PURCELL & PURCELL
[2019] FCCA 447
•27 February 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PURCELL & PURCELL | [2019] FCCA 447 |
| Catchwords: FAMILY LAW – Parenting – where foreign tourists on 18 month sailing holiday separate whilst in Australia – where no current right to remain in Australia beyond 3 month tourist visa – where father wants to remain with children in Australia and seek a work visa – where mother wants to return to place of domicile and last place of habitual residence – jurisdiction of foreign Court if children return – best interests of children – children are to return to last place of habitual residence. |
| Legislation: Evidence Act 1995 (Cth), ss.76, 79 |
| Cases cited: Eaby & Speelman (2015) FLC 93-654; [2015] FamCAFC 104 |
| Applicant: | MS PURCELL |
| Respondent: | MR PURCELL |
| File Number: | SYC 564 of 2019 |
| Judgment of: | His Honour Judge B Smith |
| Hearing dates: | 6, 13, 20 February 2019 |
| Date of Last Submission: | 20 February 2019 |
| Delivered at: | Sydney |
| Delivered on: | 27 February 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Jackson |
| Solicitors for the Applicant: | Blanchfield Nicholls |
| Counsel for the Respondent: | Ms Spain |
| Solicitors for the Respondent: | Boyce Family Law & Mediation |
ORDERS
The proceedings be adjourned to a date to be fixed by the Court.
NOTES
A.The Court notes that the further adjournment of these proceedings is solely to allow the parties time to take the actions identified in the Reasons for Judgment of the Court of 27 February 2019 as pre-conditions to the making of Final Orders giving effect to the Reasons for Judgment.
IT IS NOTED that publication of this judgment under the pseudonym Purcell & Purcell is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 564 of 2019
| MS PURCELL |
Applicant
And
| MR PURCELL |
Respondent
REASONS FOR JUDGMENT
A: Introduction
This matter concerns a family of four foreign nationals who sailed their boat into Sydney Harbour on …2018 on tourist visas.
The parents separated on 28 January 2019. The mother attempted to fly the children out of the Commonwealth of Australia (“Australia”) from Sydney International Airport (“the Airport”) on a direct flight to the Republic of Singapore (“Singapore”) without the father’s knowledge or consent that same day.
The father became aware the mother was at the Airport with the children and made an urgent ex parte oral application by telephone to this Court for Orders restraining the mother from removing the children from Australia and placing them on the Family Law Watch List.
Those Orders were made and given effect immediately and the mother and children were unable to board their flight.
Parties applications
The competing applications made to the Court are:
·The mother’s Application for a summary determination of the proceedings with dismissal of the existing orders and proceedings, together with consequential orders facilitating the children’s return to Singapore with parenting proceedings to be heard and determined in Singapore; and,
·The father’s Response seeking dismissal of the mother’s Application, together with consequential interim parenting orders for the children to live with him in Australia, with parenting proceedings to be heard and determined in this Court.
The issue of a summary determination must be decided first as that will determine in which country the children reside and so in which jurisdiction the substantive parenting proceedings are heard and determined.
On that basis the hearing before this Court to date has been limited to the question of whether the mother’s application should be granted, and the children returned to Singapore, or dismissed and the children required to stay in Australia.
B: Parties and children
The mother
The Applicant, Ms Purcell (“the mother”), is a 38 year old professional. She is a citizen of Country A, Country B and Country C. She is a permanent resident of Singapore.
She is travelling on a Country A passport. She has a current Country C passport, however, there is a dispute about whether she is in possession of it at present. She formerly had a Country B passport.
The father
The Respondent, Mr Purcell, (“the father”), is a 40 year old professional. He is a citizen of Country D travelling on a Country D passport. He is also a permanent resident of Singapore.
The father alleges that the mother is in possession of his Country D Passport which he says she took on separation. The mother denies this. He was to apply for a replacement Country D Passport if he could not find it.
The children
The children, the subject of these proceedings, are [X] born …2009 aged 9 and [Y] born …2012 aged 7 ( “the children”). They are Country D and Country A citizens travelling on Country D passports. They are permanent residents of Singapore where they were born.
The father submits that they are also entitled to Country C citizenship through the mother. There is no evidence concerning this.
The children are in good health.
C: Procedural history
The mother filed an Initiating Application on 31 January 2019. The matter was referred to the Duty Judge on Friday 1 February 2019 and was listed in the duty list on Wednesday 6 February 2019. The father filed a Response on 5 February 2019.
On 6 February 2019 the hearing commenced but was adjourned for a week on the father’s application for time to prepare.
The father sought interim parenting orders. Given a concern that the Family Law Watch List might not act effectively to stop the father from using the sail boat to leave the jurisdiction with the children, the existence of untested but serious allegations of family violence against the father (considered below), the absence of a supervisor and the short period of the adjournment, by ex tempore decision interim parenting orders were made that the children continue to live with the mother and communicate daily with the father by telephone or skype. Those orders were complied with by the parties.
On 12 February 2019 the mother commenced proceedings (“the Singapore proceedings”) in the Family Justice Courts of the Republic of Singapore (“the Singapore Court”) (considered below).
On 13 February 2019 the father sought a further 2 week adjournment to obtain advice and evidence in respect of the Singapore proceedings. He was granted a 1 week adjournment over the mother’s objection.
On 20 February 2019 the part heard hearing concluded. Argument focussed on the mother’s Application as a preliminary question. Despite the final nature of the orders sought by the mother no party sought leave to cross examine.
The mother relied on her Notice of Risk filed 31 January 2019 and her affidavits of 30 January 2019, 5 February 2019 and 11 February 2019. The father relied on his Notice of Risk filed 5 February 2019 and his affidavits of 5 February 2019, 11 February 2019, and 19 February 2019. Various documents were tendered.
Both parties tendered expert evidence on Singaporean law. The father tendered expert evidence on Australia migration visa practice.
D: Legal Test - best interests of the children
The parties ultimately agreed, after some contention regarding the possible application of the forum non conveniens principles, that the relevant test is the best interests of the children. The mother referred to and relied upon the decision of the High Court of Australia in ZP & PS (1994) 181 CLR 639; [1994] HCA 29 and the decision of the Full Court of the Family Court of Australia in Killam & Loeng (2015) FLC 93-642; [2015] FamCAFC 41.
In an appropriate case this Court may determine that the best interests of the children require the dispute to be heard in the Courts of a foreign country.
It is first necessary to consider then whether a summary order that these children be returned to Singapore is in their best interests, or whether their best interests are served by their remaining in Australia with the parenting dispute to be determined in this Court, or whether it is premature to determine that issue.
E: Uncontested past facts
Cohabitation and marriage: 2005 – 2008
The parties met whilst working in Country E. They commenced cohabitation in 2005 and married on …2007. They own a property in Country E and another in Country D, both of which are tenanted.
Singapore: 2008 – 2017
The parties moved to Singapore in 2008. [X] was born a year later in 2009 and [Y] in 2012. The family lived there till July 2017.
The mother worked for …Employer. The father worked as a professional.
The children were raised by their parents, who both worked. The family had the assistance of nannies. They were educated at the School 1 in Singapore.
The parties own an apartment in Singapore which was the matrimonial apartment. It is rented out until …2019, but the tenant might be willing to leave as early as …2019.
Sailing: …2017 – …2018
The family decided to sail the high seas. They purchased a boat in Country D, flew there on …2017 and set sail on …2017. Between …2017 and …2018 they visited numerous countries, the mother estimated 24, staying as tourists in each country for periods of between 1 week and 3 months.
The children were “home-schooled” on the boat to the Country D curriculum. The father primarily educated [X] and the mother [Y].
The family renewed their permanent resident status in Singapore for 5 years commencing …2018 and are entitled to reside and work there until …2023.
Australia: …2018 – 28 January 2019
The family remained in Sydney living on the boat at Suburb L from …2018 until separation on 28 January 2018.
Visa and migration status
The family entered Australia on subclass 651 e-Visitor visas. This tourist visa allows a 12 month stay conditional on exit from and re-entry to Australia every 3 months.
The family is presently required by law to exit Australia by …2019.
F: Contested past facts
The guidance provided by the Full Court in respect of interim proceedings appears to apply equally to summary proceedings where the parties are not cross examined and the capacity to assess credit and determine disputed facts is restricted.
On that basis contested factual issues should be “couched with great circumspection” (Marvel & Marvel (2010) 240 FLR 367; [2010] FamCAFC 101 at [122]) however “that does not mean that merely because the facts are in dispute the evidence on the topic must be disregarded, and the case determined solely by reference to the agreed facts” (Eaby & Speelman (2015) FLC 93-654; [2015] FamCAFC 104 at [18]).
Family violence – by father
The mother’s evidence was that the husband shouted at her and the children regularly over the last years, and that this increased when they were on the boat. She said the marriage broke down some months prior to arriving in Australia and that she had been asking the father to be allowed to go to Singapore with the children. She said that the father had not agreed to this.
She said that over the past 3 to 4 months the father had been having more and more frequent outbursts of anger towards her. She alleged that the father “has knocked me on the head with his head and has tried to push me down the stairs” and has “slapped the children hard on the face and hit them hard on the back of their head on many occasions”.
She says that her mother, the maternal grandmother, witnessed these events while staying on the boat with the family from …2018 to 3 January 2019. No evidence was called from the maternal grand-mother. It was not submitted that any Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 inference would arise in this context.
The mother alleged that the father conceded anger management issues but had not been able to address them. She said that she booked a marriage counselling session for …2019 but the father refused to attend. There is no independent evidence of that session being booked.
The mother also alleged that post separation the father has interfered with her iPhone and Apple iCloud account, deleted her information and blocked access to her credit cards.
The father denied the mother’s allegations of family violence. He says that stress levels ran high in the confined space of the boat on lengthy sea crossings, and that the mother would become moody and snap at him. His evidence was that “[s]he also lashed out at me physically a few times, although I do not think that she ever had any intention of hurting me.” He denied interfering with her internet or banking access post separation.
I am not persuaded that the evidence sufficiently establishes the alleged family violence by the father, on this application for summary determination, to a point where it should be taken into account as a factor in exercising my discretion, other than to acknowledge that the allegations are made and will need to be determined and considered by a Court at a later stage.
Family violence – by mother
The father’s evidence was that on 27 January 2019 he went out with a friend, arriving back on the boat at around midnight. He says he awoke at 8.30-9am the next morning and that the mother brought him coffee in bed, which was out of character for her. By 10.30am he alleges that he was feeling unwell, groggy and drowsy and that the mother encouraged him to sleep. He claims that when he awoke at about midday the mother and the children had not returned, so he called the mother, who said that she was with the children sight-seeing and would be back after lunch.
The father said that at this point he noticed that the children’s clothing, all of the passports and his laptop were missing. He stated that he called the mother and then used the “Find My iPhone” application to track her to the Airport and then obtained the ex parte orders noted above.
The father asked the Court to draw an inference that the mother drugged him using medications she kept on-board for neck and back pain to facilitate her removal of the children from Australia without his consent and against his wishes.
The father also submitted that the mother’s actions in seeking to unilaterally relocate the children showed that she poses a risk of serious psychological harm to the children, particularly if they are removed to the Country C, which is a non-Hague Convention country.
The mother denied the allegation. She says that the father was drinking from 4pm the night before and stumbled onto the boat drunk at about 1am. She says he did not drink the coffee she made him.
I am not persuaded that the evidence sufficiently establishes the alleged family violence of drugging the father by the mother, on this application for summary determination, to a point where it should be taken into account as a factor in exercising my discretion, other than to acknowledge that the allegations are made and will need to be determined and considered by a Court at a later stage.
However, I find that it is clear that the mother did not advise the father of her intentions and was seeking to transport the children across international borders without his knowledge, and on her own case knowing that he opposed her taking the children to Singapore.
The Court’s condemnation of the mother’s conduct in this respect cannot be too greatly emphasised, particularly as she is a professional who is or should reasonably have been aware of the impropriety of her actions.
A submission was made that the father’s conduct was similarly deserving of condemnation in that he sought the ex parte restraining and Watch List orders. That submission is rejected. The father acted appropriately to ensure that children were not unilaterally removed from Australia by one parent against the other parent’s wishes.
Intention to permanently leave Singapore and relocate to Australia
The father’s evidence was that when the parties departed Singapore it was with the explicit intention of never returning to live there. His evidence was that there were farewell parties at which that intention was stated. The mother was silent on this.
Further his evidence was that the parties intended to permanently relocate to Australia. The mother’s evidence was that no decision had been made to relocate to Australia.
The father’s evidence was that “Australia was not simply a stop-over destination like any other on our journey. Australia was the destination and both [the mother] and I intended to live and raise the children here.” (original bold emphasis)
The mother’s evidence was that “Australia was never our final destination of our trip together, nor had we decided to start a new life here together. We discussed Australia as a possibility only. It was our intention to sail from Sydney to Country F.”
The mother tendered an email of 18 January 2019 from the father to the operator of a weather advisory service stating “We are currently in Sydney. We will be sailing to Country F between the … and end of …. What are your thoughts on this passage?”. … is in Country F.
I am not in a position to find that there was a firm intention never to return to live in Singapore when the family left in …2017, however, it was clearly a possibility as the parties discussed living permanently elsewhere. However, even if that was the intention in …2017 it is less clear how long that the intention continued given the mother’s evidence as that she sought to return with the children to Singapore previously, and given that it is clear that the mother’s intention since at least 28 January 2019 has been to return to live in Singapore.
On the issue of the alleged joint intention to permanently reside in Australia I give weight to the following facts:
·As at … the father’s stated intention was to sail from Australia between … 2019, as required by the current visa;
·No application was made prior to separation to obtain a subclass 600 visitor visa to vary the existing visas in a way which would avoid the family having to leave Australia every 3 months. On the father’s case (considered below) this visa change would have involved a straightforward administrative process;
·No enquiries were made of the School 1 Sydney prior to separation, despite this being the school the father proposes the children will attend.
The evidence above satisfies me that the intention prior to separation was to leave Australia by …2019 to sail to Country F.
The mother did concede discussions about starting a new life in Australia as a possibility. Sailing to Country F would not exclude the possibility of coming back. It is not possible on the current contested evidence to make any finding as to whether there was a longer term joint intention to seek to permanently relocate to Australia at some time. If there was it is no longer a joint intention.
G: Hague Convention
Neither party submitted that this was a case to which the Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”) applied, noting that Singapore and Australia are both signatories.
It’s significance is that it was agreed that the Country C is not a signatory, on which basis the father submitted that it was not an appropriate destination for these children in the circumstances.
H: Australian Jurisdiction
After a preliminary objection by the mother, the parties ultimately agreed that this Court has jurisdiction as the children are present in Australia. (s.69E(1)(a))
The issue as finally argued was whether it was in the best interests of the children to remain in Australia or to be returned to Singapore.
I: Singaporean Jurisdiction
Singapore proceedings
On 12 February 2019 the mother commenced proceedings between herself and the father regarding the children in the Singapore Court pursuant to s.5 of the Guardianship of Infants Act (Chapter 122) (Singapore). In those proceedings she seeks orders that the parents have “joint custody of the children” with the “sole care & control to [the mother]” with the father to “have reasonable access to the children.”
The Singapore proceedings were listed for a “Case Conference” in Singapore on 19 February 2019. The father wrote to that Court and asked that the date be adjourned in view of these proceedings, noting that he was not by that correspondence submitting to the jurisdiction of the Singapore Court. The parties informed the Court that the Singapore Court case conference had been stood over.
The mother’s submission is that upon her return to Singapore with the children the Singapore Court will be seized of jurisdiction and will apply a best interest test similar to the best interest test this Court would apply.
The father’s submission, as I understand it, is that as the family are not Singaporean nationals nor domiciled nor habitually resident there, despite being entitled to permanent residency, the Singapore Court would not have jurisdiction even if the children return to Singapore with the mother.
The father submitted that if there is any doubt at all about the jurisdiction of the Singapore Court it would not be in the children’s best interests to allow them to return to Singapore.
Expert evidence of Singaporean law
Each party tendered expert evidence on the relevant law and legal practice of Singapore. The issue of foreign law and legal practice are properly matters for expert evidence.
These are child-related proceedings within Part VII of the Family Law Act 1975 (Cth) to which Division 12A, subdivision D and in particular s.69ZT apply so that ss.76 and 79 of the Evidence Act 1995 (Cth), governing the admissibility or expert opinion evidence, do not apply.
However, mere admissibility does not address reliability or weight, and the legislative fiat s.69ZT(2) gives the Court to “give such weight (if any) as it thinks fit to evidence admitted as a consequence of the Evidence Act 1995 not applying” requires particular attention to be given to the reliability of expert opinion evidence, particularly when (as here) that evidence goes to a crucial contested issue in the case.
Due to the urgent circumstances in which the case has been prepared and heard none of the expert evidence is as detailed as might be desired and much of it does not meet the standard referred to by Heydon JA, as he then was, in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305, especially at [85]. However, as Branson J noted in Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 234 FCR 549; [2002] FCAFC 157 at [7] that was a “counsel of perfection”. In child-related proceedings the test is whether the Court is satisfied that the opinions provided are relevant and provide a sufficiently reliable foundation upon which a finding, and any consequent decision, can be made.
I am satisfied that the experts’ qualifications in Singaporean family law are sufficiently apparent from the reports. The facts assumed, the statutes said to be applicable (which do not appear to be in dispute) and the various applications of those statues to the assumed facts are all sufficiently clear from the letters of instruction and reports. I am satisfied that these opinions are sufficiently reliable for me to make a finding as to the likely jurisdiction of the Singapore Court in this matter if the children return to Singapore with the mother.
The experts’ opinions
The mother relied upon opinion evidence of Poonam Mirchandani of Mirchandani & Partners Advocates and Solicitors of Singapore dated 4 February 2019 (“Mirchandani”) and of Koh Tien Hua of Eversheds Harry Elias (Lawyers) of Singapore dated 11 February 2019 (“Hua”).
A general overview of the relevant law and Singapore Court was provided by Mirchandani. They identified the relevant legislation as The Women’s Charter (Chapter 353) (Singapore), which relates to family law and marital breakdowns including parenting proceedings when divorce proceedings are on foot; the Guardianship of Infants Act, which governs the welfare of children when divorce proceedings are not on foot; and potentially the International Child Abduction Act (Chapter 143C) (Singapore). They identified the Family Justice Courts of Singapore as the relevant Court.
Mirchandani identified the best interests and welfare of the child as being the paramount consideration under both the Women’s Charter and the Guardianship of Infants Act. The Singapore Court deals with interim and final issues which in Australia would encompass parenting orders. It was noted that interim parenting matters can take from 4-6 months to be heard. Singapore has a system for preventative Stop Orders which involves the Singapore Immigration & Checkpoint Authorities and so is akin to our Family Law Watch List system.
Section 93(1) of the Women’s Charter gives the Singapore Court jurisdiction to hear proceedings for divorce “if either of the parties to the marriage is (a) domiciled in Singapore at the time of the commencement of the proceedings; or (b) habitually resident in Singapore for a period of 3 years immediately preceding the commencement of the proceedings”.
On that basis Hua’s opinion was that the Singapore Courts have jurisdiction to hear and determine the parties’ divorce “as parties are domiciled in Singapore on the basis of their being Singapore Permanent Residents”.
Section 95 of the Women’s Charter sets out the basis on which a party may allege irretrievable breakdown, which includes at s.95(3)(b) “that the defendant has behaved in such a way that the plaintiff cannot reasonably be expected to live with the defendant”. Hua’s opinion was that the mother’s allegations of family violence against the father are grounds to present for a divorce.
Section 5 of the Guardianship of Infants Act provides that the Court may “upon the application of either parent ... make orders as it may think fit regarding the custody of such infant, the right of access thereto…”.
Hua‘s opinion was that the mother could also apply for orders in relation to custody, care and control of the children pursuant to the Guardianship of Infants Act again “as the parties and the Children are domiciled in Singapore”. This is the application which the mother has made in the Singapore proceedings.
Hua’s conclusion was that “[i]n short, the Singapore Courts are likely to assume jurisdiction over the parties’ divorce and the issue of custody over the children. It is also likely that the Courts will ensure that neither party will remove the Children from Singapore in the course of proceedings by way of an injunctive order pending final orders.”
The father relied on the evidence of Linda Ong of Engelin Teh Practice Advocates & Solicitors of Singapore dated 1 February 2019 (“Ong”) in reply.
Ong’s opinion did not directly traverse the opinions of Mirchandani and Hua. The opinion was premised on the parties remaining in Australia and not being domiciled in Singapore.
On the above basis Ong stated that the Singapore Courts would probably decline to make any order pursuant to the Guardianship of Infants Act “with regards to infants outside of Singapore due to the difficulty in enforcing such orders.” (original bold emphasis)
Ong further provided an opinion that as the mother’s application was for wardship under the Guardianship of Infants Act, and as she had not filed for divorce under the Women’s Charter, a consideration of the jurisdiction of the Singapore Court under the Women’s Charter was not relevant, but noted that domicile would be required and that on the father’s assumed case “it may be argued that Singapore is no longer the domicile of choice.”
Ong did not consider the position if the mother, and or children or father were domiciled in Singapore, nor if the mother and children were present in Singapore, and so did not directly address the opinions of Mirchandani and Hua. This is no criticism of Ong who provided an opinion in response to the assumed facts outlined by the father.
However, as I am considering the jurisdiction of the Singapore Court if the mother returns to Singapore with the children, Ong’s opinion is not relevant as the factual assumptions Ong has proceeded on are not consistent with the facts I am considering.
I accept the opinions of Mirchandani and Hua. I am comfortably satisfied that if the mother is domiciled in Singapore on her return to Singapore and makes an application for divorce then the Singapore Court will have jurisdiction to make the equivalent of parenting orders in respect of the children.
That flows from the fact that when the Women’s Charter is engaged only one party to the marriage must meet a relevant criteria to attract jurisdiction. The criteria being domicile at the time of the commencement of the proceedings, or, habitual residence for 3 years immediately preceding the commencement of the proceedings.
I note that unfortunately the question of whether that also applies to applications under the Guardianship of Infants Act is not as clear, as the relevant jurisdictional section has not been extracted or annexed and reference is made to domicile of the parties and children. It may be that the mother’s domicile alone is sufficient, or it may require more such as the domicile of the children or even both parents before that Act is engaged.
I am, however, satisfied that if it has jurisdiction the Singapore Court will apply the paramount principle of the welfare and best interests of the children, and can and will if requested ensure that the children are not removed from Singapore without both parties consent.
Domicile and habitual residence
The critical issue appears to be whether the mother is, or will be upon her return to Singapore, domiciled there as assumed by Hua.
The evidence establishes that the parties and children were domiciled and habitually resident in Singapore from 2008 until July 2017.
For the parties and the children to have relinquished their domicile in Singapore they must, as a matter of principle, have obtained domicile in some other place. It was not submitted that they became domiciled in any of the many countries they visited as tourists. That leaves only Australia.
On the mother’s case she never intended to, and does not intend to, remain in Australia. She is not domiciled in Australia and so remains domiciled in Singapore.
In the alternative, upon her return Singapore will be her domicile of choice and she will be domiciled in Singapore and the Singapore Court will have jurisdiction. Her domicile will found jurisdiction under the Women’s Charter although that may require her to commence divorce proceedings, and may found jurisdiction under to the Guardianship of Infants Act. Either will be sufficient and will lead to the application of the same child’s best interest test.
As the mother’s domicile in Singapore is sufficient to fully determine the issue I will deal only very shortly with the issue of the father’s and children’s domicile and habitual residence.
Firstly, I am not satisfied that the father is domiciled in Australia as he is a tourist who is required to leave the country by …2019. That means his domicile is Singapore. The same reasoning applies to the children. Further, even if the father’s intent was sufficient to make him domiciled in Australia, as the parents do not both agree in my view the children’s domicile would not change and so would remain Singapore.
On that basis I am further satisfied that the Singapore Court would have jurisdiction if the mother and children return to Singapore.
On the issue of habitual residence for 3 years immediately prior to commencing proceedings, which is another potential criteria for jurisdiction, the father relied upon the decision of the High Court in LK v Director-General, Department of Community Services (2009) 237 CLR 582; [2009] HCA 9, where the Court stated (at [32]-[33]) that “a person may cease to reside habitually in one place without acquiring a new place of residence” and that “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.”
There is no evidence that the family were habitually resident in any other country since leaving Singapore, however, a real issue does arise about whether the mother or children remain habitually resident in Singapore.
To the extent necessary I would find that after more than 18 months sailing, and with discussions of possibly changing residences, the mother and children are not currently habitually resident in any country. Singapore is however the country in which the children were last habitually resident. As domicile is a sufficient criteria this does not alter my conclusion on this issue.
Conclusion
As the mother was domiciled in Singapore when the Singapore proceedings commenced, it is likely that the Singapore Court has jurisdiction.
If I am wrong about that, then on her return to Singapore where she is a permanent resident and claims domicile, she will clearly then be domiciled in Singapore. The Singapore Court will then have jurisdiction exercisable either in the Singapore proceedings, or if necessary due to a defect in those proceedings then in new proceedings which the mother can commence either under the Guardianship of Infants Act if her domicile in Singapore is sufficient to establish jurisdiction or otherwise pursuant to the Women’s Charter which will require her to also file an application for divorce.
J: The Country C and other jurisdictions
The father submitted that the Country C are relevant to these proceedings because of the risk that the mother, as a citizen of that country, might remove the children to the Country C to frustrate his capacity to seek orders in respect of the children.
It is accepted by the mother that this would not be in the children’s best interests. The mother’s evidence is that she intends to travel only to Singapore and abide by the decision of the Singapore Courts. She points to the fact that she was attempting to fly to Singapore when stopped. She said she would consent to a preventative Stop Order being made by the Singapore Court, and would give an undertaking to this Court not to remove the children from Singapore except in accordance with the Orders of the Singapore Court or with the consent of the father.
In these circumstances, as the father’s concern can be addressed by ensuring that the existing restraining order and related Family law Watch List orders are modified to allow departure only on a non-stop flight to Singapore, and by preventative Stop Order of the Singapore Court, no further consideration needs to be given to the potential risk of travel to the Country C.
No submissions were made regarding Country D or Country A (where the children are citizens) nor the Country B (where the mother is also a citizen). Accordingly it is not necessary to further consider these jurisdictions.
K: Father’s and children’s capacity to remain in Australia
The father’s evidence was that he is applying for a subclass 600 visitor visa and that this is a straightforward administrative process. That visa would allow him and children, and the mother if she applied for one too, to remain in Australia for 12 months without having to leave every 3 months. That would still be a tourist and not a working visa.
The father’s evidence was that he was “hopeful that I may be able to secure a role with …Employer or other employers in Sydney in the near future.” He gave evidence of an interview scheduled for …2019. His evidence was that “[o]nce [he finds] an employer who is willing to sponsor [him]” he will apply for a subclass 482 Temporary Skill Shortage visa “for the children and me.”
The father tendered a letter dated …2019 from a Mr G offering him the position of “professional based in Sydney”, subject to the following conditions:
1. Background and Security Checks
2. Employer being eligible to sponsor your working visa
3. Your eligibility to obtain said working visa
There is no evidence whether or not …Employer is eligible to sponsor the father’s working visa.
The father tendered an expert report of Rola Hijwel, solicitor and registered migration agent of Hijwel Migration Lawyers dated 18 February 2019. (“Hijwel”)
While expert opinion evidence is not relevant to the question of Australian migration law which is a matter for the Court, evidence of migration practice is relevant. The opinion is quite general. There is no criticism intended of Hijwel who provided a general opinion based on very limited information. However, because of that lack of specificity the opinion is only of limited weight.
Hijwel confirmed the current visa status of the father and children and the requirement to leave Australia by 8 March 2019. Hijwel stated that the father is eligible to apply for a subclass 600 visa which can be granted “with discretion for up to 12 month (sic) pending certain requirements are satisfied… at the discretion of the delegate of the Minister.”
For the children to apply “both parents must consent”. That is an issue as the mother will not voluntarily consent, although the Court could deal with that issue if it was in the children’s best interest for such an application to be made.
On lodgement of such an application, which there is no evidence has yet occurred, there is a 15-27 days processing time with a bridging visa being granted until a decision is made.
Hijwel stated that “[o]n initial discussions of the potential job offers which [the father] is exploring at present, he is likely to meet the visa requirements as he has the requisite qualifications and experience in occupations which are eligible for sponsorship under the Temporary Skills Shortage visa program, subclass 482 visa.”
That opinion was prepared before the specific job offer which was relied upon was made. It is not known whether or not the job offer from …Employer was one of the jobs upon which Hijwel relied in expressing the opinion, and so it is not possible to infer that Hijwel considered that this job offer satisfied that criteria.
Hijwel’s opinion provides support for a finding that the father will probably be able to obtain a 600 tourist visa, so he does not need to leave the country every 3 months while a tourist, but only for the possibility that the father might obtain a 482 working visa for himself and the children.
There must remain a large degree of uncertainty as the 482 working visa application involves an issue of Ministerial discretion, and as it is not clear what jobs Hijwel had in mind when providing the opinion, particularly whether or not the …employer job was one of the anticipated offers.
At the moment the father, and the children and mother, are required to leave Australia by 8 March 2019, perhaps subject to a bridging visa for the father if he has filed an application for a 600 visa.
The father’s future capacity to live and work in Australia with the children is a possibility, but on the present evidence I am not satisfied it is a probability.
L: Competing proposals
Singapore – mother’s proposal
The mother’s proposal is that the children return to Singapore with her, and that the father can return too. She proposes orders which appear to be broadly equivalent to equal shared parental responsibility, live with mother and reasonable time with the father in Singapore. If the children return to Singapore that will be a matter for the Singapore Court. Nevertheless her proposal is relevant to the exercise of this Court’s discretion.
In practical terms, the mother has an offer of employment from her former employer providing her with the financial capacity to care for the children. She is looking at rental accommodation for 3-6 months in the same building as the family’s apartment until their tenant leaves, where-after she proposes to return the children to the matrimonial apartment. The children will return to their former school, which has spaces for them.
The father will be given reasonable access to and time with the children to ensure that the children’s relationship with the father is maintained, if he chooses to exercise his right to return to live and work in Singapore.
It is not known whether the father will return to Singapore if the children do, however, as a permanent resident he has the right to live and work in Singapore. If the father elects to, and is able to, remain in Australia arrangements would need to be made for telephone contact and visits by the father to Singapore and if possible by the children to Australia.
Australia – father’s proposal
The father’s proposal is that he and the children will permanently relocate to Australia. He believes he will get a job offer from an employer who is eligible to and will sponsor him, which will allow him to apply for the visa required to live and work in Australia with the children, and he believes that the visa will be granted. While there is some support for his belief and it is a possibility, it is not on the current evidence a probability.
Assuming the above, they will obtain new accommodation. He will work in his new job. The children will go to a new Country D language school. The mother will not be allowed to remain in Australia. There was no clearly articulated plan for the maintenance of a meaningful relationship between the children and the mother. Presumably that will be by Skype and occasional visits by her to Australia and by the children to Singapore subject to school term times and cost.
There are a number of major practical problems with the father’s proposal. Firstly, the parties and children must leave the country by 8 March 2019 subject to the possibility of obtaining a Bridging Visa while applying for different visas. His capacity to stay and work in Australia is a possibility not a probability and it is not known how long any application might take.
M: Best interests of the children
The paramount consideration is the children’s best interests (ss.60CA, 60CC, 65AA).
The foremost of the two primary considerations is the need to protect the children from physical or psychological harm. I am not persuaded on the available evidence that the children are at risk of harm from either parent.
The second primary consideration is the benefit to the children of having a meaningful relationship with both parents.
As the father can reside and work in Singapore the children can easily have a meaningful relationship with both parents if the children reside there and if he elects to reside there. Even if the father elects to stay in Australia he will have an unlimited right of entry to Singapore as a permanent resident. As the mother is not entitled to reside or work in Australia or be present other than as a tourist, her legal capacity to visit Australia on a regular basis to see them is unknown.
The father submitted that the Court should infer from the mother’s attempt to remove the children surreptitiously to Singapore that she will seek to deny the children a meaningful relationship with the father, he submitted that this was also evidenced by the no-time order sought on the interim application.
I do not accept that submission. The mother was seeking to flee from a foreign country to the families last place of domicile and habitual residence. It was wrong but akin to running home. I am not satisfied that I should draw the inference sought by the father. The no-time order was the Court’s order made in view of the high conflict and the Court’s concern about the fact the father had a sail boat and no substantial ties to the jurisdiction.
The primary consideration of promoting a meaningful relationship with both parents is likely to be best advanced if the children are in Singapore.
The most relevant additional considerations in my view are the related issues of the children’s legal right to be in either jurisdiction and the likely effect of a change in the children’s circumstances.
On either proposal the children’s immediate circumstances will change from sailing with the family to living with one parent or the other away from the boat.
However, Singapore was the children’s only and last habitual place of residence, with all that entails. They were born and raised there in the family apartment. They went to school there. Presumably they had friends there, knew their friends’ families, and had relationships with some of the teachers and staff at their school. It is a country and culture with which they are familiar.
Although their connections with Singapore have probably faded somewhat in the 18 months since they left, the area and building they lived in and where the mother is looking to rent will be familiar, as will the family apartment when it becomes available some-time between …2019. Their school environment will be familiar to them and it is reasonable to infer that at least some of their friends and teachers are likely to still be at that school 18 months later. Their father will be entitled to live and work there, or if he does not return to Singapore will be entitled to come and see them as often as he wishes without visa issues.
In Singapore there will be much that is familiar which will provide a framework of comforting stability while their family goes through this process.
The children have been no more than tourists in Australia since …2018. They have no connection with Australia. They are not familiar with Australian culture, customs or people. If they are to stay they will live in a new house, and attend a new school in a new city and country with no friends, families or teachers they know to provide support. As the mother will not be entitled to live here, they will have to experience that change in the context of the enforced loss of the chance for regular time with their mother.
Even assuming the father’s case, i.e. that prior to separation the parties had jointly intended never to return to Singapore and to attempt to remain permanently in Australia, and that the father could at will obtain the necessary visa to live and work in Australia with the children, this additional factor would still weigh very heavily in favour of the discretion being exercised to return the children to Singapore.
Related to that factor is the fact that while the children remain permanent residents of and domiciled in Singapore and are legally entitled to be there, they are no more than tourists in Australia and presently have no legal right to remain here after …2019. Beyond that the father’s proposal is currently mere speculation. This also weighs in favour of the children’s best interests being to return to Singapore.
The evidence does not allow me to make any relevant findings or give weight either way to any issues related to the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children or parties, and there are no other identified characteristics of the children that are relevant. The children are not Aboriginal or Torres Strait Islander children. Their capacity to engage with their Country D cultural heritage, which has been prioritised to date, can be supported by a Country D school in either country.
The father’s submission was that the parents were each involved with raising each child. The mother’s evidence emphasised her position as primary carer. In Singapore both parents were working in professional roles and raising the children with the help of nannies. While sailing both parents were equally involved with the children, with each taking primary responsibility for the education of one of the children.
Subject to the untested evidence of family violence on which I made no findings and from which I can draw no inferences, the evidence suggests that each parent had a good relationship with the children, that each parent has taken the opportunity to participate in making decisions about major long-term issues in relation to and to spend time and communicate with the children, and that each parent has fulfilled their obligations to maintain the children and has the capacity to provide for their needs, including their emotional and intellectual needs.
There are no family violence orders and I note that I do not make any findings in respect of the competing allegations.
I do not know the views of the children, and given their ages do not consider that further enquiries need to be made to ascertain them before making a decision.
I do not accept the father’s submission that there is a potential that the Singapore Court will not have jurisdiction. It is an internationally recognised specialist Family Court which applies similar principles to those of this Court and applies as the paramount principle the advancement of the welfare and best interests of the children.
N: Decision
I am comfortably satisfied that it is in the best interests of each of the children that they return to Singapore where they are permanent residents, remain domiciled and which was the only and last place where they were habitually resident.
This will provide the best opportunity for them to maintain meaningful relationships with both parents and provide the familiar circumstances most likely to support and protect them emotionally.
The father has not indicated whether or not he intends to return to Singapore if the children are returned there.
Accordingly, the children should return to Singapore with the mother, who currently has the children living with her pursuant to interim orders, and who has pre-paid tickets to Singapore.
O: Preconditions to entry of Orders
On that basis the Orders sought in the mother’s Minute of Proposed Order will be granted, subject to certain conditions and variations.
However, before any final Orders are made and entered a number of things need to occur.
As a practical matter a short period of time should be allowed so that the father may arrange his affairs so that he arrives before, or on the same flight, as the children if he wishes, and for the parties to put in effect a Stop Order to ensure that the children remain in Singapore.
The Court will also require the mother to provide an affidavit to the Court giving the undertakings to remain with the children in Singapore until the Singapore Court has determined the parenting issues as offered in her proposed orders 5 and 6, and further acknowledging her understanding and acceptance that if she breaches those undertakings she will be committing a serious contempt of this Court.
Further, the Court will also require the mother to prepare and file in the Singapore Court an affidavit annexing the Australian affidavit referred to above and giving that similar undertaking to the Singapore Court, and to provide a copy of that affidavit to this Court.
Finally, I note that rather than merely discharging the current restraining and Family Law Watch List orders, it seems more appropriate to vary the current orders to allow the mother to remove the children from Australia on the condition that they board a non-stop flight to Singapore, with Singapore as their final booked destination.
The requirements that the children board a non-stop flight to Singapore, a Singapore Stop order, and enforceable undertakings to this and to the Singapore Court should adequately meet any concerns the father has that the mother might seek to remove the children to any place other than Singapore before the determination of the Singapore proceedings.
In these circumstances the parties will be provided with an opportunity to be heard on the precise form of the Orders to be entered, and on the timing of the entry of the Orders, to allow the requisite actions to be undertaken, before any orders are made and entered.
In summary, Orders will be made substantially granting the mother’s application and returning the children to Singapore so that the Singapore Court can hear and determine the appropriate parenting orders in the best interests of the children.
These Orders will be made when the Court is satisfied that the above preconditions have been met and that there is little risk that the children will not be returned to and remain in Singapore.
I certify that the preceding one hundred and seventy paragraphs are a true copy of the reasons for judgment of Judge Bruce Smith
Date: 27 February 2019
Key Legal Topics
Areas of Law
-
Family Law
Legal Concepts
-
Jurisdiction
-
Natural Justice
-
Procedural Fairness
0
8
7