Director General of the Department of Community Services and Timms (aka Black)

[2007] FamCA 1170

FAMILY COURT OF AUSTRALIA

DIRECTOR-GENERAL OF THE DEPARTMENT OF COMMUNITY SERVICES & TIMMS (AKA BLACK) [2007] FamCA 1170

FAMILY LAW – CHILDREN - Hague Convention Child Abduction

Family Law Act 1975 (Cth)
Family Law (Child Abduction Convention) Regulations 1986 (Cth)

Re J (a Minor) (Abduction:  Custody Rights) [1990] 2 AC 562
DW v Director-General, Department of Child Safety (2006) 34 Fam LR 656
Re F (a Minor) (Child Abduction) [1992] 1 FLR 548
Panayotides v Panayotides (1996) 136 FLR 68
Re M (Abduction:  Habitual Residence)  [1996] 1 FLR 887
Department of Health and Community Services, State Central Authority and Casse (1995) 19 Fam LR 474
State Central Authority v McCall (1995) FLC 92-552
Re B (Minors) (No 2) [1993] 1 Fam LR (Eng)
Re A (Wardship:  Jurisdiction) [1995] 1 FLR 767
Cooper and Casey (1995) 18 Fam LR 433
Re O [1997] 2 Fam LR (Eng) 702

APPLICANT: Director-General of the Department of Community Services

RESPONDENT: Ms Timms (aka Black)

FILE NUMBER: SYC 4376 of 2007

DATE DELIVERED: 28 September 2007

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Justice Le Poer Trench

HEARING DATE: 17 September 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Cleary

COUNSEL FOR THE RESPONDENT: Mr Tockar

Orders

1. The Application filed 20 June 2007 is dismissed.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Le Poer Trench delivered this day will for all publication and reporting purposes be referred to as Director-General of the Department of Community Services & Timms (aka Black).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 4376  of 2007

Director-General of the Department of Community Services

Applicant

And

Ms Timms (aka Black)

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application by the Director General of the Department of Community Services acting as the Central Authority for the purpose of the Family Law (Child Abduction Convention) Regulations.

2. By application issued on 20 June 2007 the Central Authority seeks orders for the taking possession of a female child born 28 December 2000 to enable the Director General to make arrangements for the return to New Zealand of the child.  Orders for costs were also sought against the mother and M Timms (also known as Black).

3. The application alleges that the child has lived with her father in New Zealand since approximately January of 2006.  This is said to be with the agreement of the mother.  The allegation is that the parents agreed the child could return to Australia for the purposes of spending a holiday with her mother from 6 April 2007 until 28 April 2007.  It is common ground that she travelled to Australia on 6 April 2007 and has been in her mother’s company ever since.

4. It is alleged, and conceded, that the mother failed to return the child to the father in New Zealand at the conclusion of the holiday on 28 April 2007.

5. The father has offered to pay airfares for the child to return to New Zealand if the mother is unable to provide those funds.  Further the father is in a position to provide a person to accompany the child on a flight from Australia to New Zealand. 

6. It is alleged that in about April/May 2006 the child travelled to Australia with her mother to spend a short holiday and was then returned in about May 2006 to the father in New Zealand.

7. The application is opposed by the mother.  She filed an Answer and Cross Application on 25 July 2007.  That document contests that the child was habitually resident in New Zealand at the time she was retained in Australia by the mother in April 2007.  The mother says the child was residing temporarily in New Zealand by agreement between the parents and that agreement commenced either at the end of 2005 or early 2006.  The mother says that the agreement was that the child could travel to New Zealand with her father. It was further agreed the mother and T (the parties’ younger child) would travel to New Zealand shortly thereafter in order to attempt a reconciliation of the relationship between the parties and to see if the mother and father could live together in New Zealand.  The mother’s case is that thereafter there was a further agreement that the child could remain in New Zealand between about May of 2006 and the end of the school year in 2006 so that she could complete her schooling in the school which she was attending.  The mother says it was the clear understanding and agreement between the parties that the child would be returned to Australia to live with her mother at the end of 2006.

8. The application is also opposed on the basis that to return the child to New Zealand would be to expose her to a grave risk of physical or psychological harm and/or otherwise place her in an intolerable situation.  The stated reasons for such a circumstance arising are:  (a) the father’s abuse of alcohol and marijuana causing him to be violent, abusive and unable to control his temper;  (b) the father’s disregard for authority;  (c) the father when angry resorts to verbal and physical abuse against adults and children.

9. It was also part of the mother’s case that the child objected to being returned to New Zealand.

10. On 4 July 2007 an order was made for the preparation of a Family Report.  That report was prepared and marked as Exhibit “X1” in the proceedings.

11. At the hearing before me the ground that the child objects to being returned to New Zealand was not pressed. This was a proper concession following a consideration of the Family Report.

12. The mother’s evidence is that she left New Zealand during May 2006 school holidays.  She brought both girls (the child and T) to Australia for six weeks.  She sent the child back to New Zealand to complete her school year after that holiday.

13. The mother says that in February 2007 the father told her he would not be returning the child to Australia.  He said that he would allow her to spend holiday periods during school holidays in Australia but that he would not permit her to stay there.  He sought the mother’s agreement to this proposal and the mother clearly did agree although she claims to have deliberately lied.

14. The child came to Australia on 6 April 2007 and she was to be returned by agreement between the parties on 28 April 2007.  She was not returned.

15. On 12 August 2007 the father signed an affidavit.  In that affidavit he agreed that he had been charged in Australia with “drink driving” offences.  He said that about twelve months earlier (around August 2006 I assume) he was sentenced to 150 hours of community service and further disqualified from driving in New Zealand.  He has further said in his affidavit that after the child was retained in Australia by the mother he “began drinking and became quite despondent”.

16. The father agrees the parties did travel to New Zealand at the end of 2005 to attempt a reconciliation.  He says he has taken steps to turn his life away from drugs, alcohol and violence.  The father denies being violent to the mother.  He alleges each parent yelled at the other and used abusive language during the course of their relationship.

17. The father denies any agreement between he and the mother to return the child from New Zealand to Australia at the end of her 2006 school year.  He further denies making any threats to the mother once she had refused to return the child.

18. On 17 August 2007 Mr R swore an affidavit.  He said that on 28 April 2007 he visited the father in New Zealand.  He said he saw the father “drink heavily” on five or six occasions.  He also saw him smoke marijuana.  He saw the father drive a motor vehicle.  He said the father made threats of violence against the mother and her family.  He said that after returning to Australia the father told him he had been to court “in relation to the assault on [C]”.  C is alleged to be a child.

19. The father signed an affidavit on 4 September 2007 denying the making of any threats against the mother as stated by Mr R.  The father says the mother and Mr R “are now in a relationship”.

20. On 25 July 2007 the mother signed an affidavit.  She says that in December 2005 the father said to her “I have to leave Australia.  If I turn up at court I’m going to gaol.  Can I take [the child] to New Zealand with me so I can get social security”.  The mother’s reply was “Yes, until I come over.  You have to stop drinking and smoking pot and get treatment for your anger”.  The mother says that the father then said “I promise I will stop drinking and stop smoking pot”.  The mother replied “I’m coming over just to see how things go.  If we do not get on, the children and I will return to Australia.  I lost my girls the first time with [the former husband].  I am not losing my girls again”.  The mother then alleges the father replied “Don’t be stupid.  I’m not [the former husband].  I would never take the girls from you.  The girls belong to you.  The best place for the girls is with their mother”.

21. The mother’s evidence is that the child and the father travelled to New Zealand and she and T travelled to New Zealand in early 2006.  They took up residence with the father and the child.

22. The mother recites that at a time, apparently shortly after her arrival in New Zealand, there was an altercation between the parties whereafter the mother advised the father she was returning to Australia.  The father said “At least leave [the child] with me until the school year finishes and then you can have her”.

23. The mother left New Zealand during the May school holidays in 2006 and took both girls to Australia.  She booked the child into a school in Sydney and then later spoke to the father and agreed to return the child to New Zealand.  She says the conversation was to this effect “Now you promised that [the child] will come back to Australia for good when school finishes.  You can see her and [T] during school holidays”.  The mother says that the father replied “I promise I will keep my word.  I will send her back to you”.

24. The mother says that in late January 2007 she spoke to the father and asked about the return of the child to Australia.  She says the father said “Look let me have [the child] a little longer.  School has not started yet”.

25. The mother alleges that in mid February in a telephone conversation the father said to her “I’m not sending her back.  If you want to see her you can come over here or you promise me that you will send her back after her school holidays”.  The mother says that initially she refused to give him a false promise however she finally said “Okay […], I will send her back after the holidays”.  The mother says that she intentionally lied to the father in order to get the child back to Australia.  The evidence is that the child has not been returned to New Zealand.

26. The mother provided further evidence which went to the question of the parenting capacity of the father and I will refer to that evidence later in these reasons.

27. In the event of the court finding that the child was habitually resident in New Zealand at the time she was retained by her mother in Australia, the mother argues that the court should exercise its discretion in refusing to return the child to her father because to do so would mean there is a grave risk that the child would be exposed to physical or psychological harm or would be otherwise placed in an intolerable situation.

28. The evidence of the mother which might reasonably be directed to this particular issue is as follows.  The mother says in paragraph 8 of her affidavit sworn 25 July 2007 as follows:

    “[The father] was regularly in trouble with the police through his temper resulting in criminal assault charges and illegal driving motor vehicles resulting in serious traffic charges.”

29. It is difficult to give such passages any weight as there is no particularity attached to them.  There was however tendered in the proceedings documents produced by the New South Wales Police relating to the father and I will refer to those later in these reasons.

30. The mother says that she was present with the father in court when a Magistrate said to him “I will not send you to full time gaol now.  You will do community service but if you are caught driving again you will go to gaol for eighteen months.”  This related to a charge that the father allegedly faced of driving a vehicle whilst disqualified.

31. The mother says that in December 2005 whilst in Queensland the father was apprehended driving a motor vehicle whilst disqualified.  It was following that occasion that the father and the child left Australia.

32. The mother says that the father promised to stop drinking and smoking pot if she permitted him to take the child with him to New Zealand.  She says that when she arrived in New Zealand in early 2006 and commenced residing with him he started drinking again.  She says the relationship came to an end on an occasion when the father “grabbed me by the neck and by one hand and pushed me up against a wall.”  The mother alleges that once the child was in Australia with her for the April 2007 school holiday the father in a telephone conversation had apparently upset the child.  When the mother spoke to him and asked him what he had said to the child the father told her “all I said to her was, you have until Friday to ring me and let me know if you are coming back or not and if you are not I don’t love you anymore and I’m going to rip up all the photos.”

33. The mother alleges the father in a telephone conversation threatened to have she and her daughters raped.  She alleges that the father said in a telephone conversation that T was not his daughter.

34. It is alleged the father has told the child he will kill the mother if he does not win in court.

35. The mother says that she is very concerned about the threats and takes them seriously “because I know that if he is drinking [the father] is capable of terrible violence and he can do what he threatens.”

36. In an affidavit sworn by Mr R, Mr R says that in New Zealand between 28 April 2007 and 19 May 2007 he observed the father drink heavily on at least five or six occasions.  He also observed the father regularly smoke marijuana.  He alleged the father drove the motor vehicle after drinking heavily and while disqualified from driving.

37. Mr R said that the father made threats against the mother.  Those threats included “I’m going to cut [the mother’s] nose off so no-one would like her anymore.”  “I’m going to kill [the mother].  I don’t care if I go to prison.  It will be worth it.  Her older kids can cry about it.  I don’t give a fuck about her older kids.”  “I will pay money to get someone to rape [the mother].”  “If I lose the court case I will go to Australia and put a hammer through [the mother] and her three kids.”

38. Mr R attests to a conversation with the father where he said “I have been to court in relation to the assault on [C].”  As I said earlier the evidence suggests that C is a twelve year old child of the father by a prior relationship.

39. On 17 September 2007 with the consent of the applicant I permitted the mother to file in court a further affidavit.  Annexed to that affidavit and marked “B” is a document produced by the Ministry of Social Development (Child Youth and Family) New Zealand.  There is a document marked “Child Abuse Assessment”.  The document refers to a notification received on 23 November 2006 in respect of C, aka K.  It was alleged that C, a minor, was assaulted by his father.  The parties’ child was interviewed as part of the investigation.  The report states:

    “On discussion with [the child] she appears happy and open to discussion.  The school do not report any concern about [the child’s] physical or emotional development” … “[C] is frightened of his father.  [C] has been exposed to violence perpetrated by his father, this is likely to have impacted on his emotional development as he has felt scared of his dad.”

40. The report further states that as part of the investigation the circumstances of the child were investigated.  The following resulted from that investigation:

    “The school report that they have no concerns with [the child’s] development educationally or socially.  The school also reported that they have no concerns for the care of [the child] while she resides with her father.  The school noted that while [the child] and her father have had to move due to a number of reasons [the father] has always ensured that his daughter remained at the same school.”

    […] Police reported that they do not have any concerns about the care of [the child] while living with her father and that they appear to have a good bond.  During a meeting with [M] who is a PHN and [W] who is the great maternal [paternal] aunt of [the child] - as well as the Minister and his wife there appears to be a lot of support around [the father].  The church where [the father] attends will be offering a parenting course for [the father] so that he can learn safe strategies around his parenting of [the child].

    …

    [The father] has a history of using violence towards his partner […] who is the mother of [C].

    …

    I made contact with [the mother in these proceedings] who advised that there was swearing screaming and yelling in their relationship but no physical violence.  [The mother] acknowledges that children hearing this “fighting is not good for them.”  [The mother] said that she returned to Australia because her other children needed her help as they were living with their violent father.

    It is possible that [the child] has learnt that she needs to behave in a certain way around her father in order to not incur the wrath of him.  [The child] has been living in a home with her father and mother that had a high level of verbal violence, for a child living in this environment would have caused some stress for [the child].  [The mother] has now been out of the home for a year.  [The father] has since assaulted his son which [the child] would have been witness to the events that unfolded during the day.  However, [the child] has not disclosed any of this and I have not been able to substantiate any impact on [the child] from talking with professionals.  It is likely however that [the child] over time has been exposed to violence which would have caused stress for her however I have been unable to get a disclosure and substantiate this belief.

    [The child] will be going to stay with her mother for the school holidays from 6^th April 2007.”

41. Tendered in evidence in the hearing are the Police Records for the father.  These recite a history of driving offences and violence exhibited by the father since about 1998.  One of the incidents reported involved an alleged assault upon the mother’s former husband. The mother was present during this incident which occurred in about 1999.  The Police Reports and the record for the father disclose prima facie that the father is extremely violent, abuses alcohol and has no regard for the law of the land.  He has been convicted of driving a car whilst he was disqualified from driving.  He has been convicted of driving a car whilst affected by alcohol.  He has been convicted of driving an unregistered and uninsured motor vehicle.  These convictions suggest that the father would pose a risk to the child unless he had completely rehabilitated.

42. On the 21^st September 2007 the Applicant filed a further affidavit in the case.  This was in response to my request that the Applicant try to obtain from New Zealand a copy of the letter provided to the father by the mother at the time she permitted the child to travel to New Zealand with him.  This letter was provided by the father to “Work and Income” in New Zealand.  The affidavit annexes a letter from Work and Income dated 22^nd August 2007.  It also annexed a copy of the child’s birth certificate and a copy of the mother’s passport (first page).  The information in the letter makes clear to me, particularly when read in the light of the letter from that same body dated 1^st August 2007 and annexed to the father’s affidavit, that the representation from the mother was that the child would be in the sole custody of the father from the time he left Australia to take up residence in New Zealand.

Habitual Residence

Relevant law

1. Regulation 16.1 of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) provides that an Australian Court must make an order for the return of a child removed from a country party to the Convention on the Civil Aspects of Child Abduction, subject to certain exceptions, if satisfied the removal was “wrongful”.

2. Removal of a child to Australia is ‘wrongful’ under reg 16(1A)(b) 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. In the present case the applicant must establish that the child was habitually resident in New Zealand prior to removal in order to invoke the Convention.

Definition of habitual residence

1. A useful starting point for consideration of habitual residence is the often quoted passage of Lord Brandon of Oakbrook in Re J (a Minor) (Abduction: Custody Rights) [1990] 2 AC 562 at 578-579, with whom the rest of the House of Lords agreed:

   “The first point is that the expression “habitually resident," as 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, and his subsequently becoming habitually resident in country B.  A person may cease 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.”

2. In the recent Full Court decision of DW v Director-General, Department of Child Safety (2006) 34 Fam LR 656, Finn J and May JJ at 662 said that the English decisions of Re J (a Minor) (Abduction: Custody Rights) [1990] 2 AC 562 quoted above as well as the decision of Re F (a Minor) (Child Abduction) [1992] 1 FLR 548 have established the principles upon which both English and Australian courts now approach habitual residence in Hague Convention matters. The decision of Re F (supra) is discussed below when considering the relationship between rights of custody and the habitual residence of children.

3. In DW v Director-General, Department of Child Safety (2006) 34 Fam LR 656 at 667-668, the Full Court also cited with approval a summary of the law on habitual residence provided in Panayotides v Panayotides (1996) 136 FLR 68:

   [43] Subsequently, in Panayotides v Panayotides (1996) 136 FLR 68 at 96–7; 21 Fam LR 446 at 474 ; (1997) FLC 92-733 at 83,897, the Full Court majority (Fogarty and Baker JJ) quoted with apparent approval the following passage from the judgment of the trial judge in that case, Jordan J:

   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 492);

   (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));

   (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 (a minor) p 995).

   I expressly adopt the aforementioned observations and those of Kay J in the Department of Health and Community Services v Casse (1995) FLC 92-629, 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 an habitual residence has 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 that habitual residence has been changed from that point.  [Emphasis added]

   [44] It is important, we think, to observe that this emphasised passage is virtually a direct quote of the second of the three principles which Waite J in Re B extracted from the English authorities and which was approved and adopted for Australia by Nicholson CJ (with whom the other members of the Full Court concurred) in Cooper v Casey.

Habitual residence is a matter of fact

1. Whether or not the child’s place of habitual residence changed at the time she left Australia to travel to NZ with her father is primarily a question of fact to be decided by reference to all the circumstances of the case: Re M (Abduction: Habitual Residence) [1996] 1 FLR 887; Re J (A Minor) (Abduction: Custody Rights) [1990] 2 AC 562 at p 578, sub nom C v S (A Minor) Abduction) [1990] 2 FLR 442 at p 454). The term ‘habitual residence’ is not defined in the Regulations or the Conventions.

2. In Re M (Abduction: Habitual Residence) [1996] 1 FLR 887, the Court of Appeal made it clear that habitual residence was a question of fact and not to be dealt with as an artificial legal concept. The Court of Appeal also said it should not be confused with domicile which is essentially concerned with a matter of law (as well as differing in content): see Re M [1996] 1 Fam LR (Eng) 887 at p 895.  The reason for this and the emphasis on fluidity of the term was discussed by Kay J in Department of Health and Community Services, State Cental Authority and Casse (1995) 19 Fam LR 474 at 481:

   The term encourages courts to focus on the facts of the case, rather than on the intent of a particular party to live in a specific country.

   The District Court of Kansas in Levesque v Levesque 25 February 1993, (93–4037-DES 1.  William Hilton's database of Decisions and Articles on the Hague Convention) commented that the term “habitual residence” is not defined in the Convention and:

   necessarily depends on the facts and circumstances of each … The intent is for the concept to remain fluid and fact based without becoming rigid.

   In d'Assignies v Escalante 9 December 1991 (BDO 51876), CB Kaufman, judge of the Superior Court of California, commented that ``habitual residence'’ is an undefined term which was deliberately not defined in order to escape the rigidity and inconsistencies as between different legal systems that such technical rules can produce.

3. Although habitual residence is primarily a question of fact, with regards to children it also involves a matter of law as children have little control over determining their country of habitual residence: see Australian Family Law and Practice, Vol 1, CCH at [24-168].  The notion as it applies to children is discussed later in this judgment.

Two elements

1. Two elements are required to establish habitual residence as a matter of fact.  Firstly actual residence in a country for an appreciable period and a settled intention to reside there habitually: see State Central Authority v McCall (1995) FLC 92-552 at p 81-523l; Re J (a Minor) [1990] 2 AC 562 at pp 578-579. I must consider whether the child’s parents agreed, with settled intention, for her to reside in New Zealand habitually. Or alternatively, if I find the father was given sole rights of custody, whether the intention of the father was to reside in New Zealand habitually.

Residence in a particular country

1. There is emphasis in the authorities that residence must be for an ‘appreciable period’: see Re J (a minor) [1995] 2 AC 562. However, it is clear that the requirement of an ‘appreciable period’ is inextricably linked with intention and it is this that determines the length of time required. In Re S (a Minor) [1998] AC 750, the Court found that where there is an established intention of settling there permanently then habitual residence may change “reasonably quickly, though not immediately”. In Re B (Minors) (No 2) [1993] 1 Fam LR (Eng) 993 at p 995 Waite J said “… provided the purpose was settled, the period of habitation need not be long”.  In this case one month was sufficient to establish habitual residence.  Note that Re B (Minors) (No 2) (supra) has been approved by the Full Court in Cooper v Casey (1995) 123 FLR 239 and more recently in DW v Director-General, Department of Child Safety 92006) 34 Fam LR 656.

An intention to reside in this country habitually

1. For habitual residence to be acquired, there must be ‘settled intention’ for the child, or the person who has sole custody of the child, to reside in that country: Re J (a minor) [1995] 2 AC 562. However, the courts have found that there may be a ‘settled intention’ even when there is uncertainty of whether to remain there and when there is intention to move to another country at some time in the future: A v A [1993] 1 Fam LR (Eng) 225 at pp 234-5; M v M [1997] 2 Fam LR (Eng) 263 at pp 267-8.

2. Importantly, the intention must be that the country be the ordinary place of residence not the temporary place of residence.  In Re A (Wardship: Jurisdiction) [1995] 1 FLR 767 the Court found a “temporary and conditional agreement” to send children to Pakistan for the temporary purpose of education, even if it was for the entire length of their schooling, was not itself sufficient to change habitual residence. The parents remained habitual residents of England and so did the children. Another example is Re S (Minors) [1994] Fam 70 where an academic on sabbatical leave for a year or more did not change place of habitual residence.

Recent Full Court consideration of these elements

1. The Full Court considered these elements recently in DW v Director-General, Department of Child Safety 92006) 34 Fam LR 656. In this case the child and mother were habitual residents of Australia. The mother travelled to the US to see whether a relationship with the father of the child would ‘work out’. The trial judge found the mother’s settled intention to travel to the US to see whether the relationship would ‘work out’ effected a change in the child’s habitual residence to the US. This decision was overturned on appeal. Finn and May JJ (Holden J dissenting) found there must be a settled intention or purpose, whether that be for short or long duration, with a sufficient degree of continuity to be regarded as settled. They emphasised that although habitual residence is easily lost, to acquire it there must be an appreciable period of time and settled intention. The parties did not have a shared or common intention with respect to their residence in the US- the father intended the US to be his place of habitual residence but the mother merely went there to see if it would ‘work out’. The mother’s habitual residence did not change and neither did the child’s.

Conclusion

1. If the objective facts establish that the mother and father intended that the child live with her father in NZ for an indefinite period then the law would support a conclusion that the child’s place of habitual residence was then New Zealand.  In the absence of such a conclusion, the law would support a finding that her habitual residence did not change from being Australia unless she came into the sole custody of the father.

Habitual residence of a child

1. In Hague Convention matters it is the habitual residence of the child rather than the parent that the court must consider: Cooper and Casey (1995) 18 Fam LR 433 at 435; Department of Health and Community Services, State Central Authority and Casse (1995) 19 Fam LR 474 per Kay J at 481. Note also that reg 4(1)(a) refers to the requirement of a child being habitually resident in a Convention country not the parent. However, rights of custody may impact on the habitual residence of a child and the parent’s place of habitual residence often becomes a determining factor.

Relevance of rights of custody to habitual residence: Re J (A Minor)

1. The approach to habitual residence of children was clarified in Re J (supra) at pp 572 and 579.  In this case two scenarios were identified.  Firstly, where one parent has sole rights of custody the court found the child’s habitual residence will ordinarily be the same as the parents (p 579).  Secondly, if both parents have rights of custody the court said at 572:

   … it would not be possible for one parent unilaterally to terminate the habitual residence of the child by removing the child from the jurisdiction wrongfully and in breach of the other parent's rights.

2. In Re F (supra), Butler-Sloss LJ on the Court of Appeal said at 551:

   A young child cannot acquire habitual residence in isolation from those who care for him.  While [the subject child in Re F] lived with both parents, he shared their common habitual residence or lack of it.

   Then at 556:

   While parents live together, the child is habitually resident with both parents.  When the parents separate, the child’s habitual residence may change and will, in due course, follow that of the principal carer with whom he resides.

3. In Australia as well as England, the courts follow the approach of the House of Lords in Re J (a minor) [1990] 2 AC 562 and Re F (supra): see DW v Director-General, Department of Child Safety (2006) 34 Fam LR 656 at 662; State Central Authority v McCall(1995) FLC 92-552 at p 81,523; Cooper v Casey(1995) FLC 92-575 at p 81,695 and Department of Health and Community Services v Casse(1995) FLC 92-629 at pp 82,313-5.

Where both parents have rights of custody

1. If both parents have parental responsibility then habitual residence may only be changed by agreement, acquiescence or court order: Re J (a Minor) [1990] 2 AC 562. The courts recognise that if parents were able to unilaterally change the habitual residence of the child this would defeat the purpose of the Convention: Re A [1995] 1 Fam LR (Eng) 767 at p 771.

2. Ordinarily in Hague Convention cases where both parents have rights of custody and one parent changes their habitual residence, the child’s habitual residence stays with the habitual residence of the parent who has been left behind.  In State Central Authority for Victoria v McCall (1994) 18 Fam LR, Treyvaud J said at 330–1:

   … I agree with the comment of Lord Donaldson MR in C v S (a minor) (abduction) (1990) 2 FLR 442 at 449 that, in the ordinary case of a married couple, it would not be possible for one parent unilaterally to terminate their child’s residence by removing the child from the jurisdiction in breach of the other’s parental rights.  See also per Lord Brandon of Oakbank at 454.  This authority is also reported as Re J [1990] 2 AC 562.  See also A v A (Child Abduction) (1993) 2 FLR 225 per Rattee J.

Where father has sole rights of custody

1. However, if the parents were not together immediately prior to the child’s removal then the child’s habitual residence ordinarily follows that of the person with whom the child was living with at the time: Re A [1998] 1 Fam LR (Eng) 497.  In Re A (supra) the habitual residence of child was with the mother in a situation where the parents of the child were living in different countries at time of child’s birth.  This was held to be so even thought there were frequent visits to father’s country and both parents were holding parental responsibility.

Effect of Agreement on Habitual Residence

The agreement

1. There is no issue that immediately before the father and the child left Australia for NZ the child’s place of habitual residence was Australia as it was the place of habitual residence of both parents who were both exercising rights of custody.  The issue is whether the agreement between the parents for the child and father to leave Australia for New Zealand effected a change of habitual residence.

Did the parents, exercising joint rights of custody, agree to change habitual residence of child?

1. If there are joint rights of custody the child’s habitual residence may only be changed through agreement, acquiescence or court order: Re S (Minors) [1994] Fam 70 at p 82. The authorities are clear that a child’s place of habitual residence may not be changed unilaterally by parents holding joint rights of custody: Re M [1996] 1 Fam LR (Eng) 887; Re J (A Minor) (Abduction: Custody Rights) [1990] 2 AC 562 at p 572.

2. There is ample authority supporting change of habitual residence through agreement: Re M [1996] 1 Fam LR (Eng) 887; Re A (Wardship: Jurisdiction) [1995] 1 FLR 767. In this case there is dispute as to the nature of the agreement- whether it was the intention that the child live with the father for a limited and defined period of time or whether the intention was for an indefinite and permanent period.

3. When considering whether the agreement effected a change in the child’s habitual residence the question of whether the agreement is for a temporary period or an indefinite period becomes particularly important.  In Re A (Wardship: Jurisdiction) [1995] 1 FLR 767 it was held that it was open to the parents to change their child’s place of habitual residence through agreement. However, a “temporary and conditional agreement” is not enough. In this case sending a child to Pakistan for the temporary purpose of education was held not to be sufficient to change habitual residence. Their parents remained habitual residents of England and so did the children.

4. Further, the fact that the mother later changed her mind is not sufficient to alter the affect of an agreement if the requisite intent was present at the time the agreement was made.  In Re M [1996] 1 Fam LR (Eng) 887 the court considered a case where the parents were living with the child in England and entered into an agreement that the child was to reside with the paternal grandparents in India.  The mother later changed her mind, made the child a ward of the court, the trial judge deciding that her change of mind terminated habitual residence of the child in India and gave him habitual residence in England.  On appeal, the court made it clear that a child’s place of habitual residence may be changed through agreement.  However, a later change of mind by one of the parents is not sufficient to alter the effect of this agreement (see p 895- 896).

If not, did the agreement effect transfer of rights of custody to father?

1. If there was no agreement to change the child’s place of habitual residence, then the notion of ‘rights of custody’ is of fundamental importance to where the child is habitually resident.  If the agreement provided the father with sole rights of custody then her habitual residence would change with her father’s.  If the rights of custody remained with both parents, then the child’s place of habitual residence would remain Australia in the absence of an agreement between her parents.

2. The meaning of ‘rights of custody’ is to be drawn from the “definitions, structures and purposes of the Convention” (Report on the second Special Commission meeting to review the operation of the Convention in July 1993, cited in Australian Family Law and Practice, Vol 1, CCH at [24-088]).

3. The Full Court has made it clear that the notion of ‘rights of custody’ is to be determined with reference to the statutory definition in regulation 4 and not domestic law: see McCall and McCall; State Central Authority (Applicant); Attorney-General (Cth) (Intervener) (1995) FLC 92-551; see also Re B (a Minor) [1994] 2 Fam LR (Eng) 249 at p 257; Re F [1995] 2 Fam LR (Eng) 31 at p 41 per Millett LJ; Re H [2000] 1 Fam LR (Eng) 374 at p 378.

4. The term “rights of custody” is defined in Art 5(a) which is adopted in reg 4:

   4(1) 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.

   4(2) For the purposes of subregulation (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.

   4(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.

   (Underlining added)

5. Of relevance to this case is reg 4(3) which provides that these rights “may arise” by operation of law, judicial or administrative decision or agreement “having effect under a law in force in Australia or a Convention country”.

6. In Re O [1997] 2 Fam LR (Eng) 702 at pp 708-9, Cazalet J said the expression “may arise” in Art 3 of the Convention (the equivalent of reg 4(3)) indicates that rights of custody can arise in other circumstances as well.  Clearly, a broad range of agreements may effect a change rights of custody and thus impact on habitual residence.  Whether this in fact occurred is a matter of fact for the trial judge to determine.

7. In Department of Health and Community Services, State Cental Authority and Casse (1995) 19 Fam LR 474, Kay J said at 482:

   In the recent decision of Re B (A Minor)(Abduction) (1994) 2 FLR 249, the Court of Appeal held (per Waite LJ at 260):

   The purposes of the Hague Convention were, in part at least, humanitarian.  The objective is to spare children already suffering the effects of breakdown in their parents’ relationship the further disruption which is suffered when they are taken arbitrarily by one parent from their settled environment and moved to another country for the sake of finding there a supposedly more sympathetic forum or a more congenial base.  The expression “rights of custody” when used in the Convention therefore needs to be construed in the sense that will best accord with that objective.  In most cases, that will involve giving the terms the widest sense possible.

Conclusion

1. Two questions arise is this case:

   1.When the child moved to NZ with father, did the parents’ ‘agreement’ for the child to travel to New Zealand with the father terminate the child’s habitual residence in Australia?

   i.         Through mutual agreement? or

   ii.        By virtue of the father acquiring sole rights of custody?

   2.If so, did the child obtain habitual residence in NZ?

2. Unless there was some fact or circumstance which occurred between the time the child left Australia at the end of 2005 and the time she returned to Australia in April 2007 which would warrant a conclusion that her habitual residence in that time had changed, then the conclusion must be that in April 2007 when she was retained in Australia by her mother her habitual residence was the same as that when she first arrived in NZ at the end of 2005.

3. The evidence of the father and the mother in many ways is diametrically opposed.  It has therefore been necessary for me to look to independent sources of evidence in order to try and ascertain what the true position might be based on the civil standard of proof.  I have been particularly assisted by the evidence of Mr R, the documents tendered as produced by the NSW Police Department, the Report on Child Abuse from New Zealand and the correspondence from “Work and Income” in New Zealand.

4. As a matter of fact I am satisfied that the habitual residence of the child changed at the time she left Australia to reside in New Zealand.  I am satisfied at that time the mother agreed to the father exercising sole custody of the child.  At that time the father commenced to exercise sole custody of the child and therefore her habitual residence changed with his from Australia to New Zealand.

5. Notwithstanding that the mother later joined the father and resided with him for about three to five months I do not find that the child’s habitual residence changed.  Nor do I find that the trip to Australia with the mother in early 2006 changed her habitual residence.

6. There is no issue by the mother that when the child came to Australia this year it was for the agreed purpose of a holiday with her mother to conclude on the 28^th April 2007.

7. I now turn to determine whether there is a grave risk that the return of the child to New Zealand would expose her to physical or psychological harm or otherwise place her in an intolerable situation.

8. The mother relies on the following evidence to establish the grave risk.

9. The evidence of Mr R as to the father’s excessive intake of alcohol.

10. The admission by the father that he has had a couple of relapses into the use of drugs and alcohol (para 7 of 12/8/07 affidavit).

11. The admission by the father that he has been sentenced in New Zealand for a “further drink/driving charge”.

12. The evidence of Mr R that he saw the father drive a motor vehicle in New Zealand not withstanding the statement by the father to Mr R that he had lost his license.

13. The threats made by the father to Mr R about the violence he proposed to visit on the mother illustrate a high level of violence and severe lack of parental responsibility.

14. In 2005 the father was twice charged with serious driving offences both of which involved the use of excessive alcohol.

15. There is a lengthy history of aggressive and violent behaviour by the father evidenced in the material tendered in evidence being documents produced by the NSW Police.

16. There are warrants outstanding for the father’s arrest in Australia and it seems likely he would be sentenced to a term of imprisonment if he returned to Australia.

17. In the father’s affidavit sworn in May 07 he said that after the child was retained by the mother he “began drinking and became quite despondent”.

18. The concern about the nature of the relationship between the father and his son C.  In the “Child Abuse Assessment” there is information alleging an assault on C by the father and a statement that the father had been arrested.  At a later time Mr R says that the father told him he had been to Court for the assault on C.

19. The concern of the investigator in the “Child Abuse Report” that the child would have been exposed to the events leading up to the violence between the father and C.

20. The concern raised by the investigator in the “Child Abuse Report” that the father’s supporters did not blame him or hold him accountable for the assault on his son C.

21. I accept that the evidence highlighted by the mother does establish as a matter of fact that the child would be at grave risk of being exposed to physical and emotional harm if returned to her father in New Zealand.

22. It seems most unlikely that the mother would be able to return to New Zealand to live, visit or pursue residence orders for the child.  The mother does not work and has four of her children living with her.  It is reasonable to assume from a number of facts in this case that the mother is supported by a pension.

23. To send the child back to live with her father where the evidence suggests that the New Zealand authorities have no real concern about her parenting at the hands of the father and in circumstances where the mother could not live close by or indeed in the country of New Zealand in order to closely monitor her living arrangements with the father would further imperil the child where she would be in the sole care of her father.  To allow her to live with her father in circumstances where the support from the father’s family and church community appears to be blind to his shortcomings as a parent, seems to me to place the child in an intolerable position.

24. Notwithstanding the findings I have made above should I order the return of the child to New Zealand upon conditions?

25. In this case I am of the opinion that it would not be possible to impose conditions which would safeguard the child or alternatively the conditions to be imposed would be too onerous to the New Zealand community even if they were to agree to the conditions.  I find that the father would have to subject himself to 24 hour per day supervision in order to satisfy any meaningful conditions.  I am concerned that the father is using alcohol to excess.  I am concerned based on the evidence of Mr R that the father is using marijuana.  I am concerned that the father continues to drive motor vehicles whilst unlicensed.  I am concerned generally that the father has an antisocial personality which is enlivened by use of alcohol or emotional circumstances.  He appears to demonstrate a lack of respect for authority or the law of the land wherever he lives.  He consequently provides a very poor role model for the child.

26. Any proposed conditions would have to ensure that the mother could prosecute a case for custody of the child in New Zealand.  That would mean she would have to be assisted financially to travel to New Zealand, accommodate herself during a hearing or hearings, have legal aid made available for her or alternatively have the father fund her legal expenses.  All of these seem quite unlikely to be able to be met by the New Zealand authorities.

27. I propose therefore to dismiss the application of the Director General of the Department of Community Services.

I certify that the preceding one hundred and three (103) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench.

Associate: 

Date:  28 September 2007