Hibbert and Hetley

[2018] FamCA 1

FAMILY COURT OF AUSTRALIA

HIBBERT & HETLEY [2018] FamCA 1

FAMILY LAW – CHILD ABDUCTION – HAGUE CONVENTION – Application for the return of a child to the United Kingdom – whether the child was habitually resident in the United Kingdom immediately prior to her removal from that country – Habitual residence in the United Kingdom not established – Application dismissed

The Children Act 1989 (UK)
Convention on the Civil Aspects of International Child Abduction
Family Law Act 1975 (Cth)
Family Law (Child Abduction Convention) Regulations 1986 (Cth)

De L v Director-General, New South Wales Department of Community Services and Anor (1996) 187 CLR 640
LK v DG, Department of Community Services (2009) 237 CLR 582

APPLICANT: Mr Hibbert

RESPONDENT: Ms Hetley

FILE NUMBER: BRC 5190 of 2017

DATE DELIVERED: 10 January 2018

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 28 July 2017, 11 August 2017, 25 August 2017 and 22 September 2017 and by way of receipt of written submissions dated 8 August 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Green on 28 July 2017; then Mr Hibbert in person on 25 August 2017 and 22 September 2017

SOLICITOR FOR THE APPLICANT: Ms Fitzgibbon, McInnes Wilson Lawyers on 28 July 2017 and 11 August 2017

COUNSEL FOR THE RESPONDENT: Ms Oakley

SOLICITOR FOR THE RESPONDENT: Mr Farr, Fedorov Lawyers

Orders

IT IS ORDERED BY WAY OF FINAL ORDER THAT

1. All previous Orders are discharged.

2. The Application in Form 2, filed by the Department of Communities, Child Safety and Disability Services on 26 May 2017 and later prosecuted by Mr Hibbert, is dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hibbert & Hetley has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 5190 of 2017

Mr Hibbert

Applicant

And

Ms Hetley

Respondent

REASONS FOR JUDGMENT

1. By Application in Form 2, filed on 26 May 2017, the Director General, Department of Communities, Child Safety and Disability Services, in his capacity as the State Central Authority under the Family Law (Child Abduction Convention) Regulations 1986 (Cth), sought an order that now one year old B (a female), born in 2016 in Australia, be returned to the United Kingdom.[1]

   [1]          Regulation 16(1)(a) Family Law (Child Abduction Convention) Regulations 1986 (Cth).

2. Save for the interim orders made in this proceeding, it is accepted that there are no other orders in force in relation to the child in either Australia or the United Kingdom.

3. The Application alleges that the Respondent (who is the child’s mother) wrongfully removed the child from the United Kingdom to Australia on 1 February 2017. Consequently, the Application for a return order has clearly been filed within one year of the child’s removal from the United Kingdom.[2]

   [2]          Regulation 16(1)(b) Family Law (Child Abduction Convention) Regulations 1986 (Cth).

4. The assertion that the child was wrongfully removed to Australia encompasses the implicit contention that she was habitually resident in the United Kingdom immediately before she was removed to Australia. This assertion is denied by the Respondent, who contends that, at that time, the child was in fact habitually resident in Australia.

5. After the Director-General advised of his intention to withdraw from the proceedings, the child’s father, Mr Hibbert (who was born in 1985, is a British national and currently lives in C Town in the United Kingdom), was substituted as the Applicant.[3]

   [3]          By Order made on 11 August 2017.

6. The Respondent was born in 1980 in Country D. It seems she moved to live in the United Kingdom when she was about 13 years of age.  She remained living in that country until about May 2006 when she, her then partner (Mr E) and their children moved to live in Australia. The Respondent says she was granted a permanent residence Visa by Australian authorities on 22 May 2006. She says this Visa remains operative and permits her to remain in Australia indefinitely. There is no evidence to the contrary.

7. The Respondent gave birth to another child in 2009. She and Mr E separated in about May 2010. In about November 2010, the Respondent and her children returned to live in the United Kingdom.  She says she left Australia for the United Kingdom with the intention to return to this country.  Despite this intention, she and her children remained living in the United Kingdom until they travelled to Australia in May/June 2016. Mr Hibbert later joined them here. As already noted, the child was born in Australia in 2016.

8. Mr Hibbert returned to the United Kingdom in October 2016. The Respondent and the children travelled to the United Kingdom on 9 November 2016. They remained there until 1 February 2017, at which time the Respondent and the child (and all but one of her children) travelled back to Australia.

The Regulations

1. The Regulations under which this Application must be determined are made pursuant to s 111B[4] of the Family Law Act 1975 (Cth), which provides that the Regulations may make provision, as is necessary or convenient, to enable the performance of the obligations of Australia under the Convention on the Civil Aspects of International Child Abduction. The Convention is set out in Schedule 1 to the Regulations and, as between contracting States such as Australia and the United Kingdom, provides a mechanism for the prompt return of wrongfully removed or retained children. 

   [4]And, in so far as they make provision in relation to the rules of evidence which are to apply in proceedings under them, pursuant to s 111D of the Family Law Act 1975 (Cth).

2. The Regulations are to be construed having regard to the Principles and Objects mentioned in the preamble to, and Article 1 of, the Convention and as recognising:

   a)in accordance with the Convention, that the appropriate forum for resolving disputes relating to a child’s care, welfare and development is ordinarily the child’s country of habitual residence; and

   b)that the effective implementation of the Convention depends on reciprocity and mutual respect between judicial or administrative authorities (as the case may be) of Convention countries. 

3. The purpose of the Convention was authoritatively explained by the majority of the High Court in De L v Director-General, New South Wales Department of Community Services and Anor.[5] It was emphasised that the Convention is directed to the prompt return of children to the State of their habitual residence, where questions concerning their welfare and the merits of any dispute about where and with whom they should live can be determined. That is, the focus of the Convention is upon the return of children to the place or “State” of their habitual residence and applications like this one, made pursuant to the Regulations, are matters about forum, not about parenting per se.

   [5] (1996) 187 CLR 640.

4. If I am satisfied by Mr Hibbert[6] that the child’s removal from the United Kingdom on 1 February 2017 was wrongful within the meaning of subregulation 16(1A), then, subject to subregulation 16(3), I must make an order for her return to the United Kingdom.[7] If, however, he fails to establish that the child’s removal from the United Kingdom was wrongful, the Application must be dismissed.

   [6]           Who has the onus of proof on the balance of probabilities.

   [7]          Family Law (Child Abduction Convention) Regulations1986 (Cth), Regulation 16(1).

5. Regulation 16(1A) provides that the child’s removal to Australia is wrongful if:

   a)she was under 16 – as she clearly is; and

   b)she habitually resided in a Convention country (here – asserted to be the United Kingdom) immediately before her removal from that country on 1 February 2017 and subsequent retention in Australia; and

   c)Mr Hibbert had rights of custody in relation to her under the law of the country in which she habitually resided immediately before her removal to Australia (here – asserted to be the United Kingdom); and

   d)her removal to Australia (and subsequent retention here) is in breach of those rights of custody; and

   e)at the time of her removal, Mr Hibbert was actually exercising the rights of custody (either jointly or alone) or would have exercised those rights if the child had not been removed from the United Kingdom and retained in Australia.

The Competing Contentions: an overview

1. Mr Hibbert accepts that he and the Respondent agreed that the child would be born in Australia. He says they reached this agreement because of a view that this might assist their plan to move to live in this country at some future time. He says that, by agreement and in furtherance of this common plan, the Respondent and her other children travelled to Australia before the child’s birth and he later followed. Whilst it was, at times, a little unclear, it seemed to me that his case involved the contention that he and the Respondent used their time in Australia – which he was at pains to describe as a “holiday” – to start to consider a possible future move to live here, but had not agreed upon the same at that time.  

2. It is accepted that Mr Hibbert returned to the United Kingdom before the Respondent, the child and the Respondent’s other children. On Mr Hibbert’s case, when they did so in November 2016, they were returning “home”. He asserts that the child was sufficiently settled into the community between her November 2016 arrival in the United Kingdom and what he contends was her wrongful removal on 1 February 2017 as to have been habitually resident in that country at that time.

3. On the Respondent’s case, the November 2016 return to the United Kingdom was nothing more than a temporary visit (in the nature of a “holiday”), for the purpose of introducing the child to members of her extended maternal and paternal families: that is, the Respondent’s case is that, when she left the United Kingdom prior to the child’s birth, she did so with the intention (known to and shared by Mr Hibbert) of remaining living in Australia thereafter; that, following her birth in Australia in August 2016, the child was habitually resident in this country before she travelled to the United Kingdom in November 2016 – for a visit – and remained habitually resident here as at, and immediately before, her 1 February 2017 return to Australia.

The primary issue

1. Whilst it is probably already obvious from the matters set out above, the primary issue for determination in this case is whether the child was, in fact, habitually resident in the United Kingdom immediately before 1 February 2017.

2. If Mr Hibbert, who bears the onus of establishing those matters prerequisite to the making or a return order under the Regulations, fails to establish this prerequisite, then his application for a return order must be dismissed.

3. The meaning of “habitual residence”, in the context of the Regulations, has been extensively and authoritatively discussed by the High Court in LK v DG, Department of Community Services.[8] It is clearly established that the inquiry into habitual residence is “a broad factual inquiry”, intended to involve a search for the underlying reality of the connection between a child (here, the child) and a particular State. Such inquiry should take into account all relevant factors, including settled purpose (in the sense of whether there was a shared intention that the child live in a particular place with a sufficient degree of continuity to be properly described as settled, from her perspective), the actual and intended length of stay in a State, the purpose of the stay, the past and present strength of ties to the State and to any other State, the degree of assimilation into the State (including living and schooling arrangements) and cultural, social and economic integration.

   [8] (2009) 237 CLR 582.

4. It is also authoritatively established that the intentions of either parent and the issue of “settled purpose” are not to be given controlling weight in the determination of the answer to the question of fact of the child’s habitual residence at the relevant time.

Summary of circumstances relevant to the “broad factual inquiry” involved in determining the child’s habitual residence at the relevant time

1. The child lived in Australia from her birth in mid 2016 until 9 November 2016, when she travelled with her mother (and siblings) to the United Kingdom. She did so on a British Holiday Visa, the terms of which required that she leave by no later than about April 2017. She was then present in the United Kingdom until 1 February 2017. That is, until 1 February 2017, she had lived in each of Australia and the United Kingdom for approximately the same duration of time.

2. The child has always lived with her mother. Her parents met, it seems, in the United Kingdom in November 2014 and commenced a relationship in about mid-June 2015. On Mr Hibbert’s account, they lived together (with the Respondent’s other children) in C Town in a home owned by Ms F (the Respondent’s sister).  On the Respondent’s evidence, whilst she and her children lived in her sister’s home, Mr Hibbert did not live with them but, rather, had a key to the premises and visited on occasion.

3. It does not seem to me to be necessary to resolve this dispute; whatever the actual living arrangements before the child was born, it is clear on any version of the events which preceded the child’s birth in Australia that her parents had reached an agreement that she would be born in this country.

4. On the Respondent’s case, such agreement was reached against a background of her clearly informing Mr Hibbert, when their relationship commenced, that she was intending to relocate to Australia. She says that, in February 2016, she applied for a Return to Australia Visa. She contends that Mr Hibbert was aware of this and also of her plans to return to live in this country.

5. Whilst Mr Hibbert denies this knowledge, I am satisfied on the evidence before me that it is more likely than not that, at a time before the then pregnant Respondent and her children travelled to Australia in mid-2016, he was aware of this intention.

6. The Respondent says that, in March 2016, she discovered she was pregnant and told Mr Hibbert. She says they agreed she would continue with her “return to Australia” plan because he intended to come and live in Australia as well.  I accept her evidence in this respect. 

7. Mr Hibbert’s evidence is that, after the Respondent learned of her pregnancy, they agreed she would give birth to the child (who was the child) in Australia.  He says that, in the context of the parents’ deliberations about a possible future move to Australia, this agreement was reached because it was thought that the child’s birth in Australia would help him to obtain a Visa (which, presumably, would accord to him the right to live in Australia on an ongoing basis) in the future. 

8. Whilst neither parent seemed to me to provide specific details about the timing of their agreement, the contents of notes relating to the Respondent’s admission, between 8 May 2016 and 16 May 2016, to the Hospital in C Town include the information that she had plans to travel to Australia prior to the delivery.

The trip to Australia for the child’s birth

1. In furtherance of the agreement that the child be born in Australia, the Respondent and her children travelled to Australia on about 14 June 2016.  I accept that, before she did so, the Respondent told her medical practitioner that she was moving to Australia.

2. On 23 June 2016, Mr Hibbert, who was still then in the United Kingdom, sent the Respondent a message which contained a query about whether she thought it was a good idea for him to run a business from the United Kingdom long term. The Respondent says that they agreed that he would contact the prospective business and that, if it was too much, he could always return to the United Kingdom to sell the equipment associated with this venture.  Either version is not, it seems to me, particularly determinative of the issue of the child’s habitual residence as at 1 February 2017.

3. Whilst Mr Hibbert also spoke, in that message, of selling property, it seems to me this was in the context of enabling him to travel to Australia in time for the child’s impending birth rather than being particularly demonstrative of a settled intention or plan to relocate to live in Australia: particularly given that, at that time, he did not have the right to live in Australia although, on his evidence, he did not seemingly appreciate that there would be any particular difficulty for him to acquire that right. 

4. In any event, Mr Hibbert joined the Respondent and her children in Australia on about 22 July 2016.  He travelled here on a visitor/holiday Visa, which was operative for three months and required him to leave Australia after that period of time. During his time in Australia, all stayed at Suburb G with another of the Respondent’s sisters.

5. The Respondent says that, whilst Mr Hibbert was in Australia, he sought/enquired about the possibilities of obtaining a partner Visa or a sponsored Visa; she says they looked for a place to rent that they could afford but could not find anything and her sister said they could stay with her as long as was needed. She also says that she connected with medical practitioners to assist her in dealing with and/or managing her chronic disease (and subsequently received correspondence in February 2017 in relation to two appointments at the H Hospital) and re-enrolled the children into their previous schools. She says Mr Hibbert joined a gym; that he had previously communicated with others in a manner that suggested they were intending to move to live in Australia (for example, asking about job opportunities here, having discussions about getting a driver’s licence here and asking about rental properties).  I accept the overall tenor of her evidence in this respect.

6. Mr Hibbert says that when the parties travelled to Australia for the child’s birth, their intention was to stay long enough to get her passport and for the whole family to then return to the United Kingdom. He says that the point of ensuring the child was born in Australia was to keep future options open but, at that time, there were no firm plans between the parties about the long term. I do not accept this assertion.

7. Where there are conflicts in the same, I prefer the evidence given by the Respondent and in her case to that given by Mr Hibbert. The reasons for this preference will become apparent and include my assessment of what I regard to be the highly selective manner in which Mr Hibbert decided to present evidence in his case.

8. The child was born in Australia in 2016. 

What happened after the child was born?

1. The Respondent says that, after the child’s birth, she spoke with Mr Hibbert about returning with the child to the United Kingdom so the family there could meet her – she says he did not want her to return to the United Kingdom. I think there is support for this contention in the content of various emails/messages which passed between Mr Hibbert and others. 

2. That Mr Hibbert expressed such a view is, to me, completely inconsistent with his proposition that the 2016 travel to Australia was only a holiday;  it is, though, consistent with the contention that, before the child was born in Australia, both her parents had formed the joint intention to move to live in this country.

1. The Respondent insisted and, as noted, travelled with the child to the United Kingdom in November 2016.

Mr Hibbert returns to the United Kingdom: October 2016

1. I accept the tenor of Ms F’s evidence to the effect that, when Mr Hibbert left Australia in October 2016, she understood it was his intention to start applying for a partner Visa so he could return to Australia.

2. He returned to the United Kingdom on or about 14 October 2016. He says he did so in order to earn some money to support what he asserts was, in essence, the family unit.    

3. The Respondent says that, when Mr Hibbert returned to the United Kingdom in October 2016, her sister let him stay at her home because his relationship with his parents had deteriorated. She says that, when she and the children arrived back in the United Kingdom in early November 2016, all of them lived together at her sister’s house: that is, she and the children returned to where they had been living since late 2010 and joined Mr Hibbert, who had been living there since October 2016. 

4. Mr Hibbert also asserts that, whilst he and the Respondent and her children were in Australia over the summer period, the Respondent’s sister’s property (in which, on his case, they all lived and, on the Respondent’s case, she and the children had lived prior to mid-June 2016) remained empty as it was waiting for their return. Whilst I accept that this appears to be the case, as it is also the position that the property was being offered for sale by its owners (the Respondent’s sister and her husband), such fact does not seem to me to be particularly indicative of Mr Hibbert’s contention that the property remained vacant because the Respondent and her children were going to return to live in it on a permanent basis.

5. I accept that the child, her siblings and her parents all lived together from her arrival in the United Kingdom in early November 2016 until early December 2016 when the parental relationship ended.

The Respondent, the child and her siblings travel to Australia:  November 2016

1. Mr Hibbert says he sent the Respondent money to use to purchase the tickets to travel from Australia to the United Kingdom; she accepts that he did so, but also asserts she contributed significantly towards the cost of their purchase. He says she bought return tickets (Australia/UK/Australia) because she told him she needed to return to Australia in April 2017 to renew her Visa and it was cheaper to buy return tickets.

2. The evidence suggests that the Respondent booked return tickets from Brisbane to City J on 8 November 2016.  The return date shown on the documents is 19 April 2017.  

3. This and the fact that here is no evidence before me to suggest that either Mr Hibbert or the Respondent at any time purchased tickets to facilitate the Respondent’s return to the United Kingdom after April 2017, seems to me to support the Respondent’s contention that the trip back to the United Kingdom was not intended to be permanent and that she intended to return to Australia with the child in April 2017. 

4. I also note that, before departing from Australia for the United Kingdom in November 2016, the Respondent successfully applied to Education Queensland for an exemption from compulsory schooling for one of the children for the period between 8 November 2016 and 8 February 2017 on the basis that they were “returning to the United Kingdom to finalise sale of house etc with the intention of returning in the new year”.[9] That she did so is, it seems to me, completely consistent with an intention to return to live in Australia in early 2017 and completely inconsistent with the notion that the November 2016 trip to the United Kingdom was to be permanent.

   [9]          Exhibit 6.

5. In addition, I accept Ms F’s evidence that the Respondent told her before she left Australia in November 2016 with the child and her other children that she intended to take the child back to the United Kingdom for a short holiday period to meet members of their family.

6. The Respondent and all of her children travelled to the United Kingdom on 9 November 2016.

7. As noted, the child was not quite three months of age when she left Australia to travel to the United Kingdom.  She remained in the United Kingdom for not quite three months, before travelling with the Respondent and two of her siblings back to Australia on about 1 February 2017. 

What happened when the Respondent and children returned to the United Kingdom on 9 November 2016?

1. When the Respondent and children arrived back on 9 November 2016, they returned to the home in C Town (owned by her sister and her husband) in which they had previously lived.  I accept the thrust of the Respondent’s evidence to the effect that she did this because she did not want to enter into a lease as she was only going to be in the United Kingdom for about three months and had previously lived in her sister’s home without a lease or any formal rental agreement.

2. I accept that some of the Respondent’s children were re-enrolled in the schools at which they had previously attended before their departure for Australia in mid-2016.  I accept the general terms of the Respondent’s evidence to the effect that this occurred for reasons which included enabling them to reconnect with their previous classmates.

3. I accept that, on arriving in the United Kingdom in November 2016, the child was registered with a general practitioner in C Town. However, I also accept the Respondent’s evidence that this occurred so as to ensure the child was able to obtain medical assistance if needed and to facilitate her ongoing immunisation. 

4. I accept the Respondent’s evidence about her limited engagement in a breast feeding clinic.  I also accept as likely that the child interacted with various members of her extended family after her arrival in the United Kingdom. 

5. Mr Hibbert says that the plan at that time was that the parties would attempt to save money and explore if a long-term move to Australia was possible for them: he needed a Visa and they did not know if they could afford accommodation in Australia if they moved; he said that, at that time, they did not have the money, nor did they meet immigration requirements to make a move permanently to live in Australia. He says that their life was in England and that, whilst they aspired to live in Australia, they had no plans in place to move to this country. 

6. I am not persuaded by Mr Hibbert’s account. I think it much more likely than not that both Mr Hibbert and the Respondent had every intention of living in Australia after the child’s birth here:  the Respondent had that right (I accept her evidence that she was financially supported by the receipt of Centrelink payments between June 2016 and November 2016 and has received the same since her return to Australia in February 2017) and I think it more likely than not that Mr Hibbert (at least) proceeded on the basis that him working in and immigrating to Australia was going to be relatively simple. 

7. I consider it much more likely than not that, when the Respondent and children returned to the United Kingdom in November 2016, the plan was that they and Mr Hibbert would return to Australia by no later than April 2017.  I consider it more likely than not that this plan only changed (from Mr Hibbert’s perspective but not the Respondent’s) after the breakdown of the relationship between Mr Hibbert and the Respondent in early December 2016.

Events of late November/early December 2016

1. Mr Hibbert says that, after the Respondent and children returned to the United Kingdom in early November 2016, the relationship between them deteriorated – he questioned whether she was suffering from postnatal depression.  The Respondent corroborates this because her evidence is that, in November 2016, Mr Hibbert told a nurse she was not coping and was unkempt and disorganised. A social worker attended.  The Respondent says she was told about domestic violence within relationships and/or control.  She says that, a week later, Mr Hibbert called Social Services to accuse her of assaulting the child – something she denies doing

2. The Respondent says the authorities were not concerned about her but, rather, were concerned about Mr Hibbert’s mental health and, because they were concerned about his behaviour, later advised her to change the locks to prevent him entering the premises.

3. On 12 November 2016, Mr Hibbert sent the Respondent a message in which he said, amongst other things, that he had been thinking about ways to help her and the children go to Australia without him because he valued theirs and her happiness.  Such comment is, it seems to me, clearly demonstrative of knowledge that the Respondent’s intention remained to return to live in Australia.

4. Mr Hibbert says that, on 30 November 2016, the Respondent smacked four month old B. He objected to this, an argument ensued and, ultimately, the Respondent called the police.  When they attended, he was told to leave. He later involved Social Services.

5. Mr Hibbert says that, on about 1 December 2016, the Respondent slapped him across the face whilst the child was in her arms. Mr Hibbert says the Respondent was charged and cautioned as a result of her actions and that she thereafter denied him access to the child for 30 days despite intervention by the Social Services Department in the United Kingdom. The Respondent accepts that she assaulted Mr Hibbert, but says she did so because he was berating her and yelling at her whilst she was breastfeeding and she lashed out at him out of frustration.

6. Mr Hibbert’s evidence is that, on 1 December 2016, the Respondent paid car tax on a motor vehicle for a one-year period (that is until 1 February 2018). He relies upon this asserted event as providing evidence of her intention at that time to continue to live in the United Kingdom.

7. I am not persuaded to draw that conclusion from this action because, at that time, neither parent had taken any action at all to ensure that the child could remain living in the United Kingdom.

The parties’ relationship ends

1. On 3 December 2016, the Respondent ended her relationship with Mr Hibbert and changed the locks to her sister’s home. Whilst Mr Hibbert says she is lying when she says she was advised to do this by Social Services, because she did not have her initial meeting with them until 5 December 2016, the contents of Exhibit 5 (a document entitled “[C Town] County Council Children and Young Peoples’ Services Assessment”) shows that such service conducted a home visit to the Respondent on 22 November 2016 (after Mr Hibbert contacted them with concerns about the Respondent) and on 3 December 2016 (described as a “duty visit”).  The entry for the first visit outlines that there were no concerns about the Respondent or the child; the entry for the second visit notes that the child was seen, there were no visible marks and no signs that the Respondent was suffering from post-natal depression (a matter raised by Mr Hibbert).

2. Mr Hibbert says that, whatever their future plans, these ceased on 3 December 2016 when the Respondent broke off their engagement and changed the locks to their previously shared residence. Even if it was the case that his plans then changed (about which there is significant doubt given his later communications to others about looking for employment opportunities in Australia and the like, as discussed elsewhere in these Reasons), I am not remotely persuaded that the Respondent’s plan to return to Australia with the child by no later than April 2017 changed.

3. It seemed to me that Mr Hibbert’s position was really that, whilst he knew about the purchase of the return tickets (which seem to me to manifest an intention to return to Australia in around April 2017) because the tickets were bought before the breakdown of the relationship between the parents, that was the end of it; that is, it seemed to me to be implicit in his own answers during cross-examination that he knew the plan was for “the family” to return to Australia in early 2017, that the child at that time did not have the right to remain in the United Kingdom (having travelled to the United Kingdom on a British holiday visa which required that she leave the country by no later than about April 2017) but things changed for him after the end of the parental relationship in early December 2016 when he ceased to be a member of “the family”. 

4. Further, I accept the general thrust of the Respondent’s case to the effect that, even after their 3 December 2016 separation, Mr Hibbert continued in his attempts to move to live permanently in Australia.  Whilst he denied this, he Facebook messaged Ms F (the Respondent’s sister) on 8 December 2016 to, in essence, ask her to have “[Mr K]” send a number for “the [tradesman] guy” because he (Mr Hibbert) was “trying to find a job to start ASAP when I get to Aus”.

5. Mr Hibbert accepted he sent this message.  He said that, at that time, he was trying to salvage his relationship with the Respondent but he denied the contents of the message reflected his intention at that time to work permanently in Australia as part of his attempt to reconcile their relationship.  I do not accept this proffered explanation for the clear contents of the message.

6. Mr Hibbert also said during his cross-examination that he was then looking at any option to look at the child’s best interests. Whilst this may well have been the case, his communication certainly persuades me that this involved him moving to Australia, an action which, for me, completely recognised that the child was going to live here in the future. 

7. I do not accept Mr Hibbert’s denial of the assertion that the reason he was looking for jobs in Australia on 8 December 2016 was because he knew that the Respondent and children were returning to Australia.  I think their return to Australia was known to him to be more than the “possibility” to which he referred and that such knowledge motivated his actions in seeking the orders sought in the Application determined on 20 December 2016.

What else happened after the end of the parental relationship?

1. Before he was locked out of the home, Mr Hibbert took possession of the child’s passport. He says a health visitor subsequently told him that the Respondent needed it so that she could claim benefits for the child.  The Respondent says a care worker asked for the passport back. Mr Hibbert says the Respondent messaged him on one occasion to say that if he did not return the child’s passport to her, she would not let him see the child. He says that, as he wanted to see his daughter, he returned her passport to the Respondent. Whatever led to his actions, Mr Hibbert returned the child’s passport to the Respondent.

2. Mr Hibbert says he subsequently contacted the Children’s Services Department of the local authority and they became involved with the family from 6 December 2016 onwards. He asserts that, despite the assistance of social workers, the Respondent refused to let him see the child and he only saw her on about five occasions thereafter; on two or three of these occasions, the Respondent permitted him to stay overnight and sleep on the lounge.

3. As mentioned earlier, Mr Hibbert says that, on 5 December 2016 the Respondent “blackmailed” him to obtain the child’s passport back so she could claim benefits in the United Kingdom and that in the course of doing so she declared that she was resident in the United Kingdom.  There is no documentary evidence before me to support this assertion and the Respondent denies it. Given my assessment of the deliberately selective manner in which Mr Hibbert chose to present evidence in these proceedings, I am not prepared to accept his assertion in the absence of documentary evidence.

4. Mr Hibbert says that, on 11 December 2016, the child started to receive her immunisations at a medical group in C Town.  As already remarked upon, the Respondent accepts this and says that this was one of the reasons underpinning her decision to engage the child in the C Town medical system. As already noted, I accept her evidence in this respect.

5. On 11 December 2016, Mr Hibbert sent a Facebook message to the Respondent in these terms:

   Please, [Ms Hetley], it doesn’t have to be like this.  I’ve said if you don’t want to be with me, I’ll understand.  I don’t want to control you.  I want to see the kids too.  I’ve been thinking about ways to help you and the kids to go to Aus without me because I value their and your happiness.  I am not nasty or spiteful or abusive.  I’ll just – I just want to talk.  Then after that, if you’re done, then I’ll have to just live with it.  If you want to message me, drop me a text.  Got no Wi-Fi at work.

6. Whilst Mr Hibbert denied that he sent the Respondent a text message in those terms because he knew she was returning to Australia with the children, I found his denial unconvincing. This assessment is buttressed by his accepted knowledge that, when the Respondent and children travelled to the United Kingdom in November 2016 they did so using return air tickets and the fact that, with the assistance of legal representatives, he made an ex parte application to the Family Court at City L on 20 December 2016, seeking an order for the child’s passport to be removed from the Respondent’s possession.

7. On 12 December 2016, Mr Hibbert sent the Respondent a message. In it, he asserted to the effect that, if she could sit and tell him why she did not like or love him, he could understand and then he could help her get to Australia anyway, because she knew he was not a bad guy deep down. In my view, such comments support the conclusion that, at that time, Mr Hibbert knew of the Respondent’s intention to return with the child to Australia; further, as is the case with the comments made in the 11 December 2016 message, they suggest positive support for that known and proposed course of action.

The ex parte Application to the Court at City L: heard 20 December 2016

1. It is accepted that, on 20 December 2016, Mr Hibbert applied ex parte to the Family Court at City L for an order requiring the Respondent to deliver up the child’s passport so to prevent the child’s removal from the United Kingdom. He did so via an “Application for Inherent Jurisdiction Order in Relation to Children” (the Application).

2. He was legally represented when the Application was prepared and when the matter was heard that day. He was in court for the hearing.

3. It is accepted that the Application was refused because, on the material before it, the Court concluded it lacked jurisdiction to make orders relating to the child because, despite her then physical presence in the United Kingdom, she was in fact then habitually resident in Australia.

4. That is, the Court refused to make the order sought by Mr Hibbert because, based on the material before it at that time (being his material), it concluded that, as the child was then habitually resident in Australia, there was no jurisdictional basis to make an order in the terms sought by Mr Hibbert.

What happened in Court on 20 December 2016?

1. As Mr Hibbert was present in court during the hearing on 20 December 2016, he heard the presiding Judge say (in essence) that it seemed to him, on the basis of the information contained within the Application (which included a statement by Mr Hibbert), that there was a clear and settled intention to move to Australia and that the child was born in Australia in furtherance of that intention.

2. During his evidence before me, Mr Hibbert said that, at that particular time, it would have “appeared” that way. He also said, though, that “the landscape” changed later, once “they” were more settled in the United Kingdom. I will return to a consideration of this assertion a little later.

3. Mr Hibbert also accepted that he heard his legal representative say to the presiding Judge during the hearing on 20 December 2016 that: “The difficulty, of course, you will see from what has happened since is that father’s status is now that he, unless he was to reconcile with mother, would not be in a position to move back to Australia, which he understands is mother’s intention.” (my emphasis).

1. The information contained within this submission can only have come from Mr Hibbert himself. Consequently, whilst it is highly likely that Mr Hibbert did not in fact know that the Respondent and the children were leaving the United Kingdom on 1 February 2017 specifically, he certainly knew the Respondent intended to return to Australia with the children. Further, there is nothing in the submissions made on his behalf by his then legal representative to the Court on 20 December 2016 to suggest that his contention then was that the return by the Respondent to Australia in April 2017 was only to be of a temporary kind and only for the purpose of renewing her Visa (a contention which, it seems to me, likely has arisen since then).

2. It follows that I accept the proposition, advanced by Ms Oakley on behalf of the Respondent, that, as at 20 December 2016, Mr Hibbert, through his legal representative, suggested to the Court that he (Mr Hibbert) knew that the Respondent was returning to Australia to live permanently here with the child and the other children.

3. Consequently, I think it clearly established that, as at 20 December 2016, Mr Hibbert knew that the Respondent intended to return to Australia with the child and her other children by no later than about April 2017 and that, when she did so, it was for the purpose of continuing to live in this country and continuing to implement that which had previously been agreed between them before the child’s birth (namely, that the Respondent and the child (and her siblings) would thereafter continue to live in Australia) and which had been implemented by them prior to the breakdown of their relationship.

4. Again, it seems to me to be relevant to note that, as at 20 December 2016, neither parent had taken any steps to ensure the child could remain living in the United Kingdom indefinitely – a matter I consider indicative of an agreed position (at least until the breakdown of their relationship) that she would return to Australia to live; after all, when the child entered the United Kingdom, she did so on a visitor’s Visa which necessitated her departure within a specified period of time.

Mr Hibbert’s failure to provide a copy of the statement which accompanied the Application determined on 20 December 2016

1. Given Mr Hibbert’s “status” as a litigant in person, I emphasised to him (on more than one occasion[10]) the importance of providing this Court with a copy of the statement referred to in the Application he had caused to be filed in the Court at City L. I also emphasised to him the possible consequence to his case of a failure to provide a copy of such statement

   [10]For example: on 11 August 2017 (following which a copy of the Transcript of that appearance was obtained and forwarded to Mr Hibbert).

2. I accept that, despite requests by the Respondent’s Solicitors, Mr Hibbert failed to provide a copy of the statement referred to in the Application determined on 20 December 2016.    

3. Further, despite Mr Hibbert’s evidence that he had forwarded the Application and the statement to authorities in the United Kingdom on two occasions, the document emailed by him to this Court during the course of the hearing did not include a copy of his statement.

4. The only statement provided by Mr Hibbert via the email process implemented to assist him to provide the statement to this Court was the “Rebuttal statement of Mr Hibbert regarding Habitual Residency of the Child”, a document executed on 4 April 2017 and, thus, obviously not that referred to in the Application determined on 20 December 2016.

5. After the above had been pointed out to him during cross-examination, Mr Hibbert said he believed he did not have access to the statement referred to in the Application because he was with another solicitor at the time and would need to go back to that solicitor to get a copy of that statement.  Reference to the Application itself establishes that Mr Hibbert’s then legal representatives were from C Town – where he continues to live.

6. When pressed that it was that statement the Respondent’s solicitors had been asking for a copy of for some time, Mr Hibbert said he wasn’t previously sure which statement was begin referred to.  I reject this evidence completely. 

7. In fact, the issue of the absence of the statement referred to in the Application was the subject of specific comment by me on 11 August 2017 – in particular, I specifically said the following:

   ……but it seems to me – and I say this for the purpose and assistance of [Mr Hibbert], and knowing that it will be captured in the transcript – that it may well be in his best interests to endeavour to obtain a full copy of the Application that was submitted on his behalf to the Court at [City L], which resulted in the appearance, the transcript of which, has now been provided to the Court, being proceedings which occurred on 20 December 2016, because in the documents before this Court there is still an absence of reference to the attached statement in the Application that was filed in the United Kingdom. 

   And it seems to me that [Mr Hibbert] is the party best placed to be able to obtain a copy – a full copy – of that document and to provide it to the Respondent and to file it in the Court.  I should also, I think, properly record, because it is possible that he may be a litigant in person at the hearing on 25 August, that in the event that such document is not provided, it may be open to the Respondent to make a submission that this Court should draw the adverse inference as a consequence of that failure to provide a full copy of the document submitted to the United Kingdom Court, namely, to make the submission that this Court should infer that the provision of a full copy of the Application would not assist his case in applying for and prosecuting the Application seeking a return order. 

   So that he – with the benefit of the provision of the transcript, will be left in no doubt as to the potential importance of attempting to obtain a full copy of the Application and in the event that that is not possible, the importance of providing a full, detailed, complete explanation as to his efforts to obtain that document.

8. Despite this emphasis, the occasions on which the hearing of the current application has been adjourned and that Mr Hibbert is physically in C Town and, therefore, best placed to obtain a complete copy of his own Application (inclusive of the statement to which it refers and which was obviously read by the presiding Judge on 20 December 2016), the statement is not before me.

9. Completely predictably, Counsel for the Respondent urged that, in all of these circumstances, I should not hesitate to infer that Mr Hibbert failed to provide this Court with a copy of the statement which accompanied his Application because he knows that the contents of it are not likely to assist his case for the making of a return order in these proceedings.

10. I accept her submission in this respect and record that I consider that Mr Hibbert has had the power, in the relevant sense, to obtain a complete copy of the Application he caused to be submitted to the Court at City L.

11. Given the comments made on 20 December 2016 by his legal representative and the presiding Judge, I also consider the statement referred to in that Application clearly could have illuminated Mr Hibbert’s evidence about the intentions and actions of each parent in travelling to Australia before the child’s birth, the basis upon which they did so and the basis on which the child travelled to the United Kingdom in November 2016. I consider that a complete copy of the Application to be evidence which might have been expected from him rather than the Respondent and, as already noted, I consider that the contents of the same certainly has the potential to explain some of the issues central to the determination of the application for a return order.

12. I also consider that Mr Hibbert’s failure to obtain and provide a complete copy of his Application to the Court at City L is unexplained in the sense in which that expression is used in the authorities.

13. In the circumstances, and noting that the application of the “rule in Jones v Dunkel” cannot be used to “fill gaps” in the evidence, I am persuaded to draw the inference that the contents of Mr Hibbert’s statement which accompanied his Application to the Court in City L would not have assisted him in his prosecution of the application for a return order and would not have assisted him in discharging the onus he bears to establish that, as at immediately before 1 February 2017, the child was habitually resident in the United Kingdom.

14. In fact, the absence of the statement referred to in the Application determined on 20 December 2016 is even starker when regard is had to the transcript of the proceedings on that day. Reference to it shows that Counsel who then appeared for Mr Hibbert said: “But the court’s hands are tied in respect of any argument that [B] is a resident in the UK.  She was born in Australia”, after which the presiding judge said: “With an intention the family should reside there.”

15. The presiding Judge also said: 

    It seems to me that on the basis of the information contained in [Mr Hibbert’s] statement there was a clear and settled intention to move to Australia.  [The child] was born in Australia pursuant to that intention.

16. Even putting to one side the comments I made on 11 August 2017 for the purpose of assisting Mr Hibbert to appreciate the importance of providing this Court with a copy of his statement, as he was in Court on 20 December 2016 when the statements set out above were made, I simply do not accept his contention that he was unaware of, or confused about, the need to provide the statement.  Rather, I think it much more likely than not that, because he heard the presiding Judge refer on 20 December 2016 to his (Mr Hibbert’s) own statement as providing the basis for the conclusion that there was a clear and settled intention to move to Australia and that the child was born here pursuant to that intention, he fully appreciated that provision of a copy of that statement would simply confirm the accuracy of the expressed conclusion which relied upon it.

17. That is, I think it much more likely than not that, after losing his Application, he realised that his own statement provided the basis for a conclusion that the parties had a clear and settled intention to move to Australia and that the child was born here in furtherance of that intention: so, he simply decided not to produce a copy of the statement.

18. In the circumstances, I have concluded that I should approach Mr Hibbert’s evidence before me with a significant degree of caution and scepticism.

19. My acceptance of the proposition that Mr Hibbert’s failure to provide me with a complete copy of his Application to the Court in City L provides a proper basis for the inference Ms Oakley sought is not, however, the same as finding that the child was not habitually resident in the United Kingdom immediately before 1 February 2017.

20. Lest there is any doubt about the conclusions reached on 20 December 2016 on the basis of the contents of Mr Hibbert’s own statement, reference need only be made to communications which predated his travel to Australia on about 22 July 2016.

21. For example, he sent a Ms M a Facebook message on 11 July 2016 in these terms:  “Man, I can’t wait to be back in Aus to start a new life with [Ms Hetley] and the kids”.  Whilst at that point he had not been to Australia, I consider that the remainder of the sentiments reflect his desire and intention to start a new life with the Respondent and her children (and his soon to be born child) in this country:  a matter consistent with the judicial conclusion rendered on 20 December 2016.

22. Further, I do not accept Mr Hibbert’s contention that the aspect of his Facebook messaging communication with Ms M on that day which was about looking for accommodation related to them looking for accommodation for their holiday; rather, I think it much more likely than not that this was a reference to a plan to look for permanent accommodation in this country.

23. It is also relevant to record that, during his Facebook communication with Ms M on 11 July 2016, Mr Hibbert also told her that he thought he may have a job lined up and that he had already sent off CVs.  Whilst he denied during cross-examination that this comment reflected that he was then looking for employment in Australia and he attempted to explain it away by saying that he was “sussing out” the possibility of what work he could obtain here if he and the Respondent did look to move here on a permanent basis (a decision he said had not been made at that particular time), I found his explanations completely unconvincing.

24. I think it more likely than not that what happened was that Mr Hibbert simply thought he would be able to get a job in Australia via a friend and that would be it.  I think that, at that time, he had no idea that obtaining permission to live in Australia involved any potential difficulties for him:  as he said during his cross-examination, he had no idea at that time that he would not qualify for the ‘skill’ list or fail to meet the ‘skills’ criteria for immigration to Australia. 

25. I think it much more likely than not that he and the Respondent agreed to travel to and live in Australia and implemented their plan by having the Respondent move to Australia for the child’s birth.  I do not accept Mr Hibbert’s assertion that “nothing” was set in stone.  I think it much more likely than not that Mr Hibbert’s and the Respondent’s shared intention – before the Respondent came here for the child’s birth – was to move to live permanently in Australia.

26. I think it more likely than not that it was only after they started to implement the plan that Mr Hibbert discovered that it was not going to be as easy as simply travelling to Australia and living here permanently.  However, by then, their shared intent had been put into effect by their joint agreement that the child be born here.

27. I also think it more likely than not that this shared intention to move to live permanently in Australia persisted until at least the end of the relationship between the Respondent and Mr Hibbert. Such conclusion is, I think, supported by the contents of a Facebook message conversation between Mr Hibbert and Ms M on 29 November 2016, during which he asked her if she knew anyone that might be renting a house out; her response was to tell him to look on realestate.com.au (an Australian real estate site), to suggest a particular location (in Australia) and to ask him if he had obtained his driver’s licence.

28. When it was suggested to Mr Hibbert during cross-examination that this communication occurred in the terms that it did because, at that time, it remained his intention to live in Australia permanently, Mr Hibbert said he has never had the right to live here and that, before their relationship broke down, they were looking to assess the situation and to see whether it would be viable (for them to live permanently in Australia).  He denied that things had advanced beyond the “looking into it” stage, noting that neither of them had a job to go to and that it was not financially viable for them.

29. I do not accept this attempt to explain away the Facebook communication.  I do not accept that, as at the end of November 2016, “things” had not advanced beyond the “looking into it” stage.

30. Whilst the evidence does not permit of a finding about the date on which it occurred, I think it more likely than not that Mr Hibbert communicated with another member of the Respondent’s family in terms which included that it was sad that they were moving in some ways but the Respondent loves Australia and there is so much there for the children. Such comment is, to me, inconsistent with any suggestion that the parties were only coming to Australia for a holiday in 2016.

31. Additional support for my conclusion that the parties’ shared intention that the child live in Australia into the future persisted for at least some time after the end of their relationship can be found in the contents of records maintained by  the C Town environs social support services and Mr Hibbert’s communication with Ms F.

The “social services” records[11] and Mr Hibbert’s communication with Ms F

[11]         Exhibit 5.

1. In about December 2016, Mr Hibbert spoke with the social worker assigned to the parties.  When he did so, he clearly told that person that, before the relationship broke down, he was planning to return to Australia with the family in April 2017.

2. I found Mr Hibbert’s attempts to explain away this information in the records to be unconvincing.  Given there is no reference at all to the concept of the trip in April 2017 to Australia being only for the purpose of Visa renewal (and/or that after this “the family” would return to the United Kingdom), I do not accept as likely that he conveyed to the social worker that his plan to travel to Australia at that time was to renew the Respondent’s visa and then return to the United Kingdom.

3. Whilst Mr Hibbert denied that the information he provided to the Social Worker was consistent with that contained in the unproduced statement to his Application determined on 20 December 2016, I am not persuaded by such denial.  Similarly, I am sceptical about his evidence that he thought he had provided a copy of the report within which these comments are recorded to this Court. 

4. As is the case with Mr Hibbert’s failure to provide this Court with a copy of the statement which accompanied his Application, I think it more likely than not that he decided not to put the “Social Services” records (which seemingly had been available to him since about February/March 2017) into evidence because he realised the impact of the same on his case.

5. Further, on 30 December 2016 Mr Hibbert messaged Ms F to tell her he was heading north to try and sell a program to a particular company; the message he sent outlined that that company was active in Australia as well and he was going to ask to be sent there. He also told Ms F that the Respondent did not know of these plans.

6. I was unpersuaded by Mr Hibbert’s attempts to explain away the contents of this communication and consider it to be a further demonstration of his knowledge that the Respondent and the child were going to return to live in Australia. It also evidences, in my view, his then intention and/or desire to attempt to be able to live in this country as well.

Did the child become habitually resident in the United Kingdom after 20 December 2016?

1. As already mentioned, Mr Hibbert’s cases involved the contention that “the landscape” changed significantly after 20 December 2016 such that, immediately before her 1 February 2017 removal from the United Kingdom, the child was habitually resident in that country.

2. Despite having been afforded the opportunity by the presiding Judge in City L to bring a further application on notice to the Respondent (provided it was done before 4pm on 12 January 2017), Mr Hibbert did not take up that opportunity.  He said this was because, by that particular point, there was no further information that could have been provided to the Court. 

3. Given this, it seems to me to follow from this aspect of Mr Hibbert’s evidence that he accepts that the changed “landscape” upon which he relies as establishing the child’s habitual residence in the United Kingdom immediately before 1 February 2017, is the “landscape” which came into existence between about 12 January 2017 until immediately before 1 February 2017.

4. Mr Hibbert asserts that a number of matters which happened after 20 December 2016 persuade of a conclusion that the child was habitually resident in the United Kingdom immediately before 1 February 2017. These include that:

   a)he obtained a British passport for the child, without notice to, or consultation with, the Respondent; and

   b)the child had, by then, spent more time in the United Kingdom than she had in Australia; and

   c)the Respondent’s other children had returned to school in the United Kingdom.

1. Other matters, such as the child’s engagement in the C Town health care system, the Respondent’s asserted engagement in mother’s groups and asserted claiming of financial support for the child have already been discussed.

2. I do not accept that the fact that the Respondent’s other children were enrolled in the schools at which they had previously attended before travelling to Australia in mid-2016 definitively establishes that the Respondent intended to remain living in the United Kingdom after the November 2016 return or that she and the child (and they) were habitually resident in the United Kingdom as at immediately before 1 February 2017. After all, the children had been enrolled in schools in Australia upon their arrival in this country in 2016 and the Respondent had successfully sought an exemption from attendance for one of the children before she left Australia to travel to the United Kingdom in November 2016.

3. I am not persuaded that the mere fact that, as at 1 February 2017, the child had by then spent a little more time in the United Kingdom than she had in Australia persuades that she was habitually resident in the United Kingdom at the relevant time. The fact that she had, by then, spent a little longer in the United Kingdom than in Australia does not persuade me that, at that time, the child had established any more of a connection to the United Kingdom than she had to Australia: the underlying reality for her at her age, is, in my view, that her connection was more to the Respondent.

4. I am not persuaded that the fact that the Respondent organised for there to be an event (which included a ‘naming ceremony’ and an opportunity for family and friends to farewell her and the children before they left for Australia) suggests that, at the time she organised it, the Respondent’s intention was to remain living in the United Kingdom. Such a conclusion might have been reached on the basis of the information Mr Hibbert provided to this Court about this event, because this did not include any reference to it being for the dual purposes outlined but only that it was to be a “naming ceremony”: on Mr Hibbert’s recounting, the clear conclusion sought to be established was that, despite having organised a naming ceremony to occur locally (a matter which might suggest an intention to remain in the area), the Respondent subsequently  removed the child from the United Kingdom before that date without notice to him.

5. However, it is clear from the information provided by the Respondent about this event that it was specifically described as affording attendees the opportunity to farewell the Respondent and her children before their departure for Australia.

6. Whilst Mr Hibbert’s explanation for the disparity between the information he provided about this event and that provided by the Respondent was, in essence, that he only had that part of it which referred to the naming ceremony, his approach to the issues of his statement which was referred to in the Application and the notes maintained by the C Town social services certainly provides a basis for treating such explanation with significant scepticism.

7. Mr Hibbert also relied on the contents of a statement provided by Ms N, a pharmacist in C Town. Her statement contains the assertions that she spoke with the Respondent (when she attended to collect a prescription for the child) on 30 January 2017. According to Ms N, the conversation revolved around whether the quantity of special milk dispensed would be sufficient for a two week holiday. Whilst the Respondent accepts she spoke with Ms N and asked for the provision of milk, she does not accept that there was any discussion about her going on a two week holiday or that she told Ms N that she was going on a two week holiday.

8. In the absence of the opportunity to observe Ms N during cross-examination, I am not prepared to disbelieve the Respondent’s account.

Concluding observations and further findings

1. I accept that it is more likely than not that, in reaching what I have concluded was a joint decision to move to live in Australia together after the child’s birth here, neither party contemplated the cessation of their relationship. 

2. I accept, as was submitted by Ms Oakley, that there is no evidence to support a conclusion that the decision to move to Australia was conditional on Mr Hibbert’s ability to live here – rather, it seems the parties assumed it would all be okay and acted to implement that intention. 

3. I accept that Mr Hibbert attempted to seek work in Australia and that he did so in furtherance of a joint decision, taken before the Respondent travelled to Australia in 2016 in furtherance of the child’s birth here, to move to live together in Australia permanently.

4. I accept that the fact that the Respondent sought a school exemption in Australia before returning with the children to the United Kingdom in November 2016 is inconsistent with the idea that the 2016 trip to Australia was for a holiday. 

5. I do not accept the contention that, by enrolling the child’s siblings into school following their November 2016 return to the United Kingdom the Respondent evidenced an intention to remain in that country:  after all, it is an accepted fact that the children were enrolled into school in Australia upon their arrival here in mid-2016.

6. I accept that it is relevant to note that there was never any joint application or steps taken by the child’s parents to secure her a status in the United Kingdom which would have enabled her to live permanently in C Town.  Nothing was done by them before she travelled to the United Kingdom in November 2016 or before the breakdown of their relationship in early December 2016 and nothing was done jointly by them after this. I accept it is significant that, until mid-January 2017 (when Mr Hibbert acted unilaterally to obtain a passport for the child), neither parent had taken any steps at all for the child to live permanently in the United Kingdom. 

7. I accept that, until the breakdown of the parental relationship in December 2016, the parties’ joint intention was that Mr Hibbert would return to Australia with the Respondent and the child (and her siblings) by no later than April 2017 to live here permanently.

8. I accept that, for a time after the breakdown of the relationship, Mr Hibbert was still trying to find ways to return to Australia to live here permanently and that he was doing so because he knew that is where the Respondent and the child would be living.

9. I accept that, after the breakdown of their relationship, Mr Hibbert’s intention about Australia changed but the Respondent’s did not. I consider that the mere fact that Mr Hibbert’s intention vis-à-vis the child’s habitual residence subsequently changed at some time after the breakdown of his relationship with the Respondent is insufficient to cause a change to the same.

10. I accept that the naming ceremony organised by the Respondent in the United Kingdom had the dual purpose of introducing the child to members of her extended family and friends and also to enable such people to farewell the Respondent, the child and her siblings before their return to Australia; the latter is established, in my view, by the reference to the event being a “leaving for Oz” party.

11. For the reasons expressed, I consider that, when she entered the United Kingdom in November 2016, the child was habitually resident in Australia and that she remained so as at 20 December 2016. Contrary to the arguments advanced by Mr Hibbert, I am not persuaded that “the landscape” changed after 20 December 2016 such as to persuade of a conclusion that immediately before 1 February 2017 the child was habitually resident in the United Kingdom.

12. In fact, I consider that the evidence clearly establishes that the child was not habitually resident in the United Kingdom immediately before she was removed from that country by the Respondent.[12]  

    [12]         Regulation 16(1A)(b) Family Law (Child Abduction Convention) Regulations 1986 (Cth).

13. It follows that I am not persuaded that Mr Hibbert has established that the child’s removal from the United Kingdom on 1 February 2017 and her subsequent retention in Australia after that date was wrongful under subregulation 16(1A) of the Regulations.[13]

    [13]         Regulation 16(1)(c) Family Law (Child Abduction Convention) Regulations 1986 (Cth).

14. Consequently, the Application for a return order is dismissed. 

I certify that the preceding one hundred and fifty-three (153) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 10 January 2018.

Associate:                 

Date:    10 January 2018