Director-General, Department of Community Services New South Wales and Eager
[2007] FamCA 1269
•26 October 2007
FAMILY COURT OF AUSTRALIA
| DIRECTOR-GENERAL, DEPARTMENT OF COMMUNITY SERVICES NEW SOUTH WALES & EAGER | [2007] FamCA 1269 |
| FAMILY LAW – CHILD ABDUCTION - Hague Convention – Dispute over country of habitual residence, whether the retention of the child in Australia had been wrongful or whether there had been consent/acquiescence by the mother – question of grave risk of physical harm – application. |
| Family Law (Child Abduction Convention) Regulations 1986 (Cth) ss 4, 16. Convention on the Civil Aspects of International Child Abduction 1983 art. 3, 15. |
| Re F [1992] 1 FLR 548 Re J (a Minor) (Abduction: Custody Rights) (1990) 2 AC 562 Cooper and Casey (1995) 18 Fam LR 433 Panayotides v Panayotides (1997) FLC 92-733 State Central Authority v McCall (1995) FLC 92-552 Re B (Minors) (Abduction)(No.2) [1993] 1 FLR 993 Wenceslas and Director-General, Department of Community Services (2007) FLC 93-221 Friedrich v Friedrich 6th Cir.1996, 78 F 3d1060 Re H (abduction: acquiescence) [1998] AC 72 Patrick v Director-General Department of Community Services [2002] FamCA 321 DP v Central Authority; JLM v Director General, NSW Department Community Services (2001) 180 ALR 402 HZ & State Central Authority (2006) FLC 93-264 Re S (A Child) [2002] Fam Law 733 Re C (Abduction: Grave Risk of Psychological Harm) [1999] 1 FLR 1145 Director-General, Department of Community Services, NSW & Frampton (2007) FLC 93-340 Zafiropoulos and the Secretary of the Department of Human Services State Central Authority (2006) 35 Fam LR 489 |
| APPLICANT: | Director-General, Department of Community Services New South Wales |
| RESPONDENT: | Mr Eager |
| FILE NUMBER: | SYC | 5919 | of | 2007 |
| DATE DELIVERED: | 26 October 2007 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Benjamin J |
| HEARING DATE: | 11 October 2007 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Vicki Hartstein |
| SOLICITOR FOR THE APPLICANT: | Madeline Pereira Legal Services Unit Department of Community Services |
| COUNSEL FOR THE RESPONDENT: | Ms T Messner |
| SOLICITOR FOR THE RESPONDENT: | Scanlon’s Lawyers |
Orders
The Director-General of the Department of Community Services (“the applicant”) make such arrangements as are necessary to ensure the return of the child, … (male) born … June 2006 (“the child”) to Germany forthwith in the company of such person and upon such conditions as this Court deems necessary pursuant to the provisions of the Hague Convention on the Civil Aspects of International Child Abduction.
The Registrar of the Family Court of Australia (Sydney Registry) hand over the passports of the father and the child to the legal representative of the applicant upon the presentation of these orders to facilitate his return to Germany in accordance with order (1) and returned to the father to the Central authority at a time immediately after the child departs the jurisdiction.
Upon the presentation of the child at Sydney International Airport for departure to Germany in accordance with order (1) the Australian Federal Police are requested to delete the P.A.S.S. alert system currently in force in relation to the child and permit his departure from Australia, in the company of the child’s mother, Ms T, (“the mother”) or such other person as is nominated by the applicant.
Upon the departure of the child from the jurisdiction of Australia in accordance with order 3 the Australian Federal Police delete the PASS alert currently in force in relation to both the respondent and the child.
The orders made by Judicial Registrar Johnston on 23 August, 2007 be discharged insofar as they conflict with these orders.
The mother provide a written undertaking to the respondent, within 14 days, to the effect that upon the return of the child to Germany the mother will enter into meaningful negotiations with the respondent in respect of a continuing relationship between the child and the respondent and further that she will not oppose the jurisdiction of German court/s and/or tribunal/s to hear and determine applications of the respondent in respect of the parenting arrangements for the child.
Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
Leave be given for the applicant and/or the father to apply on two days notice in relation to any further machinery orders to give effect to these orders, provided the application for such leave is not made within a period of seven days from the date of these orders.
This matter be otherwise removed from the list of cases requiring determination.
IT IS CERTIFIED
Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.
IT IS NOTED that publication of this judgment under the pseudonym Director-General, Department of Community Services NSW and Eager is approved pursuant to s 121(9)(g) of the Family Law Act 1975.
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 5919 of 2007
| Director General, Department of Community Services |
Applicant
And
| Mr Eager |
Respondent
REASONS FOR JUDGMENT
introduction
The Director-General, Department of Community Services (“the State Central Authority”) seeks the return to Germany of a one year old boy (“the child”). The child’s parents are the respondent father, Mr Eager (“the father”) and the requesting parent, Ms T (“the mother”).
The application is brought pursuant to Regulation 16 of the Family Law (Child Abduction Convention) Regulations 1984 which, relevantly provides as follows:-
(1) If:
(a)an application for a return order for a child is made; and
(b)the application (or, if regulation 28 applies, the original application within the meaning of that regulation) is filed within one year after the child’s removal or retention; and
(c) the responsible Central Authority or Article 3 applicant satisfies the court that the child’s removal or retention was wrongful under sub-regulation (1A);
the court must, subject to sub regulation (3), make the order.
(1A)For sub regulation (1), a child’s removal to, or retention in, Australia is wrongful if:
(a)the child was under 16; and
(b)the child habitually resided in a convention country immediately before the child’s removal to, or retention in, Australia ; and
(c)the person, institution or other body seeking the child’s return had rights of custody in relation to the child under the law of the country in which the child habitually resided immediately before the child’s removal to, or retention in, Australia; and
(d)the child’s removal to, or retention in, Australia is in breach of those rights of custody; and
(e)at the time of the child’s removal or retention, the person, institution or other body:
(i)was actually exercising the rights of custody (either jointly or alone); or
(ii) would have exercised those rights if the child had not been removed or retained.
[…]
(3)A court may refuse to make an order under subregulation (1) or (2) if a person opposing return establishes that:
(a)the person, institution or other body seeking the child’s return:
(i)was not actually exercising rights of custody when the child was removed to, or first retained in, Australia and those rights would not have been exercised if the child had not been so removed or retained; or
(ii) had consented or subsequently acquiesced in the child being removed to, or retained in, Australia; or
(b)there is a grave risk that the return of the child under the Convention would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation; or
(c) 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
(d)the return of the child would not be permitted by the fundamental principles of Australia relating to the protection of human rights and fundamental freedoms.
(4) For the purposes of subregulation (3), the court must take into account any information relating to the social background of the child that is provided by the Central Authority or other competent authority of the country in which the child habitually resided immediately before his or her removal or retention.
(5) The court is not precluded from making a return order for the child only because a matter mentioned in subregulation (3) is established by a party opposing return.
It is alleged by the applicant State Central Authority that the respondent father wrongfully retained the child in Australia in March 2007. The respondent father opposes the application for mandatory return and contends:-
a)That the child was not habitually resident in Germany immediately prior to the alleged wrongful retention;
b)If I accept that the child was habitually resident in Germany and, therefore, wrongfully retained in Australia, then certain exceptions under r16(3) apply to this case with the result that I have a discretion to refuse to return the child to Germany. The relevant exceptions are:-
i)That the requesting parent consented or subsequently acquiesced to the child being retained in Australia within the meaning of r16(3)(a)(ii);
ii)That there is a grave risk that the return of the child to Germany would expose him to physical or psychological harm or otherwise place the child in an intolerable situation within the meaning of r16(3)(b).
c)Finally, if there arises a discretion whereby I can refuse to return the child to Germany, I should exercise that discretion so that the child remains in Australia and the application of the State Central Authority be dismissed.
EVIDENCE
This was a case run on the papers without oral evidence and with no cross examination. No one sought that it proceed otherwise.
The State Central Authority relied upon its application, filed 22 August 2007, affidavits of Madeline Pereira of 11 September 2007, 9 October 2007, 10 October 2007 and 11 October 2007.
The material filed 22 August 2007 has annexed to it a statutory declaration of the mother of 3 July 2007 and the child’s maternal grandmother of 3 July 2007. The affidavit of Ms Pereira filed 9 October 2007 annexed a statutory declarations of the mother.
The respondent father relied upon his answer and cross-application filed 8 October 2007, an affidavit by the father filed 26 September 2007 (“the father’s affidavit”), an affidavit of W Eager filed 26 September 2007, an affidavit of Ms S filed 26 September 2007, an affidavit of Ms F filed 26 September 2007, an affidavit of Mr C filed 26 September 2007, and an affidavit of Ms G filed 3 October 2007.
Tendered on behalf of the State Central Authority was;
·material from the New South Wales Police Service[1],
·H Medical Centre records[2],
·H Children’s Health Network records[3],
·the father’s passport[4], and
·the child’s passport[5].
[1] Exhibit “A1”.
[2] Exhibit “A2”.
[3]Exhibit “A3”.
[4] Exhibit “A4”.
[5] Exhibit “A5”.
The two passports were returned to a Registrar of this Court shortly after the conclusion of evidence on 11 October 2006
The father tendered in evidence;
·a Residential Lease Agreement. This did not show the term of the lease, although the father’s assertion as to the 12 month term of the lease did not appear to be challenged[6],
·a letter from the Australian Taxation Office providing the mother with a “non-resident of Australia tax file number”[7],
·an application to Centrelink dated 27 February 2007[8], and
·a hand-written affidavit of the father sworn 11 October 2007[9].
[6]Exhibit “F1”.
[7] Exhibit “F2”.
[8]Exhibit “F3”.
[9] Exhibit “F4”.
Neither party objected to the admission of any evidence relied upon by the other.
As the matter proceeded without oral evidence, there are gaps in the affidavit and other evidence. This predicament was considered by Butler Sloss LJ (with whom the other members of the Court of Appeal agreed) in Re F[10], at page 548, and gave rise to the following observations:-
“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 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 in 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 establish his case.
[10] [1992] 1 FLR 548
With respect, I adopt those observations as applicable to my task. I have regard to the evidence which is before the court. I have regard to the lack of evidence in some respects, inherent probabilities and inconsistencies. It is not my intention to recite all of the facts provided in the material put before the Court. However, I have had regard to all such material in making the findings and reaching this determination.
In these reasons any statement of fact is to be regarded as a finding of fact unless contrary intention appears by virtue of the context in which the statement is made.
Rights of custody
In terms of the rights of custody Regulation 4 provides a person has a right of custody if custody is attributed to a person by a law in force in a country by which a child was habitually resident immediately prior to his removal or retention. In this case, the father, through his counsel, conceded that there was no issue that the mother had rights to custody and that, at all relevant times, she was exercising such rights.
Habitual residence
One of the primary issues in this case is whether the child was habitually resident in Germany at the time of the alleged wrongful retention in Australia.
The Convention relevantly provides:-
Article 3
The removal or retention of a child is to be considered wrongful where it is in breach of rights of custody attributed to a person, … under the law of a State in which a child was habitually resident immediately before the removal or retention; …
Article 15
The Judicial or Administrative Authorities of a Contracting State may, prior to the making of any order for the return of the child, request that the applicant obtain from the Authorities of this State of Habitual Residence of the child a decision or other determination that the removal or retention was wrongful within the meaning of Article 3 of the Convention, where such a decision or determination may be obtained in that State.
The Regulations do not define “habitual residence”. However the Regulations do set out the following:
Reg 4
Meaning of rights of custody
(1)For these regulations, a person, an institution or other body has rights of custody in relation to a child, if:-
(a)the child was habitually resident in Australia or in a convention country immediately before his or her removal or retention; and
(b)the rights of custody in relation to the child are attributed to the person, institution or other body, either jointly or alone, under a law in force in the convention country in which the child habitually resided immediately before his or her removal or retention.
(2)For the purposes of sub-regulation (1), rights of custody include rights relating to the care of the person of the child and, in particular, the right to determine the place of residence of the child.
(3)For the purposes of this regulation, rights of custody may arise:
(a)by operation of law; or
(b)by reason of a judicial or administrative decision; or
(c)by reason of an agreement having legal effect under a law in force in Australia or a convention country.
…
Reg 14
Applications to court
(1)If a child is removed from a convention county to, or retained in, Australia:
(a) the responsible Central Authority may apply to the
court …for …. :
(i) a return order for the child;
…
The Central Authority submits that at all relevant times the child is habitually resident in Germany. Further, it submits that the child lived with his mother in Germany until he was brought to Australia for a three month visit during which time the mother wished to see if she could live with the father as a family. The Central Authority further submits, that the father took the child and refused to return the child to the mother on or about 5 or 6 March 2007, knowing the mother was obliged to leave the country by 16 March 2007. The Central Authority submits the father threatened the mother that if she attempted to extend her visa she would never see her son again.
There is no issue that a ruling has been made pursuant to Article 15 of the Convention by the Local Court of Jena, Germany[11]. That ruling stating that the retention of a child is unlawful. The ruling provided that:
“The retention by the respondent of the child, […] born in London, UK on June […] 2006 in Australia is unlawful as defined by Article 3 of the Hague Convention on the Civil Aspects of International Child Abduction of October 1980 …
[11] Annexure “B” to affidavit of Ms Pereira sworn 11 September 2007.
This determination was made ex parte. Whilst the court is informed by the ruling of the Local Court in Jena, the ruling is in no way determinative of the issues in this case. It is for this court to be satisfied independently of the ruling that the alleged retention was wrongful within the meaning of Article 3 of the convention.
The respondent father’s case is that the child was habitually resident in Australia, or alternatively that the child was not habitually resident in Germany, or alternatively the child was habitually resident in the United Kingdom. The father further submitted, that if the child was habitually resident in Germany that the mother consented or acquiesced to the child’s retention by the father in Australia and further if there was no consent or acquiescence that there is a grave risk of harm to the child should he be returned to Germany.
The Central Authority set out the following analysis of the relevant law which was agreed by the respondent as being the legal principles which should apply:
2.In Re J. (a Minor) (Abduction: Custody Rights)[12] Lord Brandon of Oakbrook said:
[12] (1990) 2 AC 562.
“The first point is that the expression “habitually resident”, used in Article 3 of the Convention, is nowhere defined. It follows, I think, that the expression is not to be treated as a term of art with some special meaning, but is rather to be understood according to the ordinary and natural meaning of the two words which it contains. The second point is that the question whether a person is or is not habitually resident in a specified country is a question of fact to be decided by reference to all the circumstances of any particular case. The third point is that there is a significant difference between a person ceasing to be habitually resident in country A in a single day if he or she leaves it with a settled intention not to return to it but to take up long term residence in country B instead. Such a person cannot, however, become habitually resident in country B in a single day. An appreciable period of time and a settled intention will be necessary to enable him or her to become so. During that appreciable period of time the person will have ceased to be habitually resident in country A but not yet have become habitually resident in country B. The fourth point is that, where a child of J’s age is in the sole lawful custody of the mother, his situation with regard to habitual residence will necessarily be the same as hers.”
3.In Cooper and Casey [13] the Full Court referred with approval to what Waite J said in Re B (Minors) (Abduction)(No.2)[14] when he set out the relevant principles as follows:
[13] (1995) 18 Fam. L.R. 433 at 435
[14] [1993] 1 FLR 993 at 995
“1. The habitual residence of the young children of parents who are living together is the same as the habitual residence of the parents themselves and neither parent can change it without the express or tacit consent of the other or an order of the court.
“2. Habitual residence is a term referring, when it is applied in the context of married parents living together, to their abode in a particular place or country which they have adopted voluntarily and for settled purposes as part of the regular order of their life for the time being whether it is of short or of long duration.
“All that the law requires for a ‘settled purpose’ is that the parents’ shared intentions in living where they do should have a sufficient degree of continuity about them to be properly described as settled.“3. Although habitual residence can be lost in a single day, for example upon departure from the initial abode with no intention of returning, the assumption of habitual residence requires an appreciable period of time and a settled intention. The House of Lords in Re J, sub nom C v S (above) refrained, no doubt advisedly, from giving any indication as to what an ‘appreciable period’ would be. Logic would suggest that provided the purpose was settled, the period of habitation need not be long. Certainly in Re F (above) the Court of Appeal approved a judicial finding that a family had acquired a fresh habitual residence only one month after arrival in a new country.”
4.In Panayotides v. Panayotides[15] the majority of the Full Court[16] quoted with apparent approval the following passage from the judgment of the trial Judge, Jordan J:
[15] (1997) FLC 92-733 at 83,897
[16] Fogarty & Baker JJ
“(1)the expression “habitually resident” is not to be treated as a term of art with some special meaning, but rather it is to be understood according to the ordinary literal meaning of the two words used (see, In re J (a minor) (1990) 3 WLR 949);
(2)the question of whether a person is or is not habitually resident in a specified country is a question of fact to be determined by reference to all the circumstances of the case (see, In re J (a minor) (supra);
(3)thehabitual residenceof a child whose parents reside together is thehabitual residence of those parents (see, Re B (minor) (1993) 1 FLR 993);
(4)it is not possible for one parent to unilaterally determine a child’shabitual residenceby removing that child (see, State Central Authority v McCall(1995 FLC 92-552);
(5)habitual residence refers to the parents’ habitual abode in a country: ‘Which they have adopted voluntarily and for settled purposes as part of the regular order of their life for the time being whether it is of short or long duration.’ (See, re B (minor) (supra) p.995).
I expressly adopt the aforementioned observations and those of Kay J in the Department of Health and Community Services v Casse (1995) FLC92-629, wherein his Honour said:
‘All that the law requires for a “settled purpose” is that the parents’ shared intentions in living where they do should have a sufficient degree of continuity about them to be properly described as settled.’
I do not accept an interpretation of the proposition advanced in, In re J [supra], wherein it might be argued that the reference in that decision to “an appreciable time” was intended to be construed as meaning a long time. In my view, once an intention to adopt anhabitual residencehas been reached and acted upon in a decisive way so as to provide a degree of certainty and continuity, then it may be open to a Court to find thathabitual residencehas been changed from that point.”
I accept and adopt the above analysis of the law.
The respondent father is 29 years old and was born in Australia. He is a citizen of Australia. The requesting parent is 23 years old and was born in Germany. She is a citizen of Germany. As to the place of birth of both parents, I have relied upon the child’s English birth certificate.
The mother and father met in August or September 2005[17] in Austria and soon after they met the mother fell pregnant with the child. The requesting parent and the respondent father never married.
[17]There is an issue on the facts as to whether the relationship commenced in August 2005 on the mother’s evidence or 25 September 2005 on the father’s evidence. In the context of these proceedings, not much swings on that date.
It was claimed by the father that the parties agreed in October 2005 that Australia was the best place to bring up the child. This evidence must be seen in the context of the mother being a few weeks pregnant. The evidence in respect of this issue is of limited compass, however, on balance I find that the parties made no such agreement, and at best there were discussions about living in Australia and that no final conclusion to reside permanently in Australia had been reached.
The parents agree that they lived together in England from March 2006 until at least 31 July 2006.
The requesting parent deposes that she and the child returned to Germany on 31 July 2006 to live with her parents. By that time, the child was about 7 weeks old. The requesting parent’s evidence is that she travelled to England, from time to time, to visit the father until September 2006. The father’s evidence is that the requesting parent and the child remained living in London and did not return to Germany until 25 September 2006. In any event, the respondent father says the mother’s stay in Germany was ‘temporary’ and to allow the grandparents to see the child and to enable the mother to seek medical attention. The mother’s evidence was that she moved back to Germany on 31 July 2006 and that at the end of September 2006 she ceased travelling to London. The evidence is that there were increasing problems with the relationship between the mother and the father at that time. It is common ground that the father and mother did not see each other between 25 September 2006 and 24 November 2006.
The mother applied for a German passport for the child soon after the child’s birth and the passport was issued, in London, in June or July 2006. Documents annexed to the first affidavit of Ms Pereira show that on about 3 August 2006, when in Germany, the mother had registered the child as living in Germany from 31 July 2007. The child’s passport has an endorsement in it which likewise supports this assertion of fact. Having regard to all of the evidence I find, on balance, that the mother and the child returned to Germany on 31 July 2006 and both remained living primarily in Germany until 14 December 2006. That is, I prefer the evidence of the mother and find that her return to Germany was not temporary or as described by the respondent father. I find that, at the age of seven weeks or thereabouts, the child was habitually resident in Germany by virtue of his primary carer, the requesting parent, taking him to Germany to live and the respondent father doing nothing to disturb that arrangement.
I do not ignore that fact that, in one of his submissions, the father asserted that the parties, and consequently the child, were habitually resident in the United Kingdom. I reject that submission and on the evidence I find that neither of the parties were at any time habitually resident in the United Kingdom. The evidence is that the father was;
“.. travelling around the world on a working holiday”[18].
[18]Father’s affidavit, paragraph 7.
The evidence is that the father and mother lived and worked in England from March 2006 to 31 July 2006 (on the mother’s case) and to 25 September 2006 (on the father’s case). In either factual scenario there is no evidence of habitual residence in England in respect either parent. Neither the father nor the mother provided any evidence of an intention of either or both parties to habitually reside in England.
While in London the father was in paid employment, he travelled to Germany on 24 November 2006. From Germany, tourist visas were taken out for the mother and the child to travel from Australia later that year. The tourist visa for the child was issued on 25 November 2006 and allowed the child to remain in Australia as a tourist for three months from the date of his arrival. These visas allowed the requesting parent and the child visit Australia for no more than three months, in circumstances where it was open for either parent to claim that the child was an Australian citizen by descent.
The mother was living with her family in Germany until about 14 December 2006. When the requesting parent and the child left for Australia, she left a cot, clothes and toys of the child at her mother’s home in Germany. There is evidence from the child’s maternal grandmother that the mother promised that she and the child would return to Germany and would not make any decision as to whether she would permanently reside in Australia until after she had returned to Germany. I accept that evidence, that is, that the requesting parent made that statement to her mother.
On 14 December 2006 the family, comprising the respondent father, the requesting parent and the child, left Germany bound for Australia.
It is an agreed fact that the airline tickets for the mother and the child to come to Australia were one way tickets. The mother says, however, that she set aside a sum of money to pay for her return airfare for herself and the child to Germany. Prior to her departure from Germany, the mother made provision for EU1,000 to be transferred to an Australian bank for return flights for herself and the child. I accept her evidence in that regard.
The mother asserted that on her arrival in Australia the father took the child’s passport and retained it and that the father later took the child’s birth certificate and retained that document. The father denied taking these documents without the mother’s consent. It is not in issue that the father had these documents at the time the mother left in March 2007.On balance, I find that the father took and retained the child’s birth certificate and passport shortly after the parties arrived in Australia and he has retained those documents.
While in Australia the mother filled out a form with Centrelink for benefits, this form was apparently not lodged (Exhibit F3). The mother also applied for a non-resident tax file number, confirmation of which was sent to her some time after 7 March 2007 (Exhibit F2).
I am satisfied on the evidence that there were discussions between the mother and the father about her residence in Australia which continued through the later part of 2006 and into 2007.
In the father’s affidavit he deposes that:-
“65. I say that the discussions that did take place were to the effect that I would sponsor [the mother] to allow her to stay in Australia, if she sought medical help to curb her anger and aggression. I say that [the mother] agreed to that condition and I verily believe that she did it attend upon a doctor on at least two occasions”
The father’s evidence is that, at that time, the mother’s stay in Australia was conditional. From all of the evidence I find that the father’s support for the mother to remain in Australia was conditional.
The child was registered as an Australian Citizen by descent on 27 April 2007, the place of registration being Canberra in the ACT. A copy of that certificate is annexed to the father’s affidavit and in the circumstance of the facts in this case I can infer that the certificate was issued on an application which pre-dated the certificate but, absent other evidence, I cannot infer that the requesting parent was a party to the application or whether the application was made before or after the departure of the requesting parent from Australia.
The father submits that neither the mother nor the child acquired habitual residence in Germany. On all the facts before me, I reject that argument. Having regard to all of the evidence, I find that the mother is a German citizen and that she has, at all relevant times, been habitually resident in Germany. I find that the mother did not cease to be habitually resident in Germany upon her travels abroad to England or before or after she arrived in Australia in December 2006. The mother has never had a settled intention to have a habitual residence in Australia. The habitual residence of the child was at all relevant times the same as that of the mother. At the date that the child was removed from the mothers care and effectively retained in Australia, on 5 or 6 March 2007, both the child and the mother were habitually resident in Germany
Consent and acquiescence
In relation to wrongful retention the applicant submitted the following analysis of the relevant law, which submission was accepted by counsel for the father:
2.In Wenceslas and Director-General, Department of Community Services[19] a majority of the Full Court held that the defences of “consent and “acquiescence” are quite distinct. Consent has to arise before the act of removal and acquiescence can only arise after such an act. The majority quoted the decision of Hale J. in Re K (Abduction: Consent)[20] where she said:[21]
“It is obvious that consent must be real. It must be positive and it must be unequivocal. But that is a separate issue from the nature of the evidence required to establish it. There will be circumstances in which the court can be satisfied that such consent has been given, even though it has not been given in writing. It stands to reason, however, that most people who wish to retain or remove a child would be well advised to get written consent before they do so to place the matter beyond argument. There may also be circumstances in which it can be inferred from conduct.”
[19] [2007] Fam CA 398 at [246] – [264]
[20] [1997] 2 FLR 212
[21] At 217-8
3. The majority in Wenceslas held, following Hale J.:
“…we are of the view that consent can be inferred from conduct; however, we are also of the view that the consent must be real and unequivocal and can only be made out by clear and cogent evidence.”
I adopt the above as a correct statement of law.
Consent
The respondent father bears the onus of proof in relation to the necessary elements of consent if he is to make out that the exception provided in r16(3)(a)(ii) applies to this case.
The mother asserts that on or about 5 or 6 March 2007 the father called the police. She said the father locked himself and the child in a room alleging that the mother had threatened him and the baby. The father then took the child for a walk. About one hour later the mother says that the father called to inform her that he and the child were not coming back. The mother says that she managed to get the father to return come, but that the father retained the child. The police were called. The mother says that she pleaded with the father for the return of the child but that he refused to do so and he drove away with the child. The mother said the police informed her that they could not do anything in Australia because Mr Eager was the child’s father.
The father’s evidence is set out as to these events at paragraph 32, 33, 34, 35 and 36 of his affidavit. The father agrees that he locked both himself and the child in a room. There is an issue as to the reasons for that action. The father claims that in a conversation with the mother on 6 March 2007, the mother expressly consented to the father retaining the child[22].
[22] The father’s affidavit, paragraph 36.
Material was tendered from New South Wales Police which, in part, dealt with the events on 6 March 2007. The police material noted:-
“The POI [the mother] and victim [the father] had recently returned from overseas with their child. The victim is an Australian citizen and the POI is a German citizen and her visa expires on Sunday and she is booked to fly back home.
About 7.30am on 6/3/07 the POI and the victim have been at home at […] where they have started arguing over who was going to keep custody of their child. They argued for most of the morning, the argument becoming quite heated. The victim called the police who attended a short time later. Both the POI and the victim were spoken to and had no visible signs of injuries. Both made no complaints of assault and had no fears for their safety. A signed statement was obtained from the victim and both parties were advised that a record would be made of the incident”.
The claim by the father that the mother consented to him retaining the child in the light of the police material is problematic. In e-mails annexed to the father’s affidavit the mother complains to the father about “how much it u hurt u (sic) when you took my little baby away from me” and refers to how the father “took her child away from her”.
The police confirmed the evidence of the mother that she was booked to fly home as her visa was due to expire (this is not a fact in issue). Further, the police noted that the mother and father were arguing about custody of the child. The evidence by the father of the mother’s alleged consent is not reliable, in the light of the evidence and in particular the police report and the emails referred to above.
I find that the mother did not consent to the taking of the child from her care by the father nor did she consent to the retention of the child by the father. The father wrongfully retained the child on 5 or 6 March 2007 when he took the child from the mother, in the absence if the mother’s consent.
Acquiescence
Counsel for the applicant asserted the law in this regard as;
1.In Friedrich v. Friedrich the United States Court of Appeals said:
“Acquiescence under the Convention requires either an act or statement with the requisite formalities such as testimony in a judicial proceeding, a convincing written renunciation of rights or a consistent attitude of acquiescence over a significant period of time.”[23]
[23] 6th Cir.1996, 78 F 3d1060
2.In Re H (abduction: acquiescence)[24] Lord Browne-Wilkinson said[25]:
“…Where the words or actions of the wronged parent clearly and unequivocally show and have led the other parent to believe that the wronged parent is not asserting or going to assert his right to the summary return of the child and are inconsistent with such return, justice requires that the wronged parent be held to have acquiesced.”
3.This test concerning the strength of the evidence was adopted by Murray J. in Police Commissioner of South Australia v. Temple (No. 1)[26] and by Kay J. in Department of Health and Community Services, State Central Authority and Casse[27] where the courts respectively held that acquiescence must be “clear and unqualified” and “clear and unequivocal”. It is noted that Kay J. in Casse referred to “words and conduct” whereas Lord Brown-Wilkinson had talked of “words or actions”.
4.In Patrick v. Director-General Department of Community Services[28] the Full Court approved the findings[29] made by Chisholm J. who had relied on the statement of Lord Browne-Wilkinson in Re H (abduction: acquiescence)[30] where he said:
“…judges should be slow to infer an intention to acquiesce from attempts by the wronged parent to effect reconciliation or to reach an agreed voluntary return of the abducted child”.
[24] [1998] AC 72 at 88
[25] Described as “influential” by Kay J. in his paper “The Hague Convention – Order or Chaos”
[26] (1993) FLC 92-365
[27] 19 Fam LR 474 at 480
[28] [2002] FamCA 321
[29] Ibid at [22] – [26]
[30] [1998] AC 72 at 88
I accept the above as a correct statement of the law and apply it to this case.
As is the case with consent, the respondent father bears the onus of proving that the requesting parent acquiesced.
The father submitted that the mother took no real steps to get the child back into her care until about July 2007.
The mother’s evidence, in her statutory declaration of 5 September 2007[31], sets out that after returning to Germany she made numerous telephone calls to the applicant for information about the child. She said she left Australia on 11 March 2007 as her visa expired on 16 March 2007. She said she was disorientated for 1 to 2 weeks and did not know what to do.
[31] Annexure “A” to affidavit of Ms Pereira sworn 9 October 2007.
Her evidence is that she spoke to the father on 13 March 2007 and that she was given no information on the child. She said she contacted the German embassy when she was in Australia and wanted to get help from an Australian lawyer. In April 2007 she contacted the German Embassy who sent her a list of Australian lawyers.
She said she searched the internet and found a committee for missing children in Germany who gave he details of a lawyer in Potsdam, but she says that she did not receive any assistance from that lawyer.
In May 2006 she contacted the Australian Embassy in Berlin and in June she contacted a law firm in Sydney and was informed she would need at least EU50,000 for proceedings for return of the child.
The mother contacted a journalist in Melbourne who put the mother in contact with another lawyer in Sydney. That lawyer provided her with some information. As a result of that information the mother contacted a German lawyer who assisted her in the Hague proceedings. The mother says that she needed to collect documents, photo’s and notes, the written form of which needed to be available in both English and German. This exercise took some time. Finally an application under the Hague Convention was made on 19 July 2007.
It is not in issue that the mother was suffering from depression whilst she was in Australia. It is not in issue that the mother had proposed to go to New Zealand to renew her visa.
I accept the mother evidence in respect of the steps she took to recover the child and I find that the mother has not delayed in trying to recover the child between March 2007 to the date of the application under the convention in July 2007, and that she continues to do so.
I find that the mother was upset both at the loss of her relationship with the father and his removal of the child from her care.
The father submits that because the mother agreed to him driving her to the airport, an inference could be drawn that this was, in part, acquiescence. I draw no such inference. It suited them both. The father could see that the requesting parent had left Australia and the requesting parent obtained a lift to the airport. There was no voluntary relinquishment by the requesting parent of the child. There was no clear and unequivocal decision taken by the mother not to assert her rights to seek the return of the child once she was in a position to do so.
That the mother purchased tickets to travel to New Zealand but instead returned to Germany, is claimed by the father to be indicative of either consent or acquiescence to the child remaining in Australia. I do not accept that inference is reasonable.
I find that the father had put the mother in a terrible position with her visa due to expire on 16 March 2007 and made threats to her with regard to the time she would see her son. In effect the mother was forced to leave Australia and leave the child behind. The mother was in a foreign country and her English language skills had limitations. I am satisfied of this from the email and the evidence of Ms R.
I find that the mother did not and has not acquiesced to the child remaining in the care of the father.
I find that there exists no “clear and unqualified” evidence that the mother acquiesced to the father’s retention of the child.
Grave risk of exposure to harm
The respondent father submitted that if the child’s country of habitual residence was found to be Germany and the mother was found not to have consented or acquiesced to the father’s retention of the child in Australia, that I should nevertheless refuse to make a return order on the ground that such an order would expose the child to a grave risk of harm.
The father asserts that to return the child to Germany would expose him to physical or psychological harm or otherwise place the child in an intolerable situation.
The respondent submits that such a grave risk of harm arises because:
4. …the mother historically and on her own admission has not readily sought help for her problems and that if [the child] is in her sole care he will be at risk of abuse combined with a reluctance by the mother to seek help.
5.Because of the legal situation in Germany in respect of [the child’s] custody if [the child] is returned to Germany and then subsequently to the mother’s care the father may have great difficulty in providing any protection for [the child].
6.[The child] is an extremely young child who has now been in the father’s sole care for some 8 months. Any sudden removal from the father could be very detrimental psychologically and emotionally to him.
7.[The child] is too young and has no capacity to protect himself.
The onus of proof in this regard lies on the party opposing such return. It is necessary for that party to demonstrate a grave risk of exposure to harm. (DP v Central Authority; JLM v Director General, NSW Department Community Services (2001) 180 ALR 402 per Gaudron, Gummow, Haine JJ at 414 paragraph 39).
The applicant asserted the principles of law in this regard are as set out below, Counsel for the father agreed with that assertion:-
“2. In HZ & State Central Authority[32] the Full Court[33] examined both the domestic and international jurisprudence on cases in which there had been allegations of serious violence supporting the grave risk defence. The Full Court found no clear statement of principle, but noted that in the non-return cases the facts have usually been very compelling.[34]
“3. In Re S (A Child)[35] the England and Wales Court of Appeal considered whether a child should be returned to Israel in July 2002 and quoted with approval what Ward LJ had said in Re C (Abduction: Grave Risk of Psychological Harm)[36]
‘…the court should require clear and compelling evidence of the grave risk of harm or other intolerability which must be measured as substantial, not trivial, and of a severity which is much more than is inherent in the inevitable disruption, uncertainty and anxiety which follows an unwelcome return to the jurisdiction of the court of habitual residence.’”
[32] (2006) FLC 93-264
[33] Kay, Coleman & Warnick JJ.
[34] Ibid at [73]
[35] [2002] Fam Law 733
[36] [1999] 1 FLR 1145 at 1154
The affidavit of Ms Pereira of 10 October 2007 contained a statement by Ms R and other documents. The affidavit of Ms Pereira of 11 October 2007 contained a report from a paediatrician[37] from Germany who observed:-
[37] This appears to be a Dr … – see the statutory declaration of the mother dated 8 October 2007, annexure “C” to the affidavit of Ms Pereira filed 9 October 2007.
“[The child] was seen by me for the first time on October 12, 2006. Up to that time all necessary preventative medical examinations and vaccinations had been performed.
[The child] is in good shape, in general condition, nutrition and care.
During examination his mother showed loving care to her baby. She was very interested in questions relating to the development of her child. [The child] appeared six times at my practice. Scheduled dates for examination and vaccinations have always been kept. His mother presented the baby at all examinations and the relationship to the mother was characterised by good compliance.
The last time I saw [the child] was December 6, 2006 within the scope of the preventative examination U5[38]. The child’s state of development was normal for his age. At the time [the child] was receiving a permanent inhalation therapy because of relapsing obstructive bronchitis”.
[38] See annexure “B” to the affidavit of Ms Pereira sworn 9 October 2007.
The father asserted that on one occasion his sister observed the mother shaking the child (this was denied by the mother). The father also asserted that when he was in Germany with the mother and the child shortly before coming to Australia the mother was nervous, argumentative and abusive to her parents and did not seem interested in caring for the child. Further, the father alleges that the mother struck the father whilst he was holding the child and made threats against the father and the child. The father said he attended to the child’s needs when he arrived home from work because the mother had not done so.
The evidence is that while the parties lived in Australia the father was often away for weeks at a time for his work and, during these periods, he left the child in the care of the mother. There was at least one occasion where the mother asserts that the father was away for a weekend in addition to these weeks. The mother was the primary carer of the child and the father left that task to the mother when he was at work. The father left the sole care of the child to the mother, on his evidence, from 25 September 2006 to 24 November 2006. He says he sent the mother back to Germany with the child after being told by his sister that the mother had shaken the child. When the parties lived in Australia they first resided with the father’s parents for about one month and then moved into an apartment in Newcastle in January 2007. The father returned to full time work and took employment in Sydney, this in circumstances where the parties’ home was in Newcastle and the father claims he was becoming more and more concerned about the mother’s ability to care for the child.
The factual background is not objectively supportive of the father’s expressions of his concerns about the mother’s care of the child. The rhetorical question is asked, if the father was so concerned, why did he leave the child in the mother’s care for the whole of the child’s life from the date of the child’s birth to the 5 or 6 March 2007? The evidence of the father and those who support his claims are to be seen in the light of leaving the child in the mother’s care, including occasions of some week or weeks. As such, I find that the father’s evidence of grave concern about the child being at risk in the care of the mother is unreliable and does not constitute clear and compelling evidence that the child is at grave risk of physical or psychological harm.
The mother clearly had emotional issues and depression with which she was dealing and she has sought medical attention in that regard in both Germany and Australia.
The father claims that the mother behaved aggressively when the child was in her care and generally. There is no issue that the mother had problems learning to be a parent. There is some evidence in the father’s case that the mother acted inappropriately with regard to the child. However, this must be seen in the context of the report from the child’s paediatrician in Germany who was comfortable with the mother’s care of the child and in circumstances where the mother took the child to see that paediatrician on a number of occasions. The evidence from the Children’s Health Network was that the mother took the child for medical attention and sought medical attention for herself. She was referred to a social worker and saw that social worker.
There was an issue raised during closing argument, about a notification to the Department of Community Services. This notification arose out of the mother’s complaints to the Area Health Service that she was subject to verbal abuse and she had relationship issues. There does not appear to be a notification about the mother’s care of the child.
The father’s sister provided evidence of poor parenting by the mother including an allegation that the mother had shaken the child. These allegations were denied by the mother, and must be seen in the context of the evidence of the child’s paediatrician as to the condition, nutrition and care of the child between October and December 2006 and the other findings I have made in the course of these reasons. This evidence, on balance does not constitute clear and compelling evidence that the child is at grave risk of physical or psychological harm
An issue was raised by the father that the mother is involved in Neo Nazi activities, in particular with “skinheads”. The father’s evidence is that he and the mother were active “skinheads” between September 2005 and December 2006. By this he said he meant that[39];
“… we believed in a particular way of life which involved changes in our outward personal appearance and involved extreme right wing political philosophy and attitude”.
[39]Paragraph 45 of the father’s affidavit.
The father says he no longer holds those views, and that his political and social views would now be described as middle of the road. In his affidavit filed on the day of hearing[40] he says that his fiancé is Jewish and her parents are practicing Jews. His concern was that the mother continues to hold such views and indeed continued to hold those views during the period July 2006 to March 2007.
[40] Exhibit “F4”.
The mother denies that she was ever associated with those views. She says her association with the “skinhead” culture was more due to an interest in music than ideology and that she has since distanced herself from that culture.
The mother says that the father’s statement that he is not a member of that group is dubious in that the father was to participate in a Nazi entertainment activity and that the father had planned to fly to America to be part of an event. In his affidavit sworn 11 October 2007 the father confirms that he intended to participate in that event on 6 October 2007 for the purposes of a trip to the United States. He goes on to say that he did not participate in this event in the United States or elsewhere because he decided to get married his present fiancé and the mother commenced these proceedings to recover the child.
The father said, in his earlier affidavit, that he was active in the “Skinheads” up to 14 December 2006 and that he no longer holds these views. Yet, his further evidence is that he was prepared to travel to the United States in October 2007 to participate in the entertainment event. He says that it was these proceedings, (commenced in Australia on 22 august 2007) and his engagement to his fiancé which brought about this change of plans. On her evidence, the father’s fiancé says that she met the father on 13 July 2007. I infer from this evidence that up to at least late July or August 2007 the father was planning to participate in this event. This does not sit well with his assertion that he had earlier disassociated himself with the “skinhead’’ philosophy which causes him so much concern insofar as it applies to the mother.
I accept the submission on behalf of the State Central Authority that the father’s evidence in regard to his association with the ‘skinheads’ is unreliable. I accept the evidence of the mother that she is not or no longer involved with this group. In any event the evidence with regard to the mother’s alleged involvement with the skinheads does not amount to clear and compelling evidence that the child is at grave risk of physical or psychological harm if he is returned to Germany.
Furthermore, it must be borne in mind that a return order made under the Convention provides for the child’s return to the country of habitual residence and not to the other parent.[41] The applicant in this case is the State Central Authority, not the mother. If the mother’s care does pose some risk of harm to the child, the courts of Germany must assess this risk and make the necessary orders in relation to the parenting of the child.
[41] Murray v Director, Family Services, ACT (1993) 16 FamLR 982; (1993) FLC 92-416.
Notwithstanding that the child’s return must be considered a return to a country and not to a parent or any particular place or person, I must consider the consequences of the return,[42] and I have done so.
[42] DP v Commonwealth Central Authority; JLM v Director-General, NSW Department of Community Services (2001) 206 CLR 401; (2001) 27 Fam LR 569 (2001) FLC ¶93-081
The father says that he may have no parenting rights of the child in Germany. In establishing parental custody the provision of the German civil code was part of the material provided by the applicant, it provides:-
Parental Custody
1626 – parental custody in the case of parents who are not married to each other:-
1.If the parents are not married to each other at the time of birth of the child, they may exercise parental custody jointly provided that they:-
i)declare that they wish to exercise custody jointly (declarations of custody), or
ii)enter into a marriage with each other.
otherwise the mother has parental custody.
There was no evidence as to what other rights the father may have to the child and as a consequence the father sought conditions, in the event that an order was made for the return of the child, as follows:-
1.To allow the father to return to Germany with the child.
2.To allow a period of time for the father to remain with the child before passing to the mother.
3.An undertaking by the mother that she and the father are joint custodians.
4.An undertaking by the mother to undertake proper steps to deal with her anger and aggression.
No notice of was given to the applicant by or on behalf of the father that he would be seeking such conditions.
I sent a message to the parties to make written submissions in relation to these conditions. Submissions were made by both parties in relation to the question of grave risk. I include those submissions as part of my reasons. The conditions required by the father could fall into two categories. The first is that not to put the conditions in place would leave the child at grave risk of exposure to harm. The second is that they ought to be put in place in any event.
In respect of the first condition, it is quite broad and could be construed to mean that I impose a condition which creates obligations on travel by the father from Australia to Germany in circumstances which may be ultra vires the power of the court. In any event I do not believe that in the circumstances of this case such a condition is necessary. The orders that I propose make will enable the applicant to put in place arrangements which will meet the particular needs of the child for his return to Germany.
In respect of the second condition, I have found that the father has wrongfully retained the child in March 2007. The convention provides that the child should be returned as soon as practicable. The time the father is to remain with the child is to be a matter for the applicant bearing in mind all of the circumstances of which the applicant is aware. Having regard to the findings of fact in this case and with the tender age of the child, and the non contentious fact that the mother was the child’s primary carer up to 5 or 6 March 2007, I am of the view that the sooner the child is returned to Germany the better.
The undertaking sought in condition 3 is not one of which I have any knowledge as to its implication in German law. The mother says in the final paragraph of her statutory declaration of 7 October 2007:-
“I would like that [the child] have continuous contact with his father. I know how important it is for a child to grow up with both parents. In face of the distance to Australia I will try everything that [the child] can build up a good relationship to his dad and his Australian family”
I infer that this means that the mother will consent to the father spending time with the child in Germany. I will require the mother to give an undertaking in accordance with this declaration to enable the father to apply for orders in Germany, whether they be for residence or to spend time and communicate with the child.
The final condition sought by the father is that the mother should provide an undertaking to take steps to deal with her alleged anger and aggression.
In her statutory declaration of 8 October 2007, the mother sets out some treatments she has been undertaking from a psychologist and from her family doctor in respect of psychological issues. I am, on balance, satisfied that the mother has taken steps to deal with her depression and issues of mental health and as such I do not intend to impose that further requirement upon her.
The evidence does not establish clear and compelling evidence that the child would suffer grave physical or psychological harm if he is returned to Germany. Accordingly, I make the orders sought by the applicant for return of the child to Germany.
The thrust of the submission on behalf of the father is that the State Central Authority needs to put in place issues to minimise any risk to the child in reacquainting himself with the mother. This submission must be seen in the context that the mother was the primary carer for the child up until 5 or 6 March 2007. I am not satisfied that the father has established that failure to put in place specific provisions in this respect can, on the evidence, amount to a grave risk within the meaning of the legislation. However I will give both the State Central Authority and the father leave to apply in respect of any mechanical issues that arise in that respect. Such leave may be made in writing or via videolink upon the giving of forty eight hours notice to the other party and to the Court.
discretion against mandatory return
In the event that I had found that the respondent father made out one of the exceptions in r16(3), a discretion would have arisen which would enable me to refuse the return of the child to Germany. Of course, I have found that none of the exceptions for which the respondent father contends are made out. However, had it been otherwise, the position of the respondent father was that I ought to exercise the discretion to enable the child to remain in Australia. The position of the applicant State Central Authority was that I should not exercise any such discretion.
In Director-General, Department of Community Services, NSW & Frampton[43], the Full Court cited with approval the factors originally suggested by Waite J in W v W (Child Abduction: Acquiescence) and subsequently accepted and applied by Hale LJ in TB v JB (formerly JH) and then by the trial judge and the Full Court in Zafiropoulos and the Secretary of the Department of Human Services State Central Authority[44]:
[43] (2007) FLC 93-340
[44] (2006) FLC 93-264; (2006) 35 Fam LR 489
(a)the comparative suitability of the forum to determine the child's future in the substantive proceedings;
(b)the likely outcome (in whichever forum) of the substantive proceedings;
(c)the consequences of the acquiescence;
(d)the situation which would await the absconding parent and the child if compelled to return;
(e)the anticipated emotional effect upon the child of an immediate return (a factor which is to be treated as significant but not paramount); and
(f)the extent to which the purpose and underlying philosophy of the Hague Convention would be at risk of frustration if a return order were to be refused.
If I am wrong as to my assessment of consent, acquiescence, and grave risk of harm, and discretion should arise, I would decline to exercise it in favour of the respondent. That is, I would still order that the child be returned to Germany. For the reasons set out in this judgment, I am satisfied that Germany is just as suitable a forum as Australia to determine where and with whom the child should live.
The child welfare issues raised in this case are matters which, in my view, are best dealt with by the courts in Germany. They should not rest with the respondent’s unilateral decision to retain the child in Australia in circumstances where I am satisfied that the requesting parent felt she had had no alternative but to leave the child behind. The child’s medical records and treaters are in Germany, the mother proposes to bring the child up with proficiency in both German and English. In that regard the schools proposes by the mother start English at a young age.
In coming to this conclusion, I have had regard to the agreed fact that the mother was the primary carer of the child from his date of birth until 5 or 6 March 2007. This included a period of at least two month between September and November 2006 when that care was in the absence of the father. The father agreed to this arrangement and left the mother to the care of the child for extended periods of time when he worked in Australia. The evidence of the father is that he continues to work. The child is left in the care of the father’s fiancé on Mondays and is sent to child care Tuesday, Wednesday, Thursday and Friday for about 6 to 8 hours[45]. The mother proposes to enrol the child in play school. The mother was a full time carer for the child, although she now works full time. The child will be close to his maternal grandparents and other family if left in the care of the mother. The mother has considered the relationship between the child and the father, on the other hand the father’s removal of the child from the mother primary care in March 2006, gives rise to some concerns about his capacity to facilitate a relationship between the child and the mother and her family.
[45] Affidavit of Ms S filed 26 September 2007, paragraph 11.
The mother has sought and obtained appropriate medical care for herself and the child. The likely outcome of the parenting proceedings is that the child would be left in the care of the mother in whichever forum the dispute is determined.
I have considered the comparative suitability of the forum to determine the child’s future. Either party will face the challenge of language difficulties in both jurisdictions, the mother with English in Australia and the father with German in Germany. There was a concern about jurisdiction of the German Court, the condition that I have imposed should resolve that issue.
There is no evidence of any adverse consequences with regard to the father upon retaining the child in March 2007. The evidence of the mother is that she will co-operate with the child having a relationship in Germany.
I will accede to the application of the State Central Authority.
I certify that the preceding 111 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin.
Associate:
Date: 26 October 2007.
Key Legal Topics
Areas of Law
-
Family Law
-
Administrative Law
Legal Concepts
-
Jurisdiction
-
Procedural Fairness
-
Remedies
-
Standing
-
Judicial Review
0
2
2