O'CALLAGHAN and CAPE

[2011] FCWA 111

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

FAMILY LAW (CHILD ABDUCTION CONVENTION) REGULATIONS 1986

LOCATION: PERTH

CITATION: O'CALLAGHAN and CAPE [2011] FCWA 111

CORAM: JORDAN AJ

HEARD: 31 OCTOBER 2011

DELIVERED : 2 NOVEMBER 2011

FILE NO/S: PTW 3762 of 2011

BETWEEN: KARL JOSEPH O'CALLAGHAN

Applicant

AND

MR CAPE
Respondent

Catchwords:

Hague Convention - 9 year old [child] - mother German born - parties married and lived in Australia - mother returned to Germany for a holiday - decided to stay - issue of father's consent - father removes child from Germany against mother's wishes - question of habitual residence - finding not change to Germany - application dismissed

Legislation:

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

Category: Not Reportable

Representation:

Counsel:

Applicant: Mr. Jenkin

Respondent: Mr. Nicholls QC

Solicitors:

Applicant: State Solicitor's Office

Respondent: Bannerman Solicitors

Case(s) referred to in judgment(s):

Department of Health and Community Service v Vasse (1995) FLC 92-629

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

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

1In this matter by application filed on 1 July 2011 the applicant seeks an order for the return of a nine‑year-old child, [D Cape (“the child”)], born on 17 September 2002, from Australia to Germany.

Background

2The respondent [Mr Cape] is the father of the subject child and [Mrs Cape] is the child's mother. The respondent was born in England and moved to Australia in 1987. in Alice Springs for some time and married in August of 2002, prior to the birth of [the child] in September. They moved to Perth in January of 2007 where they resided together as a family until May of 2010. The child attended [a] school in Perth.

3The parties were experiencing some difficulties in their relationship and the child and the mother experienced some health issues leading up to May of 2010. It is common ground that a joint decision was made which enabled the mother to travel to Germany with the child to spend time with her family.

4It is common ground that it was agreed that this was to be a temporary arrangement and that the child and the mother would return to Australia in time for the commencement of the school year in early 2011. It was agreed that the child would be enrolled in a local school in Germany to enhance his education during his stay in that country.

5The mother departed Australia with the child pursuant to that agreement on 25 May 2010. The agreed arrangements prevailed until September of 2010. During that month the respondent travelled to Germany to spend time with the mother and the child. In terms of the evidence it is at this point that some differences emerge between the parties in relation to their understanding of what was and was not the state of affairs thereafter.

6What is common ground is the fact that, on or about 10 September, the mother informed the respondent that she wished to separate from him and to remain in Germany. It is clear that it was then and had always remained the mother's intention to have the child continue to reside with her. The future arrangements for the child were apparently part of the discussions between the parties at that time.

7What is in issue between them is the responses of the respondent at that time and thereafter. The respondent informs the Court that he at no stage agreed with any proposition which would have resulted in his son remaining permanently in Germany. To the contrary, he maintained that it was always his belief that the child’s interests would be best served by returning to Australia and returning to his schooling [in Perth].

8He informs the Court through his affidavit that he was shocked and distressed by the mother's disclosures and her decision to end the relationship and to renege on their previous agreement. He said he was upset by the prospect of his son living permanently in Germany.

9The respondent says that, despite the mother’s disclosure, for some time he remained hopeful that he could persuade the mother to change her mind about both ending the relationship and remaining in Germany. To that end he says that he approached his dealings with the mother in a conciliatory manner and he did not take any steps to secure the return of the child at that time. He says he cooperated with the mother in other ways and kept in contact with the child through electronic communications and through travels to Europe in November and December of 2010 and in January of 2011.

10The respondent says that, during those early trips, he continued in his efforts to persuade the mother to return to Australia. He says that during those discussions he at no stage informed the mother that he was agreeable to the child remaining in Germany permanently.

11For her part, the mother asserted that, during the very first discussions in September of 2010, the respondent agreed that the child could stay with her in Germany and finish his schooling in that country. She says that the respondent only began to voice concerns in December of 2010. It is clear from correspondence at that time that differences emerged about the future living arrangements for the child.

12What is also common ground is the fact that, until 8 December 2010, the mother had not informed the child of her intention to separate from the respondent and of her intention to remain permanently in Germany. As a consequence, until that date the child, would have remained in Germany with a clear expectation of returning to Australia, to his school, and to his father in January of 2011.

13It is clear that, after the December discussions between the parties, the respondent came to the realisation that he would not be able to persuade the mother to reconcile or voluntarily return to Australia on a permanent basis. The emphasis for him thereafter became the child’s future.

14The respondent spent time with the child in Europe in January and returned the child to the mother’s care. Later the parties endeavoured to negotiate contact visits between the child and his father both in Australia and in Europe in early 2011. At some stage in those discussions the mother gave her permission for the child to accompany the respondent to Australia. However, she subsequently changed her mind, withdrew that permission, and agreed only that the respondent could travel to the United Kingdom to visit the respondent’s family. She sought the respondent’s reassurances that he would not take the child to Australia and that he would return the child to [Germany] by 1 May. Through an exchange of emails the respondent provided that assurance to the mother.

15The respondent collected the child in Germany on 15 April and travelled to the United Kingdom. On 19 April, contrary to his agreement with the mother, he travelled to Perth, Australia. The child has remained with his father in Perth since that time and has resumed his schooling [in Perth].

16The mother responded by seeking the assistance of the appropriate authorities to secure the child’s return to her, culminating in the filing of this application in Australia on 1 July.

The proceedings

17The Form 2 application initially filed by the applicant pleaded that the grounds upon which the application was based included an assertion that the child was wrongfully removed from Germany on or about 29 April 2011. At the commencement of the proceedings, Counsel for the applicant sought leave to amend the application to plead that the wrongful act was not the removal from Germany in April but the retention of the child in Australia on 2 May, the day after the respondent had promised that the child would be returned to Germany.

18That application for amendment was opposed. The basis of the application was clear: on the evidence of each of the parties the respondent had the consent of the mother to remove the child from Germany in April. The act which had the potential to enliven the powers under the regulations, was the failure to return the child to Germany.

19The basis for the opposition to the amendment included submissions to the effect that the very power to amend may not exist. It was submitted that, if it did, to exercise it in favour of the applicant would be to substitute an entirely different cause of action, that is, a cause based on “wrongful retention”, as opposed to “wrongful removal”.

20It was submitted that the respondent's case had been presented on the basis of a need to meet a claim of “wrongful removal”, and that issues of oppression and procedural fairness dictated either a dismissal of the leave to amend application or, alternatively, would require an adjournment to enable the respondent to properly prepare the different case.

21It was further suggested that the prospect of an adjournment would strike at the heart of the nature of the prompt remedies envisaged under the relevant Treaty so as to require the Court to refuse to embrace any outcome which would further delay resolution of the matter.

22Counsel for the respondent also raised issues of procedural fairness in relation to material filed by the applicant late in time.

23On the issue of the merits of the application and before considering whether it is necessary to determine whether the amendment constitutes a substituted cause of action, I wish to focus on the cases presented and the issues to be addressed.

24The acts of removal and retention to be examined cover a period of the days leading up to 15 April and the actions of the husband in the days after the child went into his care. It is an agreed fact that the respondent removed the child from Germany on 15 April. It is a fact established by the respondent's own sworn affidavit that he removed the child from the United Kingdom to Australia on 19 April. It is an established fact that the respondent has retained the child in Australia since that day.

25It is established on the evidence presented that, when the respondent collected the child from the mother in [Germany] on 15 April, he knew that:

(a)the mother did not consent to removal of the child to Australia;

(b)that she had agreed to the trip to the United Kingdom only after having sought a written assurance from the respondent that he would return the child to [Germany] on 1 May at the latest; and

(c)that the father had provided that assurance by email communication on 14 April, the day before the mother delivered the child to the respondent.

26The facts of the removal from Germany and retention in Australia are matters not capable of being in contention. The issue of consent to retain the child in Australia is not open and is not argued. This case is not about issues of “removal”, “retention” or “consent”.

27The issue in this matter is whether the conduct of the husband in removing the child to Australia was “wrongful”. In this case, that question is determined entirely by a consideration of the issue of the habitual residence of the child and the evidence surrounding it.

28The child was born in Australia and remained in Australia until he was removed to Germany on 10 May 2010. The child’s habitual place of residence was at that time Australia. On the versions of each of the parents, there could have been no change to the child’s status in that regard until at least the middle of September because of the agreed temporary nature of the trip to Germany.

29If the child’s place of residence remained in Australia thereafter, his removal to or retention in Australia from 19 April was not wrongful and an order for return to Germany could not be made.

30If the child’s habitual place of residence had changed from Australia to Germany prior to 19 April 2011, then his retention in this country was wrongful and, in the absence of cases pleaded or evidence led in relation to any of the exceptions under regulation 16(3), an order for the child’s return to Germany must be made.

31I am satisfied that the Court has power to amend the proceedings. The jurisdiction to hear and determine proceedings brought pursuant to the Regulations is conferred upon the Court. Proceedings heard and determined in the Family Court are heard and determined in accordance with the Family Law Rules, which Rules include the power to amend.

32The Court has a power to dispense with compliance with the Rules. The Court has inherent powers and obligations to properly regulate proceedings before it so as to ensure that such proceedings are heard and determined in accordance with the proper administration of justice. I propose to allow the amendments sought to enable the real issues between the parties in this case to be considered and determined.

33There is clearly no prejudice to the respondent. The issue both parties had to address, whether the wrongful act was “removal” or “retention”, remain one and the same, that is, had there been a change to the child's habitual place of residence between September of 2010 and April of 2011?

Habitual residence

34Before I examine the evidence on this point, I need to formally record the relevant legal principles which underpin those deliberations as highlighted in part by the submissions of counsel for the Commissioner:

(1)Habitual residence is a question of fact to be determined by reference to the circumstances of a particular case.

(2)The time at which the Court is to determine the child's habitual residence is immediately prior to the removal or retention.

(3)Where parties have separated one parent cannot unilaterally affect a change of habitual residence in relation to the child.

(4)If a party alleges that a parent agreed to a change of residential arrangements so as to constitute a change of habitual residence in the context of these type of cases such consent would need to be illustrated to have been unequivocal.

35The applicant brings a case for return of the child to Germany. As part of that case, the applicant asserts that, at the relevant time, the child was habitually resident in Germany. As part of that proposition, the applicant must establish that, at some stage prior to 19 April, there was a change of habitual residence from Australia to Germany. The applicant carries the onus of establishing such matters.

36The applicant asserts that the change of habitual residence might be found on the evidence to arise from two possible avenues:

(1)a finding that, in September of 2010, the respondent agreed to the child remaining permanently with the mother in Germany and that the parties' intention at that time were acted upon in ways which have affirmed the new arrangements; or

(2)that, in the event I find ambiguity or uncertainty in the intentions of the respondent in that regard, there emerges in this case an, “underlining reality of the connection between the child and (Germany) such as to justify a finding that he was habitually resident in that country.”

37On the former matter of consent, the applicant relies upon the affidavit material of the mother wherein she asserts in paragraphs 9 to 11 of her affidavit filed on 1 August 2011 that she informed the respondent of her intention to separate and stay in Germany with the child and in paragraphs 10 and 11 she continues as follows:

“10.After long conversations [Mr Cape] agreed with me. He confirmed my opinion that under the given circumstances it would be best for [the child] and me to live in [Germany]. He told me that from then on I should assume that [the child] and I were going to live in Germany. We also spoke about the fact that [the child] was going to finish his school career in Germany.

11.[Mr Cape] left with (verbal) agreement. There is no written agreement about our separation. The only proof I can provide are the emails that demonstrate some actions which confirm this fact (i.e. cancellation of Australian school).”

38The respondent’s response to that evidence appears in paragraphs 32 to 35 of his affidavit filed on 26 September 2011. In paragraph 32 he refers to the disclosure by the mother that she wanted to separate. In that regard he says:

“32.This was a surprise and a shock to me especially as we had only been confirming her return to Australia a couple of weeks earlier. [Mrs Cape] also said that she intended to remain in Germany indefinitely and that she intended that [the child] should stay with her in Germany indefinitely too.

33.During several long conversations I tried to be as understanding and conciliatory as possible. I had no option but to accept the separation but when it appeared that [Mrs Cape] thought I was agreeing to [the child] staying in Germany I stated quite explicitly on at least two separate conversations, “I do not think it is in [the child’s] best interests to remain in Germany”, and, “I do not agree with this”.

34.I deny that in September 2010 I agreed that [the child] could live permanently in Germany with [Mrs Cape] as she asserts in paragraph 10 of her affidavit.

35.I did however agree that we should cancel [the child’s] place at [the school in Perth]. [Mrs Cape] was in the process [finalising shared work commitments] we were making and so her wish to separate and not do this had major implications for the already strained family business and finances. Keeping on paying the school fees looked like an impossibility.”

39A number of observations are warranted in relation to this aspect of the evidence before the Court. The respondent asserted that he was shocked and surprised at the time of disclosure of the mother’s decision. In my view, that it is not an unlikely proposition. He was confronted not only with the prospect that his wife had determined to end their marriage, but also with the prospect that his son would be raised in a distant country.

40Whilst the former possibility had been in prospect for some time, the loss of his close relationship with his son had never before been in the communicated contemplation of either of the parties.

41As was observed in another case in a related issue, that is, the Department of Health and Community Service v Vasse (1995) FLC 92-629, one needs to be very cautious about how one evaluates statements and decisions made in the context of emotional turmoil.

42Similarly, the possibility that the father’s responses at that time were also conciliatory and designed in part to enliven the prospect of a future reconciliation or a future change of mind, is not a fanciful proposition. It seems from the account of each of the parties that there were elements of, “not raising any objection”, and “assumptions” and there is even some evidence from the mother herself about some equivocal elements to her September discussions.

43In annexure 18 to her affidavit, the following statements emerge in relation to those discussions:

“I told you that I wanted to separate and as a result of that I was thinking (my emphasis) about moving back to Germany.”

“We even talked about the fact that if (my emphasis) [the child] was going to stay in a German school…”

44In dealing with the respondent’s assertion that he had not agreed about the prospect of the child living in Germany from now on, the mother said as follows in exhibit 18:

“You have known about my plans and wishes since September and so far you had not given me any indication that you were not agreeing with those plans. You even told me in September that you agreed with me that us staying in Germany was probably (my emphasis) the best solution. You have only now come up with objections.”

45In the following paragraph when dealing with an assertion by the father that her decision to keep the child in Germany was a unilateral one, the mother’s response is:

“This is what I have assumed” (my emphasis).

46It seems clear on the evidence from the mother herself that there were elements of ambiguity about what was discussed, agreed and assumed in the September conversations.

47It is common ground that there was no written agreement. There is little evidence of further discussions between the parties between the September visit and the December exchanges.

48The respondent’s visit to Germany and the mother’s decision to disclose to the child her decision to separate and remain in Germany represents the next significant watershed in this matter. What emerges from the discussions at that time are the clearest possible assertions by the respondent that he did not and had not in the past agreed to the child being permitted to reside permanently in Germany. I refer to the contents and detail of his email on this topic as appears in exhibit ‘DAC6’ to his affidavit of evidence‑in‑chief. The contents of that document could not be clearer.

49In reviewing this aspect of the applicant’s case, I should observe that, given the history of the matter before and after the September disclosures, there is an element of inherent improbability about the proposition that, during the course of one conversation after the mother’s unexpected disclosures, the respondent would willingly readily and finally abandon any prospect of continuing to have his son raised in Australia.

50At the same time it may well be that the mother’s perception, assumptions and discussions led her to a genuine belief that the father was at least not objecting to her proposals if not agreeing to them.

51But given the pre-existing agreement to the effect that the journey to Germany was only to be temporary and that the child was to return to Australia, given the difficult circumstances and emotional issues confronting the parties in the September discussions, and given the equivocal nature of some of the exchanges between them, it has not been established to my satisfaction that I should find that, in September, the father formed a concluded settled intention to have his son raised in Germany thereafter.

52In light of that determination, I am then required to consider the supplementary proposition of whether, in any event, I should find a change in the child’s habitual place of residence from Australia to Germany by virtue of the circumstances of and the duration of his residence in that country from May 2010 to April 2011.

53It is clear on the entirety of the evidence that the child did indeed have a significant connection with Germany from the outset which connection would have continued to be of greater significance the longer he stayed in that country.

54In relation to that connection it is to be noted that it included the fact that Germany was his mother’s place of origin. The child apparently arrived in Germany with bilingual skills. The child spent a substantial period of time in Germany prior to his removal in April. He attended a local school in Germany from June of 2010 to April 2011. No doubt the child’s bilingual skills would have been enhanced by his time in that country and his education in that country. During his time in Germany he was living not only with his mother but also with the maternal grandparents and his relationship with his maternal grandparents would have been enhanced during that time. The evidence suggests that during his stay in Germany the child was performing well at school, was making friends and engaging in extracurricular activities. Each one of these matters is of significance, collectively they represent substantial matters to be taken into account.

55On the other hand, between May and September of 2010 the time the child spent in Germany was intended by each of the parties to be only temporary. It was the understanding of each of the parties and of the child that, when he travelled to Germany and during the period from May to September, he would be returning to Australia in January of 2011 to live with his parents and to be educated. The child remained of that belief until early December of 2010. This belief would necessarily have had a bearing upon his perception as to the ties he was developing and the connection he was developing with Germany. Necessarily, the child would have retained a connection with and an attachment to Australia where he had also apparently done well at school, where he had also apparently developed friendships and pursued extracurricular activities. The child’s connections with Australia would have continued to be reinforced by his regular contact with his father and his regular communications with him in Australia. His connection with this country would have been further reinforced by the regular visits of his father from Australia. Significantly, his belief for the first seven of the 11 months he was in Germany was that he was to return to Australia.

56I have concluded that this is a difficult and very finely balanced case. I take account of the child’s origins and the fact that the first eight years of his life were spent being raised in this country. I take account of the original intention of each of the parties and the fact that his journey from this country was intended to be temporary.

57I take account of the fact that there was a change of intention of one of the parties whilst the mother and the child were in Germany. I take account of the fact that the child would have retained his connection with and ties to Australia through the bulk of the time he has spent in Germany and that he carried with him an expectation that he would be returning to Australia.

58If the mother’s decision in September to remain in Germany with the child was certain in her own mind, the evidence indicates that the communication of such intention to the father may not have been so unequivocal. I find that, at best for the applicant, there was an ambiguity about the father’s responses at that time. On balance I think it is unlikely that he would have made a final and settled decision at that moment to agree to the child’s permanent residence in Germany.

59I take account of the settled nature of the child’s arrangements until December which, ironically, included a return to Australia in the following month. Thereafter, the child’s future remained very much unsettled and in issue in the sense that the parties were clearly in conflict about their son's future from that point on.

60Although the child has a clear connection to Germany and that connection would have been enhanced during the time he was in that country, I find that, taking account of all the circumstances, there was not a severing of his primary connection with Australia up to December. Thereafter, the child’s more limited period of time in Germany where his expectations may have changed, was not sufficient to result in a change of the child’s habitual place of residence.

61I therefore find that, as at 19 April, the child was not habitually resident in Germany and that therefore the father’s removal of the child from Germany and/or his retention of the child in Australia in May was not wrongful.

Orders

1.Paragraph 1 of the Order made on 18 July 2011 requiring the Respondent to surrender forthwith to the Registrar of the Family Court of Western Australia all current passports and air tickets relating to himself and [the child] be and is hereby discharged.

2.The Respondent is authorised to collect the child’s passports from the Registrar of the Family Court of Western Australia.

3.Paragraph 2 of the Order made on 18 July 2011 authorising all officers of the Australian Federal Police and all officers of the Police Forces and Services in the Commonwealth of Australia to seize all current passports and air tickets of the Respondent and the child and deliver the passports and air tickets to the Registrar of the Family Court of Western Australia be and is hereby discharged.

4.Paragraph 3 of the Order made on 18 July 2011 restraining the Respondent or his agents from removing the child from the Commonwealth of Australia and directing all officers of the Australian Federal Police to give effect to this Order, be and is hereby discharged.

5.Paragraph 4 of the Order made on 18 July 2011 requiring the Australian Federal Police to place the names of the child and the Respondent on the PASS alert system at all airport and seaport terminals in the Commonwealth of Australia be and is hereby discharged.

6.Paragraph 5 of the Order made on 18 July 2011 restraining the Respondent from applying for any further passports or travel documents for the child be and is hereby discharged.

7.The application is otherwise dismissed.

I certify that the preceding [61] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court

Associate