Fam 224 and Re V-B (Minors) [1999] EWCA Civ 1013. It must, of course, be remembered that the English decisions on Convention matters are concerned with an interpretation of the terms of the Convention itself, whereas in Australia it is the Regulations which have to be interpreted and applied. The equivalent articles in the Convention to the relevant Regulations in this case, being Regs 16, 3 and 4, are as follows:

“Article 12

Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.  The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child unless it is demonstrated that the child is now settled in its new environment. …”

“Article 13

Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that —

a the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention …”

“Article 3

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

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

b at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.  The rights of custody mentioned in sub-paragraph a above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.”

“Article 5

For the purposes of this Convention —

a ‘rights of custody’ shall include rights relating to the care of the person of the child and, in particular, the right to determine the child's place or residence;

b ‘rights of access’ shall include the right to take a child for a limited period of time to a place other than the child's habitual residence.”

35.      In the course of his judgment in Re V-B Ward LJ (with whom Mantell LJ and Beldam LJ agreed) when discussing the proper approach to the construction and application of “custody rights” within Article 5 of the Convention, said:  

“The starting point, as established by In re F. (Abduction: Custody Rights Abroad) [1995] Fam. 244, can be stated as follows:-

1.        The first task of the court is to establish on the evidence before it what rights, if any, the father had under Dutch law in relation to his children at the time of their removal.

2.        The next stage is to resolve, as a matter of English law, that being the law of the forum where the Convention has been invoked, whether those rights amount to “rights of custody” within Article 5.

3.        Finally, the question is whether or not the removal of the children was in breach of those rights. The final answer determines whether or not the removal is wrongful within the meaning of Article 3 of the Convention.”

36.      Counsel for the Central Authority did not challenge the correctness of the submission of Counsel for the mother in relation to this three-stage approach based on the English decisions of Re F and Re V-B.  We note also that it was the approach adopted by Judicial Registrar Johnston (at paragraph 16 of his judgment).  Accordingly, we are prepared to accept (at least as presently advised) that this three-stage approach is the appropriate approach to the application of Regs 3 and 4. 

37.      In relation to the first step in the process, being the determination of what rights, if any, the father had in relation to the child under the law of Georgia, it was the submission of Counsel for the mother, which we accept, that this was a question to be determined on the basis of the expert evidence before the Court. 

1. The same approach was adopted by the High Court in MW. 

2. Obviously, the focus of the inquiry identified above is whether the requesting applicant in an application under the Regulations has rights of custody within the meaning of the Regulations to support the applicant. Here, the contention of the father is that his “inchoate rights” disturb the primary position that under Ecuadorian law the mother has the sole right of parental authority to determine where the child lives. That is, the father would have it that he now shares such a right by reason of his inchoate rights.

3. As is clear from the English cases, the concept of inchoate rights is considered in the context of whether or not a person possesses “rights of custody” within the meaning of the Convention of a kind that the subject removal or retention as the case may be operates as a breach of the requesting person’s rights of custody.

4. The father does not establish that the concept of inchoate rights of custody is a concept known or applied in the law of Ecuador.  The expert evidence in this case is to contrary effect.

5. Notwithstanding the single instance decision of Morgan J referred to, I am not satisfied that as a matter of Australian law under the Regulations inchoate rights as a concept is a recognised concept under Australian law. Given the decision of the High Court in MW, it would seem contrary to High Court authority to determine, at the second stage referred to in J’s Case, that as a matter of Australian law consideration must be given to any inchoate rights of custody; as opposed to the definition of such rights appearing in reg 4, in particular, subregulation (3) of reg 4.

6. I am not satisfied that the concept of “inchoate rights” as forming part of “rights of custody” within the meaning of the Regulations is a concept that can legitimately be accepted as part of Australian law.

7. For these reasons I reject the father’s ultimate contention that both parents of the child, rather than the mother solely, possess the right to decide where the child lives. 

8. I am satisfied that under the law of the child’s country of habitual residence, Ecuador, the mother solely possesses rights of custody within the meaning of the Regulations.

Breach of rights of custody

1. The mother decided in early November 2014 that because of the father’s abusive behaviour towards her, her anxiety and her poor financial position she would not be able to complete her studies in Australia and she then determined to return with the child to Ecuador.[28]  I accept the mother’s allegations that the father was domestically violent towards her.[29]

   [28] Affidavit of mother filed 4 August 2015 at paragraph 234.

   [29] Affidavit of mother attached to the Form 2 Application at paragraph 34; and affidavit of mother filed 4 August 2015 at paragraph 233.

2. There is no issue that the father acknowledged that the mother told him of her intention to return to Ecuador at the beginning of November 2014.[30]

   [30] Affidavit of mother filed 21 July 2015 at paragraph 14.

3. It is also not in issue that acting on her intention formed in early November 2014 the mother made arrangements for herself and the child to travel from Australia to Ecuador on 9 December 2014.  Nor is it in issue that the child was prevented from leaving Australia because her name had been placed on the Family Law Watchlist maintained by the Australian Federal Police some time prior to 9 December 2014.

4. It would seem that the child’s name was placed on the Family Law Watchlist as a result of the father filing his parenting application on 11 November 2014.

5. The father’s actions initiated a process which prevented the mother from giving effect to her determination to return to Ecuador on 9 December 2014 and thereafter.  In consequence, the father breached the mother’s right to determine the child’s place of residence.[31]

   [31] Artso & Artso (1995) FLC 92-566; Hanbury-Brown & Hanbury-Brown (1996) FLC 92-671 (at page 82, 966); Department of Health & Community Services, State Central Authority v Casse (1995) FLC 92-629; Department of Communities (Child Safety Services) v Rolfston [2010] FamCA 264; Department of Communities (Child Safety Services) v Fraser (2010) 43 Fam LR 216; Director-General, Department of Families v P (2001) FLC 93-077.

6. In Director-General, Department of Families v P (2001) FLC 93-077 Jerrard J analysed the Regulations with respect to construction of the words “removal” and “retained” in each of the relevant Regulations and concluded that a decision that a child live in Australia for an indefinite period could not extinguish a right to reverse that decision at a later time. His Honour referred to the analysis of rights of custody made in Director-General, Department of Community Services v Crowe.[32]  His Honour held that it was implicit in the nature of rights of custody that a decision genuinely made could be changed for genuine reasons, either because of changed circumstances or simply because of a change of view.  I respectfully adopt that analysis.

   [32] (1996) FLC 92-717.

7. I am satisfied that the State Central Authority establishes the requisite element of a breach of rights of custody.

Exercising rights of custody

1. There cannot be any doubt that in determining that she and the child would return to Ecuador, the mother was exercising her right of custody, namely her right to determine the child’s place of residence. 

2. It should be observed, in passing, that the pre-existing care arrangements broke down in early November 2014 when the mother determined that she and the child would return to Ecuador.  That is, immediately before 9 December 2014 the mother was exclusively caring for the child and had been so doing since about early November 2014.

3. By attempting to depart Australia with the child on 9 December 2014 the mother was exercising her rights of custody to give effect to the decision she had made to determine the place of residence of the child.[33]

   [33] Soysa v Commissioner of Police [2011] FamCAFC 39 at [47] to [49].

Consent or acquiescence (reg 16(3)(a)(ii))

1. By reference to the decision of O’Reilly J in Director-General, Department of Families and BW (“BW”)[34] counsel for the father argued that the mother had given consent, within the meaning of the regulation, to the child remaining in Australia for a two year period when the child and the mother came to Australia in July 2014.

   [34] (2003) FLC 93-150.

2. In BW the child, habitually resident in New Zealand, came to Australia for a holiday with his mother in Australia for a fixed period.  The question was whether the child was wrongfully retained as at the date the mother had informed the father that the child would not be returned; or the original agreed date.  For the reasons outlined in her judgment O’Reilly J determined the latter date.

3. It is trite that consent must be clear and unequivocal. 

4. In this case, it cannot be said that the mother ever gave consent, within the meaning of the regulation, to any arrangement which did not see the child remaining in the mother’s primary care.

5. Moreover, as has already been discussed, there were relevant conditions upon the mother’s plans to come to and remain in Australia; not the least the promised financial support from the father but moreover the mother’s circumstances more generally whilst here.

6. Reference has already been made to the decision in Director-General, Department of Families v P[35] in which Jerrard J analysed the rights of custody available for exercise by a person possessing sole rights and that a decision by such a person genuinely made could be changed for genuine reasons, either because of changed circumstances or simply because of a change of view.

   [35] (2001) FLC 93-077.

7. In my judgment the circumstances of this case do not support the proposition that the mother consented to the child remaining in Australia for a fixed period of two years irrespective of the conditions upon which such a plan was formulated, not the least being that the mother, as primary carer of the child, would also be content to remain here.

8. In my judgment, the father does not discharge his onus of proof of establishing consent within the meaning of the Regulations.

9. As to acquiescence, obviously there can only be acquiescence after wrongful retention has occurred.  Again, the father bears the onus of establishing that exception.

10. Nothing in the arguments addressed by counsel for the father demonstrates that any words or conduct of the mother subsequent to her decision to return to Ecuador in early November 2014 or more particularly from when she attempted to return with the child on 9 December 2014, demonstrate that the father was given to understand that the mother would not seek to have the child summarily returned to Ecuador.

11. The father does not discharge his onus of establishing either consent or acquiescence as an exception to the making of a return order.  The residual discretion in subregulation (5) of reg 16 thus does not arise.

Conclusion

1. The State Central Authority has established each of the requisite matters for the making of a return order.  Specifically:

   a)The application for a return order was filed on 17 June 2015 and hence within one year of the child’s retention on 9 December 2014 (reg 16(1)(a) and (b)); and

   b)The State Central Authority satisfies the Court that the child’s retention was wrongful under subregulation (1A) of reg 16 in that:

   ·The child was (and is) under the age of 16 years;

   ·The child habitually resided in Ecuador, a Convention country, immediately before her retention on 9 December 2014;

   ·The mother had rights of custody in relation to the child under the law of Ecuador immediately before the child’s retention;

   ·The child’s retention in Australia is in breach of the mother’s rights of custody;

   ·At the time of the child’s retention the mother was actually exercising her rights of custody.

2. In these circumstances the making of a return order is mandatory.

3. As has been contended for by the State Central Authority, in addition to making a return order and the usual orders under this application, it will be necessary to make orders in the parenting proceedings instituted by the father in the Federal Circuit Court but transferred to this Court, bringing an end to those proceedings.

4. I make orders accordingly as set out at the commencement of these Reasons.

I certify that the preceding one hundred and forty-eight (148) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 21 August 2015.

Associate:

Date:  21 August 2015.