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

[2016] FamCA 227

FAMILY COURT OF AUSTRALIA

DIRECTOR-GENERAL, DEPARTMENT OF COMMUNITIES, CHILD SAFETY AND DISABILITY SERVICES & WILLIAMS [2016] FamCA 227

FAMILY LAW – CHILDREN – HAGUE CONVENTION – whether the child was habitually resident in South Africa prior to her retention in Australia – Application dismissed

Children’s Act (38 of 2005) (South Africa)
Convention on the Civil Aspects of International Child Abduction
Family Law Act 1975 (Cth)
Family Law (Child Abduction Convention) Regulations 1986 (Cth).

De L v Director-General, NSW Dept of Community Services (1996) 187 CLR 640

Department of Health and Community Services v Casse (1995) FLC 92-629

Harries & Harries [2011] FamCAFC 113.
HZ & State Central Authority [2006] FamCA 466;

In Re J (a minor) (1990) 3 WLR 949

LK v DG, Department of Community Services (2009) 237 CLR 582

Panayotides (1997) FLC 92,733; In Re J (a minor) (1990) 3 WLR 949
Re B (Minors)(Abduction)(No 2) (1993) 1 FLR 993
State Central Authority & McCall (1995) FLC 92-552

Zotkiewicz & Commissioner of Police (No 2) (2011) FLC 93-472

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

RESPONDENT: Ms Williams

FILE NUMBER: BRC 886 of 2016

DATE DELIVERED: Orders made 8 April 2016; Reasons provided to the parties 11 April 2016

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 1 April 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Green

SOLICITOR FOR THE APPLICANT: Crown Law

COUNSEL FOR THE RESPONDENT: Mr Linklater-Steele

SOLICITOR FOR THE RESPONDENT: DA Family Lawyers

Orders

IT IS ORDERED THAT

1. All previous Orders are discharged.

2. The Form 2 Application filed by the Department of Communities, Child Safety and Disability Services on 5 February 2016 is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym DCCSDS & Williams 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 886 of 2016

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

Applicant

And

Ms Williams

Respondent

REASONS FOR JUDGMENT

1. The Court is asked to determine an Application[1] pursuant to the Family Law (Child Abduction Convention) Regulations1986 (Cth) for an order[2] returning B (the child), born in 2013 in South Africa, to South Africa. the child has been in this country with her mother, Ms Williams (who is an Australia citizen) since 4 February 2015. She has not spent face to face time with her father, Mr Aslop (who is a citizen of South Africa) since he returned to South Africa on 19 March 2015.

   [1]filed 5 February 2016 by the Director-General, Department of Communities, Child Safety and Disability Services in his capacity as State Central Authority.

   [2]           pursuant to Reg 15(1)(a) and Reg 14(1)(a)(i).

2. B and her parents had travelled to Australia for an extended holiday and to visit and spend time with the maternal extended family. the child travelled pursuant to a visitor Visa granted to her on 3 February 2015. The Visa permitted her to stay in Australia until 3 May 2015. Ms Williams applied for a grant of citizenship for the child at about the end of March 2015/early April 2015 and she is now entitled to remain in Australia indefinitely.

3. The Regulations[3] are made pursuant to s 111B of the Family Law Act 1975 (Cth) (“the Act”) which provides that Regulations may make provision, as is necessary or convenient, to enable the performance of Australia’s obligations under the Convention on the Civil Aspects of International Child Abduction (“the Convention”). This Convention provides a mechanism for the prompt return of wrongfully removed or retained children between contracting States.

   [3]           which are to be construed as prescribed in Reg 1A(2) of the Regulations.

4. Pursuant to the Regulations, the Court may make return orders or any other orders it considers appropriate to give effect to the obligations imposed on the Australian Government by the Convention.[4]

   [4]           Regs 14 and 15.

5. It is agreed that the date which is relevant to the issue of the determination of whether the child has been wrongfully retained in Australia is 19 March 2015. Consequently, the Application was filed within one year of her retention in this country.[5]

   [5]           Reg 16(1)(b).

6. It follows that, if I am satisfied by the Applicant[6] that the child’s retention in Australia was wrongful within the meaning of subregulation 16(1A), then, subject to subregulation 16(3), I must make an order for her return to South Africa.[7]

   [6]           who has the onus of proof on the balance of probabilities.

   [7]          Family Law (Child Abduction Convention) Regulations1986 (Cth), Regulation 16(1).

7. Regulation 16(1A) provides that the child’s retention in Australia is wrongful if:

   a)she is under 16 – as she is; and

   b)she was habitually resident in a Convention country immediately before her retention in Australia; and

   c)her father had rights of custody in relation to her under the law of the country in which she was habitually resident immediately before the retention in Australia; and

   d)her retention in Australia is in breach of those rights of custody; and

   e)at the time of her retention, her father was actually exercising the rights of custody (either jointly or alone) or would have exercised those rights if she had not been retained.

   The issues

8. The primary issue in this case is whether the child was habitually resident in South Africa (which is a contracting State to the Convention) or, as contended for by Ms Williams, Mozambique (which is not a contracting State to the Convention) immediately before her retention on 19 March 2015. If the Applicant fails to establish that the child was habitually resident in South Africa immediately before  this time, then it will have failed to satisfy the Court that her retention on 19 March 2015 was wrongful within the meaning of subregulation 16(1A). If that is the case, it will be unnecessary to consider whether the child’s father consented to her retention in Australia or subsequently acquiesced to it or the manner in which the residual discretion[8] should be exercised in the circumstances of this case.

   [8]           Reg 16(5).

9. If, however, the Applicant discharges its onus and establishes that the child was habitually resident in South Africa immediately before her retention in Australia then, unless the Respondent persuades the Court of one of the matters prescribed in subregulation 16(3), an order for the child’s return to South Africa must be made. Hence, the secondary issue – which only requires consideration if the Applicant establishes South Africa as the place of the child’s habitual residence at the requisite time – is whether the father consented to or acquiesced in the child’s retention in this country. If these contentions are established, the Court may, in the exercise of the residual discretion afforded to it by subregulation 16(5), refuse to make an order for the child’s return – but, is not precluded from doing so.

10. In contending that the child was habitually resident in South Africa immediately before her retention in Australia, the Applicant relies on the contents of the Form 2 and affidavits by the child’s father, her paternal grandfather and Mr C. In contending that the child was not habitually resident in South Africa - but, rather, Mozambique - immediately before her retention in Australia (and that the father consented to or acquiesced in her retention in this country), the Respondent relies on the contents of the Form 2A[9], her affidavits and an affidavit by each of her parents.

    [9]           filed 25 February 2016.

11. Only the child’s parents were the subject of cross-examination during the hearing.

12. Given this, the comments of the Full Court in Zotkiewicz & Commissioner of Police (No2)[10] about the manner in which the Court is to approach the resolution of factual disputes in the absence of cross-examination may be thought to be of lesser and/or limited assistance. Whilst that is, perhaps, in one sense, true, it seems to me that certain matters noted by the Full Court there remain pertinent: that is, the Court should look at the versions provided by each party; identify those relevant areas of common ground and those in respect of which there is a conflict of account; consider inherent probabilities; and - where the intention of a party is a matter of some conjecture - look to conduct and any documentary or corroborative evidence which may help to determine that issue.

    [10] (2011) FLC 93-472.

    Some of the relevant matters in common or clearly established

13. B’s parents met via Facebook in mid-2009, met in person in South Africa in late November 2009 and spent time together there until about early January 2010 when Ms Williams returned to Australia. The father travelled to spend time with Ms Williams in Australia in February and June 2010. On 4 September 2010, Ms Williams returned to South Africa to live with Mr Aslop. They worked in South Africa between about 17 September 2010 and about 1 January 2011. At this time, they started to work in South Africa. On 17 May 2011, a spousal Visa (which enabled Ms Williams to live in South Africa) was approved.

14. B’s parents married in Brisbane in 2011 and then returned to South Africa. As noted earlier, the child was born in South Africa in 2013 and lived in that country with her parents until about 1 September 2013, when the family moved to live in Mozambique so that Ms Williams and Mr Aslop could take up employment with a Mozambican subsidiary of a South African based company.

15. Between about 1 September 2013 and early February 2015, Ms Williams, the child and Mr Aslop lived in Mozambique. They did so pursuant to either tourist visas (which permitted them to stay there for no more than 30 consecutive days) or a business visa (which permitted them to stay for up to about three consecutive months).

16. They were, at all times, waiting for Mr Aslop’s work permit to be processed – something which eventuated only after he resigned his employment in about July 2015 and returned to South Africa. Consequently, both Ms Williams (and the child) and Mr Aslop exited Mozambique and re-entered that country each month between about October 2013 and about February 2015. Additionally, following his return to Mozambique in mid-March 2015, Mr Aslop continued to exit and re-enter Mozambique on a monthly basis until he ceased his employment there in about mid-July 2015.

17. Ms Williams and Mr Aslop took very few possessions with them when they moved to live in Mozambique at the beginning of September 2013. They placed other possessions into storage in South Africa. They appear to have accessed these as needed and/or as their circumstances in Mozambique changed.

18. The location in which they lived in Mozambique was remote and without significant services. Given that the purpose of their employment was to establish a business in which they (and their colleagues) lived within an  enclosed perimeter.

19. For approximately 12 months after they moved to live in Mozambique, the family unit shared a home in this compound with two work colleagues. After this, they occupied a wooden house located within the same compound. They were waiting for their employer to build the accommodation which had been promised to them. As was the case with Mr Aslop’s work permit, this promise was not fulfilled by the time they left Mozambique to return to Australia for a holiday at the beginning of 2015.

20. They opened a bank account in Mozambique. However, save for on one occasion, they did not use this because neither had a work permit. They were paid via an ‘accommodation’ (in which, it can only reasonably be concluded, their employer enjoined) by which a colleague with a work permit was paid wages sufficient to cover their wages also. They were paid in South African Rand and used this during their visits to South Africa to purchase items they needed. The purchases made in Mozambique appear to have been limited to day to day items such as bread and drinks.

21. Whilst the child’s father sought medical treatment on an occasion in Mozambique, the family unit continued to access medical treatment and attend upon medical practitioners in South Africa. I accept that, because of the remoteness of their location in Mozambique and the absence of significant facilities in that area, they both knew this would be the case before they moved to Mozambique in September 2013.

22. B and her parents visited family and friends in South Africa on occasions. Family and friends also travelled to visit them on occasion: for example, celebrating Christmas and New Year at their compound in Mozambique.

23. Whilst the father’s case appears to suggest that the decision was made on about 15 January 2015, it appears that, at the end of October 2014 (according to the e-ticket itinerary and receipt) the child’s parents agreed to travel to Australia for a holiday and to visit members of Ms Williams’ family. They applied for a Visa for the child. the child entered this country pursuant to a tourist Visa which permitted her to remain in Australia until 3 May 2015. From the perspective of the Department of Immigration and Border Protection, if the child remained in Australia after this date without alternative arrangements having been made for her continued presence in this country, she would have been unlawfully here.

24. When Ms Williams applied for the tourist Visa for the child to facilitate her travel to Australia in February 2015, she provided the City D residential address of the paternal grandparents. Given that Ms Aslop accepts that he, Ms Williams and the child spent only very limited time at that residence after September 2013, I accept that she did so as a matter of convenience – particularly where the evidence suggests the parties did not expect to receive significant quantities of mail in any event and the mail service to the compound in Mozambique was, at best, extremely limited.

25. Whilst Ms Williams and Mr Aslop and the child were initially booked on a flight departing City D for Sydney on 23 February 2015, Ms Williams and the child in fact left City D on 3 February 2015 and arrived in this country on 5 February 2015. Ms Williams was disappointed and upset that Mr Aslop remained at work in Mozambique rather than travel to Australia with her and the child.

26. Mr Aslop Senior took Ms Williams and the child to the airport in City D on the understanding that they were leaving for a holiday in Australia. This evidence is not at odds with Ms Williams’ evidence, which I accept, that she left South Africa intending to return to Mozambique.

27. The Incoming Passenger card[11] completed by Ms Williams for the child on 5 February 2015 declares that her intended length of stay was 42 days. It also declares that South Africa was her country of residence.  I accept that Ms Williams made this declaration because she had provided the City D residential address when she applied for the child’s visa and she needed to provide information which was consistent with that. I am not at all persuaded that she turned her mind in any way to the issue of the child’s habitual residence.

    [11]         Exhibit 1.

28. The Incoming Passenger card[12] completed by Ms Williams on her own behalf contains the declaration that she did not intend to live in Australia for the next 12 months and that the country where she spent most time abroad was South Africa. It is accepted that, if the period of time to which this question should be regarded as relating is the preceding 18 months, this is untrue because Ms Williams had, in fact, spent the vast majority of her time in Mozambique. However, the question as formulated on the Incoming Passenger card is not, in fact, specifically related to any defined or particular period of time before the date on which it is completed.

    [12]         Exhibit 1.

29. B and her mother were joined in Australia by Mr Aslop on 3 March 2015.

30. The family was scheduled to return to South Africa on a flight departing Australia on 19 March 2015.

31. However, the night before this scheduled departure, Ms Williams and Mr Aslop argued. According to Mr Aslop, Ms Williams expressed a desire to remain in Australia longer.  According to Ms Williams, Mr Aslop told her he did not want her to return with him. Whilst they disagree – at least to some extent – about the contents of this argument, it appears that both say Mr Aslop told Ms Williams that, if she did not like living at the compound in Mozambique, or in Mozambique, or had issues with their colleagues, the work conditions and the employment in Mozambique, she should not return with him. There is no suggestion that the argument or arguments that night contained any reference to South Africa.

32. Mr Aslop was subsequently taken to the airport by Ms Williams’ father, whose reaction to the events was such that Mr Aslop accepts that both maternal grandparents were completely surprised that only he was leaving. Having flown into South Africa alone on about 19 March 2015, Mr Aslop resumed work in Mozambique. He continued to work there until about mid-July 2015 when he terminated his employment. He has subsequently been employed in a business started by his father in South Africa.

    Where was the child habitually resident at the relevant time?  

33. There is no issue that, upon her birth in South Africa, the child was habitually resident there. The question in issue is, as already outlined, whether she remained habitually resident there as at 19 March 2015.

34. The meaning of “habitual residence” in the context of the Regulations was extensively and authoritatively discussed by the High Court in LK v DG, Department of Community Services.[13] It is thus clearly established that the inquiry into habitual residence is “a broad factual inquiry”, intended to involve a search for the underlying reality of the connection between a child and a particular state. Such inquiry should take into account all relevant factors, including settled purpose (in the sense of whether there was a shared intention that the child live in a particular place with a sufficient degree of continuity to be properly described as settled, from the child’s perspective), the actual and intended length of stay in a state, the purpose of the stay, the past and present strength of ties to the state and to any other state, the degree of assimilation into the state (including living and schooling arrangements) and cultural, social and economic integration. It is also authoritatively established that the intentions of either parent and the issue of “settled purpose” are not to be given controlling weight in the determination of the answer to the question of fact of a child’s habitual residence at the relevant time.

    [13] (2009) 237 CLR 582.

35. I take into account that, in the period from 31 August 2013 (from when she was about 4 months old) until 5 February 2015 (when she was about 22 months of age), the child was present in Mozambique for about 453 days. In the same period, she was in South Africa for about 17 days.

36. I also take into account that she never lived at the home of her paternal grandparents in South Africa but, rather, visited them there on occasions for holidays or celebrations. In arriving at this conclusion, I prefer the child’s father’s evidence to that given by her paternal grandfather and I do not accept his assertion that, from the time of the September 2013 move to Mozambique, the paternal grandparents’ home in City D was used by the child’s parents as “their place of permanent residence”. On the child’s father’s own evidence, the longest time he spent at that address was a number of days, with the longest continuous period of time during which he stayed there occurring for about a week - most likely for a holiday break to visit family and friends.

1. As already noted, I do accept, though, that this address was used on occasion by the parties as an address which could be provided to authorities in order to ensure the safe receipt of official documentation. This fact must be considered in light of the reality that their location in Mozambique was in the middle of a part of the country where no postal service was available or reliably available.

2. The child and her parents lived at only the one place in Mozambique: that is, on the compound on which the business was being established and developed.

3. I accept that, during the period she lived in Mozambique, and as part of her usual day to day life, the child played with the only other child who lived permanently in the compound where she and her parents lived. Given the living arrangements, she must have had daily interaction with the other people living in the compound. For her at her age, her world can only have been the compound and its inhabitants, as supplemented by her trips outside to engage in leisure activities with her parents (or either of them) or to travel with them (or either of them) to South Africa once every month or so.

4. I accept that, when the parties moved to Mozambique in September 2013, they did so to further a shared purpose of enabling Mr Aslop to take up the employment opportunity of a lifetime. This mutual decision was made to enable Mr Aslop to work with a person from whom he was seeking to be mentored, involved a significant promotion (to operational manager) and accorded him the opportunity to work at something about which he was passionate.

5. I consider it more likely than not that they jointly intended to live in Mozambique in the compound there on an ongoing basis. I am not persuaded that their time there was intended by them to be limited to only the initial set-up or to establishing the business: rather, I consider it more likely than not that, given Mr Aslop had been spoken to by his employers about the possibility of being appointed as the manager for that business, their shared plan and shared purpose was to remain living in the compound so that he could work in his dream job and fulfil his passion. I consider his expressed concern about the child’s long term education is more consistent with this conclusion than the alternative explanation he proffered.

6. I also accept that, prior to moving to Mozambique, both Ms Williams and Mr Aslop were generally aware of the nature of the conditions in which they (and the child) would be living: that is, I accept they knew that the accommodations would be – at least initially - of a basic standard, that they would continue to obtain medical assistance by travelling into South Africa and that they would do most of their significant shopping in that country. This reality was not because they did not intend to assimilate into Mozambique or intended to hold themselves separate from that country but, rather, a reflection of the way in which life in that part of that country was, at that time, lived by persons such as themselves who moved to live within a compound for the purpose of establishing and, thereafter, running a business.

7. I consider that, when they brought only limited possessions with them when they moved to Mozambique in September 2013, it is more likely than not they did so because they did not know the exact nature or state of the accommodation in which they would be living. This decision must also, I think, be seen in the context that they had been promised by their employer that a house would be built for them once their work permits were obtained.

8. When they left Mozambique to acquire goods and/or services in South Africa, they did not do so because they were keeping themselves separate from the manner in which life was lived in Mozambique but because that was how everyone living within the compound organised their day to day affairs. Medical assistance other than that of an initial kind was sought in South Africa because that was the regular order of life in the compound in Mozambique.

9. Similarly, consequences of the failure to have a work permit – such as the inability to access the bank account they opened in Mozambique, the requirement to exit the country regularly and the necessity to receive payment via an intermediary with a work permit – was part of the usual way of things. These consequences were managed in the way that they were, it seems to me, specifically in order to facilitate their and the child’s continued presence in Mozambique and as part of the regular order of their life at that time. I consider it more likely than not that they were both prepared to put up with these inconveniences and accommodate them precisely because they wanted to continue to reside in Mozambique so as to further their shared intention and purpose of being involved in the development and operation of a business.

10. I also note that, before the move to Mozambique, Ms Williams worked in South Africa without holding a work permit. This was accommodated in that country as it was in Mozambique. In such circumstance, the absence of formal permission to work in Mozambique does not persuade of a continued habitual residence in South Africa.

11. When they left Mozambique every 30 days – as they were required to do because of the absence of a work permit – they stayed at various bed and breakfasts as those accommodations were available. They did not return to any one base in South Africa. I consider they were not returning ‘home’ to South Africa (as might be understood in the case of fly in/ fly out workers) but, rather, continued to visit that country so as to comply with the requirement which would permit their continued residence in Mozambique.

12. Further, despite their employer’s failure to obtain the promised work permit and to provide the promised accommodation prior to February 2015, the parties did not remain in South Africa on any of the occasions during which they were required – as a consequence of their absence of possession of a work permit – to leave Mozambique. I consider it much more likely than not that they did so because they shared in Mr Aslop’s passion to be engaged in the development of the business from its initiation. I also consider it highly likely that the parties had a shared plan to remain living and working in the compound: not only had Mr Aslop obtained the initial position of operations manager, but his discussions with his employer were such that, even accepting he had not received a formal contract, he clearly accepted his employer was going to offer the role of senior manager to him. On his evidence, he would have hoped to stay in the compound forever. The discussions about the construction of a house for the family is certainly consistent with a conclusion that the parties themselves saw their living arrangements in Mozambique as continuing on an ongoing basis into the future.

13. I am not persuaded by the fact that Mr Aslop was employed via a series of ‘rolling (or consecutive) contracts that he was not connected to or settled in Mozambique. The contracts were used to facilitate the ongoing and persistent attempts to obtain a work permit; they do not, I think, point to an intention to stay in Mozambique for only a limited or defined duration. Rather, this was likely another accommodation designed to facilitate the parties’ ability to continue to remain in Mozambique and to improve the prospects of obtaining a work permit.

14. I consider it likely that they jointly endured or enjoyed (depending on one’s perspective) but certainly accepted the way in which life was lived in the compound in Mozambique because that was part and parcel of living in the place they had voluntarily adopted as their habitual abode; that they continued to return there after September 2013 demonstrates to me the sufficient degree of continuity of shared intention as to describe them as being settled in Mozambique at the relevant time.

15. It is also relevant to note that, when (before the February 2015 trip to Australia) Ms Williams expressed her wish to cease paid employment so as to be a full time parent to the child, it is undisputed this was on the premise that she would fulfil this role whilst living with Mr Aslop in the compound in Mozambique. There is no suggestion anywhere in the evidence that either Mr Aslop or Ms Williams ever entertained any thought that Ms Williams and the child would return to live in South Africa whilst Mr Aslop remained working and living in the compound; nor is there any suggestion that all three of them would live anywhere but in Mozambique. I accept that Ms Williams was committed to living in Mozambique with the child and Mr Aslop for as long as he was employed there.

16. For the reasons outlined above, I am not persuaded that, when retained in Australia by Ms Williams, the child was habitually resident in South Africa. Consequently, I am not satisfied that the Applicant has established each of the necessary elements prescribed by subregulation 16(1A). It is, therefore, unnecessary to consider whether Ms Williams has established Mr Aslop consented to or acquiesced in the child remaining living in Australia after 19 March 2015.

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 11 April 2016.

Associate:   

Date:              11 April 2016