Salamon & Salamon
[2021] FedCFamC1F 140
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Salamon & Salamon [2021] FedCFamC1F 140
File number(s): DGC 2393 of 2018 Judgment of: HARTNETT J Date of judgment: 15 October 2021 Catchwords: FAMILY LAW – CHILDREN – JURISDICTION – habitual residence – whether the FCFCoA (Division 1) has jurisdiction to make parenting orders about the child – where there are completed parenting proceedings overseas – considerations of sections 69E and 111CD of the Family Law Act 1975 (Cth) – whether the child is habitually resident in Australia – where habitual residence is to be determined at the date of the relevant hearing – where the evidence is that the child is settled in the Russian Federation – where the child is habitually resident in the Russian Federation – where there is no basis upon which the Court may exercise jurisdiction for a Commonwealth Personal Protection measure in relation to the child – application dismissed. Legislation: Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect to Parental Responsibility and Measures for the Protection of Children (Concluded 19 October 1996)
Convention on the Civil Aspects of International Child Abduction (25 October 1980)
Family Law Act 1975 (Cth) ss 69E, 11CD
Vienna Convention on the Law of Treaties 1969
Cases cited: Ahmad & Hadi [2020] FamCA 1041
Bunyon & Lewis (No. 3) [2013] FamCA 888
Duckworth & Jamison [2014] 51 Fam LR 471
Jespersen & Frankel [2020] FamCA 239
LK & Director General, Department of Community Services [2009] HCA 9; (2009) 237 CLR 582
Lynch v Hagen [2020] FamCA 606
Lao & Yeng [2018] FamCA 560.
Secretary, Department of Family and Community Services & Padwa [2016] FamCAFC 57
State Central Authority & Handbury [2019] FamCA 668
Sun & Long [2019] FamCA 3
Yardlay & Commissioner of Police [2020] FamCAFC 186
Division: Division 1 First Instance Number of paragraphs: 98 Date of last submission: 14 May 2021 Date of hearing: 24-26 May 2021 Place: Melbourne Counsel for the Applicant Mr Devries Solicitor for the Applicant L G Yves Michel & Co Counsel for the Respondent Mr Kanarev Solicitor for the Respondent Vernon De Gama & Associates Counsel for the Independent Children’s Lawyer Ms Jenkinson Solicitor for the Independent Children’s Lawyer Altavilla Family Law ORDERS
DGC 2393 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR SALAMON
ApplicantAND: MS SALAMON
RespondentAND: INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
HARTNETT J
DATE OF ORDER:
15 OCTOBER 2021
THE COURT ORDERS THAT:
1.The Amended Application in a Case of the father filed 5 March 2019 in relation to the child Y born … 2011 (“the child”) is dismissed.
2.The matter is adjourned to 30 November 2021 at 9.30am for a case management hearing.
3.These proceedings are listed for final hearing before the Honourable Justice Hartnett for three (3) days commencing at 10.00 am on 6 April 2022.
4.Pursuant to s 62G(2) of the Family Law Act 1975 (Cth), the parties and Z, born … 2015 attend upon a Court Child Expert (practicing under their appointment as a family consultant), or a Family Consultant appointed under Regulation 7, nominated by the Court Children’s Service (referred to as the Family Consultant) for the purposes of the preparation of a family report, such report to be released by 26 January 2022 and that the family report address:
(a)any views expressed by the child and any matters (such as the child’s maturity or level of understanding) that would affect the weight that the Court should place on those views;
(b)the matters set out in ss 60CC, 61DA and 65DAA of the Family Law Act 1975 (Cth);
(c)the impact upon the child and upon his relationship with the mother if the Court made orders as sought by the father;
(d)the impact upon the child and upon his relationship with the father if the Court made orders as sought by the mother; and
(e)any other matters that the Court Child Expert/Family Consultant considers important to the welfare or best interests of the child.
5.Not later than 4.00 pm on 22 October 2021 the parties must provide their contact telephone numbers and email addresses to the …@familylawcourts.gov.au.
6.Each party will do all things necessary to ensure the child attend upon to the Family Consultant pursuant to Section 62G(3A), unless otherwise determined by the Court Child Expert that Section 62G(3B) applies.
7.The parties and the child shall attend for interviews at such times, dates and places, and by such means as the Family Consultant may advise.
8.The Family Consultant shall be at liberty to inspect any material filed by the parties.
9.Upon the family report being provided to the Court, the Court will release the report and provide a copy to each party (or if represented, the partY’ss lawyer) and to any Independent Children’s Lawyer in the proceedings.
10.Unless a party objects in writing within 14 days of the date of releasing the family report, a copy of the family report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the child:
(a)a Children’s Court;
(b)a child protection authority;
(c)a State or Territory legal aid authority; and
(d)a convener of any legal dispute resolution conference.
11.Unless otherwise ordered, no person shall release the family report, or provide access to the family report to any other person.
12.There be liberty to apply.
13.Otherwise all extant applications in respect of the child are dismissed.
AND THE COURT NOTES THAT:
A.The Federal Circuit and Family Court of Australia (Division 1) may not, by virtue of the operation of s 111CD(1)(e) of the Family Law Act 1975 (Cth) determine issues relating to the parenting of the child.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Salamon & Salamon has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HARTNETT J:
PRELIMINARY
The application as dealt with by the Court in these reasons for judgment, goes to a determination of the preliminary issue of whether the Court has jurisdiction to make any parenting orders in respect of a child of the parties.
By Initiating Application filed in the then Federal Circuit Court of Australia (“the FCC”) (now the Federal Circuit and Family Court of Australia) on 16 July 2018, the Applicant father, Mr Salamon (“the father”) sought interim and final parenting orders in relation to the parties’ child, Z, born in 2015 who is now aged six years and three months; and in relation to a child from a previous relationship of the Respondent mother, Ms Salamon (“the mother”). That child, X, born in 2004 who is now aged 17 years, had lived with the father and mother since the commencement of their cohabitation in 2010. The orders sought included that the children live with the father; that there be an airport watch list order; and that there be an injunction restraining the mother from removing Z and X from the Commonwealth of Australia. At that time, the father made no application in respect of the parties’ son, Y, born in 2011 who is now aged ten years.
The father first sought parenting orders in an Australian court in respect of Y in his Application in a Case filed 5 March 2019. In that application, the father sought orders, relevantly, in respect of Y:
1.That service be dispensed with and the matter be dealt with expeditiously.
2.That the mother immediately instruct her parents Mr B and Ms C to hand over Y born on … 2011 to the father, Mr Salamon for him to bring Y to Australia.
3.That the mother immediately hand over to the court both the Russian passport and the Australian passport of Y.
4.That Y live with the father upon return to Australia.
5.That the mother be restrained by injection [sic] from travelling to Russia for so long as Y continues to live in Russia.
On 13 March 2019, the FCC made orders in respect of the father’s earlier application in respect of the child Z. The father’s time spent with Z was reserved amongst other orders. No orders were made in respect of the father’s application pertaining to the child Y albeit the Application of Case of the father of 5 March 2019 was listed to that date.
On 18 July 2019, the FCC made parenting orders by consent in respect of Y. Those orders were, relevantly, as follows:
…
1.On or before 31 December 2019, the mother do such acts and things to cause the child Y born … 2011 to return to the Commonwealth of Australia.
2.The Father bear the costs of the mother’s return ticket to Russia to collect Y pursuant to paragraph 1 herein, together with Y’S one-way ticket to the Commonwealth of Australia as follows:
a)By 1 November 2019, the mother is to provide the father with 3 quotes for tickets of direct and economy flight from Melbourne to Russia return, and Russia to Melbourne one way; and
b)By 8 November 2019, the father is to pay by way of credit card the lowest fare for the mother to travel to Russia through a travel agent nominated by the mother.
3.The parents do all things necessary to ensure that Y remains enrolled at his current school in Russia and completes the school period ending on or about 27 December 2019 in Russia.
4.Upon Y returning to the Commonwealth of Australia, the mother forthwith write to the Independent Children’s Lawyer and the father’s solicitor confirming Y’S return, and the mother provide a certified copy of Y’S passport that contains the arrival stamp from the Department of Immigration (Australia).
5.Upon Y’S return to Australia:
a) The father forthwith:
i.Provide confirmation that he has abandoned all proceedings in Russia pertaining to Y and/or the maternal grandparents Mr B and Ms C with a certified English translation of a court document filed in the Russian proceeding confirming discontinuance of all proceedings relating to Y, the mother and the maternal grandparents and each party to pay their own costs; and
ii.Confirm in writing to the other parties that he no longer pursue his Application in a Case filed 6 March 2019, and Application in a Case filed 12 July 2019.
b) The Mother:
i.Prior to the commencement of term 4 in 2019, the mother do all such acts and things to ensure Y’S enrolment in the zoned primary school closest to her home to commence on the first day of the 2020 school year, and provide confirmation of enrolment to the Independent Children’s Lawyer; and
ii.That no later than 14 days prior to the mother’s departure to collect Y, the mother inform the Independent Children’s Lawyer of the care arrangements of X and Z in her absence AND IT IS REQUESTED that the Independent Children’s Lawyer not disclose this information to the father.
6.Pending Y’S return to Australia, the father be and is hereby restrained from instructing his solicitors (or the father personally) in Russia to pursue any current or pending or future court proceedings (including any appeal arising from the proceedings referenced at paragraph 5 and 6 of the Father’s Affidavit sworn and filed 12 July 2019).
7.The parties be at liberty to provide a copy of these Orders to all authorities and persons to enable the mother’s compliance with paragraph 1 herein.
8.The father be permitted to send the children presents in the first week of January 2020, with the solicitors for the parents to agree in writing as to the particulars of how such presents should be delivered and the mother to provide evidence of receipt of same in the form of photographic evidence to the Independent Children’s Lawyer.
9.Should the mother fail to comply with paragraph 1 herein, the father be at liberty to contact the chambers of Her Honour Judge Mercuri for an urgent listing to press his Applications in a Case filed 6 March and 12 July 2019 or such other Application filed with supporting Affidavit material.
…
Despite the above orders being made, the father did not instruct his lawyers to abandon the abduction proceedings in Russia, nor to terminate the Russian proceedings in any way. Its instigation and continuation is described hereafter. The mother did not act to return Y to the Commonwealth of Australia.
On 31 August 2020, and by consent, the father withdrew from his application to seek any parenting orders in respect of the child X.
The proceeding between the parties in relation to the child Z continues to be extant. Currently, pursuant to orders made on 18 December 2020 and on 5 March 2021, the father shall spend supervised time with Z, with such periods of supervision occurring fortnightly on such dates and times as nominated by the Family Contact Service as operated by Ms U. Those operative orders are interim orders, made by consent.
Ultimately, by her Response to an Application in a Case and Response to Initiating Application filed on 17 February 2020, the mother seeks orders dismissing the father’s various applications in respect of the child Y on the basis that the Court is without jurisdiction to make parenting orders in relation to the child.
In her Response to an Application in a Case filed 17 February 2020, the mother also sought the discharge of the airport watch list order in respect of the child Z, and for the return to her of the Russian and Australian passports of the children X and Z which are currently held by the Court. The mother also sought non-denigration, restraining orders and the like, but all of these additional matters, save for the return of X’s passport, are matters more properly agitated for in the ongoing proceeding between the parties as to the child Z. I note it was agreed between all parties that the issue of jurisdiction with respect to the child Y should be determined in advance of all other issues in the proceeding.
On 26 May 2021, at the end of the three day hearing as to this preliminary issue, I reserved my decision. I also made orders in respect to the child X as follows:
1.It is requested that the Russian and Australian Passports held by the Court in respect of X born … 2004, pursuant to orders made in the Federal Circuit Court of Australia on 17 July 2018 (being Order 5 of the Consent Orders made that day), be released to the mother.
…
For the reasons which follow I have determined that Y is not habitually resident in Australia and that accordingly the Court has no jurisdiction.
RELEVANT FACTS
The father was born in City E, Country D in 1959. He is presently 62 years of age. He is employed in customer service at G Company. He migrated to Australia in 1972, and has lived here since that time. He became an Australian citizen in 1978. He is a citizen of Country D.
The mother was born in 1980, in Russia, and is aged 40 years. She is currently employed on a part-time basis at H University. She is otherwise in receipt of Centrelink benefits. She became an Australian citizen in 2016. She is a citizen of Russia.
The parties married in 2009, in City R, Russia. They did not commence cohabitation until on or about 9 September 2010, when the mother and X, then aged six years, arrived in Australia.
During the course of the marriage, the parties’ children, Y and Z, were born. X resided with the parties, and subsequently with each of his brothers, following their births.
In November 2017, the mother took Y to Russia for, as asserted by her, Y to commence to live with her parents in Russia (“the maternal grandparents”).
The mother’s evidence is that she placed the child in the care of her parents with the agreement of the father, and that it was the mutual intention of the parties that the child would commence and conclude his primary school years in Russia, and at the school that had been attended by the mother when she was a child. The mother’s further evidence is that the residency of Y, in his secondary school years (being either in Russia or Australia) was a matter to be considered by the parties at a future time.
The father’s evidence is to the contrary. His evidence is that Y was taken by the mother from Australia to Russia to live with her parents without his authority, and that when the mother and Y left for Russia, in November 2017, he was unaware that the mother intended to, or would, leave the child in Russia. The father described the trip as a holiday from which he expected the child to return, as had occurred on an earlier trip to Russia in 2013, when the mother had taken X and Y to visit her parents for a two week holiday. That evidence of the father is, however, not only contrary to that of the mother, but indeed contrary to his own earlier Affidavit of evidence sworn 16 July 2018, as discussed hereafter.
The mother denies the allegation now made by the father as to his lack of knowledge and consent as to Y living in Russia.
Y has now continuously resided in the home of the maternal grandparents in Russia since November 2017. He was six years of age at the time of his commencement to so reside.
It is the mother’s evidence, that from about 2014, the parties commenced to discuss whether it was preferable for Y to grow up in Russia, at least for the years that he would spend at primary school. Her evidence is that the parties had a number of discussions over an extended period concerning that issue, and that such discussions had between them were amicable. Those discussions included the parties’ joint observation that Y exhibited some challenging behaviours as a consequence of which the mother arranged for Y to attend upon a woman named Ms J at a childcare centre, who was not a registered psychologist, but a person who was approached to assist in addressing those behaviours.[1] This childcare worker did not think that Y had any psychological issues, rather, some behavioural issues as described by the mother.[2]
[1] The mother’s Affidavit filed 5 March 2019 at paragraph 21.c.
[2] Ibid.
The mother formed the view that Y, in particular, would benefit from a Russian primary school education. In the meantime, Y commenced preparatory class at the K School in Suburb L in 2017.
In November 2017, Y spoke to his mother and brothers mostly in the Russian language, and to his father primarily in English, interspersed with the Country D language. Both parties agree that Y, in November 2017, spoke the Russian language at a basic level, and had also some familiarity with the English language.
Both parties accept that as at 2 November 2017, Y was habitually resident in Australia, a status derived by both his parents’ habitual residence and then his own.
Y entered Russia in November 2017, using his Russian passport.[3] The father had purchased return air tickets for each of the mother and Y for the period 2 November 2017 until 14 November 2017. The mother provided to her parents a Power of Attorney, as signed by her, on 10 November 2017. Her parents needed the Power of Attorney signed by her to care for Y. The father admits that prior to his purchase of the tickets for the mother and Y, the mother did have a conversation with him that she thought it would be beneficial for Y to remain in Russia, and for up to one year as claimed by him. The father claims that he indicated his opposition to that idea.
[3] Affidavit of the father sworn 3 August 2020 at paragraph 115.
Y and the mother travelled to Russia to the home of her parents, Mr B (“the maternal grandfather”) and Ms C (“the maternal grandmother”) in the village of M Town. Her evidence at trial as to why she thought it in the best interests of Y to remain in Russia was that he would be well-educated and receive discipline in his primary school years. Further, he would provide company to her parents who were lonely and are now aged 62 years (the maternal grandmother) and 64 years (the maternal grandfather). Further, it was her belief that Y would develop his already developing Russian language skills, and have knowledge about her country by an exposure to the Russian culture; and that the home of her parents and surrounds provided a better living environment than the one she was then in, with the children and the father. The mother also conceded in her evidence that she had previously acknowledged to Dr N that having a third child was “difficult financially and in terms of stress.”[4]
[4] Report of Dr N dated 3 March 2021 at paragraph 48.
In the middle of November 2017, the mother returned to Australia and the family home. She had left Y in the care of her parents.
Whilst the father’s evidence is that he was not informed that Y would remain in Russia, and that he opposed that course, upon the mother’s return to Australia alone, he:
“Reluctantly agreed to Y remaining in Russia. At that stage, in late-2017 and early-2018”, he said, “I agreed to the mother’s suggestion that Y remain in Russia until November 2018.[5]
[5] Affidavit of the father sworn 10 May 2021 at paragraph 11.
The above evidence of the father was inconsistent with his earlier sworn evidence. In his first Affidavit of evidence before the FCC, and at a time more contemporaneous with the November 2017 events, the husband swore, on 16 July 2018, the following:
…
26. The reason Y now lives in Russia is because the Mother informed me in 2017 that Russia has a better primary school system than Australia. At that time, I told the Mother that I did not want Y to go to Russia. The Mother then threatened to separate from me and take both children to Russia and I felt complied [sic] to agree for Y to go to school in Russia.
27.Originally, the agreement between the Mother and I was that Y would be in Russia for six years for primary school, at which point he would return to Australia.
28.I am now concerned that Y may never return to Australia.
…
The father’s evidence at trial as to the contradictory nature of his earlier evidence was, implausibly, that a typing error had occurred in his first July 2018 Affidavit. He stated that the agreement as between he and the mother was for Y to live in Russia for one year.[6] The evidence above suggests that the mother’s evidence is more accurate, and I find that to be the case. However, I accept that the father came to regret his decision, in particular, after November 2018. I note also that the issue of the mutual intention of the parties is not determinative of the question of habitual residence and no party to the proceeding contended that it was.[7]
[6] Affidavit of the father sworn 10 February 2019 at paragraphs 2 and 104.
[7] LK v Director General Department of Human Services (2009) CLR 582 at [28].
In 2018, the parties’ relationship deteriorated such that in around May 2018, the mother approached Centrelink to enquire as to her and the children’s financial position should the parties separate. The mother arranged a trip overseas for herself and Z and X to travel to Russia and to City E in Country D between 16 June and 9 July 2018. The father indicated his desire to travel with the family on that trip, which was meet with acceptance by the mother. The parties booked return tickets to Australia for the family. There was no ticket booked for Y’Ss return to Australia with them, consistent with the parties’ agreement as to his remaining in Russia until at least the end of 2018.
On 16 June 2018, the parties, together with Z and X, travelled to City R, where they were reunited with Y.
On the 17 June 2018, the parties and the children, Y included, went to holiday in City E where the father’s extended family reside.
The father’s evidence is that, in June 2018, in City E, he was unaware that the mother had already given her parents a Russian Power of Attorney in November 2017. That seems implausible, given that he knew that the child was living in Russia in June 2018; had been living there since November 2017; and would continue to live there until at least November 2018, or until the cessation of Y’Ss primary school years, both outcomes being possible on his own evidence.
On 19 June 2018, the mother asked the father to sign a Country D Power of Attorney. She went with him to the notary in Country D and spent a considerable number of hours with the father obtaining and completing the document. The Power of Attorney, drafted, prepared and executed in the Country D language, was executed by the father, and also provided authority for the maternal grandparents to care for Y as provided by the father.
The father retained possession of the Country D Power of Attorney until on or around 29 June 2018, that being the date on which the mother, X, Y and Z, returned to Russia.
The father did not accompany the family back to Russia. All of the family members travelled to Russia with his consent.
On 29 June 2018, the father delivered the mother and the three children to the airport in City E for their travel to Russia. He returned to his sister’s house where he was then staying. He claims that at that time, he realised that the mother had taken, without his consent, and from his handbag, his Country D Power of Attorney, which made provision for the maternal grandparents to become the guardians of Y.
The father’s evidence is that in the period between him signing the Power of Attorney, on 19 June 2018, and on or around the 29 June 2018, he had discussed separation with the mother; had been assaulted by the mother as had his mother; and had been threatened by the mother that he would be harmed if he returned to Russia with her and the children.[8] His evidence was that he did not trust her.[9] It is implausible that in those circumstances, he would have left a Country D Power of Attorney, signed by him, providing authority for the maternal grandparents to continue their care of Y, in a location readily available and known to the mother if he did not wish for her to have such document to hand over to her parents.
[8] Affidavit of the father sworn 10 May 2021 at paragraphs 19, 20 and 21.
[9] Ibid.
The father’s evidence is also that he allowed the mother and Y to travel back to Russia, simply to say goodbye to the maternal grandparents. That is also implausible. By that time, not only did the father not ‘trust’ the mother, but it is the father’s further evidence that the mother had told him that she was, “not ready” for Y to return to Australia to live.
The mother denies that she: “Tricked the applicant father to enter into a Power of Attorney, or that I stole documents from him.”[10]
[10] Affidavit of the mother on 20 May 2021 at paragraph 29(f).
The mother further denies in her evidence that she threatened the husband and/or his mother in any way as alleged by him. The evidence of the mother, at paragraph 22 of her Affidavit sworn 20 May 2021, is that throughout the relationship, the father would constantly:
(a)physically, sexually and emotionally abuse her;
(b)intimidate and belittle her in front of the children;
(c)threaten her with physical violence and legal action, to the effect that the children would be taken away from her; and
(d)withhold from her, her personal documents and property, including her educational results and qualifications; her Australian citizenship certificate and her taxation documents.
On 8 July 2018, the father returned to City R, Russia, to meet the mother at the airport and accompany her and he now claims, the three children, back to Australia. Y was not at the airport. The father’s evidence is that he was unable to exit the controlled area at the airport (his visa had expired one day earlier). When the Russian Immigration Agency contacted the mother, his evidence is the mother told them not to let him exit the controlled area. The father’s evidence is that had he been able to enter Russia, he never would have agreed to return to Australia without Y.[11]
[11]Affidavit of the father sworn 10 May 2021 at paragraph 24.
On 10 July 2018, the parties and X and Z arrived back in Australia.
On 12 July 2018, the parties separated. The mother made a complaint to Victoria Police that the father had been stalking her, and maintaining surveillance on her, by putting his phone in the back of her car and following it online. The parties had argued with each other. The mother tried to take X and Z and leave the home. Her evidence is that the father would not let her leave, and would not let her sleep. He would also not let the children sleep. The mother was frightened and worried about the children. On the following day, Victoria Police obtained an ex parte interim Intervention Order (“IVO”) on behalf of the mother naming the mother and the children as Affected Family Members protected by the Order. Although the Order made provision for the mother and children to remain in the home, absent the husband, the mother and children, X and Z, entered a women’s refuge and remained in refuge accommodation for approximately six months.
Further interim IVO’s were made against the father for the protection of the mother and children. The father, in November 2019 and February 2020, obtained interim IVO’s against the mother which were not agreed to by her.
In July 2018, the Department of Health and Human Services (“the DHHS”) (now known as the Department of Families, Fairness and Housing) became involved with the family. In respect of that involvement, on 2 November 2018, the DHHS published a summary of protective concerns and outcomes regarding the children in the mother’s care. The summary stated as follows:
Police advised that Mr Salamon has a history of violent behaviour with seventeen previous reports including Intervention Orders against his adult children, ex-wife and other parties…
Child Protection commenced an investigation on 30 July 2018 and did not identify any significant concerns for the safety of the children in the care of their mother. Current assessments of Ms Salamon reflect this assessment. Ms Salamon has fully engaged with the Department and provided safe and appropriate care for the children. X disclosed that he feels much better, refreshed and happier now that they are residing away from Mr Salamon. X disclosed witnessing ongoing verbal and emotional abuse between his parents. Follow up with Z child care indicated that since being solely in his mother’s care and having no contact with his father, Z behaviour has improved greatly, he presents as calmer and has less frequent behavioural outbursts, Z is communicating by using his words more, engaging with peers and following direction. Ms Salamon has maintained a home for the children under adverse conditions having had her car repossessed at Mr Salamon demand and having to leave her home.
X does not want any contact with Mr Salamon at this time. Miaximos has had supervised contact with Mr Salamon, facilitated by Child Protection. The children are currently not having any contact with Mr Salamon at X’s request and as per assessment of risk in relation to Z following threatening and concerning correspondence from Mr Salamon towards Child Protection Personal.
In consultation with Dr P, Principal Practitioner, Ms O, Team Manager and the allocated child protection case manager, the following was opined:
•Mr Salamon presents with features of a number of personality disorders; such as paranoid, schizoid, narcissistic, and anti-social personality disorders.
•Mr Salamon experiences interpersonal difficulties in all settings which leaves him isolated.
•Mr Salamon accepts no responsibility for his actions or the impact he has on others.
•Mr Salamon demonstrates no insight and hence, does not see a need to engage in any counselling to modify the aforementioned risk factors.
•Mr Salamon makes serious threats to harm and remains vengeful in his actions with Ms Salamon for leaving him, as evidenced by having her car repossessed, and taking her personal documents.
•Mr Salamon remains preoccupied with his ‘rights’ to his possessions, including his children.
•Mr Salamon is controlling and has extreme difficulties managing situations where he is not in control. This is evidenced by Mr Salamon writing repeated letters of complaint, sending emails despite being asked not to, and not accepting any plans that are not his or that do not align with his demands.
•Mr Salamon is not child focused, and is unable to regulate his own emotional needs or distress in the best interest of his children.
Based on the above assessment, Child Protection was not supportive of any contact between the children and the father until he had completed a professional assessment by a psychologist or psychiatrist and successfully engaged in and completed an accredited Men’s Behavioural Change Program. DHHS reported that the mother and the children remained at high risk including the fact that the father stalked the mother.
PROCEEDINGS IN RUSSIA
Prior to January 2019, the father did not file any proceeding in respect of Y, in either Australia or in the Russian Federation.
On 24 January 2019, the father, in the Q District Court of the City R (“the District Court”), initiated a civil case against the maternal grandparents and the mother regarding the return of Y from Russia to Australia. The proceeding was issued under The Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Protection of Children of 19 October 1996 (“the Child Protection Convention”), with the father claiming that Y had been illegally retained on the territory of the Russian Federation and should be returned to the place of his permanent residence, namely Australia.
The father was legally represented and present in Russia on the hearing of his application which commenced on 22 April 2020. The maternal grandparents and mother did not appear at the hearing, having beforehand submitted their responses to the claim, rejecting the claim. The representative of the Education Committee of the Municipal Entity “S District” of the T Region of Russia did not appear at the hearing, having beforehand submitted an inspection report of the living conditions at the residence of the maternal grandparents along with their written opinion. The prosecutor submitted the application of the father should be rejected.
On 22 April 2019, the proceeding commenced and was adjourned to 20 May 2019. In the material submitted by the maternal grandparents, the grandparents had indicated the father was at liberty to collect Y from their home at any time. The Court allowed that potential to be explored by the father.
On 23 April 2019, the father and his lawyer travelled to the maternal grandparents’ home in the village of M Town. The father intended to collect Y and return with him to Australia. There was no prior agreement between the father and the grandparents as to the removal of Y from the grandparents care. At the time, the grandfather was away on business, and the grandmother and Y were away, staying with relatives. The father did not see Y.
On 14 May 2019, the father visited Y’Ss school. His visit was not previously conveyed by him to the maternal grandparents, nor the school. The father was accompanied by his lawyer, an interpreter, and his brother. The father attempted to physically remove Y from his school in S District. Y was frightened of his father and would not leave the school with him.
On 17 May 2019, the father returned to the school. He was accompanied by his lawyer and an interpreter. The school called the police and Child Support Services. The mother subsequently provided the police with information as to the IVO proceedings and the DHHS involvement. Y was not present at the school. His grandparents claimed Y was in hospital. They were not present at their home. The father did not see Y.
The father then sought the police investigate the matter and institute criminal proceedings against the maternal grandparents for failing to make his child available to him.
On 20 May 2019, the District Court dismissed the father’s claim. The District Court noted in its decision that the father could appeal the decision to the R City Court within ten days of the date of the District Court decision. The father lodged an appeal with the Judicial Board for Civil Cases of the R City Court (“the Judicial Board”).
On 22 May 2019, the Inter- Municipal Department of the Ministry of Internal Affairs of Russia determined to “ refuse initiating criminal proceedings against [the grandparents]” acting in accordance with the Criminal Code of the Russian Federation, on the basis there was “ enough evidence of lack of crime.” In the course of that investigation, Y was spoken to by the “leading expert” of the Department of Custody and Guardianship of the Education Committee of the S District. Y was reported as saying, relevantly:
…he loved living with his grandparents and he would love his mother and his brothers to live with them too. Y also said that he would go back to Australia only with his mother, and not his father as he was afraid of his father. His father used to make scandals all the time and used to beat him and his mother who the boy was trying to defend. Y also said that he was talking to his mother on a daily basis that they called each other via skype. His father called him before the New Year and during their conversation his father started abusing his grandparents and his mother. The boy did not like it and got very upset. Y’S father had not called him for a long time in these two years that the boy was living in Russia, and did not send any presents. The boy also said that neither his grandfather not his grandmother spoke badly about his father they did not pose any obstacles for him to talk to his father.
The District Court, in its decision, on behalf of the Russian Federation, noted that Y was an Australian citizen, and that up until 2 November 2017, Y had resided with his parents in Suburb L, in the state of Victoria, in Australia. On 2 November 2017, Y and his mother had left Australia for the Russian Federation, and that until the hearing, Y had resided with his grandmother and grandfather in F Street, S District of T Region. The Court noted that those facts were not disputed by the parties.
The District Court set out in its decision that:
(a)issues of illegal movement of a child from a country of their permanent residence and illegal retention of a child outside the country of their permanent residence are regulated by the Convention on the Civil Aspects of International Child Abduction of 25 October 1980;
(b)Australia has not declared its acceptance of the accession of the Russian Federation to this Convention, and therefore the provisions of the Convention of 25 October 1980 between the Russian Federation and Australia were not applicable;
(c)the Russian Federation and Australia were parties to the Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Protection of Children, of 19 October 1996, and it was on that Convention that the father based his claims; and
(d)the Convention of 19 October 1996 entered into force for the Russian Federation on 1 June 2013 and its requirements for Australia and the Russian Federation was binding at that time.
The District Court noted that:
Pursuant to article 50 of the Hague Convention of 19 October 1996, this Convention does not provide for the application of the Convention of 25 October 1980, on the Civil Aspects of International Child Abduction between the states parties to both Conventions. However, nothing prevents the application of the provisions of this Convention for the purposes of returning a child who has been unlawfully removed or retained, or to exercise access rights.
The District Court found that Y arrived in the Russian Federation with the consent of his father, on 2 November 2017. Further, that:
(i)on 10 November 2018 [sic], the mother issued a Power of Attorney to the maternal grandparents authorising them to act as guardians of Y in the Russian Federation;
(ii)on 28 June 2018, the father issued a Power of Attorney to the maternal grandparents by virtue thereof authorising the maternal grandparents to act as guardians of Y in the Russian Federation;
(iii)on 27 November 2018, the Power of Attorney was revoked by the father, and the said revocation of the power of attorney was sent to the maternal grandparents and the mother via email, on 11 December 2018;
(iv)according to the Inspection Report on Living Conditions of the Child by the Education Committee of the Municipal Entity “S District”, of the T Region, there are adequate conditions for the residence of a minor child, the boy has been allocated a separate room equipped with a sleeping place, the material and living conditions of the family are good, the psychological situation in the family is good, there is a friendly relationship between family members; and
(v)Y attended year one of the Municipal State General Education Institution. According to the opinion of the Education Committee of the Municipal Entity “S District” of the T Region, the child residing with the maternal grandparents does not contradict the interests of the child, and there are all the necessary conditions for his living, development and education.
The District Court did not accept the father’s arguments that “the movement of the minor and his presence in the Russian Federation was unlawful, because this conclusion contradicts the case materials and the established circumstances.”
The District Court concluded:
Taking into account the above circumstances, having regard to the fact that the minor is the son of a citizen of the Russian Federation and has been residing on the territory of the Russian Federation for over a year, has fully adapted to the social and educational environment, with all adequate conditions having been created for the minor’s life and development, and taking into account that illegality of the child’s movement and retention on the territory of the Russian Federation has not been established, the court finds that the claims cannot be satisfied.
In making its decision, the District Court also took into account that Y’Ss father was not deprived of his ability to exercise his parental rights in other ways.
In early July 2019, and following the decision of the District Court, the mother travelled to Russia to spend time with her parents and Y. She stayed for approximately two weeks and returned to Australia without Y.
On 8 October 2019, the Judicial Board ruled that the decision of the District Court of 20 May 2019, “remained unchanged and the appeal be dismissed.”
The mother claims that since the parties have separated, the father has sought to control her and the children by using legal processes in both Australia and Russia. He has continued to abuse her through text message and social media platforms. He has corresponded with her parents, referring to the mother as: “That evil, crazy bitch” and referring to the maternal grandparents as: “Dirty, filthy pigs.”
The father has further been abusive and threatening to the maternal grandparents, as they have to him, and sought to denigrate the mother to Y during electronic communications had by him with Y. The grandparent’s response, in 2018 in part, was as follows:
…why do you keep taunting the child? You what? You better send him the money you, impudent bastard…you, ugly stinky son-of-a-bitch, you drove my daughter to…,ugly f…beast…[to the child] did he pick you up from Country D? [to the father] I will show you f…son-of-a-bitch, ugly f…beast…why have you churned out children and you don’t raise them!?...[to child] don’t you believe him Minoa…
…then, don’t you dare talking to him, so he does not say anything bad about your mum, anything bad about you, he does not say anything bad about anybody…tell him to send you the money, to buy you clothes, let me tell him myself.
In early 2021, the father and child communicated via WhatsApp audio chat, with the assistance of a Russian friend of the father who helped to translate for the father and child. During those three phone calls, the grandparents were present, controlling the communication. After the third audio phone call, the grandparents ceased such contact.
THE LAW
The applications before me are to be determined by reference to the provisions of the Child Protection Convention.
Australia has signed and ratified the Child Protection Convention. The Russian Federation accessioned the Child Protection Convention in 2013. “Accession” is the act whereby a state accepts the offer or the opportunity to become a party to a treaty already negotiated and signed by other states. It has the same legal effect as ratification.[12] Accession entitles Russia the status of ‘Contracting State” in the Convention.
[12] Vienna Convention on the Law of Treaties 1969 at articles 2(1)(b) and 15.
Article 5 of the Child Protection Convention states that:
(1)The judicial or administrative authorities of the Contracting State of the habitual residence of the child have jurisdiction to take measures directed to the protection of the child's person or property.
(2)Subject to Article 7, in case of a change of the child's habitual residence to another Contracting State, the authorities of the State of the new habitual residence have jurisdiction.
Article 7 is principally concerned with the wrongful removal of a child from the child’s habitual residence. It is common ground that the parties consented to Y being resident in Russia from November 2017 to November 2018, at the least.
Section 69E of the Family Law Act 1975 (“the Act”) provides as follows:
Child or parent to be present in Australia etc.
(1) Proceedings may be instituted under this Act in relation to a child only if:
(a)the child is present in Australia on the relevant day (as defined in subsection (2)); or
(b)the child is an Australian citizen, or is ordinarily resident in Australia, on the relevant day; or
(c)a parent of the child is an Australian citizen, is ordinarily resident in Australia, or is present in Australia, on the relevant day; or
(d)a party to the proceedings is an Australian citizen, is ordinarily resident in Australia, or is present in Australia, on the relevant day; or
(e)it would be in accordance with a treaty or arrangement in force between Australia and an overseas jurisdiction, or the common law rules of private international law, for the court to exercise jurisdiction in the proceedings.
Jurisdiction is conferred on the Court, pursuant to section 69E(1)(b), as Y is an Australian citizen, and section 69E(1)(c) and (d), as the parents are and were at all relevant times Australian citizens, ordinarily resident in Australia and present in Australia.
The provision of the Child Protection Convention exists within Australian law by virtue of the provisions of Division 4 of Part XIIIAA of the Act (“Division 4”).
Section 69E of the Act also notes that Division 4 has effect, despite the section. Any provisions (save some irrelevant to this determination) of Division 4 that limit the jurisdiction of the Court that has been conferred under section 69E of the Act, must therefore prevail.[13]
[13] Lynch v Hagen [2020] FamCA 606; Jespersen & Frankel [2020] FamCA 239; Lao & Yeng [2018] FamCA 560.
Section 111CD(1) provides as follows:
Jurisdiction relating to the person of a child
(1)A court may exercise jurisdiction for a Commonwealth personal protection measure only in relation to:
(a) a child who is present and habitually resident in Australia; or
(b)a child who is present in Australia and habitually resident in a Convention country, if:
(i)the child's protection requires taking the measure as a matter of urgency; or
(ii)the measure is provisional and limited in its territorial effect to Australia; or
(iii) the child is a refugee child; or
(iv)a request to assume jurisdiction is made to the court by, or at the invitation of, a competent authority of the country of the child's habitual residence; or
(v)a competent authority of the country of the child's habitual residence agrees to the court assuming jurisdiction; or
(vi) the court is exercising jurisdiction in proceedings concerning the divorce or separation of the child's parents or the annulment of their marriage (but see subsection (3)); or
(c) a child who is present in a Convention country, if:
(i) the child is habitually resident in Australia; or
(ii)the child has been wrongfully removed from or retained outside Australia and the court keeps jurisdiction under Article 7 of the Child Protection Convention; or
(iii)a request to assume jurisdiction is made to the court by, or at the invitation of, a competent authority of the country of the child's habitual residence or country of refuge; or
(iv) a competent authority of the country of the child's habitual residence or country of refuge agrees to the court assuming jurisdiction; or
(v)the child is habitually resident in a Convention country and the court is exercising jurisdiction in proceedings concerning the divorce or separation of the child's parents or the annulment of their marriage (but see subsection (3)); or
(d) a child who is present in Australia and is a refugee child; or
(e) a child who is present in a non-Convention country, if:
(i) the child is habitually resident in Australia; and
(ii) any of paragraphs 69E(1)(b) to (e) applies to the child; or
(f) a child who is present in Australia, if:
(i) the child is habitually resident in a non-Convention country; and
(ii) any of paragraphs 69E(1)(b) to (e) applies to the child.
(2)A court may only exercise jurisdiction in accordance with subparagraph (1)(b)(ii) if the measure is not incompatible with a foreign measure already taken by a competent authority of a Convention country under Articles 5 to 10 of the Child Protection Convention.
As can be observed, s 111CD of the Act qualifies the jurisdiction otherwise conferred on the Court pursuant to s 69E of the Act.
Section 111CD of the Act sets out limits on the circumstances in which, in relation to a child not habitually resident in Australia, the Court can exercise its jurisdiction in relation to a Commonwealth Protection Measure.
Section 111CA of the Act (which falls within Division 4) defines a: “Commonwealth Personal Protection Measure” as a measure within the meaning of the Child Protection Convention. Article 3(b) of the Child Protection Convention defines measures within the meaning of the Convention to include:
Rights of custody, including rights in relation to the care of the person of the child and, in particular, the right to determine the child’s place of residence, as well as rights of access, including the right to take a child for a limited period of time to a place other than the child’s habitual residence.
The orders sought by the father, being orders in relation to the care of Y, are therefore measures within the meaning of the Child Protection Convention. The orders are, in turn, Commonwealth Personal Protection Measures within the meaning of section 111CA of the Act. Y is living in a Child Protection Convention country.
The Court has jurisdiction pursuant to section 111CD(1)(c)(i) of the Act, if Y is present in Russia, but habitually resident in Australia. I raised with Counsel the issue of the relevant time at which habitual residence is to be determined. The response of Independent Children’s Lawyer (“the ICL) and the mother was, at the present time, that being the time of hearing and/or determination of the preliminary issue. The father described the date as being, on 18 July 2019, being the time at which the mother, by consent, had agreed with the father to orders providing for the return by her of Y to Australia. In the alternative, the father contended it was when the father filed his proceeding in respect of parenting orders for the children X and Z being 16 July 2018. I do not accept the submissions of the father. The issue of proceedings for children, not being Y, cannot support the father’s case. Orders made without a jurisdictional basis, which may have occurred, do also not assist the father’s case.
There are a number of first instance judgments which support the view that it is the date of the determination of this preliminary issue, rather than any other time that is the relevant day.[14] Tree J held in Ahmad & Hadi [2020] FamCA 1041, at [37]:
Ultimately I am persuaded that the proper construction of s 111CD requires habitual residence to be determined at the date of the relevant hearing. Particularly, such a construction is more aligned to the apparent purpose of the provision, namely that child related litigation should be determined in the place where they are habitually resident. It could not promote that objective to have the parenting arrangements for a child who was habitually resident in Australia at the commencement of the proceedings, but perhaps many years later, when incontrovertibly habitually resident elsewhere, determined in Australia.
[14] See Bunyon & Lewis (No. 3) [2013] FamCA 888, at 185 to 189 for Bennett J; Sun & Long [2019] FamCA 3, at 50, per McClelland DCJ; and Duckworth & Jamison [2014] 51 Fam LR 471, at 32.
I am inclined to the view that the proper construction of section 111CD requires habitual residence to be determined at the date of the hearing.
Is the Child Habitually Resident in Australia
Relevant Legal Principles
In Yardlay & Commissioner of Police [2020] FamCAFC 186, the Full Court reiterated that the law relating to habitual residence in Australia was settled by the High Court in LK & Director General, Department of Community Services [2009] HCA 9. In Secretary, Department of Family and Community Services & Padwa [2016] FamCAFC 57 at [31]-[38]:[15]
[15] Ahmad & Hadi [2020] FamCA 1041 at [38].
31.The High Court (French CJ, Gummow, Hayne, Heydon & Kiefel JJ) dealt with the question of habitual residence under the Regulations and the Convention in [LK v Director-General, Department of Community Services (2009) 237 CLR 582 (“LK”)]. Having (at [21]) noted that the explanatory report on the Convention described habitual residence as a “question of pure fact, ‘differing in that respect from domicile’”, at [22] the High Court said:
22.To approach the term only from a standpoint which describes it as presenting a question of fact has evident limitations. The identification of what is or may be relevant to the inquiry is not to be masked by stopping at the point of describing the inquiry as one of fact. If the term "habitual residence" is to be given meaning, some criteria must be engaged at some point in the inquiry and they are to be found in the ordinary meaning of the composite expression. The search must be for where a person resides and whether residence at that place can be described as habitual.
(footnote omitted)
32.In Re B (A Child)(Habitual Residence: Inherent Jurisdiction), Lady Hale and Lord Toulson supporting Lord Wilson’s decision said:
57.We fully agree with Lord Wilson’s reasoning and conclusion on the issue of habitual residence. He has described the identification of the child’s habitual residence as overarchingly a question of fact (para. 46). At the risk of appearing pedantic, we would prefer to describe it as a mixed question of fact and law because the concept is a matter of law but its application is a matter of fact …
33. Returning to LK, the High Court said:
23.Having regard, however, to the stated determination to eschew definition of the expression in its use in the Abduction Convention, and other instruments derived from the work of the Hague Conference, it would be wrong to attempt in these reasons to devise some further definition of the term intended to be capable of universal application. Rather, it is sufficient for present purposes to make two points. First, application of the expression "habitual residence" permits consideration of a wide variety of circumstances that bear upon where a person is said to reside and whether that residence is to be described as habitual. Secondly, the past and present intentions of the person under consideration will often bear upon the significance that is to be attached to particular circumstances like the duration of a person's connections with a particular place of residence.
…
27.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. The younger the child, the less sensible it is to speak of the place of habitual residence of the child as distinct from the place of habitual residence of the person or persons upon whom the child is immediately dependent for care and housing. But if, as the writings about the Abduction Convention and like instruments repeatedly urge, the question of habitual residence of a child is one of fact, 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.
Purpose and intention
28.Although intention is a necessary element in deciding domicile of choice, and "habitual residence" is chosen as a connecting factor in preference to domicile, examination of a person's intentions will usually be relevant to a consideration of where that person habitually resides. Sometimes, intention will be very important in answering that question. The example of a person who leaves a jurisdiction intending not to return is one such case. But unlike domicile, considerations relevant to deciding where a person is habitually resident are not necessarily confined to physical presence and intention, and intention is not to be given controlling weight.
29.First, individuals do not always act with a clearly formed and singular view of what it is intended (or hoped) that the future will hold. Their intentions may be ambiguous.
…
34.… No less importantly, it may be accepted that the general rule is that neither parent can unilaterally change that place of habitual residence. The assent of the other parent (or a court order) would be necessary. But again, if it becomes necessary to examine the intentions of the parents, the possibility of ambiguity or uncertainty on the part of one or both of them must be acknowledged.
35.… to seek to identify a set list of criteria that bear upon where a child is habitually resident, or to attempt to organise the list of possible matters that might bear upon the question according to some predetermined hierarchy of importance, would deny the simple observation that the question of habitual residence will fall for decision in a very wide range of circumstances. And examination of decided cases in the area does not require the identification of a closed set of criteria, or the attribution of predetermined weighting between them.
(emphasis added)
34.In the course of its reasons in LK the High Court considered what was said by the Court of Appeal of New Zealand in Punter v Secretary for Justice (“Punter”). The High Court said:
44.… As the plurality rightly said, the search is for the connection between the child and the particular state. That being the nature of the search the pluralitY’ss references to settled purpose are to be read as directing attention to the intentions of the parents. But as explained earlier in these reasons, the relevant criterion is a shared intention that the children live in a particular place with a sufficient degree of continuity to be properly described as settled.
35.The shift away from the concentration on shared parental intention in determining habitual residence is evident from the UK Supreme Court’s decision in A v A (Children: Habitual Residence) (Reunite International Child Abduction Centre and ors intervening), AR v RN (Habitual Residence) and Re B (A Child) (Habitual Residence) (above). Although not binding on us, uniformity with decisions made in other jurisdictions interpreting the same Convention is desirable at the very least, and the UK jurisprudence is consistent with what the High Court has decided in LK.
36. Crucially, the High Court went on to say in LK:
45.Moreover, the approach described in Punter accords with the general tenor of decisions in the United States of America. It may be observed of those decisions that there is seen to have been a division between the Circuit Courts of Appeals about the relevance of the parents' subjective intentions for the child or children concerned. When it is also observed, however, that the resolution of the competing approaches has been to invite attention to whether presence at a place has a "degree of settled purpose from the child's perspective" (emphasis added), the difference in expression of the relevant considerations may not be great. At all events, a thread common to the leading decisions in the United States remains the need to look at all of the circumstances of the case. And it is that approach, as described in Punter, which should be followed.
(footnotes omitted)
37.It is of considerable importance that the High Court justices themselves highlighted the words “from the child’s perspective”.
38.In determining habitual residence the ultimate question for the trial judge was whether, immediately prior to 19 December 2015, the child’s presence in the Netherlands had a degree of settled purpose from the child’s perspective, in all the circumstances of the case, to result in the conclusion that the child was habitually resident in the Netherlands.
(Footnotes omitted)
The weight to be given to the settled intention of the parents was considered by Bennett J in State Central Authority & Handbury [2019] FamCA 668 to be no more determinative than any other factor.[16]
[16] State Central Authority & Handbury [2019] FamCA 668 at [218].
CONCLUSION
The father relied upon the provisions of s 111CD(1)(c)(i) of the Act and asserts that the Court should find the child Y to be habitually resident in Australia at the relevant time. Therefore, he submits the Court should exercise jurisdiction in respect of parenting orders as sought by him.
The father may have had grave reservations about Y remaining in Russia for his primary school years and/or for a 12 month period but that does not alter the fact that he acquiesced in the arrangements for Y to remain in the Russian Federation from November 2017 such that it became the mutual intention of the parties at that time. Y is now well settled in Russia with all aspects of his physical, educational, financial and emotional life well provided for by his maternal grandparents. Indeed, the father commenced proceedings under the Child Protection Convention in Russia and not Australia seemingly acknowledging that fact.
As set out above, Y has lived in Russia since November 2017 which represents approximately 40 per cent of his life. Russia is a Contracting State to the Child Protection Convention (and accordingly a Convention country for the purposes of the Act) and the Convention was in force at all material times.
When considering whether there is a “degree of settled purpose from the child’s perspective”,[17] a significant factor in a determination of habitual residence, it is clear, that this factor supports on the evidence the finding of Y having a habitual residence in the Russian Federation. Y has now lived in Russia between November 2017 and May 2021. That is an incontrovertible fact. He has lived, throughout that entire period in the home of his maternal grandparents in the village of M Town.
[17] LK v Director-General, Department of Community Services (2009) 237 CLR 582 at [44].
Y has a settled routine in Russia. If he were to now return to Australia, he would not be able to speak English, would miss his primary care-givers of many years, his friends and home in a small village, and, his now further developed Russian culture.
He speaks with his mother most weekends for at least one or two hours on a Saturday and a Sunday. Occasionally they speak during the week. Y has never indicated to his mother that he wishes to return to Australia to live.
Importantly, and perhaps determinatively, the Russian Federation courts have already determined the matter and in the process determined that they were the relevant and appropriate authority to deal with all parenting matters concerning Y. They did not seek to have the Australian courts involved.
Given that Y is not habitually resident in Australia but rather in the Russian Federation, there is no power for this Court to exercise jurisdiction as sought by the father.
I certify that the preceding ninety-eight (98) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hartnett. Associate:
Dated: 15 October 2021
Annexure A – Orders sought by the father
1.That the orders sought by the mother be dismissed.
2.The mother within 48 hours to surrender to the Family Court Registry Melbourne her Australian and Russian passports.
3.The mother to be restrained by injunction from leaving the Commonwealth of Australia and her name to be placed on the airport watch list until Y has safely returned to the Commonwealth of Australia.
4.The mother within 7 days to inform he Australia Government authorities, the Russian Embassy in Australia and the T Region authorities that Y born … 2011 is free to travel and that the father will make arrangements for this safe travel back to the Commonwealth of Australia.
5.The mother within 7 days to inform the Australian Governmental authorities, the Russian Embassy in Australia and the T Region authorities that Y born on … 2011 is free to travel and that the father will make arraignments for his safe travel back to the Commonwealth of Australia.
6.The mother to follow all the instructions of this father and provided to her by the father’s lawyer for the safe travel arrangements of Y to return back to the Commonwealth of Australia.
7.The mother to ensure that Y is not moved from his residing address of F Street, M Town, S District, T Region Russia.
8.The mother within 7 days does all things and put in contact Y with his father via WhatsApp or any other similar method of electronic communication.
9.Y to live with his father upon his return to the Commonwealth of Australia.
10.That the mother be imprisoned should she fail to obey the Orders of this Court and any further Orders of this Court.
That the orders sought in the Applicant’s Application in a Case filed 2 March 2021, be amended, such that:
1.The mother immediately revoke the power of attorney (signed on 10 November 2017) which she gave to her parents.
2.That the father immediately spend unsupervised time with Z, with handover to occur at McDonald’s restaurant, Suburb L.
3.That there be a change of residence for both children:
a.Y born … 2011; and
b.Z born … 2015;
So that both children live with the father immediately.
4.The father immediately travel to Russia for the purpose of recovering the child, Y, returning him to the Commonwealth of Australia, purchasing a one-way ticket for the child to Australia, and/or, that the father make travel arrangements (including Y being accompanied by a third party) for the safe return of Y to the Commonwealth of Australia.
5.The court grant all other orders sought in my Application in a Case of 2 March 2021.
6.Any other orders(s) as this Honourable Court deems fit.
That the orders sought in the Applicant’s Application in a Case, filed 2 March 2021, and the orders sought in the Applicant’s (Amended) Application in a Case, filed 10 May 2021, be amended, such that:
1.The child Z, born … 2015, remain on the airport watch-list and not be permitted to leave the Commonwealth of Australia prior to attaining eighteen years of age.
Annexure B – Orders sought by the mother
1.That all previous parenting orders in relation to the children be discharged.
2.That any part of the Applicant Father’s application that relates to X, born … 2004 be dismissed.
3.That the Applicant’s initiating application in relation to the Y born … 2011 be dismissed on the basis that the Court is without jurisdiction to make parenting orders in relation to this child.
4.That the Applicant’s application in a Case filed 10 May 2021 be dismissed.
That Z, born … 2015 live with the Respondent Mother and the Respondent Mother have sole parental responsibility for Z.
5.That the Applicant Father spend supervised time with the Z on terms that the Court thinks fit. The Applicant Father is responsible for the cost of supervision. The Applicant Father will indemnify the Respondent Mother against any loss caused by his failure to pay the fees.
Airport Watchlist Order
7.That the airport watchlist order for Z be discharged and the Applicant Father return all travels documents and identification documents for any of the children that is in his possession to the Respondent Mother.
8.That the Russian and Australian passports of X and Z which are currently held by the Court be returned to the Respondent Mother.
Restraints
9.Each parent be restrained by injunction from denigrating the other parent and/or their family members and friends to the children or in the presence of the children and shall do all things reasonably necessary to remove the children from any environment in which the other parent and/or their friends or family are being denigrated in the presence of the children.
10.Each parent be restrained by injunction from passing information or messages through the children to the other parent.
11.Each parent be restrained by injunction from discussing these proceedings and/or their family law dispute with the children.
Other Orders
12.Any other order that the Court thinks fit.
13.The Applicant Father pay the Respondent Mother’s legal costs.
10
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