Director-General, NSW Department of Community Services and Kilversson
[2008] FamCA 114
•29 February 2008
FAMILY COURT OF AUSTRALIA
| DIRECTOR-GENERAL NSW DEPARTMENT OF COMMUNITY SERVICES & KILVERSSON | [2008] FamCA 114 |
| FAMILY LAW – CHILD ABDUCTION – HAGUE CONVENTION – Whether the habitual residence of the two children at the relevant date was in Australia or Europe |
| Family Law Act 1975 (Cth) s 111 |
| JLM v Director-General NSW Department of Community Services (2001) FLC 93 – 08 Re: B (Minors) (Abduction) (No. 2) (1993) 1 FLR 993 Wenceslas and Director-General Department of Community Services (2007) FLC 93-321 |
| APPLICANT: | Director-General NSW Department of Community Services |
| RESPONDENT: | Ms Kilversson |
| FILE NUMBER: | SYC | 3822 | of | 2007 |
| DATE DELIVERED: | 29 February 2008 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | The Honourable Justice Rose |
| HEARING DATE: | 22 August 2007 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | T. Messner |
| SOLICITOR FOR THE APPLICANT: | Department of Community Services Legal Services Unit |
| COUNSEL FOR THE RESPONDENT: | P. Nash |
| SOLICITOR FOR THE RESPONDENT: | Foleys Solicitors |
Orders
That the application filed 28th May 2007 is dismissed.
Subject to hearing submissions in relation to the respondent’s application for costs the proceedings are removed from the active pending cases list.
IT IS NOTED that publication of this judgment under the pseudonym Director General, NSW Department of Community Services & Kilversson is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
File number: SYC 3822 of 2007
| DIRECTOR-GENERAL NSW DEPARTMENT OF COMMUNITY SERVICES |
Applicant
And
| MS KILVERSSON |
Respondent
REASONS FOR JUDGMENT
Introduction
In these proceedings the applicant the Director-General of the New South Wales Department of Community Services in the capacity of the New South Wales Central Authority by the application filed 28th May 2007 (“the application”) sought the following order:-
“3.That the parties make such arrangements as are necessary to ensure the return of the children [T] born […] June 2001 and [A] born […] December 2002 to [Europe] 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 respondent who for convenience I shall call “the mother” by her Answer and Cross-Application filed 3rd July 2007 seeks orders that the application of the applicant be dismissed with costs.
The application is made pursuant to Regulation 14(1) of the Family Law (Child Abduction Convention) Regulations 1986 (“the Regulations”).
The father of the two children resides in Europe. The mother resides in Australia with the two children the subject of the application.
Historical background
The following are significant relevant matters which are not in controversy.
The father is 39 years of age. He is a citizen of a European country.
The mother is 39 years of age and is an Australian citizen. The mother has also been granted residence in that European country.
There are two children of the marriage of the parties:
(i) T born inJune 2001;
(ii) A born in December 2002 (“the two children”)
The two children were born in Australia and have dual citizenship namely Australian and European. The two children live with the mother.
In March 1987 the parties married in Australia. They had previously met in Europe where the mother was an exchange student and the father was resident in Europe where he was born. Shortly after meeting and commencing a relationship in Europe the mother travelled to Australia where she had been previously residing for some years. The father followed her.
In about the latter half of 1987 the parties separated. The father returned to live in Europe having lived with the mother in Australia.
In 1993 the mother travelled to South America to study. In the next year, whilst in South America, she commenced living in a defacto marriage relationship with Mr J.
In 1995 the father visited the mother in South America. They did not resume cohabitation. Later that year the mother fell pregnant to Mr J and returned to Australia to give birth.
In April 1996 the mother gave birth to Mr J’s child, L.
For the period November 1996 to early 1997 the mother and L lived with Mr J in South America. They then separated and the mother returned with L to recommence living in Australia.
In about the middle of 1997 the mother travelled with L to Europe. The mother and father renewed their relationship with a view to resuming cohabitation.
Subsequently in 1997 the mother returned with L to Australia. The father remained in Europe.
In about February 1998 the mother returned to Europe with L and then lived with the father and his sister.
In about June 1998 the mother, father and L travelled together to South America for the purpose of L spending time with his father. Implicitly from the evidence this was only a short period before the mother and father together with L travelled to Australia where they then cohabited until about January 1999. During that time the father travelled to Europe to see his father who was ill. The mother and father briefly separated before they had a reconciliation upon the father returning to live with the mother and L in Australia in June 1999.
In 2001 and at the time of the birth of the eldest child the parties were living separate and apart from each other in Australia.
At about the end of 2001 the parties reconciled and resumed cohabitation.
On 28th June 2005 return air travel tickets were issued for travel between Australia and Europe by the mother, father, the two children and L.
In July 2005 Australian passports were issued for the two children and the mother.
On 14th July 2005 the father, mother, the two children and L travelled to and commenced living together in Europe.
Consequently, for the period from about June 1998 to 14th July 2005 the parties cohabited in Australia, other than the brief periods of separation earlier referred to.
On 11th June 2006 the mother left Europe with the two children and L and travelled to Australia where they have since resided.
So far as I am aware the marriage of the parties has not been dissolved, there being no evidence to the contrary from the parties or different information provided by counsel.
On 22nd August 2007 the hearing commenced before me. In accordance with well established procedure the hearing proceeded on the basis of being determined on the Papers subject to any application being made by counsel to cross-examine one or more of the mother, father or any of the witnesses. No application was made by counsel for either party to cross-examine any of the deponents although it was of course open to counsel to do so[1]. I made directions for the lodgement and service of written submissions.
[1] JLM v Director-General NSW Department of Community Services (2001) FLC 93-081 at 88,395.
On 5th October 2007 I made further orders by consent that gave leave to the parties to file and serve further affidavits and extended the periods during which written submissions were required to be filed and served. Written submissions were filed on behalf of the parties.
My associate received an email dated 18th December 2007 from the mother’s solicitor informing her that he would be absent on leave for the period from 18th December 2007 until 9th January 2008. As I considered it preferable for the mother to be represented when judgment was given, I delayed judgment to my return from leave this month.
There is no issue that:-
a)Australia and the European country are Convention countries pursuant to Regulation 10 of the Family Law (Child Abduction Convention) Regulations.
b)The applicant is validly appointed as the New South Wales Central Authority.
c)Pursuant to Chapter 6 of the Children and Parents Code of Europe the father has had and retains rights of custody of the two children at all material times pursuant to the European country’s law.
d)There is no issue that as at 11th June 2006 both the father and the mother had rights of custody in relation to the two children pursuant to the European country’s law.
Issues for determination
The principal issues for determination are as follows as described in the applicant’s Case Summary:-
“a)Were the children habitually resident in [Europe] at the time that the Respondent removed them to Australia, that is, on the 11 June 2006.
b)Did the father consent to the children’s removal from [Europe] to Australia on a permanent basis on 11 June 2006.
c)Did the father acquiesce in the children’s remaining in Australia after he was informed that the mother did not intend to return the children to [Europe].
d)Did the father acquiesce in the children remaining in Australia by not taking any legal action for their return until May 2007.”
On 14th July 2005 the mother and father together with the two children and L travelled to Europe. The parties are at issue as to the basis upon which that travel was undertaken.
In October 2005 the mother and father together with the two children and L commenced to reside in a house in Europe that had been purchased for their occupation by the father’s parents. The two children were granted citizenship. The mother and L obtained residence of the European country.
On 11th June 2006 the mother together with the two children and L left Europe and travelled to Australia. The parties are at issue as to the circumstances which gave rise to that travel and the basis upon which the mother together with the two children would remain in Australia.
On about 25th June 2006 the mother informed the father that she was not returning with the two children to Europe. The mother and the two children have resided in Australia together since that time. The parties are at issue regarding the conversations between them and the relevant circumstances in relation to the matters referred to in this paragraph.
On 28th May 2007 the application was filed.
On 4th June 2007 Johnston JR made ex-parte orders as follows:
“(1)That until further order the respondent mother […] born […] April 1968 and/or any other person be restrained from removing the children [T] born […] June 2001 and [A] born […] December 2002 from the Commonwealth of Australia until further order of this Court and that the Australian Federal Police give effect to this order.
. . .
(4)That until further order, the respondent mother […] born […] April 1968 surrenders forthwith to the Registrar of the Family Court of Australia, all current passports and air tickets relating to herself and the said children [T] born […] June 2001 and [A] born […] December 2002.
(5)That until further order, the names of the respondent mother […] born […] April 1968 and the children [T] born […] June 2001 and […] born […] December 2002 be placed upon the P.A.S.S. alert system at all Australian international arrival and departure points as soon as possible.
(6)That the respondent [mother] born […] April 1968 be served with sealed copies of the application and the annexures and of these orders no later than 8 June 2007 and that the application be returnable before this Court on 19 June 2007 at 9:30am.
(7)That sealed copies of this Application and these orders be served upon the Commissioner, Australian Federal Police.
(8)That the parties are at liberty to apply herein on twenty-four hours notice.”
On 19th June 2007 Johnston JR made directions by consent for the filing and service of affidavits and the listing of the proceedings for hearing.
On 6th August 2007 further procedural directions were made.
On 22nd August 2007 following the commencement of the hearing and the receipt of evidence I made directions for written submissions.
On 5th October 2007 I made further directions by consent for the lodgement and service of written submissions.
Were the children habitually resident in Europe immediately prior to the mother removing them to Australia on the 11th June 2006
Relevant legal principles
Counsel referred me to a number of Full Court judgments which consider the principles to be applied for determining whether or not a child is, or was, habitually resident in a particular country. The most recent of those judgments is the joint judgment in DW and Director-General Department of Child Safety.[2]
[2] (2006) FLC 93-255.
The joint judgment in DW and Director-General Department of Child Safety reviews previous Full Court judgments. However, with respect to their Honours the paragraphs which follow the sub-heading “Conclusion in relation to the present case” do not set out their conclusion regarding the principles to be applied, but rather refer to the approach that the trial judge took and his findings of fact. Implicitly the Full Court followed both the majority judgment in Panayotides and Panayotides[3] and leading English judgments in Re J and
A v A.[4][3] (1997) FLC 92-733 at 83,897.
[4] (2006) FLC 93-255 at 80,331 – 80,332.
Consequently, I have determined that I will follow the dicta in those English judgments apparently followed by the Full Court in Cooper v Casey[5] and the Full Court judgment in Panayotides in which the majority judgment of Fogarty and Baker JJ held as follows:-
[5] (1995) FLC 92-575 at 81,695 – 81,696.
“The question of habitual residence has been the subject of much judicial deliberation, and I have been referred to numerous authorities in that regard. From those authorities, the following principles emerge:
(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) the habitual residence of a child whose parents reside together is the habitual 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’s habitual residence by 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).”
The English decisions to which I referred held that, inter alia:-
“Although habitual residence can be lost in a single day, for example upon departure upon 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 CVS (above) refrained, no doubt advisedly, from giving any indication as to what an ‘appreciable period’ would be. If the purpose was settled, the period of cohabitation need not be long.”
The evidence of the mother and father, together with witnesses in each of their cases, is contained in affidavits and witness statements which I received into evidence without objection.
The evidence of the father and his witnesses
The substance of the evidence of the father is as follows.
In 2005 the mother and father “decided to relocate to [Europe] to make it our permanent base. We shipped all our belongings and left for [Europe] in July 2005.
In the Spring of 2006 [the mother] expressed a desire to go to Australia for a visit with the kids. We decided that she’s going to leave in June and stay for no more than six weeks since we did not want the kids to be separated from me for longer than that. Due to work obligations I was staying home.
She left 11th June. Two weeks into their stay she informed me that she wouldn’t be coming back as planned.”[6]
[6] Affidavit of JK affirmed 24th May 2007 the father’s statement “A brief biography.”
The father further stated that he and the mother had decided to make Europe “our permanent place of residence” when they decided to move to Europe in July 2005.
The father’s further evidence is that whilst in Europe he and the mother rented a house with an option to purchase it, “we had all our effects, except for some furniture we deemed too bulky to ship. The kids were all attending school and enjoying it.”[7]
[7] Ibid “Circumstances surrounding the removal of [T] and [A] from [Europe] in June 2006.”
The further evidence of the father is that in relation to the travel from Australia to Europe in 2005 his parents paid for return travel. He stated that “[The mother] insisted on return tickets as a safety precaution in case things would be too hard in [Europe] and to be used for a visit to Australia. Since I know it’s hard to move to another country and I hoped that we would be able to visit Australia more than we visited [Europe] I agreed.”[8]
[8] Affidavit of JK affirmed 27th July 2007 Annexure “B” paragraph 47.
In relation to the parties’ travel from Australia to Europe in 2005 and their purchase of return travel the father’s further explanation is “this was because it did not prove to be all that more expensive. It provided a safety in that if we were unable to create a living in [Europe] we could go back. This should be understood with the fact that we left for [Europe] blind. We had neither work nor house lined up. It would also provide an opportunity to visit Australia.” The father also stated that “even if [Europe] was going to be our permanent residence that we would go to Australia every couple of years for an extended stay, i.e. about six months.”[9]
[9] Ibid.
The father’s parents stated that when the father and mother and children arrived in Europe in July 2005 they were told that the mother and father “wanted the children to learn about the [European] culture and traditions, to learn the [European] language and to have the opportunity to know us, their [European] relatives.”[10]
[10] Ibid Annexure “D”.
They did not state whether they were given that information by both the mother and father or one of them and if so whom.
The father’s parents also state that after the mother and father had lived with them for a short period of time they gained the impression that they would remain in Europe and they purchased a house for them which the mother and father then leased from them. They further stated that they had an agreement with the father and mother that they could purchase that house for the same amount that they had paid when they were able to afford to do so.
The father’s parents also stated that the father and mother, and implicitly the two children together with L, moved into the above-mentioned house by the end of October 2005 and then furnished it, supplemented in the beginning of 2006 with a container of their belongings which had arrived from Australia.
The other evidence of the father set forth without objection in the affidavits as sworn by JK reiterates the substance of his evidence to which I have previously referred.
The evidence of the mother and her witnesses
The substance of the evidence of the mother is set forth in a number of affidavits as well as her sworn answer and cross-application.
In her answer and cross-application filed 3rd July 2007, the mother states that the travel undertaken by her, the father and the children to Europe from Australia in July 2005 was for the purpose of “a temporary stay but not intending to make [Europe] the permanent home of the family which has been and will always be Australia.”
The mother agrees that she, the father and the children occupied a house in Europe purchased by the father’s parents to whom they paid rent. With regard to personal effects and furniture the mother states that some of those items were taken from Australia, as the cost involved was equivalent to storage in Australia, and that the items taken were for the purpose of providing a familiar environment for the children. The remainder of the items owned by the father and mother remained in the premises previously occupied by them.
The mother states that L was enrolled in school and the two children attended day care as they were too young to be attending school.
In her affidavit sworn 3rd July 2007 the mother states that she is an Australian citizen having moved to Australia from South America where she was born when she was one year old.
The mother claims that in about June 1998 when she, the father and L travelled to South America for the purpose of L seeing his father, they continued their travel to Australia in accordance with their decision “that Australia would be our place of residence.”
The father and mother continued to live in Australia until May 2005 with periods of separation and reconciliation between them in Australia except for a period of about six months in 1999 when the father returned to Europe to be with his father as he had open heart surgery. The period also coincided with a separation of the parties, although they had a reconciliation upon the father’s return to Australia in 1999.
The mother further states that in early 2005 she and the father discussed their travel to Europe as they were of the view that it would be beneficial for the children to spend time with the father’s family, and indeed to travel to Europe to coincide with the wedding of the father’s sister.
The mother further states that prior to confirming arrangements for the proposed travel to Europe she and the father decided to take their personal effects with them as cost was similar to storage costs for a year in Australia and it would enable the children to have familiar surroundings in Europe. She contends that “our household items” were to remain in their rented premises which a friend would occupy until they returned.
The mother also states that due to the cost of travel to Europe it was preferable for there to be “a reasonable period of time there which we decided would be one year.”
The mother also states that she and the father had a conversation prior to the purchase of return airline tickets for the two of them and the three children. The mother contends that she said to the father “because of our past history, if the marriage again breaks down, I want to come back to Australia with the children as this is our home.” The mother claims that the father responded “yes, of course.”
The mother and implicitly the father, proceeded to purchase return air tickets for herself, the father and the three children. Copies of those tickets are in evidence.[11] Each copy of a ticket reveals travel with the same airline, date of issue of ticket being 28th June 2005 for travel from Australia on 14th July 2005. There is no issue that return air travel tickets were indeed purchased.
[11] Affidavit of mother sworn 3rd July 2007 Annexure “A”.
The mother’s further evidence in relation to the periods of time spent in Europe is that after the family lived with the father’s parents for about two months in crowded conditions the father’s parents purchased a house for the family to live in subject to a mortgage and that the father paid rent to them equivalent to the mortgage instalments.
The mother participated in European language classes. The two children were in day care three days a week whilst L attended school.
The mother contends that she and the two children were Australian citizens and she and the father agreed that residence should be sought for all of them so as to avoid having to continually renew their visas. Other benefits were that with resident status the mother was able to undertake language lessons, the family members all had medical cover and the children could attend school. In addition, the mother states that as the two children were children of a European citizen, namely the father, they were able to obtain European citizenship. The mother and L obtained European residence. The mother states that agreement to seek European residence and implicitly European citizenship “was not on the basis that [Europe] was to be our permanent home.”
The mother further states that she and the father had “major difficulties” in their relationship and undertook counselling in Europe on a number of occasions. The mother stated that their problems intensified and as a result she informed the father that she “could no longer live with him and wanted to return to Australia with the children in accordance with our agreement. [The father] naturally attempted to change my mind but knew I had made up my mind the marriage was finally over and agreed to our return.”
The father took the mother and the children to the airport on 11th June 2006 and they agreed to speak by telephone.
The mother alleges that on 11th June 2006 she returned with the three children to Australia “which had always been their permanent place of residence. Their return was with the agreement of the father. The father was aware at the time of leaving [Europe] that the mother and the children would not be returning to [Europe].”
The mother and the three children have resided in Australia continuously since that time.
As with the evidence of the father the evidence of the mother in relation to various matters was repeated in different affidavits.
It is also not disputed that the return air travel tickets to which I have referred were valid for one year only.
The following witnesses gave evidence in the mother’s case either by way of statements which were annexures to the affidavit of the mother’s solicitor or in accordance with affidavits sworn by some of those witnesses. In any event no objection was taken to any of the witness statements. The affidavits relied upon by each of the parties were also not the subject of objection.
The witness statement of the mother’s step-father dated 2nd August 2007 relevantly refers to the mother, father and their children having stayed with the witness and his wife for a week in Melbourne prior to the family’s departure in July 2005 for Europe.
The witness states that the father said to him that they were travelling to Europe because his father was very ill and he wanted to spend time with him and that it was also important for the children to spend time in Europe so that they could gain an understanding of his country.
The witness then refers to a conversation he had with the father in which the father was asked if he would only be away for a year and that the father replied “yes, we only intend to be away for a year and we’ve bought return tickets for that time.”[12]
[12] Affidavit of LB sworn 3rd August 2007 Annexure “A”.
A further witness statement was provided by the mother’s sister. The witness states that prior to the family travelling to Europe in May 2005 the witness and the mother were in frequent contact and that the mother had informed her that travel to Europe was for “a tentative period of one year” for the same reasons as those advanced to the mother’s step-father. The witness does not refer to any conversations that she may have had with the father.
A further witness statement was provided by a close friend of the mother. The witness is European.
The witness states that he was aware that the mother was only planning to remain in Europe for a year. That information and other information to which he refers clearly only emanated from the mother.
A further witness statement is provided by Ms E who resides in Europe. She has been a friend of the father and mother. The witness refers to her understanding of marital difficulties between the father and mother. In addition the witness sets out her personal appreciation that Australia is the habitual residence of the mother and the children. The factual platform for that conclusion in terms of conversations both with the father and the mother is not given.
A further witness statement is provided by Ms L who resides in Australia and is a friend of the mother. The witness sets out her “understanding” that the father and mother and the three children were visiting Europe for a pre-determined time and that they planned to return to Australia.
The witness statement does not set out the basis for the understanding that has been given in terms of any conversations with both the father and mother or indeed any of them.
An affidavit was sworn by the maternal grandmother.
The maternal grandmother refers to a conversation that she states took place between herself and the father in the week prior to the family’s departure for Europe in July 2005. The maternal grandmother states that in answer to her question as to how long the family intended to be away from Australia the father replied “we’ll only be away a year, […], and we’ve bought a return ticket to Australia for June 2006.”
The father subsequently also referred to him obtaining a trade certificate in Europe which would assist him in gaining a similar qualification upon his return to Australia.
The mother’s step-father also swore an affidavit on 7th August 2007 which supplements the witness statement to which I have earlier referred. It in effect provides the same evidence as the maternal grandmother as previously summarised by me.
The mother’s sister also swore an affidavit on 8th August 2007 which supplements her earlier witness statement. It does not add anything of substance to her witness statement.
An affidavit of Mr E affirmed on 14th October 2007 refers to a number of conversations that he had with the father whilst they were both employed by the same employer.
The witness refers to a number of conversations which he says took place between himself and the father in April and June 2005 regarding proposed travel by the father with the mother and children to Europe. He states that the father informed him that in relation to travel to Europe he and the mother had purchased return air tickets and that they would be returning implicitly to Australia prior to the expiration of those tickets.
The witness also refers to the father giving him the family dog to care for.
An affidavit of Mr G affirmed 15th October 2007 states that he and his wife have been friends of the father and mother for approximately three years.
The witness states that in about May 2005 he and his wife had lunch with the mother, father and their children. There was discussion in relation to travel to Europe. That the mother and father said to them words to the effect that they were only travelling to Europe for “a long holiday” and that subsequently the father said to him that they planned to travel to Europe for a year and would then be returning.
An affidavit of Ms B psychologist was sworn on 15th October 2007. The content of that affidavit in terms of its probative value is not relevant to the particular issue under consideration by me.
The father’s evidence in reply
The father provided evidence in reply. He stated that he and the mother in effect sent over their belongings to Europe “except most of our furniture.”
He further states that as he and the mother planned to live in Europe “we naturally applied for residency for [the mother] and [L].”
The father in reply to the affidavits of the maternal step-father, the maternal grandmother and the mother’s sister states that the mother deliberately withheld from them the plans of the mother and the father to live in Europe permanently. He states that the mother considered it best that he and the mother informed the mother’s family of their intention to remain living in Europe after they had been living there for 12 months. The father says that with some misgivings he agreed with her decision and cooperated with it.
In relation to the affidavit of Mr E the father states that whilst he did speak to him in relation to travel to Europe he also mentioned to him “that we ‘might’ come back.” The father states that is the reason why the return tickets were purchased. He does not say whether he mentioned that particular matter to witness Mr E.
The father denies the conversations between himself and Mr G alleged by the latter in his affidavit.
Findings of fact
The question of fact which must be determined by me is, were the two children habitually resident in Europe immediately prior to the relevant date namely 11th June 2006.
I prefer the evidence of the mother to that of the father wherever they conflict. Accordingly I find that the two children were not habitually resident in Europe at the relevant date namely, 11th June 2006 being the date when they travelled with the mother from Europe to Australia and recommenced living in Australia. My reasons are as follows.
It is common ground that:-
a)In early 2005 the mother and father discussed proposed travel to Europe with the two children and L.
b)On 28th June 2005 airline tickets were purchased for return travel between Australia and Europe for the mother, father, the two children and L departing Australia 14th July 2005.
c)In July 2005 Australian passports were issued for the two children and the mother.
d)On 14th July 2005 the mother, father together with the two children and L left Australia and travelled to Europe.
The mother and father are at issue regarding the circumstances surrounding travel which took place on 14th July 2005 and the basis of it.
The mother contends that in 2005 she and the father decided that it would benefit the children to spend time with the father’s family in Europe and in that regard a period of one year was reasonable in the circumstances. In addition the mother claims that the father acknowledged her concerns that due to their history of marriage breakdown she in effect wanted to be in a position to return to Australia with the two children and L “as this is our home”. The mother contends that the father agreed.
The father for his part claims that in 2005 for the purpose of travel to Europe he and the mother had decided to relocate to Europe which was to be “our permanent place of residence” implicitly including the two children and L.
The mother relies not only upon her own affidavit evidence but also that of corroborating witnesses.
The witnesses relied upon by the applicant apart from the father are the paternal grandparents and European friends. They do not give evidence in relation to the matters the subject of the conflict of evidence between the father and mother so far as relevant events in 2005 prior to travel from Australia on 14th July 2005, but rather in relation to events subsequent to the arrival in Europe of the mother, father, the two children and L.
The evidence of the mother’s stepfather corroborates the mother’s evidence in material respects. In that regard his evidence relates to conversations that he had had with the father in Melbourne prior to departure of the family in July 2005 for Europe. In summary he states that the father acknowledged that the intention of the mother and father was to remain away for a year and “we bought return tickets for that time”.
The evidence of the mother’s sister relates to conversations between her and the mother prior to the family travelling to Europe during which the mother informed her that such travel was for “a tentative period of one year.”
The affidavit of the maternal grandmother refers to information that she was given by the father prior to the family’s departure for Europe in July 2005 stating that their absence implicitly in Europe would be for a year and consequently “we’ve bought a return ticket to Australia for June 2006.”
The father’s evidence is that the parties deliberately deceived the mother’s stepfather, the maternal grandmother and the mother’s sister with regard to their plans to live in Europe permanently, with a view to informing them of their real intentions after they had lived in Europe for 12 months. I do not accept his evidence and I am satisfied on the balance of probabilities that the evidence of those witnesses is to be preferred. Their evidence was provided in a plausible manner. The reference by the father to the alleged plan of the mother and father to live in Europe for 12 months before informing members of her family of the intention to live there permanently shows of itself some corroboration of the mother’s evidence of the parties’, at least initial agreement, to remain in Europe for a temporary period.
The evidence of Mr E is that during a conversation or conversations between himself and the father in April and June 2005 in relation to the family’s proposed travel to Europe, the father informed him that he and the mother had purchased return air tickets with the obvious implication that they would return to Australia prior to the expiration of those tickets. In addition Mr E states that the father left him the family dog to be cared for by him.
So far as the witness Mr E is concerned, the father contends that during the course of a conversation with Mr E in relation to travel to Europe he informed him “that we might come back”. The father does not state that he informed witness Mr E that return tickets were purchased.
I prefer the evidence of Mr E to that of the father. The father’s response is incomplete for the reason that I have referred to.
Evidence was also given by Mr G in relation to luncheon conversations that he and his wife had with the mother and father in about May 2005 with regard to their future travel to Europe. The substance of that evidence is that both the mother and the father having referred to the travel for “a long holiday”, each stated that the planned travel to Europe was for a year and that they would be returning, implicitly to Australia.
The father replied by affidavit to the evidence of the witness Mr G by merely denying the conversations or stating “no comment” without providing any further evidence as to the subject, let alone the details, of conversations between them. The evidence of the witness Mr G was obviously very material to the factual disputes between the parties. It is remarkable that he was not required for cross-examination especially in view of the blanket denials provided by the father.
I found the evidence of the witness Mr G to be plausible and cogent. I accept his evidence. Indeed the witnesses Mr E and Mr G are independent in that they are not relatives of either the father or mother and there is no evidence to suggest that either is biased in any way.
The evidence of the mother is corroborated materially by her witnesses. In addition the evidence of the mother’s stepfather, Mr E and Mr G relate in part to significant conversations that they had with the father the substance of which is in contradiction to his evidence in relation to the purpose of the then proposed travel by him, the mother, the two children and L to Europe. Their evidence was provided in a detailed, plausible and cogent manner. None of them was required for cross-examination.
Important findings of fact are necessary in relation to the conflicting evidence of the mother and father in relation to the period of time that they lived with the two children and L in Europe. The particular period is that from their arrival in Europe in July 2005 until the mother left with the two children and L on 6th June 2006. The following paragraphs set out my further reasons for preferring the case presented by the mother to that of the applicant.
The evidence of the father is that for the purpose of the parties relocating to Europe on a permanent basis “we shipped all our belongings.” The mother’s evidence conflicts with that of the father in that regard in that her evidence is that “our household items” were to remain in their rented Australian premises which a friend would occupy until they returned.
In reply the father’s evidence was that the belongings of the mother and father were sent to Europe “except most of our furniture”. To that extent he altered the evidence that he had previously given referred to in the last paragraph. In other parts of his evidence he states “except for some furniture we deemed too bulky to ship.” The father does not give any evidence as to what happened to that furniture such as was it sold, or given away, or otherwise disposed of, or the reason that the furniture was too bulky for shipping purposes. Nor does the father provide any evidence which disagrees with the mother’s evidence that the furniture was left in the control of a friend who took over their rented premises in Australia. On his own evidence, it is clear that his earlier statement of he and the mother taking all their belongings with them to Europe was incorrect. Indeed in an affidavit sworn by the father on 23rd July 2007 he states that whilst he and the mother “shipped plates, pottery, odd bits of wood etc everything except most of our furniture” [emphasis added]. The most plausible explanation for leaving “most” of the furniture of the father and mother in Australia was the explanation given by the mother, that is the likely return to live in Australia.
It is common ground between the father and mother that the mother, father, the two children and L lived with the father’s parents for a short period of time which seems to have been from their arrival in Europe in July 2005 until October 2005.
In October 2005 the mother and father with the two children and L moved into a house in Europe that had been purchased by the father’s parents and then leased to the mother and father. It is not disputed that there was an agreement between the father’s parents, the father and mother that they could purchase the house for the same amount that had been paid for it, when they were able to do so. There is no evidence as to whether that “agreement” was oral or in writing. However, it is not disputed.
It is also not a matter of controversy that the mother, father, the two children and L lived in the last-mentioned house for the period from during October 2005 until the mother, the two children and L left Europe on 11th June 2006 and travelled to Australia where they have since remained.
The mother’s evidence, not denied by the father, is that whilst in Europe she and the father agreed that European residence should be sought for the mother, the two children and L in order to obviate the need for visas to be renewed from time to time. Her further evidence was that residence status would confer benefits enabling the mother to undertake language lessons, the children to attend school and family members to have appropriate medical cover. The two children being the children of a European citizen, namely the father, were therefore able to obtain citizenship. The mother and L obtained resident status.
It is also not disputed that the children attended day-care three days a week whilst L attended school. The mother for her part participated in language classes.
The mother’s further evidence is that she and the father were having significant difficulties in their relationship in Europe and whilst there they had undertaken counselling. The further evidence of the mother is that their personal relationship problems increased. The father’s evidence does not respond to, let alone traverse, the evidence of the mother. Indeed support for her evidence is found in the witness statement of Mr H who describes himself as a close friend of the father. He states that in his discussions with the father regarding the mother’s return travel to Australia with the children, he “was concerned since their relationship had been rocky.”[13] The witness statement of Mr H was part of the evidence filed by the applicant, not the mother.
[13] Affidavit of JK sworn 27th July 2007 Annexure E.
I prefer the evidence of the mother to that of the father and his witnesses, such as it is, so far as the state of the relationship between them in Europe was concerned and their proposals for residence in Europe or Australia. It is consistent throughout, it represents a context in the relevant historical relationship of the mother and father so far as their volatile relationship is concerned and follows rationally from the findings of fact earlier made by me. In addition, the father’s evidence has significant gaps to which I have referred
The parties were also at issue as to the discussions they had in relation to the mother’s intended return travel to Australia with the two children and L. The father’s case is that agreement between the mother and father was that such travel would be for a period of about six weeks before returning to Europe so that the mother might spend time with members of her family in Australia. The mother’s case is that such travel represented the end of their marital relationship for the purpose of returning to live in Australia.
So far as the last-mentioned significant factual issue is concerned I prefer the evidence of the mother to that of the father as I have previously stated. Her evidence is consistent with the parties’ long history of having had a volatile relationship which included a number of periods of separation, reconciliations, and reoccurrence of their personal relationship difficulties in Europe in the period that the mother was living in Europe with the father, the two children and L. Her evidence is also consistent with the evidence that I have accepted relating to the circumstances and the basis upon which return air travel was purchased in June 2005 for travel between Australia and Europe.
It is not disputed that as a matter of law “whether a person is or is not habitually resident in a particular country is a question of fact.”[14]
[14] Re: M (Abduction: Habitual Residence) (1996) 1 FLR 887 at 895 per Millett LJ and the authorities referred to therein followed in Panayotides referred to in DW and Director-General Department of Child Safety ibid.
As earlier stated, I respectfully follow and apply the summary of the principles of law in relation to habitual residence enunciated by the Full Court and provided by Waite J in Re: B (Minors) (Abduction ) (No. 2)[15] to which I have made earlier reference. It is appropriate to provide the following summary of principles relevant to the issues before me which includes, inter alia,
“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 time and a settled intention.”
[15] (1993) 1 FLR 993 at 995 referred to by Ellis J and cited with implicit approval in Cooper and Casey (1995) FLC 92-575 at 81,695 and subsequent Full Court Judgments.
It is appropriate at this stage to state that I find that the parties’ habitual residence and consequently that of the children was in Australia immediately prior to their travelling from Australia to Europe on 14th July 2005. Indeed no submission to the contrary was made as is apparent from the written submissions lodged by counsel for the parties, and in particular on behalf of the applicant.
It is clear to me that whilst the father and mother did make efforts to establish a family life in Europe, following the travel from Australia to Europe in July 2006, they had not actually “settled” in Europe to the point that their habitual residence had changed from Australia to Europe. As a consequence the habitual residence of the two children did not change. I accept the mother’s case that the periods of time spent by the mother, father, the two children and L in Europe were for the purposes of enabling the children in particular to become more familiar with the father’s family members and to experience life in Europe before returning to Australia. The history of personal difficulties between the parties which led to the travel to Europe in the first place in July 2006 unfortunately reappeared in Europe in the period between 14th July 2005 and 11th June 2006.
Having regard to the evidence of the mother and her witnesses which I have accepted for the reasons previously given, I find that travel by the mother and father together with the two children as well as L of course, was for the purpose of a temporary stay in Europe for a period of approximately one year before returning to Australia. The temporary nature of the travel by the mother, father and the two children (together with L) from Australia to Europe for the particular purposes and reasons referred to in the evidence of the mother, which I have accepted, do not amount to a settled purpose with a consequence of obtaining habitual residence in Europe, due to the circumstances that then arose between the mother and father as referred to in this judgment. As has been made clear by the authorities “settled purposes” in the relevant context does not require a period of time which is either “of short or long duration” but rather determined by the facts in a given case. The findings of fact as to circumstances for temporary stay in a particular country so far as its relevance to a finding of habitual residence is concerned, is made clear in the recent Full Court decision of DW and Director-General, Department of Child Safety.[16]
[16] Ibid at 80,334 – 80,335 paragraphs 51 and 54.
I further find, based on the same evidence that I have accepted, that the subsequent period of time spent by the mother, father, the two children and L did not lead to a change in attitude or purpose by the mother and father and if anything, the temporary nature of their living in Europe was accentuated due to the relationship difficulties that re-emerged between the mother and father which led them at one point to have professional counselling.
In addition I find that return travel by the mother with the two children and L from Europe to Australia, utilising the return air fares previously acquired by the mother and father in June 2005, represented a culmination of their temporary stay in Europe for the purposes previously given by the mother in her evidence.
In those circumstances this is not a case of the mother simply seeking to change her own habitual residence for the purpose of justifying what might otherwise be wrongful removal by her of the two children from Europe to Australia on 11th June 2006.
Conclusion
The application is made by the applicant upon a request from the State Authority in Europe. That request was made on behalf of the father who claims that his rights of custody in relation to the two children have been breached as a result of their removal by the mother from a European country, a Convention country, to Australia, and retained in Australia.[17]
[17] Regulation 13.
As a consequence the application before me was made pursuant to Regulation 14.
I set out the following terms of Regulation 4 which define “rights of custody”:-
“4(1) [“rights of custody”] For these Regulations, a person, 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)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 Australia or in the convention country in which the child habitually resided immediately before his or her removal or retention.”
[Emphasis added]
In these proceedings, the Regulations have to be applied to my findings of fact. As has been held in the High Court by the majority, it is the Regulations, not the Convention “that govern the disposition” of the proceedings.[18]
[18] JLM v MSW Department of Community Services ibid at 88,386.
For the purpose of “wrongful removal” or “retention” of a child in accordance with Regulation 16(1A), it turns upon breach of the “rights of custody” in relation to a child immediately before such “removal or retention”.
Those rights of custody in relation to a child attributed to a person arise for consideration pursuant to the Regulations.[19]
[19] Regulation 4(1).
Whilst no issue arises in relation to the rights of the father, and indeed the mother, pursuant to the law of the European country, in accordance with Regulation 4(1)(b) the other limb of Regulation 4 must be established namely, that the children were “habitually resident” in the convention country immediately before their removal or retention.
Consequently it is critical to the potential success of the application that the applicant is able to establish that immediately before the relevant date namely 11th June 2006 when the “removal” and/or “retention” of the two children took place by the mother, that the two children were habitually resident in the European country.[20]
[20]The habitual residence of the two children immediately prior to 11th June 2006 was the habitual residence of the father and mother. I have found that the habitual residence of the mother and father immediately prior to and at the time of their travel with the two children to Europe on 14th July 2005 was in Australia.
I have also found that the mother and father did not commence and remain living in Europe in circumstances that represented their abode in that country “for settled purposes” as part of the “regular order of their life”, rather for the temporary purposes, and in circumstances to which I have earlier referred, and which are the subject of my findings of fact in paragraphs 106 to 144 of this judgment.
Consequently it follows that the two children were not habitually resident in Europe immediately before their removal from Europe by the mother on 11th June 2006 or since. As a result the applicant has not satisfied me that the father had rights of custody in relation to the two children as defined in the Regulations to which I have referred. Accordingly a breach of rights of custody does not arise. I find that in those circumstances there has not been a wrongful removal or retention of the two children by the mother in Australia in accordance with Regulation 16 (1A).
In the circumstances the issues of consent or acquiescence in accordance with Regulation 16(3)(a)(ii) do not require determination. Nor is the exercise of the Court’s discretionary power to make orders for the return of the two children to Europe relevant.
Many “Hague Convention” cases involve difficult and painful decision making. This case is no exception. The Order that I will make dismissing the application will still leave open to the father to commence parenting proceedings pursuant to the Family Law Act 1975 in this Court or the Federal Magistrates Court as he may be advised. The legislation in this country has required for many years that for the purpose of making a parenting order, the paramount consideration is the best interests of the child, in this case the two children.[21]
[21] Section 60CA.
Parenting proceedings pursuant to the Family Law Act have not been instituted by the mother or the father for obvious reasons given the proceedings that have been instituted by the applicant. Should parenting proceedings be instituted, then it will be a matter for the trial Judge or Federal Magistrate to determine what parenting order or orders (if any) that should be made having regard to the merits of the case.
I certify that the preceding one hundred and fifty-eight (158) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose.
Associate:
Dated: 29 February 2008
Wenceslas and Director-General Department of Community Services (2007) FLC 93-321 at 81,532
paragraph 55.
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