MHAMBREY & VAIRAJA
[2018] FamCAFC 120
•5 July 2018
FAMILY COURT OF AUSTRALIA
| MHAMBREY & VAIRAJA | [2018] FamCAFC 120 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – ADDUCE FURTHER EVIDENCE – where the father sought to adduce further evidence on the appeal – where the evidence sought to be adduced was not further evidence upon any question of fact – where the application did not meet the criteria for admission of further evidence on appeal as prescribed by the High Court – application dismissed. FAMILY LAW – APPEAL – CHILD ABDUCTION CONVENTION REGULATIONS – where the trial judge found the child was not habitually resident in the USA immediately prior to his removal from that country – where the father contended that the trial judge was in error in finding that the child became habitually resident in Canada prior to being removed to Australia – where the father contended that the trial judge gave insufficient or excessive weight to certain evidence in determining the dispositive issue – where the trial judge determined that there was no settled mutual intention on the part of the parents that the child would return to reside in the USA upon returning from Canada – where the trial judge’s findings as to the child assuming habitual residence in Canada, and not resuming habitual residence in the USA upon his return, were open to his Honour on the evidence – where it would not be legitimate for this Court to disturb the trial judge’s conclusion as to the dispositive issue – appeal dismissed – father to pay the mother’s costs of the appeal in the fixed sum of $11,000. |
| Family Law Act 1975 (Cth) ss 93A(2), 117(2), 117(2A) Convention on the Civil Aspects of International Child Abduction 1980 Family Law (Child Abduction Convention) Regulations 1986 (Cth) reg 14(1)(a), 16(1A)(b), 16(2) |
| Abalos v Australian Postal Commission (1990) 171 CLR 167; [1990] HCA 47 Minister for Immigration, Local Government and Ethnic Affairs v Hamsher (1992) 35 FCR 359; [1992] FCA 184 |
| APPELLANT: | Mr Mhambrey |
| RESPONDENT: | Ms Vairaja |
| FILE NUMBER: | PTW | 6220 | of | 2015 |
| APPEAL NUMBER: | WA | 14 | of | 2017 |
| DATE DELIVERED: | 5 July 2018 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Perth |
| JUDGMENT OF: | Thackray, Murphy & Kent JJ |
| HEARING DATE: | 28 November 2017 |
| LOWER COURT JURISDICTION: | Family Court of Western Australia |
| LOWER COURT JUDGMENT DATE: | 17 March 2017 |
| LOWER COURT MNC: | [2017] FCWA 38 |
REPRESENTATION
| THE APPELLANT: | Self-represented (via telephone) |
| COUNSEL FOR THE RESPONDENT: | Mr Nicholls QC with Ms Kaur |
| SOLICITOR FOR THE RESPONDENT: | Gendeh Legal |
Orders
The father’s Application in an Appeal filed on 1 November 2017 to adduce further evidence be dismissed.
The father’s appeal from the orders made by O’Brien J on 17 March 2017 be dismissed.
The father pay the mother’s costs of the appeal proceedings in the fixed sum of $11,000 within thirty (30) days of these orders.
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 Mhambrey & Vairaja 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).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT PERTH |
Appeal Number: WA 14 of 2017
File Number: PTW 6220 of 2015
| Mr Mhambrey |
Appellant
And
| Ms Vairaja |
Respondent
REASONS FOR JUDGMENT
Mr Mhambrey (“the father”) and Ms Vairaja (“the mother”) participated in a Hindu wedding ceremony in Town N, New South Wales in November 2012. In about January 2013 the mother acquired permanent residency status in Australia and subsequently obtained Australian citizenship. The father and mother married in a civil ceremony in the Australian Capital Territory in October 2013. In November 2013 the mother commenced parental leave from her employment at a hospital in the Australian Capital Territory. Soon afterwards, the mother and father travelled to State B in the United States of America (“the USA”) and their only child, D (“the child”) was born there in December 2013.
In July 2014 the mother enrolled to attend a course of study in City E in Canada. In November 2014 the father and mother signed a lease on a residence in City E and the mother and child commenced living there on 4 January 2015 whilst the father remained living in State B.
In August 2015 the mother completed her course and, whilst the mother obtained a further Canadian study and work permit until 30 March 2016, she and the child returned to State B and resumed living with the father on 23 August 2015. However, a little over a month later, on 29 September 2015, the mother left the USA with the child travelling to Southeast Asia, and then to Australia, arriving on 25 October 2015. The mother and child have lived in Australia ever since.
In an application brought by the Commissioner of the Western Australian Police, in his capacity as the relevant Central Authority[1] seeking an order that the child be returned to the USA, the question of the child’s habitual residence was the dispositive issue.
[1] Pursuant to reg 14(1)(a) of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”).
The Central Authority bore the onus of establishing that immediately prior to the child’s removal from the USA by his mother on 29 September 2015, that the child was habitually resident in the USA in order to establish that the child’s removal was wrongful within the meaning of the Regulations.[2]
[2] Regulation 16(1A)(b).
On 17 March 2017 the trial judge dismissed the application of the Central Authority in consequence of his Honour’s finding that the child was not habitually resident in the USA immediately prior to his removal from that State. In summary, the trial judge determined that whilst the child was habitually resident in State B, USA from the time of his birth in 2013, the child assumed habitual residence in Canada when he moved to live there with his mother on 4 January 2015 as a result of the joint decision of his parents. The trial judge found, for reasons to be discussed, that upon the mother and child leaving Canada and returning to State B on 23 August 2015, the child did not resume habitual residence in State B, prior to him leaving there with his mother on 29 September 2015.
The Central Authority has not appealed from the dismissal of the application and did not seek to participate in this appeal. Rather, this appeal is brought by the child’s father, who is the requesting applicant within the meaning of the Regulations and the Convention on the Civil Aspects of International Child Abduction 1980 (“the Convention”) to which the Regulations give effect.
The child’s mother opposed the Central Authority’s application at trial and opposes the father’s appeal from its dismissal.
The Father’s Challenges On Appeal
The Particular Circumstances of the Hearing
Before addressing specifically the father’s challenges on appeal, given their nature as outlined, it bears some emphasis that there were none of the practical constraints often dictated by the circumstances in which applications of this type under the Regulations proceed. Both parents were in attendance at trial. Each was cross-examined.
Thus, in undertaking the broad factual enquiry as to the dispositive issue of habitual residence of the child, the trial judge was not, as is frequently the case, constrained to rely upon untested evidence. Nor, as a consequence, was that factual enquiry circumscribed by any limitation upon the trial judge’s capacity to assess the principal witnesses, the parents of the child, and make credit findings. His Honour did each and both were important to his Honour’s ultimate determination.
In addition, the proceedings were adjourned twice, once at the request of the Central Authority and once at the request of both parties. One consequence was that the parties had the opportunity to, and did in fact, file a significant amount of affidavit material in support of their respective positions.
A second and important consequence was the significant delay in the hearing of the application. By the time the application was determined, the mother and child had been in Australia for some 18 months. While no issue arises under the Regulations[3] by reason of that delay, it does not sit conformably with the underlying objectives of the Convention.
[3] Regulation 16(2).
The Self-Represented Father’s Grounds Of Appeal
By Grounds 1 and 2 of his Notice of Appeal (including the various sub-grounds) the father contends that the trial judge was in error in finding that the child became habitually resident in Canada. The effect of these grounds, allied with Ground 3, is to articulate the father’s challenge to the effect that at all material times the child remained habitually resident in State B, USA and that his Honour’s process of fact finding was in error in determining otherwise.
Grounds 3 and 4 contend that the trial judge erred in the assignation of weight given by his Honour to evidence in the process of fact finding his Honour undertook.
Taken with his Summary of Argument filed in support of the appeal, and his oral argument on the hearing of the appeal, the father’s complaints are, in summary, that the trial judge’s conclusions about habitual residence were wrong as:
·Not being supported by the evidence; and/or
·Being the result of his Honour’s failure to take account of or give sufficient weight to some evidence, and excessive weight to other parts of the evidence.
The father also challenges, seemingly as a matter of law, the trial judge’s conclusion that a temporary move for the purposes of study could bring about a change of habitual residence.
The Father’s Application to Adduce Further “Evidence”
As to this particular challenge the father, who represented himself on appeal, sought by application filed in an appeal to adduce further evidence on appeal pursuant to s 93A(2) of the Family Law Act 1975 (Cth) (“the Act”). However, the “evidence” the father seeks to adduce is not further evidence upon any question of fact. It comprises a publication from the Canadian Department of Justice containing an explanation of the meaning of habitual residence, including by reference to a number of decided cases under the Convention as to how the meaning of habitual residence has been determined in the particular circumstances of the cases referred to. The father’s application thus does not meet the criteria for admission of further evidence on appeal as prescribed by the High Court in CDJ v VAJ (1998) 197 CLR 172. Thus the application is to be dismissed.
That noted, the father is entitled, by way of submissions, to make reference to case law and we treat his application, insofar as it refers to cases decided under the Convention, as part of the father’s submissions.
The Trial Judge’s Decision And The Issues On Appeal
The father’s arguments before the trial judge, and before this Court, in respect of the central dispositive issue of habitual residence derive their force from the peripatetic circumstances of the mother and child and the ambiguity attending the cessation of the relationship between the father and mother. His Honour carefully outlined those factual circumstances. No material factual error is asserted. The resolution of the issue of habitual residence was not straightforward and his Honour’s factual determinations, informed by central findings as to credibility, was central to it.
The father’s arguments in respect of his central contention that his Honour erred in the determination of habitual residence requires this Court to answer two fundamental questions:
a)Did the trial judge rely solely upon the mother’s intentions and ignore the father’s intentions? These reasons will seek to explain our conclusion that his Honour did not.
b)Was it open to his Honour to conclude on the basis of unchallenged findings and the evidence that the child was not habitually resident in the USA on the relevant date? We have concluded that it was and the reasons which follow will seek to explain why.
The central role played by intention in determining habitual residence has been authoritatively settled by the High Court in LK v Director-General, Department of Community Services (2009) 237 CLR 582 (“LK”). His Honour referred to those principles and their relatively recent application by the Full Court in Secretary, Department of Family and Community Services & Padwa (2016) FLC 93-701 (“Padwa”).
Whilst we are mindful of the High Court’s observations concerning the evident limitations in approaching the term “habitual residence” only from a standpoint which describes it as presenting a question of fact,[4] the High Court also emphasised the broad factual and contextual nature of the inquiry required.[5] The limitations upon an appellate court disturbing a trial judge’s findings of fact are well established.[6] Likewise, authorities emphasise the position of disadvantage of appellate judges, as compared with a trial judge, where findings of fact rely upon assessments made of credibility.[7] These restraints have particular resonance in a case such as this where the trial judge, having seen and heard the witnesses, comes to a conclusion in favour of the party upon whom the burden of proof does not lie.[8]
[4]LK at [22].
[5]LK at [44] – [45].
[6] See, for example, Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550.
[7] Dearman v Dearman (1908) 7 CLR 549 (“Dearman”) per Griffith CJ at 553; Abalos v Australian Postal Commission (1990) 171 CLR 167 per McHugh J at 178; Devries v Australian National Railways Commission (1993) 177 CLR 472 per Brennan, Gaudron & McHugh JJ at 479; Fox v Percy (2003) 214 CLR 118 per Gleeson CJ, Gummow & Kirby JJ at [23].
[8]Dearman per Griffith CJ at 553.
As was identified by the trial judge, by reference to LK and to the decision of the Full Court of this Court in Padwa applying LK, the search must be for where a person resides and whether residence at that place can be described as habitual;[9] and the High Court emphasised the broad factual, and contextual nature of the inquiry that, ultimately, looks at the connection between the child and the particular State.[10]
[9]LK at [22].
[10]LK at [44] – [45].
As is illuminated in LK, the broad factual inquiry is not governed by any closed set of criteria to be considered and there is no predetermined weighting between them. Thus, for example, intentions, including parental intentions (including “settled intentions” or “settled purposes”) are not to be given controlling weight – although they can be very important, and will often have a bearing on the significance that can be placed upon other factors, such as the duration of a person’s connections with a particular place of residence.
Moreover, when speaking of the habitual residence of a child it will usually be very important to examine where the person or persons who are caring for the child live – where those persons have their habitual residence – albeit that it is important not to elevate the observation that a child looks to others for care and housing to some principle of law like the (former) law of dependent domicile of a married woman.
Before moving to a consideration of the trial judge’s findings and conclusions, it is important to record the trial judge’s findings of fact as to the shifting places of residence of the mother and child which give force to the father’s arguments and which underpinned the difficult decision confronting his Honour.
There is no challenge on appeal to the effect that the trial judge made any error in identifying the principles to be applied in determining the issue of habitual residence.
The Mother and Child’s Places of Residence
It was common ground between the parties that at the time the parents participated in a Hindu wedding ceremony in Town N, New South Wales in November 2012, the father had not told the mother that he was married, separated and had a child of that relationship. It was in about January 2013 that the father informed the mother for the first time that he had a son from his then marriage. It was at about the same time that the mother acquired permanent residency status in Australia (at [46] and [47]).
Throughout the early stages of the relationship the mother was resident in Australia while the father was resident in the USA, and spent periods of time in Australia. In August 2013, having obtained his divorce, the father returned to Australia. At that time, the mother was living and working in the Australian Capital Territory. In September 2013 the father commenced employment in Town P, New South Wales. He stayed in Town P during the week and visited the mother in the Australian Capital Territory on weekends (at [50]).
In October 2013, after the father and mother married, the father resigned from his employment in Town P and joined the mother in Australian Capital Territory. In November 2013, the father and mother moved to State B, the mother on a one year visitor’s visa which entitled the mother to enter the USA on multiple occasions, but to remain for no longer than six months on any visit (at [49] and [51]).
On the mother’s evidence, which his Honour found to be supported by some of the email and other exchanges between the parties, the father was anxious to return to State B for the purpose of unresolved parenting proceedings there, where his former wife and their son lived. The trial judge rejected the mother’s attempts to characterise the decision of the parties to move to State B as being entirely unilateral on the part of the father (at [51]).
The trial judge found that by commencing 12 months maternity leave from her employment in the Australian Capital Territory the mother was not, as she advanced, demonstrating her firm intention to return to Australia within 12 months but, rather, this was a means of “keeping her return options open” (at [52]).
In December 2013, while in State B, the mother applied for Australian citizenship. The trial judge rejected the father’s explanation for that to the effect that having an Australian, rather than a Southeast Asian, passport was somehow more convenient for the mother, finding specifically that the mother was “keeping open the option of returning to Australia” (at [53]). The child was born in December 2013.
The trial judge referred to the parties’ joint efforts, commencing in July 2014, for the mother to live and study in Canada, including by leasing a residence there suitable for the mother and child. His Honour referred to a September 2014 two week visit to Australia made by the parties with the child and recorded that the mother was granted Australian citizenship in December 2014, and that in early January 2015 the mother’s parents came to the USA and accompanied the mother and the child when they moved to Ontario, Canada on 4 January 2015. The mother’s parents remained in Canada until the end of March 2015. Thereafter, when not in the care of the mother, the child attended day care (at [55] – [59]).
In March 2015, there were email and “WhatsApp” exchanges between the father and mother that his Honour considered important. These will be referred to in more detail below.
On 23 August 2015, the mother and child returned to State B from Canada. Obviously enough, his Honour’s findings in respect of intention in respect of this move are important and, again, will be referred to in more detail below.
As has been seen, the mother and child left State B on 29 September 2015 arriving in Australia via a stay in Southeast Asia on 25 October 2015.
The Trial Judge’s Factual Findings as to Intention
While the trial judge’s assessment of the parties’ credibility was important to his Honour’s factual findings, it is critical to note that his Honour also had reference to contemporaneous written evidence in the form of emails and “WhatsApp” exchanges.[11]
[11] As to the importance of evidence beyond the parties in “word on word” contests, see Camden v McKenzie [2008] 1 Qd R 39 at [30] – [35] per Keane JA (as his Honour then was) citing Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 and Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186.
His Honour found, with respect to email and “WhatsApp” exchanges between the parents in early 2015, that the mother:
·Had intimated that she was unhappy in Canada and wanted to return to Australia; and
·Not only did not indicate any intention to return to live in State B, but consistently indicated her determination not to do so (at [62]).
The trial judge considered that the relevant exchanges make clear that there were “significant difficulties” in the relationship albeit that his Honour concluded the exchanges “fall short” of supporting the mother’s contention that the marriage had broken down at this time (at [60]). His Honour set out the following exchange between the parties on the morning of 31 March 2015:
…
FATHER:It is always the same thing – if I make plan to be with you to be closer, you make a plan to stay away – I just don’t understand. You don’t want us to live close to [his son]. Why do you will always suggest to live separate.
MOTHER:I did not say u should not be close to [his son]. U better stop saying that to make things worst. I suggested for u to be with him till 11, 12, then it’s up to him to decide if he wants to be here or there.
FATHER:You suggested for me to stay here [i.e. in State B]. So where are you going to stay till then.
MOTHER: Here. [i.e. in Canada]
FATHER: You want me to continue live separate like this.
MOTHER: It’s the best for both of us.
MOTHER:Let’s just communicate less. If there is anything I’ll call u. I know u need to see [the child] so I have no choice.
FATHER:I don’t think so. I want us to live together. Till his teen years he can live with us and after that we can move to 2 to 3 hour distance.
(As per original)
His Honour found that at various points the mother made statements to the father which were consistent with an intention to end the relationship and an unwillingness to return to live with him. However, his Honour found that the exchanges do not of themselves support a conclusion that either party had reached a final decision as to the future of the relationship (at [60]).
Importantly, as to then future plans, the trial judge found (at [63]):
·That at times the father encouraged the mother to obtain a work permit allowing her (and consequently the child) to stay in Canada;
·At other times the father suggested that the mother consider returning to State B; and
·The father, in further exchanges, indicated an acceptance that at some stage he would have to leave State B if the parties were to be together (implicitly accepting that the mother and child would not return to State B).
Commencing at [64] of the reasons the trial judge considered the facts and circumstances surrounding the return of the mother and child from Canada to State B on 23 August 2015. Specifically, it is clear from his Honour’s discussion that his Honour examined the question of whether the mother could be said to have formed a settled intention to reside with the child in State B. In determining that the mother did not form such a settled intention, his Honour quoted the following content, sourced to the father himself, as contained in the Central Authority’s application:
77My consideration of the question of whether the mother was in any sense settled in an intention to reside with [the child] in [State B] after leaving Canada (and whether, accordingly, there was a joint settled intention of the parties that [the child] would reside there) is influenced by the father’s evidence in his initial application to the relevant Central Authority in [State B], when he said (errors are as they appear in the original):
During her 2 years of stay in north america my wife tried to get license in US and canada. US [health care] license process is a length one. She tried canadian license and failed on her exam times. Ever since she came back from canada she wanted to go back to australia as she felt she could never work here. (emphasis added) she also did not like the fact that she have to live in a small town [in State B]. Immigration struggles, Career struggles has all resulted in deep depression on her.
His Honour found that a consistent theme in the electronic communication between the parents was the mother’s staunch opposition to the suggestion that she might return to live in State B. Consistent with that body of evidence, the father’s own evidence as referred to; and other evidence of the mother which his Honour accepted, his Honour found that the mother did not form any settled intention to reside in State B at the time she left Canada (23 August 2015) nor subsequently.
His Honour determined, uncontroversially it would seem, that the child’s move to live in Canada with his mother (on 4 January 2015) was as a result of the joint decision of his parents, but that there was no settled mutual intention on the part of the parents that the child would return to reside in State B. His Honour found that the mother’s intention was consistently to the contrary; whilst the father’s intention was “somewhat changeable” (at [81]).
Having discussed the question of parental intention, his Honour turned to consider the question of habitual residence “from the perspective of the child”. His Honour made the following central findings concerning the child living in Canada (at [82]):
·The child lived in Canada by virtue of the joint decision of his parents that he would do so;
·The child lived in Canada, in the primary care of his mother, and integrated into the community to the extent that might be expected for a child of his age; and
·It was contemplated by both parents, at times at least, that the child would remain there permanently whether or not the father was prepared to move from State B.
Based upon those central findings the trial judge determined that the child was habitually resident in Canada from the date of his arrival there until his return to State B on 23 August 2015.
Further, his Honour found that on leaving Canada the child did not resume habitual residence in State B. With respect to that finding the trial judge noted that the child was only in State B for the period from 23 August 2015 to 29 September 2015; that his mother did not intend that either she or the child would habitually reside there (with that conclusion being reinforced by the father’s own evidence as earlier referred to). His Honour concluded that there was, accordingly, no joint decision of the child’s parents that the child would habitually reside in State B at any time after they made the joint decision for him to reside in Canada.
Importantly, his Honour found that whilst the child resided in State B after he and the mother left Canada “there is nothing in the evidence to support a conclusion that, from the child’s perspective, that residence became in any sense habitual, nor that there was any settled intention on the part of his parents that it would become so” (at [83]).
Thus it was that his Honour determined that the child was not habitually resident in State B, USA, immediately prior to his removal from that State.
Did The Trial Judge Rely Solely On The Mother’s Intentions?
In our judgment it is unsurprising, in the circumstances of this case, where a very young child is in the primary care of his mother, and then in essentially her sole care for a substantial period, that the trial judge should pay particular attention to the intentions of the mother from time to time in determining the dipositive issue of habitual residence.
However, when the reasons for judgment are read as a whole it cannot be said that the trial judge in fact focused solely upon the intentions of the mother, ignoring those of the father.
As already discussed, the trial judge noted that the child taking up residence in Canada was a consequence of the mutual decision of his parents for the mother and child to go and live in Canada for the purpose of the mother undertaking a course of study, as an important ingredient in the trial judge finding that the child became habitually resident in Canada. However, as also already discussed, parental intention was not given controlling weight. His Honour was at some pains to view the question of habitual residence from the child’s perspective (as binding authority demanded) including whilst the child was living in Canada.
It can be seen from the reasons for judgment that after a lengthy discussion concerning the electronic exchanges between the parents the trial judge summarised the respective parental intentions at [81] of the reasons, including in respect of the father’s intentions from time to time.
It was in that context that his Honour determined that there was no settled mutual intention on the part of the parents that the child would return to reside in State B at the time when the mother and child returned from Canada.
We are not persuaded that the trial judge ignored the father’s intentions nor, conversely, that the trial judge relied solely upon the mother’s intentions.
Was The Trial Judge’s Conclusion As To Habitual Residence Open?
The trial judge did not find, as Ground 1.1 asserts, that both parents intended that the child would live in Canada permanently. Having discussed the intention on the part of each parent, the trial judge found that the child living in Canada was the result of a mutual decision by his parents, and that the child lived in Canada for the purpose agreed to by the parents.
At [82] the trial judge specifically examined the child’s residence in Canada from the child’s perspective. The trial judge there recorded his findings that having taken up residence in Canada by virtue of the joint decision of his parents, the child lived there in the primary care of his mother “and integrated into the community to the extent that might be expected of a child his age”.
The trial judge did not find that the parents had positively determined, unequivocally, that the child would remain permanently in Canada. The trial judge’s finding was:
…It was contemplated by both parents, at times at least, that he [the child] would remain there permanently whether or not the father was prepared to move from [State B].
(Emphasis added)
The contention pervading numerous of the sub-grounds expressed in the self‑represented father’s Notice of Appeal in support of this ground, and indeed other grounds of the appeal, is that the trial judge either failed to provide “analysis” of certain evidence, or gave insufficient weight to evidence, in reaching the finding that the child became habitually resident in Canada. In that respect, a central contention is the father’s assertion of an express agreement by both parents that the move to Canada was temporary in nature so as to enable the mother to complete a course of study, and that it was agreed she was then to return to State B.
In our judgment, this aspect of the father’s challenge is based upon some misconceptions.
First, being in a place for an intended temporary period does not necessarily exclude that as a place of a person’s habitual residence. Planned study, or being in a place for the purpose of study or work, albeit for a “temporary” period, is nevertheless capable of constituting a “settled purpose” or being reflective of a “settled intention” within the meaning of those concepts as discussed in LK. Importantly in this case, the mother and child moved to live in Canada as a result of a joint decision by the parents.
Further, the father’s contention surrounding this theme ignores that parental intention is not to be given controlling weight and it is the child’s perspective that is of fundamental importance in examining habitual residence. In addition, as has already been discussed, the trial judge clearly considered the respective, and changeable, intentions of the parents that were operative from time to time. His Honour specifically referred, for example, to the father’s encouragement of the mother at one point to obtain a work permit allowing her to remain in Canada for a further year (at [63]).
The father asserts that the trial judge gave insufficient weight to the mother’s termination of her Australian based employment. The trial judge referred to the fact that the mother took maternity leave from her Australian based employment on a paid basis until 23 July 2014 (at [52]) and subsequently, in October 2014, resigned from that employment (at [56]). The father asserts that greater weight ought to have been assigned by the trial judge to the fact that the mother resigned that employment after almost a year of her living in the USA.
As to this issue, the trial judge rejected the mother’s case that her maintenance of her Australian based employment demonstrated her intention to return to Australia (at [52]). Leaving aside the strictures inherent in weight challenges on appeal, we are not persuaded that the trial judge was somehow bound to give greater weight than he did to the fact of the mother’s termination of her Australian employment nor, by way of corollary, to the fact that in December 2013, whilst in State B, the mother applied for Australian citizenship (at [53]) and obtained Australian citizenship in December 2014 (at [58]).
Whilst the trial judge did not specifically discuss the mother’s participation in applying for a “green card” permitting her to work in the USA, including in the brief period when she returned from Canada in August 2015, his Honour referred to efforts made by the parties to enable the mother to work in State B (at [55]). His Honour also referred to the fact that prior to leaving Canada the mother had applied to sit for an exam to enable her to work in health care in State B (at [71]); and further to the fact that after her return to State B the mother applied for entry into employment courses in State B, her explanation being that this was because of pressure by the father (at [72]).
The trial judge rejected the mother’s case to the effect that the father “forced” her to return to State B from Canada (at [74]) but his Honour plainly had regard to the “significant difficulties in the relationship” and weighed all of that evidence, including the father’s evidence as contained in the Central Authority’s application which we have earlier quoted.
That evidence was important as is evident from his Honour’s conclusion:
78I find that the mother did not form any settled intention to reside in [State B] at the time she left Canada, nor subsequently. That finding is consistent not only with those elements of her evidence which I accept, but also with the father’s evidence in his initial application. It is also consistent with the various electronic exchanges between the parties which are in evidence, in which one of the few consistent themes is the mothers staunch opposition to the suggestion that she might return to live in [State B].
(As per original)
As already noted, earlier in the reasons for judgment the trial judge referred to the electronic communications between the parents (at [60] – [62]) in which the trial judge found the mother had consistently indicated her determination not to live in State B.
When all of these aspects of the reasons for judgment are considered, we are not persuaded that the trial judge was bound to give discrete “analysis” to the green card application, and we find no merit in this contention. “A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue.”[12]
[12]Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62] per Gleeson CJ, McHugh and Gummow JJ.
It bears repeating that the trial judge did not make a finding, as the father contends (see, for example, sub-ground 1.4 of his Notice of Appeal) that from the outset the parties intended the mother’s move to Canada to be a permanent one. We have already made reference to the trial judge’s finding, based upon the evidence, that it was at least in contemplation at one point of the exchanges between the parents that the mother might obtain more permanent arrangements in Canada.
The father advances the fact that he remained living in State B, and that the mother and child made visits to State B whilst they were living in Canada, as having, seemingly, determinative weight on the question of whether the child assumed habitual residence in Canada, and the further question of whether the child maintained, or resumed upon his return to State B in August 2015, habitual residence in State B. That is, the father’s argument crystallises as one being that the trial judge gave insufficient weight to the father’s living circumstances in State B and the fact that visits were made to State B in the relevant period.
Again leaving aside the fact that the challenge is one of weight with all that implies in an appellate context, it bears emphasis that the child had just turned only two years of age when, pursuant to the joint agreement of his parents, he commenced living in Canada with his mother pursuant to the then settled purpose of his parents. That the child maintained, via visits, connection with State B where his father lived thereafter could not be the sole determinative of the child’s habitual residence at the critical date.
The fundamental question was, initially, whether from the child’s perspective his residence in Canada with his mother, pursuant to his parents’ joint decision, could reasonably be described as habitual. On his Honour’s findings at [82] earlier discussed, his Honour concluded that the child assumed habitual residence in Canada in all of the circumstances referred to. We are unable to conclude that such a finding was not one open to his Honour on the evidence.
That finding obviously informed his Honour’s determination of the determinative question in the case: was the child habitually resident in the USA immediately prior to his removal from that State by his mother on 29 September 2015? As already discussed, his Honour concluded that, from the child’s own perspective, the evidence as a whole did not support a conclusion that the child’s residence in State B from 23 August 2015 became, in any sense, habitual nor that there was any settled intention on the part of (both) his parents that it would become so (at [83]). We are unable to conclude that this determination by the trial judge was obviously erroneous, nor that such a conclusion was not open to be made by the trial judge on the evidence, and the inferences available to be drawn from the trial judge’s findings of fact.
Given the “broad factual enquiry” entailed in determining a child’s habitual residence, it is insufficient for an appellant who challenges a trial judge’s findings of fact merely to demonstrate that an alternative finding was available on the evidence. The appellant must demonstrate that the trial judge made an error of fact.[13]
[13]Coulton v Holcombe (1986) 162 CLR 1; Caratti v Mammoth Investments Pty Ltd (2016) 309 FLR 1.
Appellate interference can only be legitimate if the trial judge drew inferences that were not justified by the evidence, or failed to draw inferences that were compelled by the evidence. An appellate court does not interfere if a trial judge chooses between two (or more) inferences that can properly be drawn from the evidence. In Minister for Immigration, Local Government and EthnicAffairs v Hamsher (1992) 35 FCR 359 at 369, Beaumont and Lee JJ said:
…The court must be satisfied that the judgment of the trial judge is erroneous and it may be so satisfied if it reaches the conclusion that the trial judge failed to draw inferences that should have been drawn from the facts established by the evidence. The court is unlikely to be so satisfied if all that is shown is that the trial judge made a choice between competing inferences, being a choice the court may not have been inclined to make but not a choice the trial judge should not have made. Where the majority judgment in Warren v Coombes [(1979) 142 CLR 531] (at 552-553) states that an appellate court must not shrink from giving effect to its own conclusion, it is speaking of a conclusion that the decision of the trial judge is wrong and that it should be corrected…
By reference to the email communications which the trial judge discussed and particularly with the benefit of the oral evidence of each parent under cross‑examination which the trial judge had, the findings the trial judge made as to the child assuming habitual residence in Canada were open to his Honour, as was his Honour’s determination of the dispositive issue.
The Outcome of the Appeal
For those reasons we are not persuaded that it would be legitimate for this Court to disturb the trial judge’s conclusion as to the dispositive issue in this case.
The father’s appeal therefore must be dismissed.
Costs
In the event the appeal was to be dismissed, the mother sought an order for costs from the father of the appeal in the fixed sum of $11,000.
Whilst counsel for the mother was unable to provide clear submissions as to the calculation of the fixed sum, it was submitted that the sum sought at $11,000 would fall significantly below the costs that would be assessed on a party and party basis pursuant to the applicable scale of costs. Experience bears that out, particularly noting that the mother was represented by Senior Counsel on appeal and there was a sufficient degree of complexity about the issues in the appeal to justify that retainer.
For his part, the father opposed an order for costs being made and opposed the fixing of costs although it may fairly be observed that the father, who we repeat was self-represented, may not have fully appreciated the significance of costs being fixed as opposed to him being ordered to pay whatever sum for costs would ultimately be assessed in accordance with the scale of costs, if an assessment were undertaken.
The father’s appeal has been wholly unsuccessful. That circumstance justifies an order for costs in favour of the mother within the meaning of s 117(2) of the Act. Nothing to which the father directed our attention on the hearing of the appeal is persuasive of other considerations within s 117(2A). The mother should have her costs of successfully defending the appeal.
The fixing of costs avoids for the parties the further expense and inconvenience of having an assessment of costs undertaken and in circumstances where we are satisfied that $11,000 is a “just” amount for costs within the meaning of s 117(2) by reference to the nature of the appeal and the work involved, we are satisfied that order should be made.
Orders
We will order that the father’s Application in an Appeal to adduce further evidence be dismissed and that the appeal from the orders made by O’Brien J on 17 March 2017 be dismissed. We will further order that the father pay the mother’s costs of the appeal proceedings in the fixed sum of $11,000 within 30 days of the orders.
I certify that the preceding eighty-six (86) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Thackray, Murphy & Kent JJ) delivered on 5 July 2018.
Associate:
Date: 5 July 2018
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