HBH & Director-General, Department of Child Safety (Qld)
[2006] FamCA 1053
•22 SEPTEMBER 2006
FAMILY COURT OF AUSTRALIA
| HBH & DIRECTOR-GENERAL DEPARTMENT OF CHILD SAFETY | [2006] FamCA 1053 |
| APPEAL – CHILD ABDUCTION – Hague Convention – Habitual residence – abandonment of habitual residence – The young child of separated parents was brought to Australia from the Netherlands by her mother, the father following shortly after – The trial Judge found that the parties intended to relocate to Australia and possibly reconcile – Almost 2 months after the child arrived in Australia the father returned to the Netherlands and commenced proceedings for the return of the child pursuant to the Hague Convention on International Child Abduction – Even though he had not communicated his reservations to the mother, the father asserted that his relocation to Australia was conditional upon his obtaining a visa and reconciling with the mother –When these events did not take place and the father requested the return of the child to the Netherlands, the mother’s retention of the child allegedly became wrongful – The Full Court held that given a finding of the trial Judge that the parties had a shared settled intention to relocate to Australia, which was unlimited and unconditional, the habitual residence of the child had ceased to be the Netherlands – Accordingly, there was no wrongful retention of the child in Australia – Appeal allowed and order for return of the child set aside. |
| Family Law (Child Abduction Convention) Regulations 1986 (Cth) Family Law Act 1975 (Cth) Federal Proceedings (Costs) Act 1981 (Cth) |
Artso (1995) FLC 92-566
Casse (1995) FLC 92-629
Cooper v Casey (1995) FLC 92-575
Dally‑Watkins v Director-General, Department of Child Safety (2006) FLC 93-255
Director-General of Community Services v SHR (2001) 27 Fam LR 670
Genish-Grant v Director-General, Department of Community Services (2002) 29 Fam LR 51
Mozes v Mozes 19 F.Sup.2d 1108
Re B (Minors) (Abduction) (No. 2) (1993) 1 FLR 993.
Re J (A Minor) (Abduction: Custody Rights) (1990) 2 AC 562
| APPELLANT: | HBH |
| RESPONDENT: | DIRECTOR-GENERAL, DEPARTMENT OF CHILD SAFETY |
| FILE NUMBER: | BRF | 3469 | of | 2005 |
| APPEAL NUMBER: | NA | 64 | of | 2006 |
| DATE DELIVERED: | 22 SEPTEMBER 2006 |
| PLACE DELIVERED: | Melbourne |
| JUDGMENT OF: | FAULKS DCJ, KAY & BOLAND JJ |
| HEARING DATE: | 22 SEPTEMBER 2006 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 11 July 2006 |
| LOWER COURT MNC: | [2006] FamCA 578 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | MR P CANNING |
| SOLICITORS FOR THE APPELLANT: | BLANCH TOWERS LAWYERS |
| COUNSEL FOR THE RESPONDENT: | MR KA PARROTT |
| SOLICITORS FOR THE RESPONDENT: | CROWN LAW |
Orders
That the appeal be allowed
That the orders made by the Honourable Justice Barry on 11 July 2006 be set aside save for Order 1(k)
The application of the State Central Authority of 25 November 2005 seeking the return of the child to the Netherlands be dismissed.
That the appellant be granted a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant wife in respect of the costs incurred by the appellant wife in relation to the appeal.
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: NA 64 of 2006
File Number: BRF 3469 of 2005
| HBH |
Appellant
And
| DIRECTOR-GENERAL, DEPARTMENT OF CHILD SAFETY |
Respondent
REASONS FOR JUDGMENT
KAY J:
This is an appeal against orders that were made by Barry J on 11 July 2006 requiring the return of SAH, born 1 March 2001 to the Netherlands pursuant to the provisions of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the regulations”).
S's parents met in the Netherlands, where S was born. The mother had previously lived in Australia and had two children whose father lived in Australia. The mother's parents and other family members lived in Australia.
S's parents separated in Holland and consent orders were made in September 2004 that provided that the mother would have the sole custody of the minor child, whose habitual residence was to be with the mother. Access arrangements were made, providing the father with access to the child from Thursday to Saturday each week, half holidays and public holidays. The father was to pick the child up and return the child to the mother at agreed times. It is clear that post-separation, the father remained very active in the child's life.
On 18 October 2004, as a result of a registration process available under Dutch law, both parents were entrusted with parental authority over the minor.
The mother and the child left Holland on 7 June 2005 to come to Australia. The father arrived in Australia on 6 July 2005 and stayed at the mother's home. By the end of July 2005, the father decided to return to the Netherlands and he sought to have the child return as well.
The mother resisted his attempts to have the child taken to the Netherlands, and upon his return to the Netherlands he immediately made a request via the Netherlands Central Authority, seeking to have the child return to the Netherlands in accordance with the provisions of the Hague Convention on Civil Aspects of International Child Abduction. The Dutch authorities made a request of the Australian Central Authority who in turn delegated the State Central Authority for Queensland to bring an application before the Court.
An application was filed in Brisbane on 25 November 2005 seeking an order for the return of S to the Netherlands. The mother filed a response to that application asserting, amongst other matters, there was no wrongful retention within the meaning of the regulations that would enable a court to make an order under the provision of the regulations.
The basic tenor of the regulations is that if a child habitually resident in one convention country is brought to Australia without the consent of persons who have a right of custody to the child - that is, a right to determine the place in residence of the child, amongst other things - or is brought to Australia with consent but is retained in Australia outside the terms of the consent then, providing the application is brought within a fixed period of time and other defences are not demonstrated, it is the obligation of the Australian court to order the return of the child.
This is legislation that is concerned with forum, namely, which country ought to be the country deciding issues relating to parenting such as where the child will live and with whom the child should live. What was essentially asserted here was that this child was habitually resident in Holland and that Holland remains the appropriate forum in which the issues relating to the welfare of the child should be determined.
I should say at this stage that if the State Central Authority is unsuccessful on that issue, that does not prohibit the Australian courts from determining exactly the same issues, namely, with whom the child should live and in which country the child should live and the conditions upon which the child should spend time with the other parent.
There are of course tyranny of distance issues and economic issues that will flow if the Australian courts remain seized of jurisdiction, but they are not issues that need concern us in relation to the jurisdictional basis upon which this case needs to be determined.
In the application the applicant states:
(6)The child [SAH] born [in] March 2001 was removed or retained on 8 June 2005 in the following circumstances.
In January 2005, the Respondent mother announced that she wished to return to Australia. Initially the Applicant father refused permission for the mother to move to Australia with the subject child. It was subsequently agreed that the Respondent mother and Applicant father would move to Australia and build a life together in that country. The Respondent Mother stated that she would assist the Applicant father in obtaining employment with her father as well as assisting him in obtaining the necessary immigration status to enable him to stay in Australia.
The Respondent mother stated that should the father not be able to remain in Australia that she would return to the Netherlands with him and the children. The Respondent mother travelled ahead of the Applicant father stating that she needed to commence the immigration procedure. She arrived on 8 June 2005.
(8)The Applicant father arrived in Australia on 6 July 2005 and was informed by the Respondent mother that he was not welcome and that she would not assist him in obtaining residential status. The father was forced to return to the Netherlands without the child.
(9)On and from the time the Respondent mother repudiated the agreement and refused to allow the Applicant father to return to the Netherlands with the child the Respondent mother has been retaining the child in breach of the Applicant father's rights of custody.
In her answer and cross-application, the mother said:
(6)Contrary to the applicants statement, there was no agreement that there would be reconciliation if and when the parties came to Australia.
(7)The father did not object to mothers decision to move family to Australia therefore [S] was not abducted from Holland.
(8)I was aware that the father would come to Australia with a view to take steps to initiate immigration proceedings. I offered to assist him with paperwork and necessary interviews, but did not at any time offer him sponsorship as this was not possible. I have a permanent residency and a citizenship application is underway, but the responsibilities of the sponsorship of [the father] was something I did not wish to undertake.
(9)Contrary to the allegation made by the applicant, it is disputed that I stated to the applicant that I would assist him in obtaining the necessary immigration status to enable him to stay in Australia. I made no promises to the applicant about finding him work with my father. I do not have an ongoing relationship with my father and the applicant is and was at all relevant times aware of this.
(10)When the applicant arrived in Australia with a view to initiating immigration proceedings he resided at [A] Street, [W], Qld. The applicant stayed at this address at my invitation as a guest but there was no suggestion to him that the relationship would be or was resumed.
(11)When it became obvious to the applicant that he did not have the necessary documentation to apply for immigration, such as no papers apart from his passport and that the process would be a lengthy application he became violent and said he would take [S] back to Holland as soon as possible...
...
(16)In January 2005 the respondent mother announced that she wished to return to Australia. Furthermore the child's father consented to [S] travelling to Australia for relocation purposes.
(17)It is disputed the allegation that the purpose of the move was to build a life together in Australia. It was the applicant who decided he would move himself, and, where upon he was not happy with the immigration requirements decided to return to Holland without applying for full residency.
...
(19)It is disputed that the respondent mother stated that should the father not be able to remain in Australia that she would return to the Netherlands with him and the child.
As I have indicated, the provisions of the Hague Convention, as enacted in Australia by the regulations, provide that when a child is wrongfully removed from a convention country where the child is habitually resident or is retained in another convention country away from the convention country where the child was habitually resident in breach of the rights of custody of a person or an institution, then the courts, where the child has been removed to or has been retained, are mandatorily required to order the return of the child unless one of the exceptions to mandatory return is established.
Regulation 16 provides:
(1) If
(a)an application is made to a court…for an order for the return of a child who has been removed to, or retained in, Australia; and
…
(c)the responsible Central Authority or Article 3 applicant satisfies the court that the child’s removal or retention was wrongful under subregulation (1A);
the court must, subject to subregulation (3), make the order.
(1A) For subregulation (1), a child’s removal to, or retention in, Australia is wrongful if:
(a) the child was under 16; and
(b)the child habitually resided in a convention country immediately before the child’s removal to, or retention in, Australia; and
(c)the person, institution or other body seeking the child’s return had rights of custody in relation to the child under the law of the country in which the child habitually resided immediately before the child’s removal to, or retention in, Australia; and
(d)the child’s removal to, or retention in, Australia is in breach of those rights of custody; …
The expression, as I read it in regulation 16, of "habitually resided in a convention country" by necessary implication is a convention country other than Australia. So, effectively, if the child was not habitually resident in Holland when the wrongful removal or retention took place then the Court has no power to make an order for the return of the child under the regulations.
This is not a case involving the wrongful removal of a child. S was brought to Australia with the approval and consent of both of her parents. The assertion is that she was wrongfully retained in Australia by her mother in breach of her father’s rights of custody.
Before a return order can be made, it is necessary to determine whether S was habitually resident in the Netherlands on the day that it is asserted there was a wrongful retention. I should point out that the application asserts wrongful retention on 6 June 2005. At its earliest the wrongful retention could not have occurred before, say, 30 July 2005 when the father indicated that it was his intention to return with the child to the Netherlands, but for my purposes nothing turns on the shortcomings of the application in that respect.
It is clearly settled law that habitual residence can be lost in a single day, for example, upon departure from initial abode with no intention to return. The classic statement of that paragraph comes from the speech of Lord Brandon in the House of Lords in Re J (A Minor) (Abduction: Custody Rights) (1990) 2 AC 562 at 578. It has since been summarised and restated by Waite J in the High Court in England in Re B (Minors) (Abduction) (No. 2) (1993) 1 FLR 993. This restatement by Waite J has been cited with approval by the Full Court of this court in Cooper v Casey (1995) FLC 92-575; and by the majority in Dally‑Watkins v Director-General, Department of Child Safety (2006) FLC 93-255; as well as, at first instance, in Casse (1995) FLC 92-629 at 82,314 by myself; by Chisholm J in Director-General of Community Services v SHR (2001) 27 Fam LR 670; by Holden J in his dissenting judgment in Genish-Grant v Director-General, Department of Community Services (2002) 29 Fam LR 51. I think the principle is beyond doubt.
It has also been adopted by the courts in the United States, and I make reference to the judgment of the Californian Court of Appeal in Mozes v Mozes 19 F.Sup.2d 1108 at 1166 where the court wrote a very extensive treatise on concepts of habitual residence and loss thereof. In the course of the judgment of the Court of Appeal which was delivered by Kozinski J, his Honour also indicated that:
The function of the court applying the convention is not to determine whether a child is happy where he currently is but whether one parent is seeking unilaterally to alter the status quo with regard to the primary locus of the child's life. The agreement between the parents and the circumstances surrounding it must enable the court to infer a shared intent to abandon the previous habitual residence, such as when there is effective agreement on a stay of indefinite duration.
In this case Barry J concluded, at paragraph 28 of his reasons for judgment, that it was the shared settled intention of the parties to reside in Australia.
I accept it was the shared settled intention of the parties to reside here. The father may have believed there was to be a reconciliation. The mother may have believed she had convinced the father there was no prospect of reconciliation. It may be the father came here so he could see his child regularly. The best evidence as to the intention of the parties to my mind is to be found in the letter by the mother to the father of the 5 October 2005 (previously quoted paragraph 21). That letter would indicate that there was a plan to reconcile and start a new life in this country.
Further evidence to support this conclusion is the fact the parties had made an application to the Australian Embassy in Berlin for a family visa and the fact the parties’ goods were packed together.
The passage at par 21 read as follows
(c)On 5 October 2005 the mother wrote to the father (the document is annexed to the first affidavit of [HT]):
“The day that we left, how emotional things got at the airport. For me, the plan was that the five of us would start a new life together. I wanted to leave behind everything that had happened between us and make a fresh start. I hoped that you wanted the same. In the period that I was here alone, I worked hard to make sure that I had a home, a car, a school for the children etc by the time you arrived. I wanted our family to live in our own place straight away---
---I remember that we agreed to do anything to get a good life here in Australia. But after that, I could feel that you did not like it here. In the end I had the impression that going back to the Netherlands made you happy. In fact, there is so much that I want to say to you, but it does not matter anymore. All I know is that I really wanted to make a fresh start with you here, but things went wrong from the very beginning.”
His Honour having made the finding that the parties had a shared settled intention to reside in Australia then made reference to the recent decision of the Full Court in Dally-Watkins v Director-General, Department of Child Safety, where there was a dispute between the parents as to whether there had been a settled intent to create an habitual residence in the United States.. Again the majority of the Full Court having cited the passage that I have already made reference to namely:
…habitual residence can be lost in a single day, for example, upon departure from an initial abode with no intention of returning…
went on to say:
…the assumption of habitual residence requires an appreciable period of time and a settled intention…
At issue in the Dally-Watkins case was whether the child was habitually resident in America so as to require the return of the child, where the mother who was an Australian had taken the child to America with a view to seeing whether or not the parties could live together in America. The court concluded that she only went on a conditional basis to see whether the relationship would work out. As that condition failed there was no intention that she had adopted an abode for settled purposes as a part of the regular order of life at the time being whether of short or long duration.
That is not the factual situation that ought to have troubled Barry J in this case. The issue was not whether the child had obtained an Australian habitual residence, but whether the Netherlands habitual residence had been lost.
His Honour also made reference the decision of Mushin J in Artso (1995) FLC 92‑566, which was a case where parents of English children came to Australia with a view to determining whether life would be appropriate for the family in Australia but with the proviso that if they were unhappy they would return. The mother was unhappy and returned. The father refused to allow the children to return, and the court held that there had been no mutual consent and that the children were being wrongfully retained in those circumstances. That is a different factual scenario to the finding of the trial judge that the parties came to Australia with a settled intention of leaving Holland and starting up life here.
Subsequently in the course of his Honour's reasons for judgment, his Honour appears to retreat from the finding in par 28 that is the crucial finding in my view that there was a shared, settled intention for the parties to reside in Australia. In par 50, his Honour said:
I accept that the habitual residence of the child at all times has been the Netherlands…
and then said -
…and nothing which has occurred in the past twelve months alters that position.
Now, I should say at the moment that that second statement must be incorrect in light of the first finding and the statement of legal principle that I have already made reference to. His Honour said:
I accept that the relevant date for determining the issue of habitual residence was the time when the father requested that he be at liberty to take the child back to the Netherlands and the mother refused to allow him to do so. The child in my view was clearly wrongfully retained in Australia at that point in time.
I say rhetorically that can only be so if the child's habitual residence was still the Netherlands.
His Honour then went on to say in par 51:
The father consented to the mother taking the child to Australia but only on the basis
(a) there would be a reconciliation between the parties; or
(b)he would be allowed to remain in this country and exercise his rights of contact with the child here.
Neither of these events came to pass. The fact that the failure of one or both of these conditions is attributable to the default of the father is to my mind irrelevant. The premise of the parties remaining in Australia with the child depended on at least one of the two conditions being fulfilled.
The difficulty with that statement by the trial judge is that it does not seem to be supportable on any view of the evidence, and it is clearly in conflict with his Honour's finding in par 28.
We were taken to what was said to be the highest position of the father at p 180 of the Appeal Book where the father said:
…I only agreed to go to Australia as a family because I thought that [the mother] would be happier there. Moreover, she said that I could work there without any difficulties. If I would not obtain a residence permit then we would return as a family. I would never have agreed if I had known of [the mother]'s intention to continue her life in Australia without me. I only went with her because I thought that it was in the interest of the children to be together as a family. I only had the hope of being able to start a new life there. [The mother] said that she was not happy in the Netherlands…
I should state that perhaps the only part of that sentence that could lead to his Honour making a conclusion that the father consented on the basis there would be a reconciliation between the parties is the sentence where the father said:
If I would not obtain a residence permit then we would return as a family.
The mother denied that assertion.
The trial judge found that “The father was a witness who on the face of it appeared to lack credit” and was “not a truthful witness and not a person to be trusted”.
In the circumstances it was not open for his Honour to make a finding that there was a conditional consent by the father to the removal of the child from Holland.
There was on the father's earlier evidence clearly a consent to the removal to Australia. He may have had expectations that life, once he arrived in Australia, would pan out differently than it did and that the family may have been reconciled or that he would have no difficulties with the Department of Immigration. We do not know about the immigration issues because the father simply upped and left the country within weeks of coming here without further seeking to regularise his immigration status. We do know, however, that whatever his expectations relating to reconciliation were, they never eventuated but that cannot be said that that was a condition of the removal of the child from the Netherlands.
In my view, the finding by the trial judge at par 28 of his Honour’s judgment is ultimately decisive of the outcome of these proceedings. Once there was a shared, settled intent for the parties to come and reside in Australia with the child being unlimited in terms in that it was not a temporary visit nor a conditional visit, and that settled intent was put into place then the conditions described by Lord Brandon had been met. The habitual residence was no longer the Netherlands and, accordingly, there was no wrongful retention.
In those circumstances, the appeal must be allowed and the application filed by the State Central Authority ought be dismissed.
FAULKS DCJ
I agree with the conclusion his Honour has reached and his reasons, therefore, I have nothing to add.
BOLAND J
I also agree with the reasons and the conclusions of Kay J and have nothing further to add.
I certify that the preceding forty one (41) paragraphs are a true copy of the reasons for judgment of this Honourable Full Court:
Associate:
Date: 24 October 2006
1
3