LYNCH & HAGEN
[2020] FamCA 606
•24 July 2020
FAMILY COURT OF AUSTRALIA
| LYNCH & HAGEN | [2020] FamCA 606 |
| FAMILY LAW – CHILDREN – Habitual Residence – Where the mother and father moved to Norway with the child in 2018 – Where the mother and father mutually intended to live in Norway – Where all aspects of the child’s physical care is in Norway – Where the child is settled in Norway – Where the child is habitually resident in Norway. |
| Family Law Act 1975 (Cth) s 111CD Hague Convention of Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children art 5 |
| DW & Director General Department of Child Safety (2006) FLC 93-255 LK v Director General Department of Human Services (2009) 237 CLR 582 |
| APPLICANT: | Ms Lynch |
| RESPONDENT: | Mr Hagen |
| FILE NUMBER: | SYC | 1817 | of | 2020 |
| DATE DELIVERED: | 24 July 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Rees J |
| HEARING DATE: | 3 July 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Goodchild |
| SOLICITOR FOR THE APPLICANT: | Women's Legal Service NSW |
| COUNSEL FOR THE RESPONDENT: | Mr Schonell SC |
| SOLICITOR FOR THE RESPONDENT: | The Norton Law Group |
IT IS DECLARAED
That the child X born on … 2016, is habitually resident in Norway.
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 Lynch & Hagen 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 SYDNEY |
FILE NUMBER: SYC 1817 of 2020
| Ms Lynch |
Applicant
And
| Mr Hagen |
Respondent
REASONS FOR JUDGMENT
Ms Lynch (“the mother”) and Mr Hagen (“the father”) are the parents of X (“the child”) who was born in 2016.
The mother is an Aboriginal woman. Her paternal family are B people and her maternal family are C people. As the mother is Aboriginal, so too is the child.
The father is Norwegian and came to Australia to study.
The parents met as students at university in Sydney.
In June 2018, the parents and the child moved to live in Norway. The child was two.
The mother left Norway and returned to Australia on 24 January 2020, initially for a planned visit to her family for four weeks. The mother left the child with the father who would not agree to the mother’s taking her to Australia.
On 23 February 2020, the mother wrote to the father stating that she would not return to Norway.
There are proceedings in relation to parenting on foot in Norway and in Australia.
The applications to be determined in these proceedings are based on the provisions of the Hague Convention on Jurisdiction, Applicable Law, recognition, Enforcement and Co-Operation in respect of Parental Responsibility and Measures for the Protection of Children 1996 (“the Convention”).
Both Australia and Norway have signed and ratified the Convention.
The mother’s application has two bases.
Firstly she asks the Court to determine that the child is, at the time of hearing, habitually resident in Australia.
In the event that the first application is unsuccessful, the mother asks the Court to make a request under Article 9 of the Convention to assume jurisdiction.
This judgment pertains only to the mother’s first application, which seeks a declaration the child is habitually resident in Australia.
THE CONVENTION
The provision of the Convention is imported into Australian law by the provisions of Division XIIIAA of the Family Law Act 1975 (Cth) (“the Act”). The mother’s application engages s111CD of the Act in relation to habitual residence. The relevant provision is set out below:
111CD Jurisdiction relating to the person of a child
(1)A court may exercise jurisdiction for a Commonwealth personal protection measure only in relation to:
(a)a child who is present and habitually resident in Australia; or
(b)a child who is present in Australia and habitually resident in a Convention country, if:
(i)the child’s protection requires taking the measure as a matter of urgency; or
(ii)the measure is provisional and limited in its territorial effect to Australia; or
(iii)the child is a refugee child; or
(iv)a request to assume jurisdiction is made to the court by, or at the invitation of, a competent authority of the country of the child’s habitual residence; or
(v)a competent authority of the country of the child’s habitual residence agrees to the court assuming jurisdiction; or
(vi)the court is exercising jurisdiction in proceedings concerning the divorce or separation of the child’s parents or the annulment of their marriage (but see subsection (3)); or
(c)a child who is present in a Convention country, if:
(i)the child is habitually resident in Australia; or
(ii)the child has been wrongfully removed from or retained outside Australia and the court keeps jurisdiction under Article 7 of the Child Protection Convention; or
(iii)a request to assume jurisdiction is made to the court by, or at the invitation of, a competent authority of the country of the child’s habitual residence or country of refuge; or
(iv)a competent authority of the country of the child’s habitual residence or country of refuge agrees to the court assuming jurisdiction; or
(v)the child is habitually resident in a Convention country and the court is exercising jurisdiction in proceedings concerning the divorce or separation of the child’s parents or the annulment of their marriage (but see subsection (3)); or
(d)a child who is present in Australia and is a refugee child; or
(e)a child who is present in a non‑Convention country, if:
(i) the child is habitually resident in Australia; and
(ii)any of paragraphs 69E(1)(b) to (e) applies to the child; or
(f)a child who is present in Australia, if:
(i)the child is habitually resident in a non‑Convention country; and
(ii)any of paragraphs 69E(1)(b) to (e) applies to the child.
The mother relies on the provisions of s111CD(1)(c)(i) and asserts that the Court will find that the child is habitually resident in Australia and therefore should exercise jurisdiction in relation to her parenting.
WHERE IS THE CHILD HABITUALLY RESIDENT?
In DW & Director General Department of Child Safety (2006) FLC 93-255 the majority quoted with approval that:
…habitual residence refers to the parents’ habitual abode in a country:
Which they have adopted voluntarily and for settled purposes as part of the regular order of their life for the time being whether it is of short or long duration.
In LK v Director General Department of Human Services (2009) 237 CLR 582, the High Court determined that habitual residence is a matter of fact, to be determined having regard to:
… a wide variety of circumstances that bear upon where a person is said to reside and whether that residence is to be described as habitual. Secondly, the past and present intentions of the person under consideration will often bear upon the significance that is to be attached to particular circumstances like the duration of a person's connections with a particular place of residence.
Their Honours stated at [28] and following:
Although intention is a necessary element in deciding domicile of choice, and "habitual residence" is chosen as a connecting factor in preference to domicile, examination of a person's intentions will usually be relevant to a consideration of where that person habitually resides. Sometimes, intention will be very important in answering that question. The example of a person who leaves a jurisdiction intending not to return is one such case. But unlike domicile, considerations relevant to deciding where a person is habitually resident are not necessarily confined to physical presence and intention, and intention is not to be given controlling weight.
First, individuals do not always act with a clearly formed and singular view of what it is intended (or hoped) that the future will hold. Their intentions may be ambiguous…
…
Secondly, because a person's intentions may be ambiguous, in asking whether a person has abandoned residence in a place it is necessary to recognise the possibility that the person may not have formed a singular and irrevocable intention not to return, yet properly be described as no longer habitually resident in that place. Absence of a final decision positively rejecting the possibility of returning to Israel in the foreseeable future is not necessarily inconsistent with ceasing to reside there habitually.
Thirdly, when considering where a child is habitually resident, attention cannot be confined to the intentions of the parent who in fact has the day‑to‑day care of the child. It will usually be necessary to consider what each parent intends for the child. When parents are living together, young children will have the same habitual residence as their parents. No less importantly, it may be accepted that the general rule is that neither parent can unilaterally change that place of habitual residence. The assent of the other parent (or a court order) would be necessary. But again, if it becomes necessary to examine the intentions of the parents, the possibility of ambiguity or uncertainty on the part of one or both of them must be acknowledged.
It follows from each of the three considerations just mentioned that to seek to identify a set list of criteria that bear upon where a child is habitually resident, or to attempt to organise the list of possible matters that might bear upon the question according to some predetermined hierarchy of importance, would deny the simple observation that the question of habitual residence will fall for decision in a very wide range of circumstances. And examination of decided cases in the area does not require the identification of a closed set of criteria, or the attribution of predetermined weighting between them.
Their Honours referred with approval to P v Secretary for Justice [2007] 1 NZLR 40 and in particular quoted the finding of the majority of the Court of Appeal of New Zealand who said:
Such an inquiry should take into account all relevant factors, including settled purpose, the actual and intended length of stay in a state, the purpose of the stay, the strength of ties to the state and to any other state (both in the past and currently), the degree of assimilation into the state, including living and schooling arrangements, and cultural, social and economic integration…
There is little dispute about the circumstances in which this family went to Norway.
Each parent has filed an affidavit setting out his or her evidence in chief and the mother has filed an affidavit replying to the father’s affidavit. Where she does not reply to a particular paragraph or assertion, I infer that the assertion is unchallenged.
The substantial dispute between the parties is whether the discussions about moving to Norway were subject, as the mother deposed, to a condition that if she were not happy there, they would return to Australia.
The father deposed that they started discussing moving to Norway in late 2017. On 29 September 2017 the mother sent a text to the father saying, “I really would like to move to Norway with you next summer”.
They holidayed in Norway at the end of 2017, returning to Australia in February 2018. The mother deposed that, during that holiday, they discussed moving to Norway. The mother deposed that, upon their return to Australia, they began to “figure out the logistics of moving to Norway. It was important to me to show my commitment to [the father] and attempt to start a life in Norway”.
They discussed appropriate day care arrangements for the child and booked her into her current placement, to commence in August 2018.
They looked into educational and work options for the mother and drafted a curriculum vitae for her with a view to making applications in Norway.
The father commenced negotiations with his current employer.
Arrangements were made for them to have the use of an apartment owned by the father’s grandmother after they arrived in Norway.
On 19 March 2018, they purchased one-way tickets to Norway.
On 2 April 2018 they arranged the shipping of three boxes of goods and a guitar in hard case to Norway.
They started to investigate applying for a visa and for Norwegian citizenship for the mother.
On 15 May 2018 the shippers collected their goods for shipping.
On 17 May 2018 the mother sent a text message to the father saying, “I can’t wait to start our life together in Norge”.
On 8 June 2018, they left Australia for Norway. They lived with the paternal grandparents for about three months while renovations were done to the apartment belonging to the father’s grandmother.
On 20 June 2018 the father completed and lodged a “request to cancel a Temporary Resident visa”. On 27 June 2018, his Australian visa was cancelled. He was then eligible to claim his accumulated superannuation in Australia.
The father started his current employment on 25 June 2018.
On 28 June 2018, the father applied to his superannuation fund for “a departing Australia superannuation payment”.
The child started in day-care five days a week in August 2018.
In about September 2018 they moved into the apartment. The mother commenced language classes which she continued until she left Norway in 2020.
They discussed fostering a child in Norway at a later time, when the child was older.
On 6 November 2018 the mother sent the father a text saying, “I love you too and I’m so glad we made this move together! I really am, no matter how crazy I get this is our new life together for our family xx”.
On 25 November 2018 the mother was granted a Norwegian visa which entitled her to stay and work in Norway for three years.
They discussed buying a farm. On 28 February 2019 there was a text exchange between them in the following terms:
Father: …Okay, how about this? Our five year plan: buy apparent [sic] now, get some jobs we like save money and when the apartment is worth more and we have more money we buy a small farm/cabin an hour or so from [G City]? And then we kan [sic] spend every weekend there and go there all the time! And in the summer we can stay there for like three months straight and get chickens and goats.
And have a nice dog to go along with it all.
Mother: That sounds awesome!
I love that plan.
Father: Yeah?? Xx would you do it with me?
Mother: Yes honey!
The mother deposes that in February 2019, she had a discussion with the father where she indicated that she wanted to return to live in Australia.
The mother commenced full time employment in Norway in May 2019. In her curriculum vitae she stated:
I have moved from Sydney in June 2018 and now reside in D Town with my fiancé and our daughter…
They were married in 2019 in Norway.
In August 2019, they purchased an apartment in F City, Norway with a friend. The friend owns 25 per cent of the apartment, the father owns 50 per cent and the mother owns 25 per cent. An agreement entered into with their co-purchaser gives the father and the mother the right to purchase her share for value if they wish. The father contributed funds from an advance on his inheritance from his parents and the father’s parents lent 25 per cent of the purchase price. The father and the mother made repayments on the loan advance.
The mother resigned from her employment in October 2019. She travelled to Australia for a few weeks to attend to family matters. The child remained in Norway.
After her return to Norway the mother began self-harming and attempted suicide. Both the relationship and the mother’s mental health declined.
The mother deposed, and I accept, that there were discussions about returning to Australia. The mother wanted to return to Australia. The father wanted to live in Norway.
On 24 January 2020 the mother left Norway for Australia, intending to be away for four weeks. The child remained in Norway.
On 23 February 2020 the mother told the father that she would not be returning to Norway.
The father and the child continue to live in the apartment where they have lived since August 2019.
The child continues to attend day-care five days each week at the day-care centre where she was enrolled when the parents arrived in Norway.
The father deposed that the child has formed friendships at day-care. She has started having friends come to her home to play.
The services manager of the kindergarten which the child has attended stated that:
The child commenced in an infant’s section in August 2018.
The child was transferred to a junior section in August 2019 when she was transferred together with a number of other children she knew from the same section.
The child has attended the junior section for the past year, which has a total of 40 children divided into 3 groups. The child is in a group of 10 children born in 2016.
We further confirm that the child has fitted in well throughout her attendance at …Kindergarten.
(As per the original)
The child spends one night each week with her paternal grandparents with whom the father deposed she has a “strong and good relationship”. The mother deposed that the child “has a loving relationship with her paternal grandparents”.
The father and the child engage in family activities with the paternal family on Sundays and in the summer spend time with the extended paternal family at their holiday cabin.
The child visits her paternal great grandmother weekly.
The child has Norwegian citizenship.
I accept that there were discussions between the parties about whether, and in what circumstances, they might return to Australia, both before they left Australia to live in Norway and again when the mother became unhappy and wanted to return to Australia.
However, absence of a final decision positively rejecting the possibility of returning to Australia in the foreseeable future is not necessarily inconsistent with ceasing to reside there habitually, or with acquiring habitual residence in Norway.
The mother may have had reservations about the long term viability of remaining indefinitely in Norway but that does not detract from the fact that when they moved to Norway, they did so with the mutual intention of living there as their home.
The parents and thus their daughter were habitually resident in Norway when the mother left Norway in January 2020.
The child is settled in Norway and all aspects of her physical care are provided in Norway. As their Honours stated in LK v Director General Department of Human Services:
…habitual residence, consistent with the purpose of its use, identifies the centre of a person’s personal and family life…
For this child, that place is Norway.
The child remains habitually resident in Norway.
It follows that the Family Court of Australia should not, because of the provisions of the Convention, exercise jurisdiction in relation to her parenting arrangements.
I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 24 July 2020.
Associate:
Date: 24/07/2020
1
2