Director-General, Department of Communities (Child Safety Services) and Hardwick

[2011] FamCA 553

FAMILY COURT OF AUSTRALIA

DIRECTOR-GENERAL, DEPARTMENT OF COMMUNITIES (CHILD SAFETY SERVICES) & HARDWICK [2011] FamCA 553

FAMILY LAW – CHILD ABDUCTION – Hague Convention – Whether the child habitually resided in a convention country immediately before her retention in Australia – Discussion of the expression ‘habitual residence’ – Finding that the child was no longer habitually resident in the United Kingdom at the relevant date  – Order that Application be dismissed – Consideration of the Application as if the Court had found the child was habitually resident in the United Kingdom at the time of her retention.

Family Law Act 1975 (Cth) s 111B
Family Law (Child Abduction Convention) Regulations 1986 (Cth) reg 14, reg 16, reg 16(1A), reg 16(3) and reg 16(1A)(b)
Evidence Act 1995 (Cth) s 140

Department of Communities (Child Safety Services) & Garrett [2011] FamCA 485
Regino (1995) FLC 92-587
Panayotides FLC 92-733
Re F [1992] 1 FLR 548
LK v Director-General, Department of Communities Services (2009) 237 CLR 582

APPLICANT: Director-General, Department of Communities (Child Safety Services)

RESPONDENT: Mr Hardwick

FILE NUMBER: BRC 1127 of 2011

DATE DELIVERED: 18 July 2011

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 18 May 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr M. Green

SOLICITOR FOR THE APPLICANT: Crown Law

COUNSEL FOR THE RESPONDENT: Ms C. Carew

SOLICITOR FOR THE RESPONDENT: Sempre Vero Lawyers

Orders

IT IS ORDERED

(1)That the Application for a return order filed 11 February, 2011 is dismissed.

(2)That paragraphs 2 – 8 of the orders of Justice Barry of 28 February, 2011 are discharged.

(3)That the passports of the respondent father and the child, P, born … February 2002 be returned to the respondent father.

IT IS REQUESTED

(4)That the Australian Federal Police remove the names of the respondent father Mr Hardwick born … 1978, and the child P born … February 2002, from the All Points Watch Alert System at all points of international arrivals and departures in Australia.

IT IS NOTED that publication of this judgment under the pseudonym Director General, Department of Communities (Child Safety Services) & Hardwick is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 1127 of 2011

Director-General, Department of Communities (Child Safety Services) 

Applicant

And

Mr Hardwick

Respondent

REASONS FOR JUDGMENT

Introduction  

1.This matter for determination by the Court is an application filed 11 February 2011 by the Director-General, Queensland Department of Communities. It is an application brought by the Director-General, as the responsible central authority in this State, for final orders that the child, P, born in February 2001, aged 10, be returned to the United Kingdom pursuant to the provisions of the Family Law (Child Abduction Convention) Regulations 1986 (“the Regulations”).

2.The Regulations were promulgated pursuant to s.111B of the Family Law Act 1975 which was enacted to give effect to Australia’s obligations under the Convention on the Civil Aspects of International Child Abduction signed at The Hague in the Netherlands on 25 October 1980. That Convention has become known as the Hague Convention and the determination of applications for return orders made pursuant to the Regulations have become known as Hague Convention proceedings.

3.This application has been made at the request of the Central Authority for England and Wales on behalf of Ms W born in 1982, aged 28, who is the mother of the subject child. The respondent, Mr Hardwick born in 1978, aged 33, is the father of the subject child.

4.The application for the return order is made under Regulation 14 of the Regulations and Regulation 16 provides that if an application for a return order is filed within one year after the child’s removal or retention and the responsible Central Authority satisfies the court that the child’s removal or retention was wrongful under sub-regulation (1A) then the court must, subject to sub-regulation (3), make the return order. Sub-regulation (3) enlivens a discretion not to make the return order even if the removal or retention is found to be wrongful, if certain prescribed circumstances are satisfied on the facts of the case before the court.

5.Regulation 16(1A) provides that a child’s removal to, or retention in, Australia is wrongful if:-

(a)      the child was under 16; and

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

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

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

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

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

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

6.The onus of proving each of the elements required to establish that a child’s removal to, or retention in, Australia is wrongful rests with the responsible Central Authority and the requisite standard of proof required is, pursuant to s.140 of Evidence Act 1995,  on the balance of probabilities.

7.In this particular case, P is clearly under 16. Whether the court can be satisfied, on the balance of probabilities, that each of the other prescribed elements required for P’s removal to, or retention in, Australia to be considered wrongful are proven requires consideration of factual matters, some of which P’s mother and father agree upon, others of which they do not agree upon.

Background Facts  

8.The respondent father was born and raised in Australia. The mother was born in South Africa and came to Australia at the age of 15 with her parents. The father and mother married in Australia in October, 2001, after P was born. The mother’s parents moved to the United Kingdom in 2002 and the mother and father and baby P went to visit them there in 2002 for a while. They returned to Australia after that short visit and in 2006 the mother was granted Australian citizenship. Thereafter, that same year, the family of three moved to the UK.  The mother says in her evidence that this was a permanent move. The father says that it was a temporary move, intended to be limited to about five years.

9.The mother was entitled to an ancestral visa to live and work in the UK and the father, as her husband, was entitled to a visa that let him live and work there, too. P was entitled to live there, apparently as the child of a mother with a valid visa.

10.The parties agree that their marriage relationship broke down in 2009. The father’s evidence is that they separated in June 2009. The mother’s evidence is that they “formally separated” in October 2009.  I do not consider that it is necessary for me to make any determination as to the actual date of separation in this instance. I do not consider that anything in these proceedings turns on that fact.

11.From this point on, there is much disagreement between the parties as to the factual circumstances of P’s return from England to Australia. The father’s evidence is that in November 2009 he and the mother agreed to return to Australia to live. He said that the mother was unemployed and was not going to meet the work conditions specified in her visa that applied at the time. He said that his employment in the education field position was ending in December 2009 and that he was no longer entitled to work in the UK as he was then separated from the mother. He said that they agreed that a return to Australia would be in the best interests of P. He said that P’s school was informed then, in November 2009, that the family intended to return to Australia. He said that there were class farewells for P and that she visited the mother’s extended family to farewell them. He said that in December 2009 and January 2010, he and the mother, together, purchased furniture for their house in English City 1 for the specific purpose of setting it up as a rental property and they had discussions with two separate letting agencies about letting the house.

12.He said that, by agreement, he flew out to Australia in February 2010 for a short stay to make arrangements for the family’s return and to try to find himself work. It is common ground, I understand, that whilst he was in Australia an educational welfare officer of the English City 1 Council was contacted by P’s school to conduct a home visit as a consequence of concerns raised by the maternal grandmother relating to the mother’s mental health and concerns raised by the school itself following the child’s absence from school.

13.The father’s evidence is that the maternal grandmother contacted him in Australia on 10 March, 2010, after he had been in Australia for two weeks, and advised him that the mother was detained in hospital pursuant to the UK’s Mental Health Act and requested that he return home to care for P. He said that he then returned to the UK and took up caring for the child.

14.The father’s evidence is that he and the mother then entered into an agreement to allow P to return permanently to Australia with the father in April 2010 whilst the mother remained in hospital recovering where after she would join them in Australia. He said that a written agreement to this effect was signed by them and witnessed by a woman named Y from a business called Business 1. He said that he and the mother went together to the Australian High Commission in London and jointly applied for a new passport for P. He said that the mother did not ask for P’s temporary UK visa to be entered into the new passport because P was returning to live in Australia.

15.The father’s evidence is that he and P returned to Australia to live, having flown out on one-way airline tickets on 27 April, 2010, and that they took up residence with his parents at Suburb 1 on the Gold Coast.  He said that arrangements were made for the funding of a third one-way ticket for the mother to join them in Australia when she was well enough to travel. His evidence is that the mother then wanted to come out to Australia sooner than he had anticipated. He said he transferred money into the mother’s bank account so that she could pay for her one-way ticket and she flew out to Australia in early July, 2010.  He and his parents put her up in his parents’ home for some days after her arrival, until she found her own place to live nearby.  He said that the mother then applied for a Centrelink benefit and his evidence is that they entered into a parenting plan in respect of the time that P was to spend with each of them but that they soon came to grief over that, as disagreements began to occur. His evidence is that the written agreement that they had entered into in the UK went missing from his parents’ home around this time and he was aware that the mother had a copy of the key to his parents’ home cut, the inference being that she had taken the written agreement.

16.In early September, 2010, the mother flew back to the UK and then set about putting in train the Hague Convention processes that have led to this application. The father said that she told him that she would do that and that she would lie about the factual circumstances surrounding P’s being in Australia so as to succeed with the Hague Convention application.

17.The mother’s evidence is that the parties did not agree to move back to Australia after they had separated. She said that she did not have any part in telling the school in late 2009 that P was going to be leaving and returning permanently to Australia. She said that she and the father simply bought furniture to refurnish their home, not to rent it out at all. She said that she understood at the time that the father left the UK in early 2010 to return permanently to Australia, leaving her and P behind in the UK and she was working with her mother’s company there and planning on staying. She accepts that she became unwell and that the father returned to care for P and then, she said, during her period of vulnerability due to her state of poor mental health, the father obtained her agreement, around 1 April, 2010, to take P to Australia for a three month temporary visit to spend some time with him and his family there whilst she was recuperating.  She said that the father told her he had purchased return airfares for himself and P and that she trusted him. She said that P was expected to return to the UK on or about 20 July, 2010, after her three month stay.

18.The mother’s evidence is that in late May, 2010, the father told her that he had no intention of returning P to the UK as previously agreed and that he was going to keep her permanently in Australia. She said that he threatened her with a pistol over the internet and told her he would use it if she came to Australia to collect the child. The mother said that she then travelled to Australia in early July 2010 to get P and return her to the UK. Interestingly, the mother  initially said,  in the affidavit material filed in support of the Form 2 Application, seemingly wrongly, having regard to the balance of the evidence, that when she was in Australia she was prevented from seeing or speaking with P. She also said that the father would not let her have P’s passport and that she could not get it from him and that eventually she simply determined that she had to return to the UK without P. She did that and then commenced the processes that have led to this Hague Convention application.

19.There are matters of disputed fact here that can turn the outcome of this application.  They go to the threshold issue of habitual residence of the child as well as the issue of consent to the child being retained in Australia.

20.As I have noted in previous Hague Convention decisions, the summary nature of Hague Convention proceedings does not readily lend itself to easy resolution of critical factual disputes. It is usual for the left-behind parent to be far removed from the proceedings, back in the country from whence the subject child or children came. Cross-examination of witnesses, though a matter for the discretion of the trial judge, does not often occur and, even if it does, the absence of the left-behind parent makes it impossible for the trial judge to observe and consider the demeanour of the principal protagonists in the witness box. That said, there is, very often, absolute necessity to make critical findings of fact in respect of evidence that is contradictory.

21.In Department of Communities (Child Safety Services) & Garrett [2011] Fam CA 485 at [45] I observed that these matters have been well noted by the Court over the years. Justice Lindenmayer in Regino (1995) FLC 92-587 at page 81,814 cautiously advised that care must be taken not to unfairly disadvantage the absent party by “presumptively giving greater credit to the testimony of the other party who happens to be within the jurisdiction before the Court.”

22.In Panayotides FLC 92-733 at page 83,897, the Full Court referred with approval to some remarks of Justice Jordan who had been the trial judge in that matter. His Honour had said:-

It would generally be inappropriate to absolutely reject the filed testimony of a deponent that was submitted by counsel for the central authority. I simply must do the best I can. I look to the versions of each of the parties, I find their common ground, and I note the areas of conflict. I can look to the inherent probabilities. Of course, when one is talking about the intent of parties, where this is a matter of some conjecture, one looks to the conduct of the parties, and any documentary or corroborative evidence which may help to determine that issue.

23.In the English Hague Convention case of Re F [1992] 1 FLR 548 at pages 533-544, Lord Butler-Sloss said:

If a Judge is faced with irreconcilable affidavit evidence and no oral evidence is available or, as in this case, there was no application to call it, how does the Judge resolve the disputed evidence? It may turn out not to be crucial to the decision, thus not requiring a determination. If the issue has to be faced on the disputed non-oral evidence, the Judge has to look to see if there is independent extraneous evidence in support of one side. That evidence has, in my judgment, to be compelling before the Judge is entitled to reject the sworn testimony of a deponent. Alternatively, the evidence contained within the affidavit may itself be inherently improbable and therefore so unreliable that the Judge is entitled to reject it. If, however, there are no grounds for rejecting the written evidence on either side the applicant will have failed to have established his case.

24.Respectfully agreeing with all of those observations I have referred to, in this case, I must have regard to all of the evidence that is before me in the form of the affidavits that have been filed and relied upon by both sides and the exhibits that are attached to those affidavits and consider whether there is anything contained therein that allows me to prefer one version of fact over another.

25.For the mother, it is submitted that there is evidence that casts doubt on the father’s version of events. It is pointed out that the father asserted that in November 2009, in accordance with the alleged agreement to return to live in Australia, the child’s position at her school was permanently withdrawn but that the child was still attending school in March, 2010. The inference in the submission is that the child’s continued attendance represented an inconsistent position from that asserted. I cannot, without more, say that I am satisfied that same is so. The parents could very well have arranged with the school for the child to continue attending until she left the UK and that had not yet happened.

26.The submission went on. To her affidavit filed 17 May 2011 the mother attached a number of copies of emails (CNW-1) said to be sent by the father in early February 2010, the contents of which are not consistent with his having an intention to return with P to live permanently in Australia at the time he sent them.

27.In the first of those emails, sent to his parents on 3 February 2010, the father said, relevantly:

On to the main news; I have decided to return to Australia for a while after [P’s] b’day – if that’s ok with you. I’ll be looking to stay for at least a month and return in the Easter hol’s (Friday 02 April 16 April (2 weeks).

In another, sent to what appears to be an employment service of some sort on 5 February, 2010, the father said, relevantly:

Regarding my availability; I’m working up until half term (12/02) and I’m then returning to Australia for Easter for family reasons.

I expect to return early August, and will be available for term three posts, however upon my return I would require to arrange a work permit as my visa conditions would have changed.

In another, sent to a different person apparently at the same employment service on 5 February, 2010, the father said further:

I will now be available for term three posts, however upon my return I would require to arrange a work permit as my visa conditions would have changed.

In another, sent to a different person but also, apparently, in connection with his seeking employment, the father said:

I will be returning to Australia in the half term break, and not be returning until Easter.

I’ll be available for any suitable roles after easter (term 3), however I will then require a work permit as my visa conditions would have changed.

In the last, sent on 17 February, 2010, again to one of the same persons as one of the earlier ones, the father said:

At this point I’m available for term 3 in the uk for both block work and daily supply.  I would however prefer to, for personal reasons move onto my own visa through a work permit.

I will still be over on my current visa if I can’t organise this, but do have a look into what may be involved if you could.

Last time I was on a work permit through [Business 2] and payed via JSA.

Have a look & if it seems too much trouble then we’ll just have to stick with term 3. I arrive back on the 15^th April.

28.All of these emails, most particularly the first email the father sent to his parents, certainly do not appear to be consistent with the father having, or at least, overtly displaying an intention to be permanently returning to Australia to live at that time, a time when he says that there was already such an agreement in place between him and the mother.  

29.However, a problem in respect of accepting the mother’s version of events instead is presented by an affidavit sworn by the maternal grandmother on 15 March 2011, a copy of which was filed by leave by the father on 18 May 2011, some two months after it was sworn. No objection was taken  by counsel for the applicant to the granting of leave to file that copy although it is clear on the evidence that the original of the affidavit was not likely to be forthcoming, the maternal grandmother allegedly, according to the mother, having “retracted” the substance of its content subsequent to having sworn to its truth. Apart from the mother deposing to such “retraction” in her own affidavit there was no such retraction sworn to by the maternal grandmother, leaving the matter in a rather unsatisfactory state at the conclusion of the hearing. What is to be made of all that is difficult to determine, but a sworn affidavit in evidence, left unretracted by further sworn evidence, demands proper consideration.

30.The copy of the affidavit that was filed and relied upon by the father discloses that its actual execution by the maternal grandmother was witnessed by a solicitor in English City 1.

31.In the affidavit, the maternal grandmother said, relevantly:-

3.I can confirm that in April 2010 [the mother] agreed to let [the father] take [P] to Australia while she recovered under medical supervision for 3 months and would join them in Australia. She was working on marriage reconciliation with [the father] before he went back to Australia with [P]. [The father] and [the mother] planned what to take to Australia and what to leave behind. They prepared the house that they jointly own ([… J Street, English City 1, …]) for letting.

4.[The father] agreed to cover the cost of [the mother’s] airfare to Australia. He agreed to help her settle in by partly funding her accommodation and helping her to register for Government income support (Centrelink). Providing assistance in applying for jobs and attending interviews.

5.[The mother] was hoping for reconciliation between herself and her husband [the father] and with this in mind moved to Australia with the intention of finding work and settling down. She expected to move in with her husband and child who were living with his parents. A week before arriving in Australia her husband told her that reconciliation would not be possible and that she could not stay at their home. The family did allow [the mother] to stay at their home until she could move in to a place close to their residence. She moved into [… F Street, Suburb 1] Queensland Australia located one block from [… G Street, Suburb 1].

6.In June 2010, [the father] then initiated an agreement between the couple in the form of a timetable to provide my daughter [the mother] regular (daily) access to the [P] [sic]. I can confirm I have viewed this agreement. This agreement broke down in July.

7.When [the mother] was in Australia, [the father] and [the mother] attended family dispute resolution to try and move things forward in regards to clarifying her visitational rights to [P]. There have been great difficulties between [the mother] and [the father]. Because my daughter was completely on her own without any family to support her she felt very distressed and victimised. It is my understanding that because of this she walked out of these discussions and returned to her residence in [English City 1] in the United Kingdom.

8.I can confirm that my daughter’s mental health has deteriorated and she has been taken in for observation at [a hospital] in [English City 1] under the UK Mental Health Act 1989. In my opinion my daughter is currently unable to exercise her parental responsibility at this current date of 26 February 2011.

32.The mother, in her last two affidavits, filed 10 and 17 May, 2011, asserts that the maternal grandmother had subsequently discovered a record of an email that she had sent to the father on 14 July, 2010 and realised, upon re-reading that, that what she had said in her affidavit that the father filed and relied upon in his case was not correct and that she had been manipulated by the father to say that in her affidavit. Curiously, though, although the mother exhibited a copy of that email sent by the maternal grandmother to the father on 14 July, 2010 to both of her latest affidavits, she did not file a further affidavit from the maternal grandmother confirming any of what the mother was now asserting. In that email (CNW-3 to the affidavit of mother filed 17 May, 2011) the maternal grandmother said, relevantly:-

Dear [the father],

[The mother] said you could take [P] for 3 months only. She was clear about that all the time. She would never had [sic]let you take [P].

That was the only reason she let you take [P]. You remember clearly how she agonised about trusting you.

She repeated it over and over again to you and made sure [P] said it back to her so [P] clearly understood.

But you tricked her into believing that it was going to be fine. You were all like a family unit. Going everywhere together before you left for Australia. [The mother] had that in her mind. The way things were in those three weeks. Going to the movies, wicked pets, dinner together. Together you prepared your house for renting out rooms.

She trusted you. Her feelings towards you grew and she found a good place with you. You and [the mother] slept together you had sex. I remember her seeing you off at the airport all warm and cuddles. The skypes started warm and happy.

When she arrives in Australia what a shock everything is against her. And you expect [the mother] not to be vexed.

33.It appears, I consider, reasonably clear that the subject email was written by the maternal grandmother at a time shortly after she has learned that her daughter had travelled to Australia with expectations of a continued reconciliation with the father, that had their origins from before his and P’s departure from the UK in late April, 2010, and that she has had those expectations, probably on, or shortly after, arrival in Australia, completely dashed. All this has apparently occurred, at a time when the mother was still recovering from a significant disruption to her mental well-being and, in circumstances where she had little, if any, emotional support networks to call on in Australia.

34.Whilst the first few paragraphs of the email initially appear to support the version of events put before the court by the mother, I do not consider that the balance of the email, the last three paragraphs quoted above, in particular, is, necessarily, only consistent with that version of events. Indeed, those paragraphs appear to me just as consistent with an agreement having been eventually reached between the parties in the short period of weeks between the father returning to the UK in early 2010, after having been back to Australia for a short while, and the departure of the father and P for Australia in late April, such agreement being that the family would all return to Australia and stay there, the mother making the journey to join the father and P when she had sufficiently recovered to be able to do so. I consider that such an agreement is certainly consistent with the version of events as deposed to by the maternal grandmother in the sworn affidavit she made in March 2011, the copy of which the father filed in his case.  It is also consistent with the mother initially being opposed to P going with the father to Australia without her but subsequently changing her mind and agreeing to that course, with her own proposed later journey back to Australia for reconciliation with the father firmly in mind.

35.Such an agreement between the mother and the father, reached in such a way, is also consistent with the emails the father sent out in February, 2010 that are referred to above, in which he was not displaying any apparent intention to return permanently to live in Australia at that time. It is also apparently consistent with the child P’s own understanding of things, as reported to the Court’s family consultant, Ms A, who interviewed the parents and P and prepared a report for the Court that was attached to an affidavit of Ms A filed 6 April 2011. In paragraph 19 of that report Ms A says:

[P] said that her mother wanted to live in Australia too and she joined them last year but “then changed her mind.” [P] said that when her mother was living in Australia last year, she had her own home and [P] had “sleepovers with Mum” but “We weren’t having fun” and  “She just talked about England.”

36.Such an agreement is also consistent with the evidence, put forward by the mother, in the form of the email from Ms C to the maternal grandmother dated 8 July, 2010, (CNW-2 to the mother’s affidavit filed 10 May, 2011) in which Ms C, of P’s UK school, said:

Dad told us that [P’s] mom would be joining them in Australia in a few weeks once they had gone.

37.I am, I must say, not satisfied that the father’s version of the facts or the mother’s version of the facts actually represent, in entirety, what really happened. I am mindful that I am not required to accept all of one party’s evidence as to the facts over another party’s evidence and, having considered all of the evidence in this matter, I determine that it establishes, on the balance of probabilities, the following and I make findings accordingly:-

(i)That the mother and father separated in the latter part of 2009;

(ii)That the child, P, continued to reside principally with the mother in the parties’ English City 1 home  thereafter;

(iii)That in early February, 2010, the father alone returned temporarily to Australia to take stock of his life but, at least when he first returned to Australia, with the clear intention of returning to the United Kingdom after about one month in Australia and again obtaining work on his return to the UK;

(iv)That, at or around the time that the father returned to Australia in early February 2010 at the latest, but more probably sometime before then after the initial separation, the mother began to experience a deterioration in her mental health and her capacity to care for the child, P;

(v)That the father harboured some concerns about his continued work entitlements having regard to his visa status in the UK following separation from the mother who was the holder of the ancestral visa, but thought they could probably be overcome;

(vi)That following a notification of concern for the welfare of the child, P, in early March 2010, whilst the father was temporarily in Australia,  the Children and Families Service in English City 1 visited the mother and the child at their English City 1 home and, itself, became concerned for P’s welfare in the mother’s sole care, clearly being concerned for the mother’s mental well-being;

(vii)That the maternal grandmother contacted the father in Australia requesting his urgent return to the UK, before he had otherwise planned,  to take over caring for P whilst the mother was hospitalised due to her mental health difficulties;

(viii)That the father returned to the UK immediately upon being so requested,  taking P into his care and, at around that time, formed the intention to relocate, if he could, with P back to Australia;

(ix)That the mother was in hospital care in April, 2010, because of her mental health, during the weeks after the father’s return to the UK, during which time he cared for P;

(x)That the father and mother were relating well enough to each other during the period after the father returned to the UK from his short visit to Australia in early 2010, that reconciliation of their relationship was thought, at least by the mother, to be a serious prospect;

(xi)That during the period after the father returned to the UK and whilst the mother was in hospital care,  the mother and the father agreed to relocate themselves all back to Australia with the father and P to initially travel back to Australia together at the end of April, 2010 and for the mother to follow them a little later when her recovery was sufficient to enable such travel;

(xii)That consequent upon their agreement, the mother and the father undertook steps preparatory to letting out their English City 1 home including purchasing furniture for the home and having discussions with prospective letting agents;

(xiii)That the father and the mother jointly obtained a new passport for P before she and the father travelled to Australia;

(xiv)That the father transferred sufficient money into a bank account of the mother to enable her to purchase a one-way air ticket to Australia to join him and P living in Australia;

(xv)That at or around the time of the mother’s arrival in Australia the father made it clear to the mother that reconciliation of their marriage relationship was not something that was going to happen;

(xvi)That the mother’s state of mental health began to deteriorate again after her arrival in Australia and learning that reconciliation of their marriage relationship was not going to happen;

(xvii)That sometime after she had arrived in Australia the mother then decided that she wanted to return to live in the UK and to take P back with her;

(xviii)That the father would not agree to P returning with the mother to the UK;

(xix)That the mother determined to return to the UK without P and to do what she could in the UK to force P’s return to that country.

38.It is not without a little discomfort that I make these findings, particularly as to the agreement reached between the mother and the father. That discomfort arises from the fact that I acknowledge that the mother was suffering from some deficiencies in her mental well-being at the time she made the agreement with the father that I have found was made by them. Somewhat unfortunately, given the case that the mother has presented to the court, whatever be the explanation for that, I am not in a position to be able to make any findings that the agreement that I have found the mother made with the father was in some way vitiated by conduct on the father’s part that may have been unconscionable in the equitable sense or that the mother’s mental capacity was such that her agreement and consent to the move back to Australia was not truly and freely given. There was just no evidence that would support such findings put before me as the mother presented a case that she had only ever agreed to P making a short-term visit to Australia, a case that I have not accepted.

What is the impact of these findings?

39.It is not contended as part of the applicant’s case that P was wrongfully removed to Australia.  The applicant’s case is that the mother gave permission to the father to bring P to Australia for a limited three month period where after she was to be returned to the UK.  As P travelled to Australia on the 27^th of April, 2010, it is the applicant’s case that the child was wrongfully retained in Australia at 27 July 2010, the expiration of the three month period.  Notwithstanding that being the case presented by the applicant, I have found that the mother actually agreed for the child to be brought to Australia permanently rather than temporarily on the basis of her own intention to travel to Australia a little later and to resettle here, effecting a reconciliation with the father.  I have found that only after the mother travelled to Australia and learned that no reconciliation with the father was going to be effected that she changed her mind and determined to return to the United Kingdom and to take P with her.  In such circumstances, can the father’s refusal to allow P to return with the mother to the United Kingdom and retention of her in Australia nevertheless be determined to be wrongful?

40.As I have already set out above, that retention of P in Australia by the father at 27 July 2010 can only be found to be wrongful if each of the remaining elements required to be proven as prescribed by Regulation 16(1A) of the Regulations is actually proven on the balance of probabilities.

Did the child habitually reside in a convention country immediately before her retention in Australia?

41.The United Kingdom is a convention country, but was it the place of the child’s habitual residence immediately before the child’s retention in Australia?

42.At paragraph 29 of the applicant’s Case Summary document the submission is made that the issue of habitual residence is to be determined as at the date of the alleged “wrongful” removal or retention.  In my opinion, that is a slight gloss on the wording of Regulation 16(1A)(b) which actually refers to the period or the time “immediately before (my emphasis) the child’s removal to, or retention in, Australia”. As the date of wrongful retention is asserted by the applicant to be 27 July, 2010, it is the period or the time immediately before that date that is relevant to consider in respect of the determination of the child’s place of habitual residence.

43.I do not perceive there to be any dispute that immediately prior to the 27^th of April, 2010, the date upon which the child, P, travelled with her father to Australia, that P’s habitual place of residence was the United Kingdom. But was it still immediately before 27 July, 2010?

44.Counsel for the applicant, Mr Green, in paragraph 12 of his written outline of submissions referred to the High Court’s decision of LK v Director-General, Department of Community Services (2009) 237 CLR 582 as support for the proposition that the search for habitual residence involves a broad factual enquiry. He then pointed to facts that he submitted supported a finding that after P came to Australia in April 2010 she had not “gotten into any fixed routines or settled arrangements other than [being] continuously physically present in Australia for three months”.  He then went on to make the following submission: 

The mother’s consistent requests and efforts to return [P] to the United Kingdom together with the ties the child has with the United Kingdom and the short period that she had relatively speaking, being [sic] in Australia, leads to the conclusion that her habitual residence remained in the United Kingdom as at 27 July 2010. 

45.In contrast, counsel for the respondent, Ms Carew, submitted that the mother had actually agreed to the permanent relocation of the family to Australia and to the father taking the child on ahead of her, changing her mind only after she, the mother, had been in Australia for a month or so. The submission was that the child’s habitual residence immediately before the asserted date of retention in Australia was, in fact, Australia.

46.If Ms Carew’s submission is correct then, clearly, the father’s retention of P in Australia at 27 July, 2010, cannot be found to be wrongful.  Further, even if I am unable to find that the child was habitually resident in Australia immediately before 27 July 2010 but I am equally unable to find that she was actually still habitually resident in the United Kingdom immediately prior to that date, then her retention in Australia likewise, in my opinion, cannot be found to be wrongful.

47.As Mr Green pointed out in paragraph 30 of his Case Summary document, the High Court of Australia comprehensively considered the expression “habitual residence” as that term is used in the Regulations of the Hague Convention in its decision of LK v Director-General Department of Community Services (2009) 237 CLR 582. The Court, consisting of French CJ, Gummow, Hayne, Heydon and Keifel JJ, delivered a single judgment in that matter.

48.Early in its discussion of the expression “habitual residence”, the Court said, at paragraph 22:

If the term “habitual residence” is to be given meaning, some criteria must be engaged at some point in the inquiry and they are to be found in the ordinary meaning of the composite expression.  The search must be for where a person resides and where the residence at that place can be described as habitual.

49.The Court went on to say, at paragraph 23:

Having regard, however, to the stated determination to eschew definition of the expression in its use in the Abduction Convention and other instruments derived from the work of the Hague Conference, it would be wrong to attempt in these reasons to devise some further definition of the term intended to be capable of universal application. Rather, it is sufficient for present purposes to make two points.  First, application of the expression “habitual residence” permits consideration of a wide variety of circumstances that bear upon where a person is said to reside and whether that residence is to be described as habitual.  Secondly, the past and present intentions of the person under consideration will often bear upon the significance that is to be attached to particular circumstances like the duration of a person’s connections with a particular place of residence.

50.At the end of paragraph 24 the Court said:

More importantly for present purposes, use of “habitual residence” in preference to domicile entails discarding the approach of the English law of domicile which gave questions of intention a decisive importance in determining whether a new domicile of choice had been acquired.

51.At paragraph 25 the Court said:

Yet it may be accepted that “[h]abitual residence, consistent with the purpose of its use, identifies the center of a person’s personal and family life as disclosed by the facts of the individual’s activities”.  Accordingly, it is unlikely, although it is not necessary to exclude the possibility, that a person will be found to be habitually resident in more than one place at the one time.  But even if place of habitual residence is necessarily singular, that does not entail that a person must always be so connected with one place that it is to be identified as that person’s place of habitual residence.  So, for example, a person may abandon a place as the place of that person’s habitual residence without at once becoming habitually resident in some other place; a person may lead such a nomadic life as not to have a place of habitual residence.

In deciding where a child was habitually resident at an identified time it is, no doubt, important to consider the context in which the inquiry is required. Here, the chief contextual consideration is that, in accordance with the Abduction Convention, the purpose of the Regulations (reg 1A(2)(b)) is to facilitate resolution of disputes between parents relating to a child’s care, welfare and development in one forum – the child’s country of habitual residence – rather than any other forum. While that may tend in favour of finding that a child does have a place of habitual residence, neither the Regulations nor the abduction Convention provides for a particular vindication or enforcement of rights in relation to the child. Vindication and enforcement of rights is to be a matter for the forum to which the Regulations and the Abduction Convention point: that of the child’s habitual residence.

When speaking of the habitual residence of a child it will usually be very important to examine where the person or persons who are caring for the child live – where those persons have their habitual residence.  The younger the child, the less sensible it is to speak of the place of habitual residence of the child as distinct from the place of the habitual residence of the person or person upon whom the child is immediately dependent for care and housing.  But if, as the writings about the Abduction Convention and like instruments repeatedly urge, the question of habitual residence of a child is one of fact, it is important not to elevate the observation that a child looks to others for care and housing to some principle of law like the (former) law of dependent domicile of a married woman.

Purpose and intention

Although intention is a necessary element in deciding domicile of choice, and “habitual residence” is chosen as a connecting factor in preference to domicile, examination of a person’s intentions will usually be relevant to a consideration of where that person habitually resides.  Sometimes, intention will be very important in answering that question.  The example of a person who leaves a jurisdiction intending not to return is one such case.  But unlike domicile, considerations relevant to deciding where a person is habitually resident are not necessarily confined to physical presence and intention, and intention is not to be given controlling weight.

First, individuals do not always act with a clearly formed and singular view of what it is intended (or hoped) that the future will hold.  Their intentions may be ambiguous.  …

… [b]ecause the notion of habitual residence does not require that it be possible to say of a person at any and every time that he or she has a place of habitual residence, it is important to recognise that a person may cease to reside habitually in one place without acquiring a new place of habitual residence.

Secondly, because a person’s intentions may be ambiguous, in asking whether a person has abandoned residence in a place it is necessary to recognise the possibility that a person may not have formed a singular and irrevocable intention not to return, yet properly be described as no longer habitually resident in that place.  Absence of a final decision positively rejecting the possibility of returning to [a country from whence one has come] in the foreseeable future is not necessarily inconsistent with ceasing to reside there habitually.

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

It follows from each of the three considerations just mentioned that to seek to identify a set list of criteria that bear upon where a child is habitually resident, or to attempt to organise the list of  possible matters that might bear upon the question according to some predetermined hierarchy of importance, would deny the simple observation that the question of habitual residence will fall for decision in a very wide range of circumstances.  And examination of decided cases in the area does not require the identification of a closed set of criteria, or the attribution of predetermined weighting between them.

52.Just as the High Court said in that case, at paragraph 48, that the question of habitual residence was not to be asked in relation to the time that the children departed Israel but rather was to be asked in relation to the time of their allegedly wrongful retention in Australia, in this case under consideration the question of habitual residence must be asked, not in relation to the time of P’s departure from the United Kingdom in April, 2010, but rather in relation to the time of her alleged wrongful retention, namely 27 July 2010.

53.I have found both parents had agreed to the family’s relocation to Australia from the United Kingdom in April 2010.  As I have also found, both parents had acted on the agreement, the father and P returning to Australia together and the mother following them a few months later, only to be disappointed by the failure of her desired reconciliation and then deciding to return to the United Kingdom to live.

54.Unlike the court at first instance was able to do in the LK case, I have not made any findings in respect of the intentions of either the father or, more particularly, the mother, in the event that the hoped-for reconciliation did not eventuate.  It is not surprising, given the position presented to the Court by the mother, that she has not given any evidence about that.  It is probably just as unsurprising though that she decided to return to the United Kingdom when the reconciliation did not eventuate.  I expect that had she been asked at the time she had reached agreement with the father for the family to relocate back to Australia as to what her intentions would be should her reconciliation fail she could very well have said that she would likely return to the United Kingdom, expressing the expectation that P would return with her, too, in those circumstances. She might well have said that but there is no evidence to that effect.

55.The applicant has presented the case on the basis that the relevant date of alleged wrongful retention is 27 July, 2010 because of the mother’s evidence that she had only given permission for P to travel to Australia for a limited period of three months. Although it was probably around that same time, I consider rather that the more appropriate date in relation to which to consider the question of habitual residence of P would be the date on which the mother first asked the father to let P return to the United Kingdom with her and he refused.  That can, in my opinion, truly be regarded as the time or date of P’s retention in Australia because that is the time when her two parents, the persons who had the right to determine where P lived, no longer agreed on that point.

56.Having regard to the findings of fact I have made, including in relation to the parties agreeing to P’s return to live in Australia and their actioning that decision and also to the authoritative guidance of the High Court’s decision in LK, I consider that P was no longer habitually resident in the UK at the time that the mother changed her mind about living in Australia and asked the father to let her take P with her back to the UK. I consider that at that time, she had resumed habitual residence in Australia where it had been before the family’s move to the UK in 2006.  

57.This finding alone, in my opinion, is determinative of the application and requires me to dismiss it. However, given the significance of the finding on the point and the possibility that others could determine it to be wrong, I will go on to consider the application as if I was satisfied that P was habitually resident in the UK at the time of her retention.

58.As will be seen, even if I was so satisfied I would not make a return order.

Did the Mother have Rights of Custody in relation to P under the Law of the United Kingdom before her Retention in Australia?

59.There was no dispute between the parties as to this point. I accept that at the relevant time the mother had “rights of custody” as that term is defined in the Regulations under the law of the United Kingdom.

Was the Mother exercising her Rights of Custody at the time of the Child’s Retention?

60.In paragraph 40(b) of his Form 2A Answer and Cross-Application the father asserted that the mother was not exercising her rights of custody at the time that P and he left the UK as the mother was detained in hospital and unable and incapable of providing care for P.

61.Ms. Carew, commendably, did not advance submissions in support of such a case. Clearly, it is the time of the retention that the matter is to be considered and the mother was indeed here in Australia and exercising rights of custody at that time, as was the father. 

Was the Child’s retention in Australia in breach of those Rights of Custody?

59.As rights of custody include the right to determine a child’s place, including country, of residence, the mother in this case was clearly attempting to exercise her rights of custody in respect of P when she told the father that she wanted to return to the United Kingdom and wanted P to return with her. By deposing to the fact that she sought to exercise her rights of custody to take P back to the United Kingdom with her and also to the fact that the father would not let her do so in circumstances where he did not have an order of a court giving him the sole right to determine the child’s place of residence, the mother has, in my opinion, done enough to sufficiently establish, for the purposes of Regulation 16(1A) (d), that P’s retention was in breach of those rights of custody.

60.The issue of the mother’s consent to the child being removed from the UK to Australia and retained here is a matter, in my opinion, for consideration pursuant to Regulation 16(3) when, as in this case, the Court is being asked by the respondent to determine that the discretion not to make a return order is enlivened through the existence of one or more of the pre-requisites prescribed in that sub-regulation. (see further my discussion of this point at [26]-[31] in D-G, DOCS v Garrett [2011] FamCA 485)

61.Accordingly, if I am wrong on the question of P’s habitual residence, I consider that the applicant has otherwise established that P’s retention in Australia was ‘wrongful’ pursuant to the terms of Regulation 16(1A).

62.The respondent father then argues, relevantly, that three of the pre-requisites set out in Regulation 16(3) for the enlivenment of the discretion not to make a return order are satisfied.  I shall now consider those arguments.

The Mother’s Consent

63.The father’s case, as already clearly discussed by me, is that the mother actually consented to the child returning to live permanently in Australia and that after the child had been here for a couple of months, the mother changed her mind about that. I have found that is actually what did happen.

64.It was a permanent return to Australia that I have found the mother agreed to, not just a temporary stay of indefinite duration. As such, I consider that it is different to the scenario considered by Jerrard J in Director-General, Department of Families v P (2001) FLC 93-077 in which his Honour determined that a parent with rights of custody could, where he or she had agreed to a child going to another country for an indefinite period, simply choose to exercise those rights of custody and insist on the child’s return to the country of habitual residence, leaving the respondent with the onus of proving consent to, or acquiescence in, the child remaining in the other country from the date of the insistence upon the child’s return. If his Honour’s reasoning did apply in this case, the respondent would have to prove that the mother consented to P being retained here after she had said she wanted her to return to the UK with her in order to enliven the discretion. I do not consider that he must do that in this case as I have not found that the mother agreed to P having an indefinite but temporary stay in Australia.

65.The father has proved that the mother consented to P’s permanent relocation to Australia in April 2010 and then changed her mind about that in July, 2010. I cannot find that there was anything equivocal about the mother’s consent to P’s return to live in Australia. Once consent to permanent removal from the UK to Australia is found to have been unequivocally given, I am of the opinion that the pre-requisite for the enlivenment of the discretion is satisfied. Whether a parent’s consent or acquiescence is so equivocal, or whether a subsequent change of mind is sufficient, as to vitiate the consent or acquiescence that is required to enliven the discretion is, in my opinion, a matter of fact to be determined, appropriately, on the evidence in each particular case. (see further my discussion of this point at [75]-[80] in D-G, DOCS v Garrett [2011] FamCA 485). I cannot find in this case that the change of heart some months later vitiates that initial consent such that the effect of Regulation 16(3)(a)(ii) is overcome.

66.I consider the discretion not to make a return order would be enlivened pursuant to Regulation 16(3)(a)(ii) in this case.

Grave Risk of Harm to Child if returned

67.For the respondent father it is asserted that the mother’s state of mental health would expose the child to a grave risk of physical or psychological harm if there is an order that she be returned to the UK.

68.As counsel for the applicant pointed out in his submissions, the father has deposed that he will return to the UK if P is ordered to return. Further, the latest evidence of the mother is that the mother has been released from hospital, is working for her mother’s company and is living back at home. I have no basis for not accepting that evidence. If there was a return order, the day to day care of the child would be something that, no doubt, the courts of the UK would be able to quickly deal with in the event that the parents remained in dispute about that.

69.In the circumstances, I simply cannot find that returning the child to the UK would expose her to a grave risk of physical or psychological harm.

70.I do not consider the discretion not to make a return order would be enlivened pursuant to Regulation 16(3)(b) in this case.

The Child Objects to being returned

71.Pursuant to Regulation 16(3)(c), the discretion not to return is enlivened if each of the following applies:

(i)       the child objects to being returned;

(ii)the child's objection shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes;

(iii)the child has attained an age, and a degree of maturity, at which it is appropriate to take account of his or her views; or

72.For the father, it is asserted that each of them does apply.  The report of Ms A exhibited to her affidavit filed 6 April 2011 is referred to as evidence supporting that submission. 

73.In paragraph 18 of her report, Ms A noted that P referred to Australia as “home”.  In paragraph 20 of the report, Ms A said that P said “I want to live in Australia” and that she had told her mother that.  In paragraph 21, Ms A said that P said  “I’m born in Australia.  Australia is my home.  Mum told me that I was born in England but that’s not true”, and that P had said that she only wanted to have holidays in England.  In paragraph 22, Ms A says that P had said “I’d like her (her mother) to come over here”.  In paragraph 25, Ms A said that P had said that her mother could either live in Australia or visit them (presumably here in Australia).  In paragraph 27, Ms A said that P had said “I don’t want to go.  I don’t want mum to keep me.  I’m worried.  I wouldn’t like it”.  And in paragraph 29, Ms A said that P said “But I want to stay here.  Mum’s having a hard time. She’s not well”.  In paragraph 32, Ms A said that P said that she feels safer here and that she wanted to stay in Australia with her father.

74.In paragraph 33 Ms A reported that P reported:

[P] objected very strongly to being returned to the United Kingdom; her objection shows a strength of feeling beyond a mere expression of a preference or of ordinary wishes; and although she is only 9 years old, she presented as an intelligent and articulate child who is mature for her years.  Therefore, in my opinion, it is appropriate to take account of her views.

It is not surprising that [P] feels so strongly that she wants to remain in Australia with her father.  [P] was born in Australia in 2002 and her early memories are of living in Australia with her parents.  Her father is Australian born and her mother is an Australian citizen.  She lives with her father and paternal grandparents, to whom she is very attached and she has close relationships with her large extended family in Australia. 

75.In paragraph 36 Ms A said:

I did not gain the impression that [the father] has acted to alienate [P] from her mother as [P] has regular telephone contact with her mother and she repeatedly said how much she wanted her mother to get well and to join them in Australia or that they will have “holidays” with her in England.  [P] very clearly and definitely referred to Australia as “home”.  In my opinion, it would cause [P] enormous distress and dislocation to be removed from Australia especially if she was separated from her father.

76.I accept the submissions of counsel for the applicant that the authorities establish that the child’s objections to being returned need to be objections “in the relevant sense” – see the De L v Director-General New South Wales Department of Community Services & Anor (1996) FLC 92-706 (High Court) at page 83,453; Director-General Department of Community Services v Crow (1996) FLC 92-717 at page 83,641 (Full Court) and De Lewinski v Department of Community Services (1997) FLC 92-737 at page 83,939 (Full Court). Objecting “in the relevant sense” has been, in those cases, held to be an objection to an immediate return to the country from which the child was wrongfully removed, so that the Courts of those countries may resolve the merits of any dispute as to where and with whom the child should live.

77.Having acknowledged that, I am, on the evidence before me, satisfied that P objects to being returned in the relevant sense and that her objection shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes and that P has obtained an age, and a degree of maturity, at which it is appropriate to take account of her views.  I am not satisfied that she had been wrongfully influenced by her father or that it is simply return to her mother’s care that she objects to. 

78.Accordingly I consider that the discretion not to make a return order would be enlivened pursuant to Regulation 16(3)(c) in this case.

Would I exercise the residual discretion not to make a return order?

79.The nature of the discretion that is enlivened, as counsel for the applicant pointed out in his submissions, was considered by the High Court in DL v Director-General Department of Community Services (1996) FLC 92-706 at page 83,456 by Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ in their joint judgment. There they said, relevantly:

The regulations are silent as to the matters to be taken into account in the exercise of that discretion and the “discretion is therefore unconfined except insofar as the subject matter and the scope and purpose of the [Regulations]” enable it to be said that a particular consideration is extraneous.  That subject matter is such that the welfare of the child is properly to be taken into consideration in exercising that discretion.

80.Justice Kirby, in his judgment in the same case, said at page 83,471:

In my view, it is undesirable that this court should limit the wide powers properly enjoyed by the experienced Judges of the Family Court in discharging their duties, including by the exercise of the discretion which is reposed in them by reg 16(3) of the Regulations. So long as the Judge keeps clearly in mind the limited purpose of the jurisdiction conferred, the ordinary way in which the Regulations and the Convention are expressed to operate and the need for a clear and compelling case to sustain an objection which permits an exception to the ordinary duty to order the return of the child, it can be left to the Judges to deal with individual cases as the evidence requires.

81.In exercising the discretion not to make a return order if it came to that, I record that I have had regard, in particular, to the following matters:

(i)The mother agreed to a permanent relocation of P to Australia and a few months later changed her mind;

(ii)The child has now been living in Australia for over a year, is well settled, is reported to enjoy her school and to have good friends;

(iii)The child is reported to regard Australia as her home and does not want to return to the United Kingdom, although is happy to visit there;

(iv)The evidence establishes that the child is having regular communication with her mother;

(v)The evidence establishes that the child is being well cared for by her father.

82.In all of these circumstances, I do not consider that there would be any policy imperative, having regard to the purposes of the Convention and the Regulations, for a return order to be made in respect of the child. I would decline to do so in this case even if wrongful retention had been proven.

I certify that the preceding eighty-two (82) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 18 July 2011.

Associate:

Date:  18 July 2011